Minco India vs Minco India Flow Elements - Trademark Passing Off Appeal

Select the following parts of the judgment
| Facts | Issues |
| Petitioner's Arguments | Respondent's Arguments |
| Analysis of the law | Precedent Analysis |
| Court's Reasoning | Conclusion |
For entire doc: Unmark Mark View how precedents are cited in this document View precedents: Unmark Mark View only precedents: Unmark Mark Select precedent ... Filter precedents by opinion of the court
| Relied by Party | Accepted by Court |
| Negatively Viewed by Court | No clear sentiment |

## Unlock Advanced Research with PRISM AI

Integrated with over 4 crore judgments and laws — designed for legal practitioners, researchers, students and institutions

• Know your Kanoon - Doc Gen Hub - Counter Argument - Case Predict AI - Talk with IK Doc -... Upgrade to Premium [Cites 16, Cited by 0 ] ### Bombay High Court

Minco India Private Limited vs Minco India Flow Elements Private ... on 18 March, 2026

Author: Bharati Dangre

Bench: Bharati Dangre

2026:BHC-OS:7662-DB

                                             1/35                  MINCO.doc

                    IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          ORDINARY ORIGINAL CIVIL JURISDICTION
                        COMMERCIAL APPEAL (L) NO. 1600 OF 2006
                                         IN
                       INTERIM APPLICATION (L) NO. 12616 OF 2024
                                         IN
                          COMMERCIAL IP SUIT NO. 236 OF 2025

           Minco India Private Limited, having
           its address at Office No. 4506/07/08         ..     Appellant/ original
           45th floor, Kohinoor Square, Shivaji                plaintiff
           Park, Dadar West, Mumbai - 28.

                                   Versus

           Minco India Flow Elements Private
           Limited, 10th floor, B-1009, Kohinoor               Respondent/
           Square, Plot No. 46, N.C. Kelkar                    original defendant.
           Marg, Opposite Shivsena Bhavan,              ..
           Dadar West, Mumbai - 28.

                                                    ...

          Mr. Pranshul Dube with Ms.Asma Nadaf and Ms.Maithri Porwal
          for the appellant.
          Mr.Hiren Kamod with Mr.Anees Patel i/b Mayuresh Borkar for
          the respondent.

                                      CORAM : BHARATI DANGRE &
                                              MANJUSHA DESHPANDE, JJ
                                      DATED : 18th MARCH, 2026

          JUDGMENT : - (Per Bharati Dangre, J)

          1         The Appellant, the original plaintiff in Commercial IP (L)
          No. 12477 of 2024 is aggrieved by the order dated 6/1/2026
          passed by the learned Single Judge, thereby dismissing the

          Tilak

                               2/35                   MINCO.doc

Interim Application (L) No. 12616/2024 filed under Order
XXXIX Rule 1 and 2 of the Code of Civil Procedure, 1908, and
refusing the interim relief in it's favour.

Heard learned counsel Mr. Pranshul Dube for the
appellant/original plaintiff and Mr.Hiren Kamod representing
the respondent, the original defendant in the Suit who has
supported the impugned order and pleaded that the Single
Judge has rejected the application, as it so deserved.

1. Minco India Private Limited instituted Commercial I.P Suit for trademark infringement and passing off, by pleading that it is engaged in, and has been carrying on a well established business of gauges, Pressure, Temperature gauges, temperature switches, apparatus indicating temperature, Level gauges, Level switches, Flow meters and other cognate and allied goods/services since considerable length of time.

According to the plaintiff, it started using the mark
'MINCO INDIA' in relation to its goods in the year 1982, and on
account of its sheer commitment and hard work, took the brand
to greater heights and the public at large. The plaintiff claims
that for over more than four decades, it has been
uninterruptedly and continuously using the mark 'MINCO
INDIA' which has gained popularity amongst the public and
Business Associates.

1. It is the claim of the plaintiff that by long and continuous use of its trademark, 'MINCO INDIA' by the plaintiff, the mark has become distinctive and exclusively associated with the

Tilak

                              3/35               MINCO.doc

plaintiff and no one else, since the plaintiff rightly advertised,
promoted, publicized and marketed its goods/services through
the said mark 'MINCO INDIA'.

Based upon the aforesaid continuous use of the mark, the
plaintiff applied for its registration by staking its user claim
since 6/10/1982, claiming its registration in class 09, and the
said trademark was registered vide Certificate No.3373018 of
29/1/2024 and the said registration is valid and subsisting.
Based on the aforesaid registration, it is the claim of the
plaintiff that by virtue of registration and continuous and
uninterrupted use of the mark, MINCO INDIA, the plaintiff has
gained exclusive rights over the same.

The cause of action for the plaintiff to institute the Suit
against the defendant is the knowledge gained by it, in the first
week of February 2024, as it found that the defendant is
manufacturing and offering for sale various goods/services
using identical mark 'MINCO' in relation to orifice plates,
venture tubes, flow nozzle, flow instruments, flow meters.
Plaintiff claim that the Defendant is not a stranger to it, and
Raghvendra Kulkarni and Mr. Amarendra Kulkarni are brothers.

The plaintiff specifically pleaded it's case by stating that
Raghavendra used to work with the plaintiff and was well
aware that use of the mark 'MINCO' by the plaintiff, but with a
malafide intention, dishonestly and fraudulently started using
the mark 'MINCO' for the same goods services as that of the
plaintiff.

Tilak

                              4/35              MINCO.doc The plaintiff also pleaded that on 14/2/2024, it received

an email from third party stating that 'flow nozzle' supplied by
the plaintiff had failed and though the plaintiff was aware that
it was not supplied by it, but was supplied by the defendant,
and it responded by addressing an email to the complainant,
clarifying the situation.

1.  In the backdrop of the aforesaid event, since the plaintiff
   

   apprehended huge confusion and deception being created in
   the market due to the identical use of the mark 'MINCO' by the
   Defendant and submitting that the mark is so identical to that
   of the plaintiff that it is nearly impossible for a consumer or
   trade member to distinguish and not get confused/ deceived,
   the plaintiff filed the Suit for infringement of the impugned
   mark 'MINCO' and/or any mark which are identical or similar
   to the plaintiff's mark 'MINCO INDIA' in any manner
   whatsoever, so as to infringe upon the plaintiff's trademark
   registered in class 09. A restraint order is sought against the
   defendant from using the impugned mark in any manner
   whatsoever, so as to pass off or enable the others to pass off the
   defendant's goods/services as that of the plaintiffs.

