IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 3RD JUNE 2010 / 13TH JYAISTHA 1932 FAO.No. 279 of 2008() --------------------- AGAINST THE ORDER DATED 07/04/2008 IN IA. 1283 /2007 IN OS.5/2007 of ADDL. DISTRICT COURT-II, KOZHIKODE .................... APPELLANTS/RESPONDENTS: ------------------------------------------------ 1. ABDUL RASHID, PARTNER AL BAKE ARABIC RESTAURANT, MAVOOR ROAD, KOZHIKODE. 2. ASSAINAR.M., AGED 34 YEARS, S/O.MOOSA HAJI, MANNARATHIL (H), KANNANKARA, CHELANNUR, KOZHIKODE. 3. ABOOBACKER N.P., AGED 31 YEARS, S/O.MOOSA HAJI, MANNARATHIL (H), KANNANKARA, CHELANNUR, KOZHIKODE. 4. ABDUL NAZEER M., AGED 26 YEARS, S/O.MOOSA HAJI, MANNARATHIL (H), KANNANKARA, CHELANNUR, KOZHIKODE. BY ADVS. SRI.V.R.KESAVA KAIMAL, SRI.N.M.MADHU. RESPONDENT(S): PETITIONER: ------------------------------------------------ ELBAIK FOOD SYSTEMS CO.S.A. 69, BOULEVARD DE LA PETRUSSE.L 2320, LUXEMBOURG, THROUGH ITS CONSTITUTED ATTORNEY MR.KHALID MOHAMMED KHALI ODEH, S/O.MOHAMMED KHALID, A JORDANIAN NATIONAL, AGED 41 YEARS, RESIDING AT HL ARCADE, 3RD FLOOR, PLOT NO.14, SECTOR-5 (MLU) UTI BANK, DWARAKA, NEW DELHI - 110 075. BY ADVS. SRI.JOHN MATHEW, SRI.K.P.RAJEEVAN, SRI.C.P.SHYJU. THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 03/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss Thottathil B.Radhakrishnan & S.S.Satheesachandran, JJ. = = = = = = = = = = = = = = = = = = = = = = = = F.A.O.No.279 of 2008 = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 3rd day of June, 2010. Judgment Thottathil B.Radhakrishnan, J. 1.The defendants in a suit under the Trademarks Act, 1999 have filed this appeal against an interlocutory order of temporary injunction granted on 7.4.2008. The suit was filed in 2007. 2.We notice that no interim orders were issued from this Court, though this appeal was admitted and the fact of the matter remains that the appellants-defendants stand restrained as per the impugned order from 7.4.2008. Being a matter relatable to the trademarks, the Court has to expedite disposal of the same in the most expeditious manner. FAO279/08 -: 2 :- 3.The learned counsel for the respondent submitted that the plaintiff and his witnesses had filed proof affidavits and were present before the court below to be examined and that the defendants were not then prepared to cross- examine the witnesses and the court below had discharged the witnesses. He further states that thereafter, the defendants applied to the court below for an opportunity to recall the witnesses for examination and the court below has granted permission on certain conditions as to meeting the expenditure etc. 4.May be it is a case where the defendants would have definitely thought that the pendency of this appeal would come to their aid in resolution of the dispute. It would have been therefore that they did not properly use the opportunity to cross-examine the witnesses. But, that does not mean that the suit could be ended by a final decision in the appeal. FAO279/08 -: 3 :- 5.The appeal in hand raises different questions of law and facts, including a comparative evaluation of the trademarks of the plaintiff and the defendants. 6.We have heard the learned counsel on either side quite in extenso on the various aspects of the matter, including on a comparative evaluation of the trademarks as also the different yardsticks on which a trademark case should be decided. We are, however, persuaded to think that it would be inappropriate for us to finally speak on the correctness or otherwise of the different contentions raised by either side because the parties are proceeding to have the trial of the suit which is ripe for such procedure. Under such circumstances, we are clear in our mind that it may be improper for us to express anything on merits, though we should necessarily caution the court below to dissuade itself from treating the impugned order as final for any purpose. FAO279/08 -: 4 :- Under the aforesaid circumstances, while refusing to interfere with the impugned order, we direct that the court below will expedite the trial and have the matter disposed of finally, untrammelled by anything stated in the impugned order, within a period of six months from now. It is further ordered that taking into consideration the fact that this appeal had been pending till now, the court below will give sufficient opportunity to both sides to adduce evidence. The appeal ordered accordingly. Thottathil B.Radhakrishnan, Judge. S.S.Satheesachandran, Judge. Sha/0406