[Cites 3, Cited by 0]
Calcutta High Court
Parul Ruparella And Anr vs Camme Wang And Anr on 4 February, 2026
Author: Debangsu Basak
Bench: Debangsu Basak
2026:CHC-OS:37-DB
OCD-2
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE DIVISION
COMMERCIAL DIVISION
ORIGINAL SIDE
APO-IPD/1/2026
IA NO: GA-COM/1/2025
PARUL RUPARELLA AND ANR
VS
CAMME WANG AND ANR
BEFORE:
The Hon'ble JUSTICE DEBANGSU BASAK
-AND-
The Hon'ble JUSTICE MD. SHABBAR RASHIDI
For the Appellants : Mr. Ranjan Bachawat, Sr. Adv.
Mr. Rudraman Bhattacharya, Sr. Adv.
Mr. Sourajit Dasgupta, Adv.
Mr. Dhruv Chaddha, Adv.
Mr. Victor Dutta, Adv.
Mr. Sagnik Bose, Adv.
For the Respondents : Mr. Suvasish Sengupta, Adv.
Mr. Syed E. Huda, Adv.
Ms. Pratiksha Shama, Adv.
Ms. Anwesha Guha Ray, Adv.
Ms. Nabeela Akbar, Adv.
Mr. Sahadat Ali, Adv.
Mr. Himadri Roy, Adv.
Mr. Deepesh Sharma, Adv.
Ms. Amrin Khatoon, Adv.
HEARD ON : 04.02.2026
DELIVERED ON : 04.02.2026
2026:CHC-OS:37-DB
DEBANGSU BASAK, J.:-
1. Appeal is directed against the judgment and order dated December
5, 2025 passed by the learned Single Judge in GA-COM/1/2025
and GA-COM/3/2025.
2. By the impugned judgment and order, the learned Single Judge
dismissed both the applications filed at the behest of the
appellants as the plaintiffs.
3. Learned Senior Advocate appearing for the appellants submits
that, the appellants filed a suit for infringement and passing off. In
such suit, the appellants applied for interim protection by way of
GA-COM/1/2025. Initially, an interim order of injunction was
granted. On contested hearing, the same was vacated by the
impugned judgment and order.
4. Learned Senior Advocate appearing for the appellants refers to the
conduct of the respondents herein. He submits that, the
respondents were the manufacturer of components and torch
lights with regard to orders placed by the appellants from time to
time. He points out that, the respondents are Chinese entities. The
trademark in the name and style of "PL SUPREME" was registered
in favour of the appellants, in India. He refers to the registration
certificate issued in this regard. He submits that, the respondents
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started infringing the registered trademark of the appellants. Upon
coming to know of the same, the appellants filed the instant suit.
5. Learned Senior Advocate appearing for the appellants refers to the
transactions that took place between the parties prior to the suit
being filed. He submits that, the respondents were supplying the
appellants from time to time with the components and torch lights.
The respondents after a given point of time, applied for registration
in India. Such registration was objected to by the authorities. The
respondents claimed prior user before the authorities. He refers to
the documents submitted before the authorities on the claim of
prior user. He submits that, such documents were fabricated and
interpolated and at least, does not establish prior user. Documents
to establish prior user were not fruitful. The respondents withdrew
from the claim of prior user before the authorities.
6. Learned Senior Advocate appearing for the appellants submits
that, since, there is a registered trademark existing in favour of the
appellants, in the suit for infringement and passing off, the
appellants are entitled to an order of injunction unless, the
respondents are able to establish continuous uninterrupted prior
user. In the facts and circumstances of the present case, he
submits that, such fact is not established. The so called claim of
sale to third parties outside India is of no consequence. In any
event, the same is not a continuous uninterrupted prior user
sought to be claimed.
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7. Referring to the documents relied upon by the respondents before
the learned Single Judge, learned Senior Advocate appearing for
the appellants submits that, the affidavits were not properly
affirmed. He points out that, the deponent of the affidavit did not
pledge his oath to the portion which are true to his knowledge and
the portion which are submissions. He relies upon (1969) 3
Supreme Court Cases 864 (A.K.K. Nambiar Vs. Union of India
and Anr.) on the issue of non-verification of the affidavit. He points
out that, there was no material placed on affidavit to suggest that
there was continuous uninterrupted user by the respondents.
8. Learned Senior Advocate appearing for the appellants submits
that, the claim of the respondents that, they were prior user is
wholly unreliable. He submits that, the sale by the respondents
was to the appellants in India. No document of agency is put
forward. In fact, the claim of the respondents, if taken at the
highest, is a claim of sale of goods through the appellants.
Therefore, the same cannot constitute as a continuous
uninterrupted prior user independent of the appellants.
9. The learned Senior Advocate appearing for the appellants relied
upon 2007 SCC Online Mad 1650 (Amaravathi Enterprises Vs.
Karaikudi Chettinadu) for the proposition that, where, the
documents of continuous uninterrupted prior user is suspect,
then, the appellants are entitled to an order of injunction as
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prayed for. He submits that, the learned Trial Judge, erred in
vacating the subsisting order of injunction.
10. Learned Advocate appearing for the respondents relies upon
(2001) 5 Supreme Court Cases 95 (Uniply Industries Ltd. Vs.