2.  In the Suit instituted by the plaintiff, MINCO INDIA Flow
   

   Elements Pvt. Ltd is impleaded as defendant and the plaint is
   accompanied with the correspondence of the plaintiff with the
   Government entities, showing old adoption and old use of the
   mark 'MINCO' along with the copies of the invoices showing
   use of the mark 'MINCO INDIA' by the plaintiff. The Plaint has

Tilak

                              5/35                 MINCO.doc

also annexed the photocopy of the C.A. certificate showing sales
turnover under the plaintiff's trademark 'MINCO INDIA' coupled
with the balance sheets of the plaintiff since 1990.

1. In the pending I.P Suit, the plaintiff also took out an Interim Application, based on the pleading in the Suit, and pending hearing and final disposal of the Suit, seeking a relief of an order of injunction against the defendant in any manner, using the impugned mark 'MINCO' and/or any mark identical to it's mark 'MINCO INDIA' in any manner whatsoever, so as to infringe its trademark registered in class 09. An injunction was also sought against the respondents from using the mark, so as to pass off or enable others to pass off its goods/services as that of the plaintiff/applicant.

It is this application which came to be rejected on
6/1/2026 by the learned Single Judge, by referring to the
catena of decisions on which reliance was placed by the rival
parties, along with the pleadings in support and opposing the
application, by rendering a finding that the principles of equity
and balance of convenience rules against the grant of interim
relief in favour of the plaintiff, who had prima facie made false
statements on oath and suppressed material facts.

The impugned order record that defendant was using the
mark 'MINCO' as a part of its trademark since 2012 and had
produced duly certified balance sheet, reflecting huge turnover
and with the following specific observation, as a part of detail
order, the claim of the plaintiff for injunction came to be rejected.

Tilak

                                6/35                       MINCO.doc "31. The principle laid down is that the Plaintiff cannot stand
       by and allow the Defendant to carry on business by expending
       money and after long lapse of time seek stoppage of the
       business. The Defendant has been openly using the mark
       "MINCO" as part of its trade name since the year 2012 to the
       complete knowledge of the Plaintiff. Despite being aware of
       since the year 2012, the Plaintiff Company has remained passive
       till the year 2025. For the past thirteen years, the Defendant has
       continued its business using the trade name MINCO INDIA and
       has build a formidable business which is prima facie evident
       from the sales turnover. Though it is contended that there is no
       acquiescence as the Defendant's registration application
       mentions the use of the mark "MINCO" on proposed to be used
       basis, the contention is misplaced. The registration application
       seeks registration of device mark "MINCO" in saffron colour and
       there is sufficient material on record such as invoices, balance
       sheets etc to prima facie show the use of the mark "MINCO" as
       part of the trade name by the Defendant since the year 2012.

1.  There are no pleadings and no material to prima facie
      support the case of passing off. The Plaintiff and Defendant are
      dealing in identical goods/services since inception. There is
      nothing to persuade this Court to come to a prima facie finding
      of misrepresentation by the Defendant or that the Defendant
      has      marketed its product/services as that of Plaintiff
      intentionally or unintentionally. There has to be cumulative
      satisfaction of the classical trinity (a) goodwill (b)
      misrepresentation and (c) damage to goodwill, which is not
      satisfied in the present case."
   

2.  The learned counsel Mr.Dube would submit that the
   

   learned Judge has non-suited the plaintiff on the ground of
   suppression, by referring to the background facts, both
   companies being incorporated in the year 1982, with the name
   of the defendant company being set out as 'Tivim Instruments
   Company Pvt Ltd'. Recording that both the companies were
   involved in the same or similar business and promoted by their
   father Manohar, to which there is no denial, it is recorded that
   there is identity/similarity of the goods/services offered by the
   plaintiff and the defendant.

Tilak

                              7/35             MINCO.doc He would submit that the learned Single Judge did not

dispute the proprietary right of the plaintiff and use of the trade
mark 'MINCO INDIA' in respect of its goods and services since
the year 1982 and accepted its claim of prior adoption and use
of the trademark. However, it is submitted that the defence
raised by the defendant was of concurrent entitlement to the
use of the mark on two counts i.e. firstly by reason of being
part of GICON Consortium and secondly, by reason of no
objection granted by the plaintiff to change the defendant's
name.

It is the contention of Mr.Dubey that though discretionary
relief, can be refused to a party who is guilty of suppression of
fact, but what is relevant is, the suppression should be of
'material fact' and what is not disclosed according to the
learned Judge is; i) NOC granted to change the name in the
year 2012 ii) the Plaintiffs remained the Director till 2015 and

iii) False date of knowledge.

He would submit that the learned Judge has rightly held
that delay would not defeat action for infringement and has
rightly appreciated the fact that the plaintiff gained knowledge
about the existence of the defendant in the market when one
consumer made a complaint about the fault in the goods, to be
realized by the plaintiff that it were not the goods
manufactured by him.

According to Mr.Dubey, there can be only one proprietor
of one mark and the plaintiff is staking its user claim since 1982

Tilak

                              8/35            MINCO.doc

and now has even registered its mark, giving it an edge over the
defendant and according to him, defendant's case is not of prior
user, but what impressed the learned Judge was the delay in
approaching the Court, seeking the relief of injunction.

1.  Submitting that the defendant came up with three
   

   defences and the learned Judge rejected two of them, and as far
   as the first defence, that the Directors of the plaintiff and
   defendant are real brothers and their father started both
   Companies, and therefore, the defendant is entitled to use the
   mark owing to be the part of the same family GICON
   Consortium, it is rejected by holding that in an action of
   infringement and passing off, family history and family
   relationship has no role to play. Further, the second objection
   that the plaintiff had provided NOC to the defendant for change
   of the name of the company from TIVIM to MINCO, it is held
   that assuming that an NOC was provided, the same would not
   entitle the defendant to concurrently use the mark 'MINCO'.
   However, the relief was refused to the plaintiff, by holding that
   he was guilty of suppression of facts and the Interim
   Application is rejected.

