1. This Commercial IP Suit, valued at Rs. 150 crores in damages, might have followed the usual trajectory of trade mark infringement and passing of actions, but for an exceedingly peculiar turn of events.

2. A very brief background will suffice for the purposes of the adinterim order today. The Plaintiff No. 3 promoted Plaintiff No. 1 (a limited liability partnership) and Plaintiff No. 2 (a corporate entity). Plaintiff No. 3 and his family wholly control the first two Plaintiffs. They are in the business of manufacturing, selling and distributing ice cream and related products through branded ice cream parlours under what they call the NATURAL family of marks. Plaintiff No. 3 says that he adopted the mark NATURAL in 1984 and then began using it to vend ice cream products through his then proprietary concern, M/s. Natural Ice Cream. The Plaintiffs claim this is a popular mark with a large reputation that is associated uniquely with them. That assertion will be listed in due course.

3. Paragraph 6 lists the various registrations the Plaintiffs have obtained in Classes 29, 30, 35, 42 and 43. There are, the Plaintiffs say, pending rectifications applications filed by third parties. These are being contested. The word mark itself is registered in Classes 29, 30, 35 and 43 as set out on page 5. There are several variants of the mark, particularly with the “A” in NATURAL being stylized to represent an ice cream cone. Among the marks the Plaintiffs use is an oval device with the word NATURAL in a special outline font with a graphic of trees and scenery inset in the centre. This entire group of marks along with a slogan ‘Taste the Original’ are referred to in the suit as the NATURAL family marks. Those in respect of which registrations are obtained are known as the NATURAL family registered marks.

4. The Plaintiff is said to have over 130 franchises. Mr Tulzapurkar for the Plaintiff maintains that the NATURAL family marks are extremely popular and uniquely identify the Plaintiffs. In paragraph 15 there is an itemization of the number of kilos of the product sold: it seems that in 2019-2020 nearly 48 lakhs kilos of icecream was sold under the NATURAL family of marks or registered marks. Paragraph 18 of the plaint sets out the annual turnover for the NATURAL family marks. For 2019-2020 it is Rs. 166 crores. The cumulative turnover in 2019-2020 is said to be Rs. 312.7 crores. Promotional expenses for 2019-2020 are as high as Rs. 1.46 crores. There is also evidence adduced of other publicity material, awards, social media outreach and so on. Paragraph 24 has some details of orders that the Plaintiffs have obtained against persons it considers infringers.

5. Paragraph 26 says that in March 2021 the Plaintiffs found an ice cream parlour using a rival mark NATURAL in Manjalpur, Vadodara. This will be of some consequence as we shall presently seen. On investigations being made, the Plaintiffs found that the business entity was called ‘Natural Ice Cream’ and the 2nd Defendant, one Sanman Patel, appeared to be its proprietor. These are the two Defendants to the suit. The same paragraph also says that it was these two Defendants who were advertising their ice cream business under the rival mark NATURAL on Facebook and Instagram. They use the email ID naturalmanjalpur@gmail.com. There is evidence obtained from the food aggregator, Zomato, which also shows the Defendants’ names. The parlour signage had a legend ‘since 1992’, but the Plaintiffs say that it opened only a short while ago.

6. This, briefly, is the ambit of the plaint and on the basis of which Mr Tulzapurkar seeks usual orders of injunction and an ad-interim Receiver. There is also a pending Petition for leave under clause XIV.

7. I came now to the extremely unusual events after the Plaintiffs brought suit. The matter first came up before BP Colabawalla J on 30th June 2021. Counsel appeared instructed by Mr S Venkateshwar and said that he and his attorney were representing “the Defendants”. They sought time. This was granted. The matter then came up before me on 9th July 2021. Again, the advocate on record and counsel were the same. Again, they said they were for ‘the Defendants’. There was at that time an Affidavit in Reply of some 400 pages. I thought that was absurd in opposition to an ad-interim application. Of course I said so, and required an Affidavit with considerably more brevity and only the essential annexures to be filed by 16th July 2021. I permitted a Rejoinder. I adjourned the matter to today.

