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Category
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Patent
Trademark
Copyright
Design
Filing Date
Decision Verdict Date
Court / Tribunal
Bench / Panel Judges
Petitioner / Claimant (Plaintiff)
Vijaykumar S. Ganiger
Respondent / Defendant
Narendra J. Oswal
Dispute Summary
The Karnataka High Court allowed a writ petition filed by Vijaykumar S. Ganiger against an order of the Commercial Court, which had rejected his application for appointment of a Court Commissioner to inspect and preserve evidence of alleged trademark infringement by Narendra J. Oswal. The Court held that the appointment of a Local Commissioner would facilitate preservation of evidence and ensure effective implementation of the interim injunction already granted. The order of the Commercial Court was quashed and set aside, and the petition was allowed.
Outcome / Ruling
plaintiff_favorable
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Full text judgment
[Cites 3 , Cited by 0 ] Karnataka High Court Vijaykumar S. Ganiger vs Narendra J. Oswal on 23 June, 2026 -1- NC: 2026:KHC-D:8212 WP No. 105052 of 2026 HC-KAR IN THE HIGH COURT OF KARNATAKA AT DHARWAD DATED THIS THE 23RD DAY OF JUNE, 2026 BEFORE THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM WRIT PETITION NO. 105052 OF 2026 (GM- CPC ) BETWEEN: VIJAYKUMAR S. GANIGER AN INDIAN, HINDU, AGED ABOUT 35 YEARS, S/O. SRI SOMANNA GANIGER, PROPERIETOR OF SHRI VIISHNU AAGRO OILS CORPORATION 4/7B AND 4, NANDGERKAR BUILDING, BANKAPUR CHOWK, P.B.ROAD, HUBLI-580028. EMAIL. [email protected] ... PETITIONER (BY SRI NIKHIL PATIL AND SRI SIVARAMAN VIDYANATHAN, ADVOCATE) AND: 1. NARENDRA J. OSWAL Digitally signed by AN, INDIAN, HINDU, MAJOR BY AGE, MOHANKUMAR B FATHER'S NAME NOT KNOWN TO THE PETITONER SHELAR PROPRIETOR OF MADHUKAR AGRO INDUSTRIES Location: HIGH PLOT NO.24, KIADB INDUSTRIAL AREA, COURT OF ALIYABAD BLOCK 01, KARNATAKA VIJAYAPURA - 586104 [email protected] . 2. ZU PRINT PACK SOLUTIONS AN INDIAN PARTNERSHIP FIRM, REPRESENTED BY ITS PARTNER MR. ZAMEER FATHER'S NAME NOT KNOWN TO THE PETITONER MILKAT NO. 1902, YOGESHWAR NIWAS, PLOT NO. 34, BAMNOLI, SANGLI, MAHARASHTRA-413436. ... RESPONDENTS -2- NC: 2026:KHC-D:8212 WP No. 105052 of 2026 HC-KAR THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO, ISSUE A WRIT OF CERTIORARI OR ANY OTHER WRIT SETTING ASIDE THE IMPUGNED ORDER DATED 09.06.2026 IN I.A. NO. III IN COM O.S. 5014/2026 BY THE HONBLE V ADDITIONAL DISTRICT AND SESSIONS JUDGE, HUBBALI PRODUCED AT ANNEXURE-A AND AWARD THE COSTS OF THESE PROCEEDINGS TO THE PETITIONER. THIS PETITION, COMING ON FOR PRELIMINARY HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: ORAL ORDER (PER: HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM) The present writ petition is directed against the order passed by the Commercial Court on I.A. No.3 filed under Order XXVI Rule 9 read with Order XXXIX Rule 7 of the Code of Civil Procedure . 2. The petitioner, who has instituted a suit for permanent injunction alleging infringement and passing off of its registered trademark, contends that the respondents are marketing edible oils under the deceptively similar trademark "SVT GOLD", thereby infringing the petitioner's proprietary and statutory rights. The grievance of the petitioner is that, while considering the application seeking appointment of a Court Commissioner for local inspection -3- NC: 2026:KHC-D:8212 WP No. 105052 of 2026 HC-KAR and preservation of evidence, the Commercial Court has virtually rejected the application by recording findings touching upon the merits of the rival claims, which are required to be adjudicated only at the trial. 3. Heard the learned counsel appearing for the petitioner. Notice to the respondents is dispensed with. The records indicate that the respondents/defendants have been placed ex parte before the Commercial Court and there is presently no contest to the proceedings. In the absence of any adversarial contest and having regard to the nature of the challenge, this Court is satisfied that the petition can be considered without issuance of notice to the respondents. 