2.  Mr.Dubey would rely upon the decision of the Apex Court
   

   in case of M/s.S.J.S. Business Enterprises (P) Ltd Vs. State of
   Bihar and ors,1 to submit that mere suppression would not
   disentitle the plaintiff for interim relief and it is only when
   suppression was of material fact, could the plaintiff be
   disentitled for the relief. He would submit that even if the fact
   1 (2004) 7 SCC 166

Tilak

                              9/35             MINCO.doc

would have been disclosed, it would not have affected the
merits of the case and the Court would not have ruled in favour
of the defendant, then, the same would not be considered a
'material fact', which would disentitle the plaintiff's claim for
interim reliefs.

1. It is urged by Mr.Dube that the defendant filed an application for the mark 'MINCO' in 2022 on "proposed to be used" basis and thus it was the defendant's own contention that it was not using mark 'MINCO' prior to 2022 and therefore, he would submit that plaintiff has not made any false statement.

He would submit that, had the plaintiff pleaded that he
was aware of the Defendant since 2012/2015 and not as of
2024, the same would not have any bearing on the merits of
the case, as the plaintiff was using the mark since 1982, and the
Court ought to have still held in its favour, as the use of the
mark by the plaintiff since 1982, is not disputed by the
defendant and the learned Judge has already held that delay is
not in defence in an action or infringement. It is his submission
that if plaintiff's registration as user claim is prior to the
plaintiff's date of registration, then it is imperative for the
defendant to show use, even prior to such user claim of the
plaintiff, and for this proposition, he has placed reliance in the
decision of this Court in Abdul Rasul Narullah Virjee and Anr
Vs. Regal Footwear2
It is also the contention of Mr.Dubey that if the adoption
of the defence is dishonest, an injunction must follow and mere
2 2023 SCC Online Bom 10

Tilak

                              10/35               MINCO.doc

delay in bringing an action is not sufficient to defeat grant of
injunction and in support of this proposition, he would place
reliance upon the decision of the Apex Court in Midas Hygiene
Industries (P) Ltd Vs. Sudhir Bhatia and ors, 3 to the effect that
in case of infringement either of trademark or copyright,
normally an injunction must follow, as grant of injunction
becomes necessary if it prima facie appear that adoption of the
mark itself was dishonest and mere delay is not sufficient to
refuse injunction. Reliance is also placed upon the decision of
the Delhi High Court in M/s.Hindustan Pencils Pvt Ltd, Vs.
India Stationery Products Co. and anr,4 which has answered the
issue, as to whether acquiescence would amount to denial of
the relief to a plaintiff in an action for infringement and it is
held that the principles on which the Court will refuse
interlocutory or final relief, would demand a stronger case to be
made out. Mr. Dubey has submitted that acquiescence is
considered to be one of the facet of delay and it would come
into play when the plaintiff knowingly let the defendants build
up an important trade, until it had become necessary to crush
it, then the plaintiff would be stopped by their acquiescence,
but according to him, the acquiescence must be such as lead to
the inference of a licence sufficient to create a new right in the
defendant and according to him, the law of acquiescence is
settled to the effect that a person who alleges, it should have
been acting in ignorance of the title of other man and that the

3 (2004) 3 SCC 90
4 AIR 1990 DELHI 19

Tilak

                              11/35                MINCO.doc

other man should have known that ignorance and should not
have mentioned his own title.

Mr.Dube has also placed reliance upon the decision of
Delhi High Court in Make My Trip (India) Pvt Ltd. Vs. Make My
Trip,5 and though there is some serious objection raised by
Mr.Kamod that this decision was not cited before the learned
Single Judge, we take note of the said decision and will
deliberate upon the same when we record our reasons in
support of our decision.

It is paragraph no.26 of the said decision on which
Mr.Dube has placed reliance, it is held that owners of trademark
or copyrights cannot be expected to run after every infringer
and thereby remain involved in litigation at the cost of their
business time, but they can wait till the time the user name
starts harming their business interest and start misleading and
confusing their customers.

In any case, while claiming his prior user, it is the case of
Mr.Dubey that the plaintiff was entitled to debar a subsequent
user from using an identical mark under the law of passing off
and since the defendant had only applied for a mark on a
'proposed to be used basis' he must be restricted to this, as by
merely making an application for registration of the mark, is
not sufficient to defeat the claim of a prior user.

1. Contesting the aforesaid claim, Mr.Kamod has advanced his submissions in great detail.

5 2019 SCC Online Del 10638

Tilak

                                12/35                       MINCO.doc Dispelling the argument of Mr.Dube that the Court had

non-suited him only on the ground of suppression, according
to Mr.Kamod, a careful reading of the plaint would demonstrate
that the only disclosure by the plaintiff about the relationship
between the plaintiff and defendant is contained in paragraph
no.11 when it is pleaded that the defendant is not a stranger to
the plaintiff and that its Managing Director Mr.Raghvendra
Kulkarni is the brother of the deponent, Amarendra Kulkarni,
who has affirmed the plaint and used to work with the plaintiff
once upon a time, and therefore, a statement is made to the
following effect :-

"Thus, the defendant is well aware of the use of the mark
'MINCO' by the plaintiff and has dishonestly, fraudulently and
with a malafide intention started using the mark 'MINCO' for
the same goods/services as that of the plaintiff."
According to Mr.Kamod, the cause of action is casually
pleaded in para 12, when the plaintiff pleaded as below :-

"12 The applicant submits that in the first week of February, 2024,
the applicant found that the respondent is manufacturing and
offering for sale various goods/services using identical mark 'MINCO'
in relation to orifice plates, venture tubes, flow nozzle, flow meters,
flow instruments and other cognate and allied goods/services."
Apart from this, according to Mr. Kamod, the plaintiff had
very casually pleaded in paragraph 13 that the plaintiff had
earlier received the information that defendant was using the
mark 'MINCO, but the plaintiff could not specifically find the
goods and services being offered, but on 14/2/2024, the
plaintiff received an email from third party to realise that the
failed Flow Nozzle was supplied by the defendant, though the

Tilak

                              13/35                MINCO.doc

third party believed it to be supplied by the plaintiff.

