Bardana Super Hi-Tech Agro Tonic Pvt. Ltd. vs Amcons IPL(Agro Industrial Expansion) Pvt. Ltd. & Ors.

SANJAY DHAR-J

The appellant-company has called in question order dated 11.07.2026 passed by the learned Commercial Court (Principal District Judge), Pulwama (hereinafter to be referred as the trial court), whereby application of the appellant/plaintiff for grant of interim relief in terms of Order XXXIX Rules 1 and 2 of the Code of Civil Procedure(for short the Code) has been dismissed.

It appears that the appellant/plaintiff filed a suit against the defendants/respondents before Commercial Division of this Court seeking the following reliefs:

manufacture, sale and distribution of the impugned goods and, upon such rendition of accounts, pass a decree in favour of the Plaintiff for the amount so found due, along with interest thereon;

Alongwith the suit, the plaintiff filed an application under Order XXXIX Rules 1 and 2 of the Code seeking various interim reliefs, which are reproduced as under:

The Commercial Division of this Court vide ex parte interim order dated 25.03.2026 restrained the defendants, their directors, proprietors, officers, servants, agents, distributors, stockists, retailers, representatives from manufacturing, processing, packaging, labelling, re-labelling, advertising, promoting, displaying, offering for sale, selling, distributing or in any manner dealing in fertilizers, manures, or allied goods under the impugned mark “SUPER AGRO-TECH”. The defendants were also restrained from passing off or enabling others to pass off their goods as goods of the plaintiff.

The defendants/respondents entered their appearance and raised a preliminary objection to the maintainability of the suit, on the ground that the suit ought to have been filed by the plaintiff before the concerned Commercial Court instead of filing the same directly before the Commercial Division of the High Court. In this regard, the defendants placed reliance upon the provisions contained in section 15 of the Code. The Commercial Division of this Court vide its order dated 24.04.2026, upheld the objection raised by the defendants and exercised its power under section 24 of the Code directing transfer of the suit to Commercial Court (Principal District Judge), Pulwama. It was made clear in the said order that the transferee court would be free to vacate/modify or confirm the interim order(s) passed by Commercial Division of this Court. It seems that the aforesaid order was challenged by the plaintiff before the Supreme Court through the medium of Special Leave of Appeal(C) No.17959 of 2026, but the same came to be dismissed by the Supreme Court vide order dated 26.05.2026. In these

circumstances, the suit came to be transferred to the learned trial court for its disposal in accordance with law.

The case set up by the plaintiff in its plaint, in brief, is that it is engaged in the research, development, formulation and commercialization of agro-tonic and organic manure products since the year 2001. According to the plaintiff, around the year 2011, their products came to be actively marketed and dealt with in the trade under the distinctive expression including “HI-TECH AGRO TONIC” and “SUPER HI-TECH AGRO TONIC”. It has been averred that incorporation of the plaintiff-company in the year 2017 represents a mere formalization, consolidation and expansion of already existing and well-established line of business, and does not mark the commencement of use of the said marks. Thus, the rights of the plaintiff are stated to have been founded upon prior adoption, prior use and continuous commercial exploitation of the marks over a long period of time, much prior to the defendants’ impugned adoption and as such its rights are superior and enforceable in law.

It is further case of the plaintiff that its good are sold under and in relation to the distinctive marks, labels, packaging, artistic works and trade dress adopted and developed over time, including inter alia the marks “SUPER HI-TECH AGRO TONIC”, “HI-TECH AGRO TONIC, BARDANA SUPER HI-TECH AGRO TONIC” and other cognate and associated label/device marks form part of its commercial identity, all of which have been continuously used, promoted and commercially exploited in the course of trade.

It has been pleaded by the plaintiff that its products, particularly its distinctive apple themed packaging bearing the prominent expression “HI-TECH AGRO TONIC”/ “SUPER HI-TECH AGRO TONIC”, red and yellow colour scheme, crown like logo placement, central brand panel, apple imagery and distinctive border treatment, have over the years acquired substantial goodwill, recognition and source identifying significance in the market. It is further case of the plaintiff that it is the proprietor of various registered trademarks and label/device marks. According to the plaintiff, it is registered proprietor of Trade Mark Registration Nos. 4151497 in Class-I in respect of fertilizers and allied goods. It has also relied upon registration bearing Nos. 461531 and 461531 in Class 35. Apart from the aforesaid registrations, applications for certain associated marks and label/device of the plaintiff are stated to be pending at different stages before the Trade Marks Registry, but independent of statutory protection, the plaintiff has acquired formidable, prior, superior and enforceable common law rights by virtue of prior adoption, prior user, long continuity in trade, established goodwill, market presence and proprietary association attached to its marks, labels, get-up, packaging and artistic features, in which copyright vests with the plaintiff.

