We are a FMCG company and have recently obtained an interim injunction order restraining misuse of our trademark by a local manufacturer. Can we publicise the court action/injunction? Concerning another likely action for misuse of our trademark, could you please advise on admissibility in law suits of trap orders placed by decoy customers.

You can publicise the court order by referring to it in circulars/letters or by publishing a warning notice in newspapers highlighting the effect of the injunction order, i.e., restraint of misuse of your trademark. However, you must ensure that the publication does not include any statement that misrepresents the court order, discusses the merits of the legal action or has the effect of prejudicing fair trial in the pending court action, as such publication may be held objectionable as contempt of court or as impeding legal rights of the other party to a fair trial and/or to present witnesses.

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Trap orders are admissible in law suits, since they are recognised as the only probable means of collecting evidence against the infringer in most trademark infringement matters. Courts generally admit trap orders in evidence only after careful scrutiny and satisfaction of correctness of such orders and their surrounding circumstances. Therefore, for better chances of admission of trap orders by courts, you should arrange a written order on the infringer and obtain documentary evidence of sale of spurious products by the infringer, such as a pro forma invoice on the printed letterhead or invoice book. Also, avoid any ambiguity in the trap order, as the court may not admit an ambiguous and unclear trap order. It is also necessary for admissibility that the trap order is presented to the court for admission within a reasonable time of placing it on the infringer, so that the court may provide to the infringer his legal right to defend admission of the trap order in evidence. Further, the trap order should not be so lucrative that it could induce, not only the infringer, but any reasonable man. In other words, the trap order should be comparable to orders regularly handled by the infringer.

A daily newspaper has published a defamatory article about the financial position and business practices of our company. How do we initiate legal action against the author and the publication?

Defamation constitutes both civil and criminal wrong, and consequently the author and the newspaper publishing the defamatory article may be held liable for defamation.

In cases of companies, imputations attacking their reputation, affairs, business, trade or financial position are held defamatory, and therefore your company can initiate both, civil proceedings claiming damages for defamation from the author and the newspaper as well as criminal proceedings seeking punishment of the author of the news article, the publisher and the editor of the newspaper (whose name appears on the newspaper under the provisions of the Press and Registration of Books Act, 1867) for committing the offence of defamation.

Under the criminal action for defamation, the author, editor and/or publisher of the newspaper may be held liable under the Indian Penal Code for imprisonment upto two years and/or fine. In addition, under civil action for damages for defamation, the newspaper as well as the author may be held liable to pay you damages, the quantum of which will primarily depend on the gravity of defamation. Legal action against authors and newspapers for defamation may be held unsustainable if the imputation alleged is true, is published by the newspaper in public interest and in good faith. So, before initiating any legal action, please ensure that in your case the above defenses are not available to the author or newspaper. Alternatively, you may also ask the newspaper to retract the news article.

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