As regards the pleading of the plaintiff that there was
huge confusion and deception being created in the market due
to use of the identical mark 'MINCO' and the mark being so
identical that it would lead to a confusion not only amongst the
consumer but also in the mind of a trade member, Mr.Kamod
would submit that the products in fact, do not have any mark
and what is supplied by the defendant are the nozzles, which
are customer specified i.e. on the order being placed by the
customer, they are manufactured as per the specifications given.

He has invited our attention to the product catalogue of
the defendant annexed at Exhibit Z which is an advertisement
on the website www.mincoflow.com and by inviting our
attention to the orifice plate, he would submit that there is no
marking on the goods, but they are sold, by using the trade
name 'MINCO India Flow Elements Pvt. Ltd'. He would submit
that the injunction sought by the plaintiff was from using the
trading name as 'trade mark'.

1. Inviting our attention to the registration granted in favour of the plaintiff, Mr. Kamod would submit that the application, was for word mark 'MINCO INDIA' based upon the user of 6/10/1982 and the certificate granted on 29/1/2024, has granted the trademark (word) 'MINCO INDIA' to the plaintiff 'MINCO INDIA PVT LTD', a body corporate in class 09 for various apparatus/instruments set out in the registration certificate.

Tilak

                              14/35               MINCO.doc Tracing the history of the parties, according to Mr.Kamod,

they are begotten from the same group and identical business
was carried out by both of them. In 2012, the name of the
defendant 'Tivim' was changed to 'MINCO' but he would submit
that the business never underwent a change. It is also
submitted by Mr.Kamod that the plaintiff became Director of
'MINCO INDIA Flow Ltd', as the proprietor of plaintiff and
defendant are real brothers, whereas Raghvendra was a
Director in 'MINCO India Pvt. Ltd' and in 2015, they resigned
from the Directorship from the respective company, and each of
them was then thereafter entitled to have 100% control over its
company and that is, when Mr.Amarendra and Raghvendra
become the absolute owners of their own companies.

Mr.Kamod has urged before us that these two brothers
were all the while together, took over the same business, have
their factories next to one another and not only this, they share
a common clientele and therefore, merely because the plaintiff
has obtained registration before the defendant, do not give an
edge over him. It is his contention that the principle of co-
existence was all the while followed and his client expect the
same to be followed in future.

The defendants opposition is to the claim of exclusivity of
the plaintiff and Mr.Kamod clarify that by registration of the
trademark, the plaintiff is entitled to have protection and claim
exclusivity over others, but not against the defendant. He
would submit that there is no mark as such being used on the

Tilak

                              15/35              MINCO.doc

products and the plaintiff and defendant, both are aware as to
which product is manufactured by whom.

In short, the contention of Mr.Kamod is that there is no
mark on the product of plaintiff and defendant but they are
trading in the name by using the mark 'MINCO'.

1. Staking his claim of acquiescence, it is the submission of Mr.Kamod that plaintiff's Director Amarendra Kulkarni was a Director in the defendant's company till 2015 when he resigned, but he did not initiate any action till he instituted the Commercial Suit in the year 2024 and according to Mr.Kamod, this was not done as long as their father was alive as the actual business belonged to the father, which was split between the two sons, with the nature of business not undergoing any change. According to Mr.Kamod, when the plaintiff got registration, the defendant did not oppose as the understanding between the parties was always of 'co-existence' and even the defendant has applied for registration of the mark and their respective registrations will protect them against third parties, but not against each other.

He would emphasize on the principle that the plaintiff
can use the mark qua the goods for which he has obtained
registration and the defendant may be permitted to use the
mark in form of trading name, qua its products for its
advertisement/promotion, as the product per se, do not have
any mark.

Tilak

                                 16/35                      MINCO.doc 14.     The learned counsel has placed reliance on the decision of

the Apex Court in Ramjas Foundation and Anr Vs. Union of
India and others,6 where the principle of denial of relief to
unscrupulous litigant has been laid down and it is his
submission that a person who do not come to the Court with
clean hands is not entitled to be heard on merits of his
grievance, and the decision has highlighted the underlying
object behind this principle. According to him, it is held that
every Court is not only entitled but duty bound to protect itself
from unscrupulous litigants, who do not have any respect for
truth, and would try to pollute the stream of justice by resorting
to falsehood or by making misstatement or by suppressing facts
which have bearing on adjudication of the relevant issues.

1. Reliance is also placed by him upon the principle laid down recently in case of Pernod Ricard India Pvt. Ltd Vs. Karanveer Singh Chhabra,7 specifically in connection with the trademarks, when the Apex Court has held that grant of injunction in trademark matter, require the Court to consider multiple inter-related factors; prima facie case, likelihood of confusion, relative merits of the parties, balance of convenience, risk of irreparable harm and public interest, and it is held that these considerations operate cumulatively and in the absence of any one of this, may be sufficient to decline interim relief. According to him, the decision of the Apex Court

6 (2010) 14 SCC 38
7 2025 SCC Online SC 1701

Tilak

                              17/35              MINCO.doc

has referred and considered the judicial precedents on the
trademark infringement and passing off, and has also taken
note of the recent evolution of trademark jurisprudence in the
United Kingdom in form of - the Post - Sale Confusion
Doctrine.

1. Further, by relying upon the decision of the Full Bench of
   

   this Court in Lupin Ltd Vs. Johnson and Johnson 8 it is the
   submission of Mr.Kamod that while pronouncing upon the
   claim for infringement of trademark and grant of injunction,
   the Court is empowered to go beyond the question of validity of
   registration of the plaintiff's trademark even at an interlocutory
   stage and where the registration is ex-facie illegal, fraudulent,
   Court is not powerless to refuse grant of injunction, but for
   establishing these grounds, a very high threshold of prima facie
   proof is required.

