INTER DEPOL LTD. ν. PAPAVASSILIOU LTD.
(1984)1 CLR 769 ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ CyLaw | Αναφορικά μ'εμάς | " target="_top">Επικοινωνία | Όροι χρήσης Έρευνα - Κατάλογος Αποφάσεων - Εμφάνιση Αναφορών (Noteup on) - Αρχείο σε μορφή PDF - Αφαίρεση Υπογραμμίσεων
(1984)1 CLR 769 1984 April 18 [TRIANTAFYLLIDES, P.] INTER DEPOL LIMETED (EX PAMYROS LIMITED), Plaintiffs. v. KYRIACOS PAPAVASSILIOU LIMITED, Defendants. (Trade Mark Action No. 2/83). Injunction-Interlocutory injunction-Discretion of the court-Principles applicable-Section 32 of the Courts of Justice Law; 1960 (Law 14/60)-Trade mark action-Serious question to be tried at the hearing-And probability that plaintiffs entitled to relief-But Court not satisfied that unless the interlocutory injunction is granted it will be difficult or impossible to do complete justice at later stage-Balance of convenience tilted in favour of defendants and this factor militated against the making of the interlocutory injunction applied for. The plaintiffs were using their trade mark "CLIP" in relation to cosmetic products they were manufacturing; and the defendants were using the word "CLIPP" in relation to a cream for the skin, mainly for the hands. Plaintiffs for the time being were not manufacturing any cream for the skin in general or for the hands in particular. After filing an action for an in junction restraining the defendants from infringing their trade mark "CLIP" by using, in relation to their own said products, the word "CLIPP" plaintiffs filed an application for an inter locutory injunction on the same terms and mainly contended that in view of the bad quality of the cream which was manufactured by the defendants, the use of the word "CLIPP" in connection with it by the defendants had adverse repercussions on the reputation of the cosmetic products which were manufactured by the plaintiffs and placed in the market under their trade mark "CLIP". Plaintiffs, however, have not adduced any evidence to substantiate the above contention. On the application for an interlocutory injunction: Held, that even if there arise serious questions to be: tried at the hearing of this case; and that even if this Court was prepared to say that there is, also, a probability that the plaintiffs are entitled to relief, it has not been satisfied that unless the interlocutory injunction applied for by the plaintiffs is granted it will be difficult or impossible to do complete justice at a later stage; that the balance of convenience in this case is tilted in favour of the defendants and this factor militates against the making of the interlocutory injunction applied for by the plaintiffs, especially as the plaintiffs do not manufacture as yet any cream for the skin in general, for the hands in particular, which is sold under their trade mark "CLIP" and with which there might be confused the cream sold by the defendants under the name "CLIPP"; accordingly the application must fail. Application dismissed. Cases referred to: Geo. M. HadjiKyriacos Co. Ltd. v. United Biscuits (U.K.) Ltd.
(1979)1 C.L.R. 689; M. & M. Transport Co. Ltd. v. Eteria Astikon Leoforion Lemessou Ltd.
(1981)1 C.L.R. 605; Odysseos v. A. Pieris Estates Ltd. (1982 1 C.L.R. 557. Trade Mark Action. Action for an injunction restraining the defendants from infringing the trade mark "Clip" which is registered in the name of plaintiffs by using, in relation to their products the word "Clipp". Chr. Christophides, for the plaintiffs. R. Stavrakis, for the defendants. Cur. adv. vult. TRIANTAFYLUDES P read the following judgment. The plaintiffs are seeking, by means of the present action, an injunction restraining the defendants from infringing the trade mark "CLIP", which is registered in the name of the plaintiffs, by using, in relation to their own products, the word "CLIPP". The plaintiffs have, also, filed an application for an interlocutory injunction on the same terms and the defendants are opposing such application. In my view the provision on the basis of which such an inter locutory injunction could be granted is section 32 of the Courts of Justice Law, 1960 (Law 14/60) Subsections
(1)and
(2)of section 32 read as follows: "
(1)Subject to any Rules of Court every Court, in the exercise of it civil jurisdiction, may, by order, grant an injunction (interlocutory, perpetual or mandatory) or appoint a receiver in all cases in which it appears to the Court just or convenient so to do, notwithstanding that no compensation or other relief is claimed or granted together therewith: Provided that an interlocutory injunction shall not be granted unless the Court is satisfied that there is a serious question to be tried at the hearing, that there is a probability that the plaintiff is entitled to relief and that unless an inter locutory injunction is granted it shall be difficult or impossible to do complete justice at a later stage.
(2)Any interlocutory order made under subsection
(1)may be made under such terms and conditions as the Court thinks just, and the Court may at any time, on reasonable cause shown, discharge or vary any such order". It appears from the material before me that the plaintiffs are using their trade mark "CLIP" in relation to cosmetic products and that the defendants are using the word "CLIPP" in relation to a cream for the skin, mainly for the hands. It has been conceded by counsel for the plaintiffs that for the time being they are, not manufacturing any cream for the skin in general or for the hands in particular and that, therefore, they are not using their trade mark "CLIP" in relation to such a product. One of the main arguments which was put forward by counsel for the plaintiffs is that, in view of the bad quality of the cream which is manufactured by the defendants, the use of the word "CLIPP" in connection with it by the defendants has adverse repercussions on the reputation of the cosmetic products which are manufactured by the plaintiffs and placed in the market under their trade mark "CLIP"; and, also, that the defendants by using the word "CLIPP" are taking advantage of the advertising campaign of the plaintiffs in relation to their said trade mark "CLIP". The plaintiffs have not, however, adduced any evidence to show that, on any particular occasion, the cream "CLIPP" which is sold by the defendants was mistaken to be a product of the plaintiffs or that there has been a complaint on the part of anybody that such cream is actually of bad quality and that, thus, the reputation of the cosmetic products of the plaintiffs, which bear their trade mark "CLIP", is adversely affected. The matter of the proper application of the provisions of section 32 of Law 14/60 in relation to the making of an interlocutory injunction has been considered by our Supreme Court in, inter alia, Geo. M. HadjiKyriacos Co. Ltd. v. United Biscuits (U.K.) Ltd.,
(1979)1 C.L.R. 689, M. & M. Transport Co. Ltd. v. Eteria Astikon Leoforion Lemessou Ltd.,
(1981)1 C.L.R. 605 and Odysseos v. A. Pieris Estates Ltd.,
(1982)1 C.L. R. 557. I do agree that there arise serious questions to be tried at the hearing of this case; but, that even if I was prepared to say that there is, also, a probability that the plaintiffs are entitled to relief, I have not been satisfied that unless the interlocutory injunction applied for by the plaintiffs is granted it will be difficult or impossible to do complete justice at a later stage. I think that the balance of convenience in this case is tilted in favour of the defendants and this factor militates against the making of the interlocutory injunction applied for by the plaintiffs, especially as the plaintiffs do not manufacture as yet any cream for the skin in general, for the hands in particular, which is sold under their trade mark "CLIP" and with which there might be confused the cream sold by the defendants under the name "CLIPP". This application, is therefore, dismissed with costs. Application dismissed with costs. cylaw.org: Από το ΚΙΝOΠ/CyLii για τον Παγκύπριο Δικηγορικό Σύλλογο