It has been alleged in the plaint that recently, it was discovered that the defendants/respondents have dishonestly and mala fide commenced manufacturing marketing, offering for sale, advertising and dealing in fertiliser/manure products under the impugned mark “SUPER AGRO TECH” under packaging under trade dress which is deceptively and confusingly similar to the plaintiff’s marks, labels and overall trade dress.

According to the plaintiff, the defendants have used apple imagery and allied design elements in a manner evocative of the plaintiff’s products.

The plaintiff in order to demonstrate that the defendants have copied and appropriated its logo etc. has placed on record a comparative chart. According to the plaintiff, the impugned mark adopted by the defendants, namely, “SUPER HI-TECH AGRO TONIC” is phonetically, structurally, visually and commercially deceptive when considered in the context of the plaintiff established mark “SUPER HI-TECH AGRO TONIC” and HI-TECH AGRO TONIC”. It has been contended that the defendants have not merely copied a generic concept, but they have deliberately appropriated the dominant and memorable commercial features of the plaintiff’s marks and packaging so as to ride upon the goodwill, recognition and reputation built by the plaintiff through years of honest use.

Thus, according to the plaintiff, the impugned action of the defendants amounts to not only infringement of the plaintiff’s registered trademarks, but it also amount to passing off plaintiff’s artistic copyright in the packaging and labels, dilution of the plaintiff’s goodwill, unfair competition, misrepresentation as to trade origin, source and commercial association, false suggestion of connection with the plaintiff, misrepresentation to the trade and public, and an unlawful attempt to pass off the defendants’ goods as those of or connected with the plaintiff.

It has been submitted that the defendants have filed a trade mark application bearing No. 5672748 for the mark “SUPER AGRO-TECH ORGANIC FERTILISER” and/or allied deceptive variants, thereby clearly demonstrating their intention to commercially appropriate, regularize and

institutionalize the infringing adoption. It is further averred that the plaintiff has formerly opposed the defendants’ attempt to secure statutory registration of the impugned mark by filing a Notice of Opposition dated 10.03.2026 before the Registrar of Trade Marks against the aforesaid application of the defendants in Class-1. The plaintiff has also issued a detailed legal notice dated 02.02.2024 along with the Notice of Opposition calling upon the defendants to cease and desist from all infringing and passing off activities, but the defendants instead of complying with the demands of the plaintiff, have sent reply to their notice vide communication dated 05.02.2024, to which a rejoinder was submitted by the plaintiff.

It is being contended that the defendants are not entitled in law to use the impugned mark or any other mark, packaging, label, trade dress, artwork, get up or presentation which is identical with, deceptively similar to the said mark and the activities of the defendants have caused grave and irreparable prejudice to the plaintiff and is suffering loss of market, dilution of brand identity, erosion of distinctiveness, diversion of trade, unlawful encroachment upon its goodwill, injury to commercial reputation and false association of the defendants’ goods with those of the plaintiff.

According to the plaintiff, it was effecting sales in excess of 200 truckloads of its products, but owing to the deceptive action of the defendants, the sale of only about 50 truckloads has been conducted by the plaintiff during the current season, thereby causing loss to the plaintiff. It has been submitted that the plaintiff has already filed a criminal complaint before the Police against the defendants for infringing its trade mark.

The defendants contested the suit by filing their written statement. In their written statement, the defendants submitted that the plaintiff has deliberately attempted to create an illusion of exclusivity and monopoly over unregistered marks, expressions, common trade elements, artistic features, descriptive terminology and general market presentations, which are generic, descriptive, common to trade and incapable of exclusive appropriation in law. It has been submitted that the plaintiff has resorted to exercise the selection of artistic comparison. It has been submitted that the plaintiff has resorted to exaggeration, selective presentation and artificial comparison. It has further been submitted that infringement arises only in respect of a valid and registered trademark and not in respect of broad generalized unregistered mark, commercial context or descriptive business expressions.