2. By relying upon the aforesaid decisions, it is also
   

   specifically contended by Mr. Kamod that the present Suit is
   filed by the plaintiff as Commercial Suit and it is therefore
   imperative for him to follow the prescribed procedure and as
   per the schedule appended to the Commercial Courts Act, 2015 read with Section 16 thereof, which make it necessary for the
   plaintiff when he approached the Court to make a statement of
   truth and Mr. Kamod would invite our attention to this
   statement, which according to him, is very casually made when
   the plaintiff state thus :-

8 2014 SCC Online Bom 4596

Tilak

18/35 MINCO.doc

"3. I say that the statements made in paragraphs 1 - 11 of
the plaint is true to my own knowledge and the statements
made in paragraphs 12 - 35 are submitted on information
and belief, and I believe the same to be true.

1. I say that there is no false statement or concealment of any material facts, documents on records and I have included information that is according to me, relevant for the present plaint." According to Mr.Kamod, the Suit being a Commercial Suit, must be tested on the statutory parameters and this statement of truth as disclosed by the plaintiff in support of his plaint, seeking the relief of injunction against the defendant, is just an illustration of perfunctory and casual approach of the plaintiff, which must disentitle him for any relief and this is what, is precisely done by the learned Single Judge

    Mr.Kamod, thus request for dismissal of the Appeal.

1. We have considered the rival contentions of the respective
   

   counsel and perused the order under challenge passed by the
   learned Single Judge, who has refused injunction to the
   plaintiff, primarily on the ground of suppression of the relevant
   facts by the plaintiff.

2. In Ramjas Foundation and Anr (supra), the Apex Court
   has evolved a principle of great significance, by stating that a
   person who does not come to the Court with clean hands is not
   entitled to be heard on merits of his grievance and, such
   person is not entitled to any relief not only in the petitions filed
   under Article 32 , 226 and 136 of the Constitution of India, but
   also in the cases instituted in other Courts and judicial forums.

Tilak

                                19/35                        MINCO.doc Reliance is placed upon the observation of Langdale and Rolfe

B, in Dalglish v. Jarvie9 which held thus :-

"It is the duty of a party asking for an injunction to bring under
the notice of the Court all facts materials to the determination
of his right to that injunction; and it is no excuse for him to say
that he was not aware of the importance of any fact which he
has omitted to bring forward."
It is not uncommon for the Courts to decline the relief to
a party whose conduct is blameworthy, and who has not
approached the Court with clean hands, and who has
attempted to misuse the process of Court by making false
and/or misleading statements, or by suppressing the relevant
facts or by trying to mislead the Court in passing order in their
favour and in such circumstances the party is held disentitled to
any relief.

In Pernod Ricard (supra), their Lordships of the Apex
Court, were specifically dealing with an issue under the Trademarks Act and with reference to the scheme of the statute
granting protection to a registered mark, and in great detail,
considered the judicial precedents on trademark infringement
and passing off, to assist whether the appellants were entitled
to the relief of interim injunction.

It evolved the legal principles governing grant of
injunction by noting that the Trademarks Act, 1999 does not
prescribe any rigid or exhaustive criteria for determining
whether a mark is likely to deceive or cause confusion and each
case must be necessarily decided on its own facts and

9(1850) 2 Mac & G 231,

Tilak

                                  20/35                     MINCO.doc

circumstances, with the judicial precedents serving to
illuminate the applicable tests and guiding principles rather
than to dictate the outcomes. It is also held that the grant of
injunction - whether for infringement or passing off- is
governed by equitable principles and is subject to the general
framework applicable to proprietary rights.

1. The Hon'ble Apex Court invoked the principles laid down by American Cyanamide Co. v. Ethicon Ltd 10 as the said principles guide the Courts while determining interim injunction applications in trademark cases, and the criteria which were noted to be generally applied were reproduced as below:-

"(i) Serious question to be tried / triable issue: The plaintiff
must show a genuine and substantial question fit for trial. It
is not necessary to establish a likelihood of success at this
stage, but the claim must be more than frivolous, vexatious
or speculative.

(ii) Likelihood of confusion / deception: Although a
detailed analysis of merits is not warranted at the
interlocutory stage, courts may assess the prima facie
strength of the case and the probability of consumer
confusion or deception. Where the likelihood of confusion is
weak or speculative, interim relief may be declined at the
threshold.

(iii) Balance of convenience: The court must weigh the
inconvenience or harm that may result to either party from
the grant or refusal of injunction. If the refusal would likely
result in irreparable harm to the plaintiff's goodwill or
mislead consumers, the balance of convenience may favor
granting the injunction.

(iv) Irreparable harm: Where the use of the impugned mark
by the defendant may lead to dilution of the plaintiff's
brand identity, loss of consumer goodwill, or deception of
the public - harms which are inherently difficult to quantify

10 (1975) AC 396

Tilak

21/35 MINCO.doc

• the remedy of damages may be inadequate. In such cases, irreparable harm is presumed.

(v) Public interest: In matters involving public health,
safety, or widely consumed goods, courts may consider
whether the public interest warrants injunctive relief to
prevent confusion or deception in the marketplace."
In conclusion, it is held that while granting interim
injunction in trademark matters, the Court shall consider
multiple interrelated factors including prima facie case, balance
of convenience, risk of irreparable harm, and also the public
interest, as these considerations operate cumulatively, and the
absence of any one of these, according to the Apex Court, is
sufficient to decline the interim relief.

1. At the outset, Mr. Kamod, has invited our attention to the scope of exercising the appellate jurisdiction, and particularly, in case of discretionary orders relating to interim injunctions. He would submit that the Appellate Court shall not interfere with the exercise of discretion of the Court of first instance, and substitute its own discretion, except where the same has been shown to be exercised arbitrarily or capriciously or perversely or where the Court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions.

According to him, the Appellate Court is not allowed to
reassess the material and seek to reach a conclusion different
from the one reached by the Court below, if it was a reasonable
conclusion possible on the material. It is also contended by Mr.
Kamod, that the Appellate Court would not be justified in

Tilak

                              22/35                MINCO.doc

interfering with the exercise of discretion, solely on the ground
that if it had considered the matter at the trial stage, it would
have to come to a contrary conclusion. If the discretion has
been exercised by the Court below reasonably and in a judicial
manner, as long as the view of the trial Court was a possible
view, the Appellate Court shall not interfere.

