09 April 2021

Prayer for injunction – Practice of two separate prayers, under infringement and passing off, unwise

The Bombay High Court has deprecated the practice of setting out two separate prayers, one for infringement and one for passing off, where both seek injunction. Urging the advocates to reconsider the manner in which they frame these prayers, the Court termed the practice as ‘singularly unwise’ and counter-productive.

The Single-Judge of the High Court also suggested that the operative injunction order should only be an injunction without a restriction specifying infringement or passing off. It observed that this was the correct and consistent practice of the Delhi High Court also.

The Court also noted that the practice of segregating injunction prayers for infringement and passing off was also inconsistent with the other standard-form prayers like prayer for Court Receiver or for damages where there is no segregation in prayers.

Observing that there is no one-to-one correspondence between a cause of action and relief, the Court noted that it was inconceivable that a defendant would be under an injunction not to infringe, but would be set at liberty to pass off, or vice versa.

The High Court in the case Hindustan Unilever Ltd. v. An Opposing Party [Judgement dated 22 March 2021] was hence of the view that the prayer for relief must be framed as one simply for an injunction though that relief may be supported by establishing a cause of action either in infringement or passing off, or both.

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