According to the defendants, the alleged marks “SUPER, HI-TECH, AGRO, TECH, AGRO TONIC” and allied expressions are descriptive, laudatory, generic and commonly prevalent in the fertilizer, pesticides and agricultural goods market and no trader can claim exclusive ownership over such ordinary commercial expressions. It has been submitted that the plaintiff has failed to establish any deceptive similarity when the rival marks, labels and packaging are compared as a whole. It has been submitted that over all visual impression, trade identity, packaging style, commercial appearance, writing pattern, artistic arrangement, trade source identification and market presentation of the defendants are entirely separate, distinct and distinguishable from that of the plaintiff and that the rival products are capable of independent identification, as such, there exists no possibility of confusion to any prudent purchaser. The defendants have contended that the

plaintiff has not placed on record any independent market survey, consumer complaint, dealer statement, customer confusion material or credible documentary evidence showing actual deception, actual diversion of trade or actual misrepresentation attributable to the defendants. The plaintiff’s suit cannot succeed on the basis of mere bald assertions.

It has been contended that the plaintiff has not disclosed any original artistic work within the meaning of the copyright nor established the existence of any exclusive copyright capable of enforcement against the defendants. According to the defendants, ordinary packaging arrangements, common layouts, generic artistic patterns, colour schemes and customary trade features do not automatically confer copyright exclusively. It has been submitted that the plaintiff has intentionally exaggerated the alleged losses, damages and turnover figures without any supportive material. It has been submitted that the plaintiff has not placed on record any material to support its contention relating to use of the trademark, market reputation which is a sine qua non in passing off claim.

It has also been submitted that the registered trade mark of the plaintiff is restricted to Class-35, which deals with marketing etc. and that the main registration under Class-1 is not only objected to, but in fact demonstrates that the same pertains to be used in future and not actually used in ordinary course. According to the defendants, there is no cause of action in favour of the plaintiff.

Learned trial court, after analysing the pleadings and documents on record, dismissed the application of the plaintiff under Order XXXIX Rules 1 and 2

of the Code and vacated the ex parte interim order granted by the Commercial Division of the High Court.

In the impugned order dated 11.07.2026, the learned trial court has observed that there is no prima facie case in favour of the plaintiff on account of the fact that it has failed to place on record any material to show that it has been using the impugned mark “SUPER HI-TECH AGRO-TONIC and “SUPER HI-TECH AGRO TONIC” on its products since the year 2001 as claimed by it. It has been noted by the learned trial court that no invoices for the year 2001 to 2017 have been placed on record by the plaintiff to substantiate its claim with regard to the user of the aforesaid mark since the year 2001. Thus, the action of passing off projected against the defendants is prima facie not tenable. Regarding the claim with regard to infringement of the trade mark, the learned trial court has observed that no trade mark for the plaintiff’s products has been registered as yet, even though he has applied for the same. Therefore, it cannot maintain an action for infringement of an unregistered trade mark in the face of provisions contained in sub-section (1) of section 27 of the Trade Marks Act, 1999.

The appellant/plaintiff has challenged the impugned order passed by the learned trial court, primarily on the grounds that the plaintiff has specifically pleaded in the plaint about its user of the mark “AGRO HI-TECH AND SUPER HI-TECH AGRO TONIC” since the year 2001. Therefore, merely because there were no documents placed on record by the plaintiff to show user of the said mark by it for the aforesaid period, the assertions in this regard ought not to have been rejected. It has been contended that the trial

court has conducted a mini trial while deciding temporary injunction application, which is impressible in law.

It has been submitted that the learned trial court has erred in treating the absence of the documentary evidence as legally conclusive. The plaintiff should have been allowed to prove these assertions by an affidavit or otherwise. It has also been contended that the learned trial court has erred in applying the provisions contained in section 27(1) of the Trade Marks Act to the present case by ignoring that the plaintiff is registered proprietor of registration No. 4151497 in Class-1 in respect of fertilizers and allied goods. Besides this, the appellant has also relied upon the registration bearing Nos. 4615317 and 4615318 in Class- 35.

The appellant/plaintiff has also filed an application under Order XXVII and Order LXI Rules 1(aa) and (b) read with Order LXIII Rule 2 of the Code seeking leave of the court to produce additional documentary evidence in the shape of copies of invoices for the period 2017-2018.

I have heard learned counsel for the parties and perused record of the case.

In the instant case, the plaintiff is seeking an injunction against the defendants on the basis of infringement of its trade mark right both under common law as well as under the statute viz. “the Trade Marks Act”. In order to succeed under common law, a plaintiff has to show that it has been using a particular trademark for sufficiently long time, as a result of which, it has built a reputation of its own and the said trade mark is associated exclusively with the plaintiff in the relevant business. It has also to be shown by the plaintiff that the defendants have started to use deceptively the same trade mark or a trade mark, which is deceptively similar to the trademark of

the plaintiff, as a result of which, the defendants are passing off their goods as those of the plaintiff, which in turn causes commercial and reputational loss to the plaintiff.