An objection is therefore raised by Mr. Kamod appearing
for the respondent that the learned Single Judge on
consideration of the pleadings, documents on record has
decided the application in terms of the settled principles of law
governing Interim Injunction, and has prima facie found that
the plaintiff has approached the Court with false statements
and by suppressing the material and relevant facts, and that the
balance of convenience weighs in favour of the defendant.

1. With this objection in mind, we have perused the
   

   impugned order with the limited scope available to us in
   exercise of the appellate jurisdiction, to ascertain whether the
   exercise of discretion by the learned Single Judge was a
   possible view or whether it was an arbitrary exercise of power
   in ignorance of the settled principles of law governing grant of
   interlocutory injunctions.

2. From the Pleading in the Plaint instituted by the plaintiff,
   

   as Commercial IP Suit read with the Interim Application filed
   by the plaintiff, seeking injunction and the affidavit-in-reply
   filed by the respondent to the Interim Application, some
   undisputed facts have emerged before us.

Tilak

                                 23/35                  MINCO.doc The plaintiff 'Minco India Private Ltd', is incorporated in

1982 by Registrar of Companies, Mumbai, and the IP Suit filed
by it for infringement and passing off is affirmed by Mr.
Amarendra Kulkarni in his capacity as Director/Authorised
Signatory of the Company.

The plaintiff secured registration as proprietor of the
trademark 'MINCO INDIA' in respect of the goods falling under
class 09, the registration, being granted on 29/01/2024 and the
claim of the plaintiff revolve around the said registration.

The defendant is, "Minco India Flow Elements Private
Limited", a Private Limited Company engaged into similar
business of Flow Elements and cognate and allied
goods/services similar to that of Plaintiff, engaged in well-
established business of 'gauges, pressure, temperature gauges,
temperature switches/instruments, flow meters, level switches,
level transmitters, etc.
As per the plaint, the plaintiff has pleaded that the
Defendant is not a stranger to the plaintiff, as its Managing
Director Mr. Raghvendra Kulkarni is brother of Mr. Amarendra
Kulkarni, the deponent of the plaint and used to work with the
Plaintiff.

From the reply filed by the defendant and the material
placed alongwith, it is noted that the Plaintiff and Defendant
Company are promoted by the same family patriarch, Manohar
Mahadev Kulkarni, father of Amarendra and Raghavendra and
following the family partition in the year 2012, Amarendra and

Tilak

                                  24/35                 MINCO.doc

Raghavendra Kulkarni were appointed as Directors in place of
the Directors who resigned with effect from 01/04/2012 and in
the Minutes of Meeting of Board of Directors of M/s.Minco
(India Pvt Ltd) dated 25/03/2012, which is conducted under
the Chairmanship of Mr. Manohar Kulkarni, it was resolved that
the change of Directors be informed to the Registrar of
Companies. Accordingly, for Minco (India Pvt Ltd), the name of
Mr. Amarendra Kulkarni along with Mr. Raghavendra Kulkarni
was forwarded in form No. 32.

As far as the defendant is concerned, it was originally
incorporated as 'Tivim Instruments Pvt Ltd' also in 1982 by the
Registrar of Companies, Maharashtra and in Form 32, the name
of Amarendra Kulkarni and Raghvendra Kulkarni was
forwarded to the Registrar of Companies (ROC) in their
capacities as Directors of the Company. Thus, in the wake of
the family arrangement Amarendra and Raghavendra, real
brothers were appointed as Directors of both Plaintiff and
Defendant companies.

By a Resolution dated 2/07/2012, Minco (India) Private
Limited, conveyed its no objection to the Defendant 'Tivim
Instruments Company Private Limited', for adopting a trade
name 'MINCO' with the following names being proposed; (i)
Minco (India) Flow Private Limited (ii) Minco (India) Flow
Elements Private Limited, (iii) Minco (India) Flow Products
Private Limited.

Tilak

                              25/35                  MINCO.doc The Resolution was passed in presence of Mr. Manohar

Kulkarni, the father of Amarendra and Raghavendra and
pursuant thereto the Defendants name was changed to 'Minco
(India) Flow Elements Private Limited' in September, 2012.

1. All the documents in relation to the aforesaid are placed on record along with the reply filed by the Defendant opposing the Interim Application.

In the reply affidavit, the Defendant has traced the
lineage of Manohar Kulkarni with Amarendra as Director and
Shareholder of the Plaintiff Company, and Raghavendra as
Director and Shareholder of the Defendant Company. According
to the defendant, when it decided to change the name of it's
Company, the Plaintiff's company conveyed its no objection as
per the arrangement of the family members and in the
Extraordinary General Body Meeting of the Defendant
Company held on 16/08/2012, it was resolved that the name of
Tivim Instruments Company Private Limited be changed to
Minco (India) Flow Elements Private Limited and by way of
special business, the members unanimously approved the
change of name and substituted the same in the Memorandum
of Association of the Company.

1. In light of all the documents being placed along with the reply filed by the Defendant, it is evident that the Plaintiff had the knowledge of the Defendants use of the word 'MINCO' ever since 2012.

Tilak

                              26/35              MINCO.doc Another milestone took place in 2015, when Amarendra

resigned from his position as Director of M/s. Minco (India)
Flow Elements Private Limited, the defendant by citing personal
reason with effect from 31/12/2015, and the Board of Director
was requested to give effect to the resignation. In an identical
manner, Raghvendra Kulkarni, resigned from his position as
Director in M/s Minco (India) Private Limited Plaintiff
company, on the very same day. Since the Plaintiff was the
Director in the Defendants company upto 2015, it definitely
had knowledge about the use of the trading name 'MINCO' as
the name of the Defendant company was changed from 'Tivim
Instruments' to 'Minco (India) Private Limited' with consensus
and on by passing of a resolution.

All this while, despite having such knowledge, the
Plaintiff chose to be placid and did not initiate any action
whatsoever against the defendant for use of its trading name
incorporating the word 'MINCO'.

