Kamruddin I. Mehsaniya (“the Plaintiff”) had filed a Suit against our client M/s. Sarah International  (“the Defendant”) before the Hon’ble Bombay High Court. Under the said Suit Kamruddin was seeking permanent injunction for infringement of his trade mark “KIMIA” and passing off against our client.

The Plaintiff had obtained an ex parte injunction order  dated 24.07.2020 against our client and had restrained them from marketing, distributing, packaging, importing, selling and/or using the mark “SARAH KIMIA” in relation to their wet dates, or any other like goods.

We took out an application (on behalf of the Defendant) under Order 39 Rule 4 of the Code of Civil Procedure 1908 to vacate the said an ex parte order and filed a reply to the Interim Application of the Plaintiff.

Our counsel Shri Purandare argued that the Plaintiff has made false averments in the Plaint and that KIMIA is a specific variety of dates and is descriptive of a particular kind of dates.

Dr. Tulzapurkar Sr. Counsel for the Plaintiff submitted that Defendant’s trade mark application is in respect of all kinds of dates and therefore, KIMIA
cannot be said to be a description.

However the Hon’ble Court vide an order dated 05/01/2021 held that KIMIA was a variety of date and is used by the Defendant as a variety. Thereby the said ex-parte order was vacated on the ground that the Plaintiff had been economical with truth and that prima facie KIMIA is a description/variety of goods.

Conclusion

Thereafter the Plaintiff sought to stay the order and had also filed an Appeal to challenge the said order dated 05/01/2021. However the same was refused and the Appeal was disposed by the Division Bench of the Hon’ble Bombay High Court vide an order dated 28/01/2021.