Unicorn Plywood Pvt. Ltd.) and submits that, there are
substantial materials on record to establish continuous
uninterrupted user of the trademark by the respondents. In this
regard, he draws the attention of the Court to the supplementary
affidavit affirmed on behalf of the respondents on November 10,
2025 before the learned Single Judge. He submits that, such
affidavit refers to the "Annexure-A" of the affidavit-in-opposition
initially filed to GA-COM/1/2025. He submits that, the
supplementary affidavit is appropriately verified. He also contends
that, the supplementary affidavit, independent of any other
affidavits filed on behalf of the respondents before the learned
Single Judge contains all documents to establish that there was
continuous uninterrupted prior user of the trademark by the
respondents.
11. In response, the learned Senior Advocate appearing for the
appellants submits that, the appellants are required to establish
continuous uninterrupted prior user failing which, the appellants
are entitled to the relief as prayed for.
12. As noted above, in a suit for infringement and passing off, the
appellants as the plaintiffs applied for interim order of injunction
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by way of GA-COM/1/2025. Initially, an ex parte ad interim order
of injunction was granted by the learned Single Judge. Alleging
violation of such order, the appellants filed another application by
way of GA-COM/3/2025 by which the appellants sought
appointment of a Receiver.
13. By the impugned judgment and order, the learned Single Judge
dismissed both these applications of the appellants. Learned
Single Judge returned the findings that the appellants failed to
establish a strong prima facie case in their favour and that balance
of convenience and irreparable injury were not in favour of the
appellants also. In addition thereto, the learned Single Judge
found that there was suppression and bad faith on the part of the
appellants which should not be ignored.
14. There exist a registered trademark in favour of the appellants. The
registration certificate is on record.
15. Defence of the respondents is one of prior user. In support of such
defence, various materials were relied upon by the learned Single
Judge. A number of affidavits were filed on behalf of the
respondents before the learned Single Judge in GA-COM/1/2025.
One was the principal affidavit-in-opposition and two others were
supplementary affidavits.
16. The principal affidavit-in-opposition, although, it contains a jurat
portion, however, in the essential portion thereof, the paragraphs
which are true to knowledge of the deponent of such affidavit is
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not stated. Therefore, the criticism on the part of the appellants
that, such affidavit should not be looked into since, nobody pledge
his/her oath with regard to the veracity of the statements made in
such affidavit or to the documents annexed to such affidavit is
with substance. In this regard, reference may be made to A.K.K.
Nambiar (supra).
17. However, in the facts and circumstances of the present case, one
of the affidavits affirmed by the respondents being the
supplementary affidavit affirmed on November 10, 2025 is both
affirmed as well as contains a jurat portion. This supplementary
affidavit is affirmed by the respondent no. 1. In such
supplementary affidavit, the claim of continuous uninterrupted
prior user is made. Documents in support thereof are relied upon.
In additional thereto, in paragraph 4 of such supplementary
affidavit, it is stated that, the documents as "Annexure-A" to the
principal affidavit-in-opposition are also correct.
18. This supplementary affidavit was dealt with by the appellants by
an affidavit where they did not deny the material portions as noted
above.
19. Restricting the Court's enquiry purely to the contents of the
supplementary affidavit affirmed on November 10, 2025, it can be
said that, the respondents disclosed sufficient materials to
demonstrate continuous uninterrupted prior user of the trademark
concerned. The issue as to whether or not, all of such documents
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are false, fabricated or interpolated or manufactured may be
decided at the trial. At the prima facie level, however, the alleged
forgery or interpolation are not so apparent as to hold that those
documents are suspect and should not be relied upon.
20. In addition thereto, the respondents claimed that, the concerned
trademark is registered in favour of the respondents in China and
that too prior in point of time. Even if we are to overlook the claim
of prior registration in a foreign country, nonetheless, the defence
of prior user is available to the respondents in India. To such
extent, as the materials on record exist, the respondents are able
to demonstrate at least on the prima facie level that, there was
continuous uninterrupted prior user by the respondents in India.
21. Amaravati Enterprises (supra) considered the documents
produced by the respondents in such proceedings and was of the
view that, even if the same were taken at face value, the same will
not satisfy the test to determine the continuous user. The facts
and circumstances of the present case are different.
22. Uniply Industries Ltd. (supra) is of the view, where, the defence
set up is one of the continuous prior user, the fact as to the
volume of sale, the degree of familiarity of the public with the mark
and the extent of continuous prior user, may be decided at the
trial. It is of the view that, at the stage of grant of temporary
injunction, a strong prima facie case needs to be established. In
the facts and circumstances of the present case, we are not in a
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position to arrive at a finding that the appellants as plaintiffs made
out a strong prima facie case or that, the balance of convenience
and inconvenience or irreparable loss are in favour of the
appellants in granting injunction as prayed for.
23. Learned Single Judge proceeded to hold that the appellants were
guilty of underinvoicing and tax evasion and therefore, proceeded
to issue certain directions to the Chief Commissioner of Customs,
Kolkata and Director General Revenue Intelligence, New Delhi.
24. Since, issues are yet to be finally decided at the trial of suit, such
directions in paragraph 18 are kept in abeyance. The same may be
revived at the final hearing of the suit, if the learned Single Judge
so deems it necessary.
25. We find no reason to interfere with the discretion exercised by the
learned Single Judge in this regard.
26. APO-IPD/1/2026 along with connected applications are dismissed
without any order as to costs.
27. We clarify that the observations made by us are prima facie in
nature and will not bind the parties at the final hearing of the suit.
(DEBANGSU BASAK, J.)
28. I agree.
(MD. SHABBAR RASHIDI, J.)
KB/sp3
AR(CR)