1. It is in this background, when the pleadings in the plaint filed by the Plaintiff for infringement of its trademark and for an action of passing off is perused, we find it strange when the Plaintiff plead that the Defendant was well aware of the use of mark 'MINCO' by the Plaintiff but has dishonestly, fraudulently and with malafide intention started using the mark for the same goods/services as that of the Plaintiff and the Plaintiff gained knowledge about this only in the first week of February 2024 with reference to the main page of the website of Defendant.

Tilak

                                    27/35                   MINCO.doc Without giving any specifications, the plaintiff also pleaded that

it had also received earlier information about the defendant
using the mark 'MINCO' but could not trace any goods or
services of the Defendant in the market, but it is on
14/02/2024, it received an email from a third party to realise
that the defendant was supplying goods identical to that of the
plaintiff in order to gain advantage of its reputation in the market.

1. Looking to the nature of the family relationship shared between Amarendra and Raghvendra, when defendant was originally incorporated as 'TIVIM Industries Pvt. Ltd' in 1982, and even when defendant adopted a trading name 'MINCO' the plaintiff granted a 'No objection' on 2/7/2012, and its name was changed to MINCO (India) Flow Elements Pvt. Ltd, in September 2012. Not only this, pursuant to the family arrangement, Amarendra and Raghvendra held the post of Directors in each others companies till it was mutually agreed that they will resign on the same day from the respective company, and thereafter, became absolute owner of the plaintiff and the defendant company.

It is on account of this peculiar relationship shared
between the plaintiff and the defendant companies with its
proprietors, being the two brothers, Amarendra and
Raghvendra, we find substance in the submission of Mr.Kamod
that plaintiff is not entitled to exclusivity against the defendant
though as against others, in the course of protecting its
registered mark, it is entitled to raise objection.

Tilak

                              28/35              MINCO.doc One thing is clear that till 2015, Amarendra was a part of

the defendant company and was cognizant of the use of the
trading name 'MINCO' by defendant as in 2012, when it
changed its name, and rather it was the plaintiff who accorded
'No Objection' and when Amarendra was a Director in
defendant Company, obviously, he must have been a part of
many transactions being carried out by the defendant company,
by use of its name 'MINCO (India) Flow Elements Pvt. Ltd.'

    When both the brothers resigned from each others

company, it was not on account of any commercial reason or
that some dissatisfaction was expressed by each other, but the
resignation was identically worded in both the cases, being due
to personal reasons and not on account of the change of the
defendant's trading name to MINCO.

Despite such knowledge since 2015, the plaintiff did not
initiate any action whatsoever against the defendant for use of
its trading name 'MINCO' and/or being aggrieved by use of the
word 'MINCO' in its own name.

1. The plaintiff and the defendant's company are both
   

   engaged in manufacturing specialised industrial product and
   they were initially together, as the business came to them from
   the family and when they parted ways, they continued to carry
   the same business and we are informed that they have factories
   located next to each other and even share common clientele.

2. Merely because the plaintiff has obtained registration
   

   before the defendant, therefore, will not give it exclusivity, as

Tilak

                                29/35                       MINCO.doc

we must record that the plaintiff has acquiesced the use of the
trading name by the defendant since the year 2012 itself.

1. What is most startling is, the claim of the plaintiff, in the Plaint and the Interim Application, giving an impression that the defendant is an unrelated third party, who suddenly appeared in the market in or about 2024, as it is pleaded case of the plaintiff that it became aware of the defendant's "goods" bearing the trademark 'MINCO' in first week of February, which gave rise to the cause of action for instituting the suit.

We find that the plaint completely lack the particulars
about the relationship between the plaintiff and the defendant
or that Amarendra was a Director in MINCO India Flow
Elements Pvt. Ltd, till 2015 or any details being offered about
the business of the plaintiff and the defendant, or about the
commonality shared between them.

It is lack of this disclosure, which prompted the learned
Single Judge to refuse the relief in favour of the plaintiff when
the impugned order record that it is admitted that Director of
the plaintiff Company was Director of the defendant company
and vice-versa, the learned Judge observe thus :-

"27 .......... "The resignation letter dated 15th December,
2015 by the Director of Plaintiff is addressed to the Board of
Directors of Minco (India) Flow Elements Put Ltd which
demonstrates knowledge about the use of the word "MINCO" as
part of the changed name by the Defendant. The Plaintiff and
the Defendant are located at Tivim Industrial Estate, Mapusa
Goa and their Mumbai address earlier was at 194/195 Gopi
Tank Road, Off Pandurang Naik Marg, Mahim and the cause
title of the plaint show that both are located at Kohinoor Square
at Dadar, Mumbai. In the rejoinder Affidavit, there is specific
pleading in paragraph 18 that the Defendant has throughout
been known to provide sub standard products/services and

Tilak

30/35 MINCO.doc

since consumers knew that Amarendra and Raghvendra were
brothers, they used to reach out to Amarendra to resolve the
situation, who used to address the situation. The reply dated
7th March, 2020 by the Amarendra Kulkarni on behalf of
General Instruments Consortium accepts that the Plaintiff and
Defendant Company are intertwined and that their offices are
located within the same premises. In light of the material on
record prima facie the Plaintiff was well aware of the nature of
business of the Defendant and that the Defendant was carrying
on business using the word MINCO as part of its trade name
and in trade mark sense since atleast the year 2015 and prima
facie proves the falsity in the pleadings at paragraph 12 and 13
of the plaint."
31. The principle of law as regards the party approaching the
Court with unclean hands, is well recognised in Indian
jurisprudence as in the case of Ramjas Foundation (supra), the
Apex Court has held that a person who do not come to the
Court with clean hands, is not entitled to be heard on merits of
his grievance, the object underlying the principle being that
every Court is not only entitled, but is duty bound to protect
itself from unscrupulous litigants, who do not have any respect
for truth and try to pollute the stream of justice by resorting to
falsehood or suppressed facts which have bearing on the
adjudication of the issue(s) arising in the case.

1. In Shantapa Alias Shantesh S. Kalasgond Vs. M/s. Anna 11, it is reiterated that temporary injunction is a discretionary relief and the District Judge had refused grant of temporary injunction in favour of the plaintiff, by considering his conduct in suppressing the reply filed before the Trade Mark Registry and in such circumstances, it is held that it is not for a litigant to decide what fact is material for adjudicating a case and what 112023 SCC Online Bom 2566

Tilak

                              31/35                 MINCO.doc

is not. It is the obligation of the litigant to disclose all the facts
of the case and leave the decision making to the Court.

