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2020 (3) TMI 1458 - DELHI HIGH COURTMaintainability of appeal - Challenge to permission to amend the plaint. The plaint contended that the appellant could not claim to be the proprietor of the trademark/label 'SUPERCROME', and could not, legally, use the said trademark without the leave and licence of the respondent, as, in the respondent's submission, the trademark 'SUPERCROME' was deceptively similar to the respondents trademark 'SUPERON' phonetically, visually and structurally. HELD THAT:- The right to amend, as confirmed by Order VI Rule 17 of the CPC, has advisedly been made expansive, save and except in cases where the trial has already commenced. Order VI Rule 17 permits the Court to, at any stage of the proceedings, allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and specifically ordains that "all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties". The provision, therefore, casts a mandate, on the court, to compulsorily allow all such amendments, as may be necessary for the purpose of determining the real questions in controversy between the parties - In the present case, the proviso does not call for application, as the trial, in the suit, had not commenced, when the respondent applied for permission to amend its plaint. The controversy, between the appellant and the respondent, in the present case, was relating to alleged infringement, and passing off, by the appellant, of the registered trademark of the respondent-as the respondent would aver. Prior user is one of the essential indicia, to be examined while adjudicating such a claim of infringement and passing off. The date from which the plaintiff-respondent was using the 'SUPERON' trademark was, therefore, fundamental to adjudication of the controversy. The amendment, sought by the respondent, in para 8 of its plaint, was with respect to the date from which the respondent could claim user of the said trademark. That, by itself, would be sufficient to justify allowing of the amendment sought by the respondent. The learned Single Judge cannot be faulted, in any manner, in allowing the prayer of the respondent, for permission to amend its plaint. The issue in controversy between the parties, related to infringement, or otherwise, by the appellant, of the registered trademark of the respondent, under the Trademarks Act, by usage of the trademark "SUPERCROME". The contention of the respondent, as the plaintiff in the suit, was that the trademark/name/label "SUPERCROME" was deceptively similar to the respondent's trademark "SUPERON". Fundamental, to adjudication of such a lis, would be the dates from which the appellant, and respondent, operated their respective trademarks. The court, adjudicating on an application for permission to amend the plaint, at the pre-trial stage, is to ensure that, by adopting an unduly narrow approach, the right of the party, seeking amendment, to bring relevant facts, to the notice of the court, is not prejudiced. Were the prayer for amendment, as made by the respondent, to be disallowed, the respondent would be deprived of an opportunity to establish, before the court adjudicating the suit, its right to claim user, of the 'SUPERON' trademark since 1994. The prejudice that could result, to the respondent, as a consequence thereof, would be irreversible. Per contra, allowing the prayer for amendment, would result in no prejudice to the appellant, which had every opportunity to contest the claim of the respondent, to user, of the 'SUPERON' trademark since 1994. Application of the "prejudice" test, too, would, therefore, justify allowing, rather than disallowing, of the amendment sought, by the respondent. The objections to the prayer of the respondent, for permission to amend the plaint are completely devoid of substance - there are no reason to interfere with the impugned order - appeal dismissed.
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