(1980)1980 February 25 [TRIANTAFYLLIDES, P.] COOPER MCDOUGALL & ROBERTSON LIMITED, Plaintiffs, v. STELLA COSMETICS CO. LTD., AND OTHERS, Defendants. {Action No. 3/79). Practice—Injunction—Interlocutory injunction—Infringement of trade mark inforeign country—Affidavit evidence regarding the position inlaw insuch country inrelation to the trade mark and the develop· ment of proceedings relevant to it. After filing an action for an injunction restraining the defend5 ants from infringing their registered trade mark "PIF PAF", in respect of an insecticide in an aerosol form, by selling a similar product under the trade mark "PAFF PAFF" the plaintiffs applied ex parte and obtained an interlocutory injunction restraining the defendants from acting as complained of until the deter- 10 mination of theaction. Asduring the hearing of the proceedings for making the interlocutory injunction absolute it was made clear that the plaintiffs did not allege that the said product was on sale in Cyprus but they only alleged that their trade mark was infringed because such product was manufactured and bottled | g in Cyprus and then exported to Dubai, counsel for the parties were allowed to adduce affidavit evidence as regards the position under Dubai law in relation to the trade mark concerned; and as a result there were filed two affidavits by the defendant and one by plaintiffs. When counsel for plaintiffs sought to file 20 a further affidavit, by means of which it was mainly intended to place before the Court information regarding recent developments, and particularly on January 17, 1980,in proceedings in Dubai which appeared to relate to the same dispute between the parties as the one to which this action related, counsel for the 55 defendants took objection on the ground that such a course would entail delay prejudicial to his clients. Held,that one striking feature is that this process of producing evidence by way of affidavits regarding the position in law in 214 1 C.L.R. 5 10 15 McDoogallv. Cosmetics Co. Dubai in relation to the trade mark of the plaintiffs and the proceedings relevant to it which were instituted there, has been initiated bythedefendants themselves; that, therefore, they cannotcomplainiftheplaintiffs wishtoinform theCourtbyway ofaffidavit ofadevelopmentwhichhasoccurredonlyon January 17, 1980, that is after the last adjournment of this case on December 20, 1979, when it was fixed for final addresses on February 22, 1980; that, in all the circumstances of this case it isjust and equitable to allow the plaintiffs tofilethe affidavit in question and it is so, hereby, ordered accordingly. Order accordingly. Cases referred to: Beecham Group Limited and Another v. Mohammed Ahmed Zamin Pima and Co., Fleet Street Reports, 1979, vol. 5, part. 3, p. 121. Application. Application by plaintiffs for leave to file an affidavit in an action whereby theyseekan injunction restraining the defendants from infringing their registered trade mark "PIF PAF" in 20 respect of an insecticide in an aerosol form by selling similar product under the trade mark "PAFF PAFF" G. Nicolaideswith M. Nicolatos, for the plaintiffs. L. Papaphilippouwith P. Soteriou, for the defendants. Cur. adv. vult. 25 TRIANTAFYLLIDES P. read the following decision. This action was filed on August 8, 1979, and by means of it the plaintiffs areseekingan injunction restraining thedefendants from infringingtheir registed trade mark "PIF PAF", inrespect ofan insecticide in an aerosol form, by selling a similar product under the 30 trade mark "PAFF PAFF". They are, also, claiming damages and other ancillary relief. On the same date the plaintiffs applied ex parte for an interlocutory injunction restraining the defendants from acting as complained of until the determination of the action. 35 This interlocutory injunction was issued on August 9, 1979, and one of the terms on which it wasgranted was that the plaintiffs would furnish security in the sum of C£5,000 answerable for the payment,if necessary,of reasonable compensation to the defendants for any expense or injury occasioned to them by the 40 execution of such injunction. 215 Triantafyllides P. McDougall v. Cosmetics Co.