8. There is indeed an Affidavit. The deponent seems to struggle with the word ‘brevity’. For this affidavit It is not in any way appreciably more concise. It still runs to some 300 pages. But I will let that pass for today. Now the Defendants to the Suit, though I have described them above, are shown as Natural Ice Cream and Sanman Patel, both with their address at a Ground Floor, Kishan Atria, Near Tulsidham Char Rasta, Manjalpur, Vadodara 390 011.

9. The Affidavit that has just been filed is by one Ambrish Chauhan. He is said to be the son of the late Shri Avinash Thakorbhai Chauhan. He then says that he is the authorized representative and lawful attorney of one Varshaben Avinashbhai Chauhan, the sole proprietor of ‘Defendant No. 1 entity-Natural Ice Cream & Cold Drinks’. But Defendant No. 1 is not in fact ‘Natural Ice Cream & Cold Drinks’. He gives his address as House No 3, GF Haribhaktiniwadi, Vrundavan Complex, Old Lakkad, Pitha Road, Vadodara 380 001. This is not the address of the Defendants. He then says he is the authorised representative cum lawful attorney of Mrs Varshaben Avinashbhai Chauhan, the sole Proprietor of ‘the Defendant No.1 entity - Natural Ice Cream and Cold Drinks’. But that is not the 1st Defendant. Chauhan does not say the 1st Defendant is mis-described. He does not say anywhere in the body of the affidavit what connection he has with the 2nd Defendant. As we shall see, I am asked to infer this from an annexure to the affidavit, though there is no averment in the affidavit about the parties to that annexure at all.

10. Then I find that at Exhibit ‘A’ to this Affidavit is a Power of Attorney from this Varshaben Chauhan to Ambrish Chauhan. The address of the proprietorship firm is yet another one (not the Vrundavan Complex address). It is also unrelated to the address of Sanman Patel. The Power of Attorney is in general terms and is not specific to this litigation.

11. At page 190 of this Affidavit there is a document called a Sales Contract, said to be between Varshaben and the 2nd Defendant named in the suit, Sanman Patel. I was told that the 2nd Defendant was a franchisee, but this does not seem to be a franchise agreement at all. It seems to be a contract for sale of products by Varshaben or her firm to Sanman Patel and his firm. That does not mean that the two firms are the same. It does not mean that Varshaben and her firm are defendants to this suit. Clause 17 of this Sales Contract says that Sanman Patel must not sell products other than those ‘Natural Ice Cream & Cold Drinks’. That also does fuse these personalities into one. The reference to this document at Exhibit ‘J’ is to be found in paragraph 13 of the 300-page affidavit filed by Ambrish Chauhan. There is no meaningful explanation of the annexure. It is just a sample document. ‘Natural Ice Cream & Cold Drinks’, as a proprietorship firm of Varsha Chauhan, is not a defendant at all. Chauhan motherand-son are not defendants. The Affidavit does not explain how they are connected to the 1st Defendant. Paragraph 13 of the Affidavit does not in fact say that Sanman Patel is their franchisee or that he brought to their notice the filing of the Suit. Exhibit ‘J’ is only a sample of a sales contract. It seems to have been included more by accident than by design.

12. That is not all. The vakalatnama in favour of the Advocate on record who appeared throughout before the Court and through whom this Affidavit is filed is also signed by Ambrish Chauhan and not by the named 2nd Defendant, Sanman Patel, the sole proprietor of the 1st Defendant.

13. I do not see how the Chauhans or Natural Ice Cream & Cold Drinks have any standing at all before this Court. I do not see how they could have done anything except seek impleadment. It is not clear from the Affidavit that in fact the 1st Defendant and Natural Ice Cream & Cold Drinks are the same.

14. The annexures to the plaint particularly Exhibit ‘Z’ and Exhibit ‘AA’ show a distinct outlet with a distinct address at Manjalpur Vadodara. Exhibit ‘Z’ is a photograph taken on 14th March 2021. Exhibit ‘AA’ gives the address, mobile number and naturalmanjalpur@gmail.com email ID. The physical address is supposed to be on the ground floor of Kishan Atria, Near Tulsidham Char Rasta, Manjalpur Vadodara 390 001. The Chauhans do not say that this is their outlet. They do not say that this is their email address. They do not say that this is their mobile number. How they can file a vakalatnama or an Affidavit purporting to be an Affidavit in Reply or claiming to be defendants to this suit is entirely unexplained.

