No interference with the discretion of the Court of first instance unless arbitrary action found

Delhi High Court: In a case relating to trademark passing-off between two media companies involved in the business of running online radio stations, a Division Bench comprising Gupta J. and Nandrajog J. dismissed the appeal, ruling that to interfere against an order declining to grant protem ad-interim injunction, perversity has to be demonstrated in the finding of the Single Bench.

The Appellant company prayed before the Court for granting a declaration that the trademark “PEHLA NASHA” was a well known mark used by them and by using the trademark “NASHA FM”, “RADIO NASHA”, “NASHA 91.9 FM” and “NASHA 107.02”, the respondent was guilty of passing off and therefore should be restrained by issuing a permanent injunction. The Appellant had claimed that it was operating Online Internet Radio Station using the mark “PEHLA NASHA” since the year 2014 and it had gained immense popularity. By launching “RADIO NASHA”, HT Media was infringing its right in the trademark “NASHA” for which its application for registration was pending before the Registrar of Trademarks. Hence, the Appellant had filed an application for an ad-interim injunction against HT media from using the word/trademark “RADIO NASHA” or any other trademark/trade name which was deceptively similar to the plaintiff’s mark “PEHLA NASHA”. To the contrary, the respondent company represented by A.M. Singhvi rebutted saying that the test to be applied in the present case was whether there were users of the trademark “NASHA” even prior to the plaintiff’s user and the respondent had successfully demonstrated the prior users of this mark. He further claimed that HT Media was also a prior user of the mark “NASHA” to a certain extent given that it applied for registration of domain names www.nasha.fm.in and www.radionasha.com prior to Entertainment Network.

Refusing to look into the merits of the case, without letting the respondents have an opportunity to file their pleadings, the Court declined to grant an injunction citing the lack of a strong prima-facie case as advanced by the appellants. The Court also noted the judgment of the Supreme Court in Wander Ltd. v. Antox India (P) Ltd. 1990 (Supp) SCC 727, where it had cautioned the Division Bench noting that the Appellate Court will not interfere with the exercise of discretion of the Court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily or capriciously or perversely. [Entertainment Network (India) Ltd. v. HT Media Ltd 2016 SCC OnLine Del 1915 decided on 21/03/2016]

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