(1980)The case was fixed on August 14, 1979, so that then the defendants might show cause why the interlocutory injunction should not continue in force. On that date the defendants appeared through counsel and they were granted leave tofilean opposition to the interlocutory 5 injunction; and the case was adjourned to August 31,
- Eventually thehearing of thematter of theaforesaid injunction was adjourned to September 20, 1979, as an order was made that an affiant for the plaintiffs, Georghios Kapakiotis, should be made available for cross-examination by counsel for the 10 defendants. Later on, however, such a course did not become necessary. On September 20, 1979,the hearing of the matter of the interlocutory injunction took place. During the said hearing it was made clear that the plaintiffs 15 do not allege that the product "PAFF PAFF" is on sale in Cyprus but they only allege that their trade mark is infringed because the said product is manufactured and bottled in Cyprus and then exported to Dubai. At the conclusion of the hearing counsel for the defendants 20 stated that heintended to adduceevidenceas regards the position under Dubai law in relation to the trade mark concerned of the plaintiffs and the further hearing of the matter was adjourned, therefore, to October 18,
- On October 16, 1979, counsel for the defendants filed an 25 affidavit sworn by an advocate in Dubai named Samir Kanaan. On October 18, 1979, leavewas given to counsel for the plaintiffs to file an affidavit in reply and the case was adjourned to November 17,
- On November 10, 1979, counsel for the plaintiffs filed an 30 affidavit dated October 28, 1979, sworn by an advocate in Dubai named Fuad Barahim. When the case came up before the Court on November 17, 1979, the following record was made: "Mr. G. Nicolaides for plaintiffs. Mr. L. Papaphilippou with Mr. P. Soteriou for defendants. 216 35 1 C.L.R. 5 10 15 McDougall v. Cosmetics Co. Triantafyllidcs p. Mr.Papaphilippou submits that theaffidavit dated October 28, 1979, and filed by counsel for plaintiffs, on November 10,1979,exceeds thescope of therelevant order ofthe Couit made on October 18, 1979, because it raises new factual issues, and he applies for an adjournment in order to be enabled to consider whether to apply that certain parts ofthesaidaffidavit should bestruck out or tofilean affidavit in reply thereto. Mr. Nicolaides does not object to an adjournment, but he states that he does not concede, in any way, that the said affidavit exceeds the scope of the order made on October 18,
- He adds that, in any event, he has no objection to thefilingby defendants of an affidavit in reply. Court: This case is adjourned, in the light of the above statements of counsel,'to December 20, 1979 (9.30 a.m.)". • Subsequently, there was filed, on December 19, 1979, a further affidavit of advocate Kanaan, which is dated December 16,
- On December 20, 1979, there appeared for the defendants 20 Mr. Ph. Valiandis who informed the Court that counsel for the defendants, Mr. L. Papaphilippou, wished to address the Court further in the light of the affidavits filed and that he would be able to do so after the Christmas vacation of the Court, as during that period he might have to be absent from Cyprus. 25 There was no objection on the part of counsel-for the plaintiffs, who reserved, however, the right to address the Couit too, and the casewas fixed for further addresses on February 22,
- On that date counsel for the plaintiffs sought to file a further affidavit of advocate Barahim, which was sworn on January 30 23,
- It appears that this affidavit aimsat servingthe following three purposes: First, to supplement the affidavit of advocate Barahim dated October 28, 1979, which was filed in reply to the affidavit of 35 advocate Kanaan dated October 7,
- I do not think that the matter in relation to which it is sought to supplement by his new affidavit the earlier affidavit of advocate Barahim is really of a basic nature.' 217 Triantafyllides P. McDougall r. Cosmetics Co.
(1980)Secondly, it is sought to correct the report of the case of Beecham Group Limited and another v. MohammedAhmed Zamin Pima andCo.,which appears in the FleetStreetReports, 1979, vol. 5, part 3, p. 121, by correcting what is alleged by advocate Barahim to be a printing error in such report. 5 Thirdly,and mainly,it is intended,by meansof this affidavit— which was marked exhibit"A" for identification when leave was sought tofileit—toplacebefore theCourtinformation regarding recent developments, and particularly on January 17, 1980, in proceedings inDubaiwhichappeartorelatetothesame dispute 10 between the parties as the oneto which this action relates. The said proceedings were first referred to in the affidavit of advocate Kanaan dated December 16,
- Counsel for the defendants has objected to thefilingof the affidavit marked "v4" for identification on the ground that this 15 course will entail delay prejudicial tohis clients. I have considered the position in the light of the history of these proceedings, as 1have thought fit to set it out, above, in this Decision: Onestriking feature is thatthis process of producing evidence 20 by way of affidavits regarding the position in law in Dubai in relationtothetrademark of theplaintiffs andtheproceedings relevant to it which were instituted there,has been initiated by thedefendants themselves; and,therefore, they cannot complain if theplaintiffs wishtoinform theCourtby way of affidavit of a 25 development which has occurred only on January 17, 1980,that is after thelast adjournment of this case on December20, 1979, when it wasfixedfor final addresses on February 22,
- In all the circumstances of this case, without pronouncing at this stage as regards the significance or relevance of anything 30 contained in the affidavits and counter-affidavits, to which I havereferred,andwhich relate, asalreadystated,tothesituation in Dubai, I find it just and equitable to allow the plaintiffs to file the affidavit "Λ" for identification, and it is so, hereby, ordered accordingly. 35 Thecosts of the proceedings on February 22, 1980,andtoday will be costs in the cause in this action but, in any event, not 218 1 C.L.R. McDougal τ. Cosmetics Co. Triantafyllides P. against the defendants; andif the filing of this affidavit entails any delay which would render inadequate the security of C£5,000, which hasbeen famished, as aforementioned, bythe plaintiffs, the defendants are at liberty to apply by summons 5 that this security should be increased, so that it should cover adequately thematterofany damagethatmaybesuffered bythe defendants through theinterlocutory injunction continuing to be in force. Order accordingly. 219