4. The petitioner has instituted O.S.No.5014/2026 before the Commercial Court seeking, inter alia, the reliefs of permanent injunction restraining the defendants from infringing and passing off the petitioner's trademark by using the mark "SVT GOLD" or any other mark deceptively -4- NC: 2026:KHC-D:8212 WP No. 105052 of 2026 HC-KAR similar thereto in relation to edible oils, together with consequential reliefs as prayed for in the plaint, which are as under: "(a) An order and decree of perpetual injunction restraining the Defendants, and their proprietors, partners, Directors, dealers, agents, servants, employees, legal heirs, successors, assignees, representatives, associates, and anybody claiming through or under them, jointly and severally, from passing off the Plaintiff's goodwill and reputation in and to the trademarks SVT SAI GOLD/SVT GOLD by using the identical and deceptively similar trademarks 'SV GOLD' and/or 'Svt figure' and/or any other identical and/or deceptive/confusingly similar trademark in relation to the goods for which the Plaintiff's trademark SVT GOLD is used namely edible oils or any other allied and cognate goods; and (b) An order and decree of perpetual injunction restraining the Defendants, and their proprietors, partners, Directors, dealers, agents, servants, employees, legal heirs, successors, assignees, representatives, associates, and anybody claiming through or under them, jointly and severally, from infringing the Plaintiff's registered trademark -5- NC: 2026:KHC-D:8212 WP No. 105052 of 2026 HC-KAR nos.2304773, 4031943, 4333296 and 4523795 in class 29 for the marks SVT SAI GOLD/SVT GOLD by using the identical and deceptively similar trademarks 'SV GOLD' and/or 'Svt figure' and/or any other identical and/or deceptively/confusingly similar trademark relation to the goods for which the Plaintiff's trademark stands registered namely edible oils or any other allied and cognate goods; and (c) An order and decree of mandatory injunction directing the Defendants, jointly and severally, to surrender to the Plaintiff on oath for destruction all packaging materials, products, pouches, labels, cartons, dies, printing blocks, stationery, invoices, drawings, engravings, brouchers, product literature, seals, sales promotional material or other documents or material, whether physical or digital/electronic bearing the identical and deceptively similar trademarks 'SV GOLD' and/or 'Svt figure' or any other identical and/or deceptively/confusingly similar trademark; and (d) An order and decree directing the Defendants to, jointly and severally, render a true and faithful account of profits earned by the Defendants by use of the trademarks 'SV GOLD' and/or 'Svt figure', and the Defendants be further -6- NC: 2026:KHC-D:8212 WP No. 105052 of 2026 HC-KAR directed to, jointly and severally, pay such amounts as may be found due to the Plaintiff on such accounts being taken; and (e) An order and decree directing the Defendants, jointly and severally, to pay to the Plaintiff a sum of Rs.1,00,00,000.00 (Rupees One Crore) as damages for the illegal adoption and use of the identical and deceptively similar trademarks 'SV GOLD' and/or 'Svt figure'; and (f) An order and decree directing the Defendants to pay the costs of this suit, and this Hon'ble Court may be pleased to pass such further order(s) and grant such other relief(s) to the Plaintiff as it may deem fit and proper under the circumstances;" 5. The plaint discloses that the petitioner claims to be the registered proprietor of the trademarks "SVT SAI GOLD" and "SVT GOLD" in Class 29 in respect of edible oils, having secured registration under Trademark Nos.2304773, 4031943, 4333296 and 4523795. Alleging that the respondents have dishonestly adopted and commenced use of the marks "SV GOLD" and "SVT -7- NC: 2026:KHC-D:8212 WP No. 105052 of 2026 HC-KAR Figure", which are asserted to be identical and deceptively similar to the petitioner's registered trademarks, the petitioner has instituted the present suit seeking comprehensive reliefs. The principal relief sought is one of perpetual injunction restraining the defendants and all persons claiming through or under them from passing off their goods as those of the petitioner by using the impugned trademarks or any other identical or deceptively similar mark in relation to edible oils or allied and cognate goods. The petitioner has also sought a decree of perpetual injunction restraining infringement of its registered trademarks. Besides the injunctive reliefs, the petitioner has prayed for a mandatory injunction directing the defendants to surrender all offending goods, packaging materials, labels, cartons, printing blocks, dies, stationery, promotional materials and every other physical or electronic material bearing the impugned marks for destruction. The suit also contains a prayer for rendition of accounts directing the defendants to render true and -8- NC: 2026:KHC-D:8212 WP No. 105052 of 2026 HC-KAR faithful accounts of profits earned by use of the infringing marks and for payment of the amounts found due on such accounting. The petitioner has further sought damages quantified at Rs.1,00,00,000/- for the alleged unlawful adoption and use of the deceptively similar trademarks, together with costs and such other consequential reliefs as this Court may deem fit to grant. 