Memo Example

Career College Of Law, Bhopal
1st Fali S. Nariman Memorial National Moot Court Competition, 2024
TABLE OF CONTENTS
1. List of Abbreviations ………………………………………………………………..2

2. Index of Authorities …………………………………………………………………3
3. Statement of Jurisdiction ……………………………………………………………5
4. Statement of Facts …………………………………………………………………..6
5. Issues of Consideration ……………………………………………………………..8
6. Summary of Arguments ……………………………………………………………9
7. Written Submission ……………………………………………………………….10
1. Whether the plaint should be rejected for non compliance with the
ore-institution mediation requirement under the Commercial Courts Act, 2015.
1.1. What is the pertinence and emphasis of the terms “Contemplates” and
“Urgent” in terms of seeking Urgent Interim Relief through Section 12-A of the
CC Act 2015?
1.2. Whether the Plaintiff can bring an amendment in the suit that can alter the
position and nature of the case?
2. Whether the suit contemplates any urgent interim relief, justifying the
bypassing of the mandatory provisions under the Commercial Courts Act, 2015.
3. Whether the trademark of Appellant is identical to the trademark of
Respondent infringing the provisions of the Trademark Act, 1999.
8. Prayer …………………………………………………………………………….28.
2
LIST OF ABBREVIATION
1. Para - Paragraph
2. Art. - Article
3. & - And
4. CPC - Code of Civil Procedure 1908
5. ED - Edition
6. Hon’ble - Honourable
7. Ors - Others
8. S - Section
9. SC - Supreme Court
10. SCC - Supreme Court Cases
11. V. - Versus
12. AIR - All India Reporter
3
INDEX OF AUTHORITIES
● Table of Cases
1. Patil Automation (P) Ltd. v. Rakheja Engineers (P) Ltd. 2022 SCC ONLINE SC 1028
2. M/s Sabsons Agencies Private Limited Vs M/s Harihar Polymers & Anr. (2024)
3. Kaulchand H. Jogani v. M/s Shree Vardhan Investment & Ors (2022) SCC 4752
4. Chandra Kishore Chaurasia v. R.A. Perfumery Works (P) Ltd. (2022) SCC 3529
5. BASAVARAJ VERSUS INDIRA AND OTHERS, (2012) CIVIL APPEAL NO. 2886
6. Revajeetu Builders and Developers v. Narayanaswamy & Sons & Ors 2009 AIR SCW
6644
7. Chandra Kishore Chaurasia v. R.A. Perfumery Works Pvt. Ltd. (2022) SCC 3529
8. M.Revanna vs Anjanamma (Dead) By Lrs. AIR 2019 SUPREME COURT 940
9. Deepak Raheja vs Ganga Taro Vazirani 2021
10. Arvind Gupta v. Punjab National Bank & Ors. (2022) C.S.(Comm.Div) No. 216
11. Mohamed Aboobacker Chank Lungi Pvt. Ltd vs Revathy Textiles 2022 C.S(Comm.
Div.)No.208
12. K. Varathan v. Prakash Babu Nakundhi Reddy, [CS(COMM) 202/2022]
13. Yamini Manohar v. T K D Keerthi (2023) 32275/2023
14. Anil Gupta v. Baburam Singla, Proprietor of Singla Sweets & Anr. (2020) CS(OS)
201/2020
15. Peps Industries Pvt. Ltd. v. Kurlon Limited 2019 (C.S. COMM 174/2019 with IA
4871/2019 & IA 6715/2019)
16. Living Media (India) Ltd. V. Jitender V. Jain, 2002 SCC OnLine. 2002
17. Marico Ltd. v. Agrotech, 2010 SCC OnLine FAO(OS) No. 352/2010
18. N.R. Dongre v. Whirlpool Corporation (1996) 1996, Appeal (civil) 10703 of 1996
19. Yahoo! Inc. v. Akash Arora (1999) IIAD Delhi 229, 78 (1999) DLT 285
20. ITC Limited v. Philip Morris Products S.A. (2016) CS (OS) 1894/2009
● Table of Books
1. Bank/Trademark Duplication by S.K. Grover
● Table of Statutes
1. The Commercial Courts Act, 2015
2. The Trademark Act, 1999
3. The Code of Civil Procedure, 1908
4. The Constitution of Bhojpal, 1950
● Online Sources
4
1. https://www.scconline.com/blog/wp-content/uploads/2020/07/20th-Harvard-bluebook
.pdf
2. https://www.mondaq.com/india/trademark/489148/trademark-infringement-case---lon
don-dairy-vs-londonderry#:~:text=London%20Dairy's%20claim%20melts!&text=262
4%20of%202012%20in%20Suit,in%20favor%20of%20the%20Plaintiff
3. https://csipr.nliu.ac.in/miscellaneous/charting-the-unconventional-recognition-and-cha
llenges-of-unconventional-trademarks-in-the-indian-ipr-regime/
4. https://thewire.in/law/use-of-trade-name-similar-to-registered-trade-mark-not-infringe
ment-delhi-hc
5
STATEMENT OF JURISDICTION
The Council for the Respondents, TIPPING MR RC Pvt. Ltd., hereby humbly submit to the
jurisdiction of this Hon’ble Supreme Court of Bhojpal, under Article 136 in regards to
granting Special Leave Petition.
The Respondents would like to humbly submit that this Special Leave for appeal is not
maintainable.
6
STATEMENT OF FACTS
1. The country of Bhojpal has a galloping food industry growing at about 20% annually,
reckoned by Agron & Allen, in an already cuisine rich culture that has been preserved
since ages. In the modern context the catalysts of this economic boom / market
expansion are the Quick Service Restaurants (hereinafter as QSRs).
● PARTIES OF THE SUIT

