Advocate Gaurav Gupta

Questions Answered by Advocate Gaurav Gupta

Q: Clarification on section 482 CrPc

Hlo sir...mere tenant ney mujhe par wrong fir krva di ipc 452,323 .jabki fight usne suru kri thi or uske oper ipc 308 lagi hai. To Mujhe ye puchna hai ki kya mai crpc 482 use kr skta hu apne case mai ...or iska procedure ky hoga

Advocate Gaurav Gupta answered
Hi, Aap apne tenant par cross FIR file kar do for causing hurt on you. Aap Crpc 482 mein jaa sakte hai high court aur anticipatory bailki request daal sakte hai. High Court tabhi aapko sunega agar woh satisfy hota hai apki pleadings aur prayer se ki aap pe mukadma injustice hai aur law ka khilvad hai. Humari salah yahi rahegi ki agar incident ko hue jyaada time nhi hua toh ap uspe FIR kar dijiye. aur high court mein anticipatory bail.

Q: Denial of documents in Admission/Denial of documents in NCDRC

In a complaint case (delay possession) in NCDRC, opposite party (builder) denied some documents in Admission/Denial of documents. is it mean that builder did not receive specific documents mentioned by complainant or builder received the documents but denied the contents of documents? Please help

Advocate Gaurav Gupta answered
Hello,In your case, as the builder is denying the documents provided by your side, this denial also extends to denial of contents of document. As per sub-rule 2 of Rule 4 of Order XI of CPC, the party may admit or deny the existence of documents and this denial shall also extend to admission or denial of the contents of the document.It is unfortunate that builder has denied the documents. However, law provides ample remedy for the other party to prove the documents. Admission or denial stage comes pursuant to Inspection of documents. The law is clear on fact that bare and unsupported denials made by party are not to be considered as denial and therefore Court may dispense with proving the existence of documents by party relying on them. Party is therefore bound to provide reasons in support of denial of documents. Based on limiting facts that you have provided, I suggest that you take up the denial of documents in your stride and prove that the documents are material before the NCDRC and seek exemplary costs on the defendant.However, may I invite you to share detailed facts of the case to enable us to provide you with better counsel.

Q: Can a suit for passing off be valid against me?

A suit seeking permanent injunction for passing off has been filed against me. The Plaintiff is NOT the registered propertior of a mark and his application has been pending since 2013. The mark is the term 'global' for jeans/clothes I have been using a modification of the mark since 2016 and have filed an application for the same. When I went through the trademarks registry website, there are already about 30 DIFFERENT registered users of the mark not being the Plaintiff and plaintiff has barely been able to prove goodwill or reputation of the mark and has claimed user since 2005 but besides his own cash receipts , there is no adequate proof. Can i fight this suit on grounds that there are already MULTIPLE registered proprietors of the mark and Plaintiff cannot claim ownership over the word 'global' it has not been coined by him either and is a dictionary word. How should i proceed and what should my defence be?

Advocate Gaurav Gupta answered
You have a good defence against the plaintiff if you: 1st claim that plaintiff does not have a distinctive trademark. 2nd the term global is a generic term and no one can claim ingenuity or ownership over it. 3rd suit is an act of vendetta against you and 4th that balance of convenience does not lie with the plaintiff. 5th No irreparable loss would ensue to the plaintiff if injunction is not granted. Variety of case laws can be found on web, in support of the aforesaid points.In your written statement you may need to make sure that you do not deny the averment that your mark is a modification of the mark of the plaintiff. You may need to state that your mark is a distinctive mark, and distinctive. And that you cater to different set of consumers than the business of plaintiff (if that’s the case).The word, “ Gobal” or any term similar to it is neither an invented nor specific word. It has to be considered a generic word more particularly when lakhs of persons or institutions are using it as a part of their trading name or business activities. Even a prior user of the name “Global” by the plaintiff would not confer upon it an exclusive right to use that name to the exclusion of others and pendency of the applications for registration under the Trade Marks Act, 1999 is inconsequential.In Skyline Education Institute versus S.L. Vaswani, (2010) 1 SCC 345, the Supreme Court held that Skyline is a generic term and that evidence that the term Skyline has been used in trademarks of hundreds of companies in India and abroad is suggestive of its generic nature.You may come up with argument that your mark, however modified it may be is a distinctive mark altogether. For example in Durga Dutt Sharma case, SC upheld the distinctiveness of trademark Navaratna Pharmaceuticals. You may give the Court an additional point to ponder over and one additional cause for your defence.It will be a tough task for Plaintiff to prove by way of evidences that the first use of the mark was his. But let me comment here that you have to make sure that all evidences are duly rebutted as higher courts do not generally easily disregard the order of lower court if its based on evidences. Higher Courts only allow substantial questions of law or questions of general public importance.In case the business of plaintiff and defendants both are different, then no question arises of maintainability of suit for injunction. Following five elements need to be proved by plaintiff in cases of passing off (1) a misrepresentation, (2) made by a trader in the course of trade, (3) to prospective customers of his or ultimate consumers of goods or services supplied by him, (4) which is calculated to injure the business or goodwill of another trader (in the sense that this is a reasonably foreseeable consequence), and (5) which causes actual damage to a business or goodwill of the trader by whom the action is brought or (in a quia timet action) will probably do soPlease refer to Lakhsmikant Patel versus Chetanbhai Shah, (2002) 3 SCC 65 on point of Injunction. For arguments in support, please refer to: Heinz Italia versus Dabur India, (2007) 6 SCC 1.