Trademark & Passing Off Action –The volume of sale and the extent of advertisement made of the product in question will be a relevant consideration for deciding whether the appellant had acquired a reputation or goodwill. – The passing off action which is premised on the rights of the prime user generating goodwill, shall remain unaffected by any registration provided in the Act. – If goodwill or reputation in a particular jurisdiction is not established by the plaintiff, no other issue really would need any further examination to determine the extent of the plaintiff’s right in the action of passing off. –For establishing goodwill of the product, it was necessary to prove not only the figures of sale of the product but also the expenditure incurred on promotion and advertisement of the product. –While deciding an application for a temporary injunction in a suit for passingoff action, in a given case, the statements of accounts signed by the Chartered Accountant of the plaintiff indicating the expenses incurred on advertisement and promotion and figures of sales may constitute a material which can be considered for examining whether a prima facie case was made out by the appellantplaintiff. However, at the time of the final hearing of the suit, the figures must be proved in a manner known to law – Brihan Karan Sugar Syndicate Private Limited vs Yashwantrao Mohite Krushna Sahakari Sakhar Karkhana – 2023 INSC 831
Copyright Infringement – Acquiescence is a defence available in action for the infringement of copyright- If the acquiescence in infringement amounts to consent, it will be a complete defence. Acquiescence is a course of conduct inconsistent with the claim for exclusive rights and it applies to positive acts and not merely silence or inaction such as is involved in laches. Mere negligence is not sufficient – Brihan Karan Sugar Syndicate Private Limited vs Yashwantrao Mohite Krushna Sahakari Sakhar Karkhana – 2023 INSC 831