6. Pending consideration of the suit, the petitioner filed an application under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure seeking an order of temporary injunction restraining the defendants from using the impugned trademarks during the pendency of the proceedings. The Commercial Court, on being satisfied that the petitioner had made out a prima facie case, granted an ex parte order of temporary injunction by order dated 06.02.2026. Consequent upon securing the interim order, the petitioner filed I.A. No.3 under Order XXVI Rule 9 read with Order XXXIX Rule 7 of the Code of Civil Procedure seeking appointment of a Court Commissioner. -9- NC: 2026:KHC-D:8212 WP No. 105052 of 2026 HC-KAR The relief sought in the application was to authorize the Court Commissioner to visit the business premises of the defendants, conduct a search, identify and seize the infringing goods, labels, packaging materials and all articles bearing the impugned trademarks "SV GOLD" and "SVT Figure", prepare an inventory of the offending materials and take the assistance of the jurisdictional police authorities for effective execution of the commission. The petitioner asserted that such a commission was crucial to preserve the infringing material, prevent its clandestine removal or destruction and to secure vital evidence relating to the alleged infringement and passing off. The Commercial Court, however, declined the request by the impugned order. 7. Assailing the said order, learned counsel appearing for the petitioner would contend that the Commercial Court has committed a serious jurisdictional error in refusing to exercise the power vested in it under - 10 - NC: 2026:KHC-D:8212 WP No. 105052 of 2026 HC-KAR Order XXVI Rule 9 read with Order XXXIX Rule 7 of the Code of Civil Procedure . 8. On a pointed query by this Court as to whether, in an action for trademark infringement and passing off, appointment of a Court Commissioner to undertake search, seizure and preservation of infringing goods is legally permissible, learned counsel invited the attention of this Court to the judgment of the Hon'ble Supreme Court in Laxmikant V. Patel vs. Chetanbhat Shah and Others1, wherein the Hon'ble Apex Court has recognized the necessity of granting prompt and effective interim measures in actions involving infringement and passing off so as to preserve evidence and prevent continued deception in the market. Placing strong reliance on the principles enunciated therein, learned counsel submitted that the appointment of a Court Commissioner in appropriate cases is an effective procedural mechanism to ensure preservation of evidence and to prevent the 1 Civil Appeal Nos.8266-8267 of 2001 Dtd: 04.12.2001 - 11 - NC: 2026:KHC-D:8212 WP No. 105052 of 2026 HC-KAR defendant from frustrating the interim orders of the Court by removing or concealing the offending goods. It is therefore contended that the Commercial Court, instead of examining the application within the limited parameters governing the appointment of a Commissioner, has virtually embarked upon an adjudication of the merits of the suit and has recorded findings which are wholly unwarranted at the interlocutory stage. 9. In the light of the rival contentions and upon perusal of the impugned order, the following point arises for consideration: "Whether the Commercial Court was justified in rejecting I.A. No.3 filed under Order XXVI Rule 9 read with Order XXXIX Rule 7 of the Code of Civil Procedure by recording findings touching upon the merits of the petitioner's claim, despite an order of temporary injunction being already in force, and whether the petitioner had made out a case for appointment of a Court Commissioner to search, seize and preserve the allegedly infringing goods and other offending material?" - 12 - NC: 2026:KHC-D:8212 WP No. 105052 of 2026 HC-KAR 10. Having given anxious consideration to the submissions made by the learned counsel for the petitioner and on examining the material placed on record, this Court is of the considered view that the impugned order passed by the Commercial Court cannot be sustained. The Hon'ble Supreme Court, while dealing with an identical question arising in an action for infringement of trademark and passing off, has authoritatively held that once the plaintiff is able to establish a prima facie case of infringement or passing off, the normal practice of the Court is to grant prompt ex parte injunctive relief and, wherever the facts so warrant, to appoint a Local Commissioner for the purpose of search, seizure and preservation of the infringing goods and allied material. Such a course is intended to prevent the defendant from defeating the very purpose of the injunction by clandestinely removing, concealing or disposing of the offending goods and to preserve vital evidence necessary for effective adjudication of the suit. - 13 - NC: 2026:KHC-D:8212 