Calcutta High Court (Appellete Side)
Kreamz Confectionery Private ... vs Kreamz Cakes And Bakes Private ... on 18 May, 2023
18.05.2023
KC(2&3)
F.M.A.T. 161 of 2023
Kreamz Confectionery Private Limited
-versus-
Kreamz Cakes and Bakes Private Limited
With
CAN 1 of 2023
With
CAN 3 of 2023
With
F.M.A.T. 206 of 2023
Prasenjit Saha and Ors.
-versus-
Kreamz Confectionery Private Limited
With
CAN 1 of 2023
(Assigned)
Mr. Jishnu Choudhury,
Ms. Sonal Agarwal,
Ms. Anupa Banerjee,
Mr. Tanay Agarwal,
Mr. Shivam Bhimsara.............For the appellant in
F.M.A.T. 161 of 2023 and
for the respondent in
F.M.A.T. 206 of 2023.
Mr. Debnath Ghosh,
Mr. Chayan Gupta,
Mr. Pourush Bandyopadhyay,
Mr. Niladri Banerjee,
Mr. Soumyojyoti Nandy,
Mr. Deepankar Thakur ........... For the respondent in
F.M.A.T. 161 of 2023 and
for the appellant in
F.M.A.T. 206 of 2023.
We admit both the appeals. We propose to hear
them out dispensing with all formalities.
In each of the appeals the advocate-on-record for
the appellant/appellants will prepare an informal
paper book and file it in this Court by 16th June,
2023 serving a copy thereof on the advocate-on-
record for the respondents at least five days before the
date fixed for hearing of the appeals. We make it clear
that there shall be a separate paper book for each
appeal.
List the appeals for hearing on 26th June,
2023.
By an ex parte order dated 5th April, 2023 a
division bench hearing the appeal (F.M.A.T. 161 of
2023) from the impugned judgment and order of the
learned court below dated 31st March, 2023 refusing
injunction made an ad-interim order of injunction
restraining the respondent from using the mark
"Kreamz Celebrating Life" and "Kreamz Cakes and
More" in any manner whatsoever. However, the said
order would not prevent the respondent to carry on
business using any other device mark other than the
"marks forming the subject matter of the suit" in
relation to its products.
Aggrieved by this order, the respondent has made
an application for vacation of this order (CAN 3 of
2023).
The other appeal before us (F.M.A.T. 206 of 2023)
is against the judgment and order dated 12th April,
2023 of the learned court below in a separate suit [Title
Suit No. 7 of 2023 (CC)] filed by the respondent/
plaintiff restraining the appellants/defendants from
carrying on any business which is competitive with the
business of the respondent. By the impugned order the
learned court below restrained the appellants from
carrying on any business in confectionery, cakes etc.
The result is a clash of two orders, dated 5th April,
2023 of our division bench and the other dated 12th
April, 2023 of the learned court below.
At this stage we are not minded to interfere with
the discretion of the division bench in appreciating the
prima facie case regarding entitlement to the use of the
trade marks, balance of convenience and irreparable
loss and injury factors, resulting in the said order
restraining the respondent in F.M.A.T. 161 of 2023 from
using the said marks but allowing them to carry on
business using any other mark.
We only clarify that the said two marks referred to
in the order dated 5th April, 2023 would also imply any
word or mark which is a variation of it or similar to it.
We modify the impugned judgment and order
dated 12th April, 2023 to the effect that the appellants
in F.M.A.T. 206 of 2023 can carry on business
according to the order dated 5th April, 2023 but shall
not utilise the goodwill of the respondent in any manner
and shall not entice its employees or franchisees to
work for them. The appellants shall not carry on any
similar business as that of the respondent within a
range of 100 metres from any business centre or retail
outlet of the respondent. Within two weeks from date
the appellants shall remove the said marks from their
hoardings, brochures and other materials.
The applications (CAN 1 of 2023 and CAN 3 of
2023 in F.M.A.T. 161 of 2023 and CAN 1 of 2023 in
F.M.A.T. 206 of 2023) are disposed of.
(I.P. MUKERJI, J.)
(BISWAROOP CHOWDHURY, J.)