15. I am not making an order against Natural Ice Cream & Cold Drinks or the Chauhans at all. Mr Tulzapurkar in fairness does not even press for that. He has seen this Affidavit filed by Ambrish Chauhan. For whatever reason, he has not sought an amendment to the plaint. He limits his relief to a outlet at Manjalpur, its signage, the products that the 2nd Defendant, Sanman Patel, vends there.

16. Dr Saraf appears for the Chauhans. I do not see how I can hear him. His clients are not parties and are not applicants. But I have afforded him that courtesy. He points out that Sales Contract at Exhibit ‘J’ of the plaint says that the outlet of the 2nd Defendant exclusively stocks products of Natural Ice Cream and Cold Drinks firm. That may be so, but that does not make Natural Ice Cream and Cold Drinks defendants, nor does it give this proprietorship firm and the Chauhans any standing. The Plaintiffs seek an injunction that against the named 2nd Defendant and his firm. They have sought no relief and filed no suit against Natural Ice Cream and Cold Drinks or the Chauhans. The question is what the 2nd Defendant is doing with the NATURAL mark, not what the Chauhans and their proprietorship firm are doing with it. If the 2nd Defendant uses the mark in a ‘trade marky’ way, and if the Plaintiffs have a prima facie case, then the result follows. As between the Plaintiffs and the Chauhans and their firm, whatever the Chauhans have to say will be relevant to their own defence or case when they adopt proceedings of their own — whether by way of an impleadment application or otherwise — or until the Plaintiffs decide to file a fresh suit against the Chauhans and their enterprise.

17. For the present, I am inclined to grant a time-limited adinterim order against the 2nd Defendant and his outlet, the 1st Defendant.

18. It is at this stage, while the order is being dictated, that I am interrupted by Mr Shashwat Bakshe, who says that Advocate KC Patel will be entering the vakalatnama on behalf of the named Defendants Nos. 1 and 2. The submission is that I should defer making an order for some time.

19. This is incredible. Mr Sanman Patel has had time since 30th June 2021 or even earlier to engage advocates and have them enter appearance. He has done nothing. Instead, the Chauhans have entered the fray, unbidden, unnamed and uninvited. They and their lawyers seem to have done wrong everything that could possibly be done wrong. There is no application for impleadment. There is not a word of explanation of the connection between the named Defendants and the Chauhans. There is no proper authorization by the 2nd Defendant in favour of the Chauhans. There is no explanation at all of the Chauhans’ connection to the physical address at Manjalpur, the mobile or the email id. But there is a vakalatnama signed by a person who is emphatically not a party to the Suit. Instead, I am asked to draw all manner of inferences and conjectures and to treat these as tenable defences.

20. This is not how I expect parties to conduct their affairs in matters before this, or, for that matter, any Court. A minimal amount of care and attention to detail is required. Instead of annexing one invoice after another invoice and bulking up affidavits to 300 and 400 pages, the Chauhans and their Advocates might have been better advised to focus their attention and energies on matters of consequence.

21. As far as I am concerned, there is a prima facie case by the Plaintiffs against the named Defendants. They have filed no Affidavit in Reply.

22. The Defendants have been served a long time ago and there is an Affidavit of Service. The Clause XIV Petition is thus made absolute.

23. Clearly, the 2nd Defendant has no independent right to use the NATURAL mark. Even if the legend on his signage is to be accepted, his use is only ‘since 1992’. The Plaintiffs are registered proprietors with use that can be traced back to 1984.