WP No. 105052 of 2026 HC-KAR 11. The principles enunciated by the Hon'ble Apex Court squarely govern the facts of the present case. The petitioner has asserted infringement of its registered trademark as well as passing off by alleging that the defendants are marketing edible oils under deceptively similar marks. Allegations of this nature have serious commercial and economic ramifications. Every sale of goods bearing the impugned mark constitutes a continuing invasion of the proprietary rights of the registered proprietor and simultaneously results in deception of the purchasing public. Delay in securing the infringing goods or preserving the evidence would substantially prejudice the rights of the plaintiff and may render the interim order of injunction wholly ineffective. 12. The records further disclose that the Commercial Court, having been satisfied that the petitioner had established a prima facie case, balance of convenience and irreparable injury, had already granted an ex parte order of temporary injunction restraining the - 14 - NC: 2026:KHC-D:8212 WP No. 105052 of 2026 HC-KAR defendants from using the impugned trademarks. Once such satisfaction was recorded and interim protection was granted, the consequential prayer seeking appointment of a Local Commissioner for implementation of the interim order and preservation of the offending material deserved to be considered within the limited parameters governing Order XXVI Rule 9 read with Order XXXIX Rule 7 of the Code of Civil Procedure . Instead of examining the application from that perspective, the Commercial Court has proceeded to record findings touching upon the merits of the rival claims, which is wholly impermissible at an interlocutory stage. The exercise undertaken by the Commercial Court virtually amounts to a premature adjudication of issues which are required to be determined only after parties lead evidence. The rejection of I.A. No.3, therefore, suffers from a patent error of jurisdiction warranting interference under Article 227 of the Constitution of India. - 15 - NC: 2026:KHC-D:8212 WP No. 105052 of 2026 HC-KAR 13. Yet another circumstance which weighs with this Court is that there is absolutely no contest by the defendants. The order sheet, produced as Annexure-J, unmistakably indicates that the defendants have been placed ex parte. Therefore, the apprehension expressed by the petitioner that the infringing goods and materials may be removed, concealed or destroyed cannot be said to be unfounded. In the absence of any opposition from the defendants, and particularly when an order of temporary injunction is already operating against them, the petitioner has made out a strong and compelling case for appointment of a Local Commissioner. Such appointment would neither prejudice the defendants nor amount to granting the final relief sought in the suit. On the contrary, it would facilitate preservation of evidence, ensure effective implementation of the interim injunction already granted and safeguard the proprietary rights asserted by the plaintiff pending adjudication of the suit. The refusal to appoint a Commissioner, despite these compelling - 16 - NC: 2026:KHC-D:8212 WP No. 105052 of 2026 HC-KAR circumstances, has the effect of frustrating the very object of the interim order. 14. In that view of the matter, this Court is satisfied that the impugned order warrants interference. Accordingly, the following: ORDER (i) The writ petition is allowed; (ii) The order dated 09.06.2026 passed on I.A. No.3 in Com. O.S.No.5014/2026 by the learned V Additional District and Sessions Judge, Hubballi, produced at Annexure-A, is hereby quashed and set aside; (iii) Consequently, I.A.No.3 filed by the petitioner under Order XXVI Rule 9 read with Order XXXIX Rule 7 of the Code of Civil Procedure stands allowed; (iv) The learned Commercial Court shall forthwith appoint a Local Commissioner to execute the commission in accordance with law, keeping in view the observations made by this - 17 - NC: 2026:KHC-D:8212 WP No. 105052 of 2026 HC-KAR Court. The Commissioner shall be at liberty to inspect the premises of the defendants, prepare an inventory of the goods, packaging materials and other articles bearing the impugned trademarks, take such measures as are necessary for preservation of the offending material, and, if the circumstances so require, seek the assistance of the jurisdictional police authorities for effective execution of the commission; (v) It is made clear that the observations made in this order are confined to the adjudication of I.A. No.3 and shall not influence the Commercial Court while deciding the suit on its own merits. Sd/- (SACHIN SHANKAR MAGADUM) JUDGE CA CT:GSM List No.: 1 Sl No.: 41
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