It is a settled law that in an action for passing off the plaintiff has to show that its goods or services have acquired a distinctiveness or public reputation in the market. There must be an appreciable customer base or trade connection associated with the name, mark, logo or trade dress. Thus, the proof of prior user and local recognition is essential. Once the plaintiff is able to show the aforesaid essentials, it has also to satisfy the Court that the defendants have made a false representation intentionally or otherwise in the course of trade to believe that the defendants’ goods/services are those of the plaintiff or are connected/associated with the plaintiff. The plaintiff has also to show that misrepresentation of the defendants has caused or is likely to cause economic or reputational injury which can manifest in the shape of loss of sales or diversion of customers, brand dilution or damage to reputation through association with an inferior product or service.

Let us now analyse whether the plaintiff has been able to show that its goods have acquired a distinctive or public reputation in the market. In this regard, bald assertions made in the plaint to the effect that plaintiff’s goods have acquired distinctiveness and good reputation in the market, are not supported by any material on record. The plaintiff claims that it has been in the business since 2001, even though it has been incorporated in the year 2017, and that right from the year 2011, it has been using the mark in question on its products. Not even a single document has been placed on record by the plaintiff to show that it has been using the mark in question on its products

since the year 2011 as claimed by it. Neither any invoice nor any balance sheet or any business related record to show that the plaintiff was using the relevant mark on its products for a considerable period of time or that it has been able to capture substantial amount of business in the market for any period of time, has been placed on record by the plaintiff.

While deciding whether a plaintiff has a prima facie case in its favour, the court is expected to analyse not only the pleadings but also the documents which may be placed on record by the parties to support the pleadings. In the instant case, the plaintiff has not placed on record any document to support its assertion with regard to the long and continuous use of the mark in question on its products. In fact, the plaintiff has not placed on record any document to show that it has been in business prior to the year 2017. Thus, the learned trial court has rightly come to the conclusion that there is no prima facie case in favour of the plaintiff so far as his claim relating to action of passing off is concerned.

That takes us to the claim of the plaintiff based upon infringement of trade mark. The documents on record show that the trade mark of the plaintiff in respect of its products “AGRO HI-TECH AND SUPER HI-TECH AGRO TONIC” has not been registered as yet. Though the plaintiff has applied for the same, its application stands objected to. Without registration of trade mark in respect of its products, the plaintiff cannot sustain action against the defendants for infringement of its trade mark. The plaintiff may have obtained registration of its trade mark under Class-35 which covers advertising, business management, business administration and office functions, but it has not obtained registration of trade mark in respect of its

products as yet. Therefore, the plaintiff cannot seek action for infringement of its unregistered trade mark. The same is clearly barred under section 27(1) of the Trade Mark Act.

As has already been noted, the plaintiff has filed an application seeking permission to place on record additional evidence at appellate stage. Even if, the documents that have placed on record by the plaintiff at the appellate stage are taken into consideration, the same do not enhance the case of the plaintiff. This is so because, the documents sought to be placed on record pertain to only two years 2017 and 2018. An action for passing off can be maintained against the defendants only, if the plaintiff is able to show usage of relevant mark for a sufficiently long period. Usage of the mark for a couple of years only would not mature into the acquisition of distinctiveness or public reputation in the market. Therefore, even if the documents placed on record by the plaintiff are taken into consideration, it will have not any effect upon the outcome of the case.

It is a settled law that scope of interference by appellate court with an interim order passed under Order XXXI Rules 1 and 2 of the Code is very limited and restricted. When a trial court has exercised its discretion and equitable jurisdiction to grant or refuse injunction, the jurisdiction of the appellate court to interfere is very limited. It is only when the appellate court is satisfied that the trial court has acted arbitrarily or contrary to law or that findings of the trial court are perverse or capricious, palpably incorrect and are wholly untenable that it would be open to the appellate court to interfere with the discretion exercised by the trial court.

In the present case, we do not find any perversity or illegality in the order passed by the learned trial court. Therefore, it is not open to this Court to interfere in the discretion exercised by the learned trial court, which in the instant case, has been exercised against the plaintiff/appellant.

For all what has been stated, analysed and discussed hereinabove, we do not find any merit in this appeal. The same is dismissed, accordingly.