24. There is no question that the Plaintiffs have made out a sufficient prima facie case and the balance of convenience is with them. I am inclined, therefore, to grant an ad-interim injunction in terms of prayer clauses (a), (b) and (c) of the Interim Application, which read thus:

“(a) That pending the hearing and final disposal of the suit, the Defendants, their subordinates, agents and all other persons claiming under or through the Defendants be restrained by an order and injunction of this Hon’ble Court from infringing any of the Plaintiffs’ NATURAL Family Registered Marks, i.e., the marks bearing registration nos. 641592, 1143035, 1209159, 1209160, 3177578, 3177573, 3177579, 3177580 in any manner and from using the impugned mark NATURAL or any other mark similar to the NATURAL Family Registered Marks upon or in relation to any goods / services for which the NATURAL Family Registered Marks are registered or upon or in relation to any goods or services similar thereto and from selling, offering for sale (either directly from heir ice cream parlor or through Zomato or through any other platform or any other manner), advertising, or dealing in any products or rendering any services (including ice cream parlor services) under the impugned mark NATURAL or any mark similar to any of the NATURAL Family Registered Marks and from using the impugned mark NATURAL or or any other mark similar to the NATURAL Family Registered Marks as part of the Defendants’ business name or trading style or upon or in relation to any products, signage, business card, packaging, advertisement, or on the Defendants’ social media pages or in relation to Paytm online / mobile payment platform or any other online / mobile payment platform (including those as depicted in Exhibits ‘Z’, ‘AA’, ‘BB’, ‘CC’, ‘DD’, ‘EE’, and ‘FF’ hereto) and from using the email address ‘naturalmanjalpur@gmail.com’ or any other email address having NATURAL or any other mark similar to the NATURAL Family Registered Marks as a part thereof;

(b) That pending the hearing and final disposal of the suit, the Defendants, their subordinates, agents and all other persons claiming under or through the Defendants be restrained by an order and injunction of this Hon’ble Court from passing off their goods / business / ice cream parlor as that of or as connected with or associated with the Plaintiffs in any manner and from using NATURAL as part of the Defendants’ business name/trading style and from selling or offering for sale (either directly from their ice cream parlor or through Zomato or through any other goods under or bearing or in relation to which the impugned mark NATURAL is used or under or bearing or in relation to which any mark similar to any of the Plaintiffs’ NATURAL Family Marks are used and from using the impugned mark NATURAL or any other mark similar to the Plaintiffs’ NATURAL Family Marks in relation to any ice cream parlors in any manner or on the Defendants’ social media pages and from using the email address ‘naturalmanjalpur@gmail.com’ or any other email address having NATURAL or any other mark similar to the NATURAL Family Registered Marks as a part thereof and from using the impugned mark NATURAL in any manner as depicted in Exhibits ‘Z’, ‘AA’, ‘BB’, ‘CC’, ‘DD’, ‘EE’, and ‘FF’ or any other manner;

(c) That pending the hearing and final disposal of the suit, the Defendants, their subordinates, agents and all other persons claiming under or through the Defendants be restrained by an order and injunction of this Hon’ble Court from using or displaying or depicting the impugned mark NATURAL or any mark resembling or similar to any of the NATURAL Family Marks upon or in relation to the Defendants’ signage, business card, packaging, advertisement or in relation to Paytm online / mobile payment platform or any other online / mobile payment platform (including those as depicted in Exhibits ‘Z’, ‘AA’, ‘BB’, ‘CC’, ‘DD’, ‘EE’, and ‘FF’ hereto, or any other manner, indicating or suggesting that the Defendants are authorized franchisees or dealers of the Plaintiffs or that the Defendants are related to, connected or associated with the Plaintiffs or in any manner passing off the Defendants’ business as authorized, franchised or connected with the Plaintiffs or the Plaintiffs’ business;”

25. Having regard to what is submitted before me I will not at this stage make an order of Receiver. The injunctions will suffice for now. Further, they will operate only until 9th September 2021 unless earlier vacated by this Court. The 2nd Defendant will have until 6th August 2021 to file an Affidavit in Reply for himself and on behalf of the 1st Defendant. A Rejoinder is permitted by 13th August 2021. I will take up this matter subject to overnight part-heard on 17th August 2021 for final disposal.

26. I once again clarify that I have made no order today against the deponent of the Affidavit, Ambrish Chauhan, or his principal, Varshaben Chauhan, or her proprietorship firm Natural Ice Creams & Cold Drinks. All their contentions and remedies are expressly kept open for an appropriate proceeding.

27. All concerned will act on production of an ordinary copy of this order.