We do not intend to multiply the authorities on this point,
as the principle as regards suppression of fact has received
serious consideration from the Courts time and again, when it
arrived at a conclusion that the material fact which was within
the knowledge of the party has been intentionally suppressed
either to gain a relief or to refuse the relief.

The said principle apply with more force in case of grant
of injunction, which is a discretionary relief and particularly, for
grant of interim injunction in trademark, the Court is expected
to consider several parameters which will include prima facie
case, likelihood of confusion, balance of convenience, risk of
irreparable harm and also public interest as held in Pernod
Ricard India, these considerations operate cumulatively and
absence of any one of them may be sufficient to decline interim
relief.

1. The plaintiff suppressed the material fact about their companies being promoted by the same family patriarch, Manohar Mahadev Kulkarni and about the inter se relationship between Amarendra and Raghvendra in management of the plaintiff and the defendant company and the learned Single Judge has rightly refused to exercise discretion in favour of the plaintiff, as only one plain statement is made in the plaint, when the plaintiff has stated that the defendant's Managing Director (Raghvendra) is brother of the plaintiff's Director

Tilak

                              32/35               MINCO.doc

Amarendra, and he used to work with the plaintiff. The learned
Judge therefore, taking note of the suppression of the material
fact, which were placed on record by the defendant, by filing a
reply to the application for grant of injunction, rightly
concluded that the use of trading name by the defendant is not
dishonest or fraudulent and in fact, the plaint conveyed a
misleading impression that the defendant is unassociated third
party, with no concern or relevance to the plaintiff's company.

Reliance by the plaintiff on its registration for the mark
'MINCO INDIA' vide registration No.5966943 dated 5/6/2023
in respect of goods falling in Class 09 which is granted on
29/1/2024 does not in our view, entitle the plaintiff for an
injunction as a matter of course. Immediately, after its
registration, the plaintiff contrived its alleged cause of action by
pleading that in first week of February 2024, it gained
knowledge about the activity of the defendant and proceeded to
file the Suit.

In the reply to the Interim Application, the defendant has
adopted a stand of openly, extensively and continuously using
the trading name with mark 'MINCO' since 2012, to the
complete knowledge of the plaintiff and the plaintiff's inaction
for over 13 years while the defendant continued its business
under the trading name 'MINCO' building a formidable
business with cumulative sales turnover, in our view, amount to
clear acquiescence on the part of the plaintiff and acquiescence
is a complete defence to an infringement action which

Tilak

                                33/35                   MINCO.doc

contemplate existence of two elements viz. honesty in
defendant's adoption and use and lack of some positive act on
part of the plaintiff and we find both elements present in the
case before us.

The plaintiff in fact approved the change of name of the
defendant company, as it decided to to adopt corporate name
'MINCO' in the year 2012 itself, and it is obvious for the reason
that both the companies form part of the family promoted
consortium known as 'GICON'.

In the AGM of the defendant held on 16/8/2012, when
Amarendra continued as its Director, the change of defendant's
name incorporating MINCO was approved without any demur
and it is a pleaded case of the defendant that till the day when
Manohar Mahadev Kulkarni in 2018, in the wake of the family
arrangement, the 2015 Will was accepted and acted upon by
the parties and that is why Amarendra exited the defendant
company and Raghvendra existed the plaintiff company, with
the entire shareholding transferred accordingly. Both
companies have continued to serve several common industrial
houses since 2013 and Amarendra himself had acknowledged
in 2020 that business of the parties was carried under the
"GICON" group and the business activities were intertwined.

1. In the wake of the aforesaid, though the plaintiff's registration make it entitle to exclusivity, but it do not extend to the Defendant Company in the peculiar circumstances, which existed as the business of both the entities was intertwined

Tilak

                              34/35               MINCO.doc

flowing from the same origin. Apart from this, it is to be noted
that the products do not have any mark per se, as the plaintiff
and defendant are manufacturer of specialised industrial
equipment supplied as per the specification of the client, and
they are not the products which are casually available for sale
in the market. The likelihood of confusion in regards to such
products, is therefore, minimal and the reliance by the plaintiff
on a solitary email of February 2024, as regards the complaint
about some product, is not sufficient to establish the confusion
created or the likelihood of confusion.

Since the balance of convenience is in favour of the
defendant, who has been openly and continuously using
'MINCO' as a part of its trade name since September 2012 and
has earned reputation and goodwill by the use of the trading
name and the plaintiff on the other hand, being aware of the
same, never objected, nor did it initiate any action, till the time
when it filed the present Suit, we do not find any legal lacunae
or error in the impugned order passed by the learned Single
Judge, who found that the plaintiff was unable to demonstrate
a prima facie case or that the balance of convenience was in its
favour, or that any irreparable loss would be caused to it, if
injunction is not granted.

1. Reliance placed on the decision of Make My Trip (supra) is not applicable to the present case as it involved several fly-by- night operators adopting the impugned mark, attempting to ride on the goodwill of the plaintiff's well-known brand. It is in

Tilak

                              35/35              MINCO.doc

this context it is held that for every instance of infringement,
instead of concentrating on the business, the plaintiff was not
expected to rush to the Court seeking an injunction, but the
same is not the situation in the present case.

Further, the decision relied by the Mr. Dube in case of Cadila Health Care Ltd. v. Cadila Pharmaceuticals Ltd 12, is in the
context of pharmaceutical products, where the Supreme Court
has held that a stricter test of deceptive similarity must be
applied, because confusion in medicinal products may have
serious consequences on public health, but the principle laid
down therein is not applicable to the present case, where the
discretionary interim relief is refused to the plaintiff on account
of the suppression of material facts and on the basis of
acquiescence.

Upholding the impugned order passed by the learned
Single Judge, the Appeal is dismissed.

(MANJUSHA DESHPANDE, J.) (BHARATI DANGRE, J.)

12 (2001) 5 SCC 73

Tilak