2. The KRUSTY CORPORATION (1986), Appellant in this commercial suit, is an
American corporation and is one of the leading food chain restaurants expanding in
the world. The Krusty Corporation is also known as the originator of the KRABBY
PATTY. The company provides services that fall under the CLASS 43 of the WIPO’s
(World Intellectual Property Organization) NICE Classification i.e. services to
provide food and drink; temporary accommodations among other services.
3. Their trademark “KRUSTY KRAB” is registered in 25 countries. Their trademark
registration in the country of Bhojpal dates back to July 19th 1991 with their first
venture in Bhojpal initiating much later in August 9th 2017 in the State of New
Valley. Currently the brand “Krusty Krab” serves their services in 20 regions on the
land of Bhojpal with an annual turnover, till the financial year 2023, being 26 crores.
4. The TIPPING MR. RC Pvt. Ltd. (2005), Respondent in this commercial suit, was
founded by Mr. Ronak Chaudhary, which also provides its services under CLASS
43 of WIPO’s NICE Classification. The Tipping Mr. RC (P) Ltd. established their first
outlet in the State of Zombay in November 2005 by the name CRUSTY CRAB.
Since their first outlet in the year 2005, they have claimed to be succeeding in
providing utmost customer satisfaction and are currently operating 28 Outlets with a
turnover of 20 Crores. They are the originators of the product by the name
“CRABBY BURGER” that brings in 50 - 60 percent of business.
● MR. RONAK CHAUDHARY’s INTERVIEW
5. The “Hint.com”, an online news portal, interviewed the Founder/CEO of the Tipping
Mr. RC (P) Ltd. in March, 2018. The headline being “28 outlets and Rs. 20 Crores in
turnover late, Crusty Crab founder is hungry for more”.
6. The interview delved into the formation of Crusty Crab, the acceptance of their
product in the formative days of their establishment, how their marketing strategy is
7
simple “word of mouth”and the nine months of R&D of the product. When asked
regarding the origin of Crusty Crab, the founder revealed “I went to a nearby store
and purchased some masalas and tried mixing them in the Krabby Patty…”.
● THE LEGAL NOTICE AND THE PROGRESS OF THE CASE
7. The Krusty Corporation came to know the presence of a company as “CRUSTY
CRAB” in March 2018 through the Hint.com interview mentioned above.
8. The Krusty Corporation sent a legal notice to the Tipping Mr. RC (P) Ltd. on
September 30th 2019 with the subject regarding the similarity of the trademark and
business of CRUSTY CRAB to that of KRUSTY KRAB. Further allegations were
stated in the notice regarding the Crusty Crab wrongfully trying to gain utmost
mileage by hijacking their marks and providing identical services, causing loss and
there was likelihood of other losses being suffered and loss of reputation.
9. Tipping Mr. RC (P) Ltd. contended and denied all the allegations of passing
off/infringement.
10. Aggrieved by such response, the Krusty Corporation galloped to the institution of a
suit for injunction under Order 39 Rule 1 & 2 of Code of Civil Procedure, 1908
(hereinafter as CPC/CPC 1908) before the Commercial Court of New Valley.
11. January 29th 2020, The Krusty Corporation, as per Section 29 of the Trademarks Act
1999, filed an application before the Commercial Court seeking relief of permanent
injunction as well as filed another interim application for temporary injunction. The
prayer in this application did not consist of any mention regarding “urgent interim
relief”. This was brought in after an application for amendment under Order 6 Rule
17 of CPC changed the prayer to “granting URGENT interim relief”. The
Commercial Court of New Valley accepted the amendment application, granting
temporary injunction.
12. Aggrieved by this ruling of the District Commercial Court, the Respondent (Tipping
Mr. RC Pvt. Ltd.) filed an appeal to the High Court against the order (24th February,
2023) of the subordinate court, invoking the Section 12-A of the Commercial Courts
Act 2015 as the base argument. The High Court set aside the judgement of the District
Commercial Court stating that “the petitioner has failed to show urgency initially and
that the petitioner is yet to exhaust the mandatory mediation mentioned in Sec. 12-A
of the CCA, 2015
8
ISSUES RAISED IN FRONT OF THE HON’BLE BENCH OF THE SUPREME

COURT OF BHOJPAL
ISSUE 01. Whether the plaint should be rejected for non-compliance with the
pre-institution mediation requirement under the Commercial Courts Act, 2015.
❖ What is the pertinence and emphasis of the terms “Contemplates” and “Urgent”
in terms of seeking Urgent Interim Relief through Section 12-A of the CC Act
2015?
❖ Whether the Plaintiff can bring an amendment in the suit that can alter the
ISSUE 02. Whether the suit contemplates any urgent interim relief, justifying the
bypassing of the mandatory provisions under the Commercial Courts Act, 2015.
ISSUE 03. Whether the trademark of Appellant is identical to the trademark of

Respondent infringing the provisions of the Trademark Act, 1999.
9
SUMMARY OF ARGUMENTS
Issue 01. Whether the plaint should be ejected for non-compliance with the
pre-institution mediation requirement under the Commercial Courts Act, 2015.
The counsel representing the respondent in this case have argued based on the provisions
enshrined in various acts and legislation such as The Commercial Courts Act 2015, The
Trademark Act 1999, The Trademark Rules 2017, The Code of Civil Procedure 1908;
complimented by numerous case laws such as the Patil Automation (P) Ltd. v. Rakheja
Engineers (P) Ltd., Chandra Kishore Chaurasia v. RA Perfumery Works (P) Ltd., etc; how the
plaint when failing to fulfil the very mandatory provision of Sec 12-A of the CC Act 2015
should be rejected by invoking the Order VII Rule 11 of the CPC 1908. This argument also
delves into the intricacies of the functioning validity of the Amendment of Petitions through
Order 6 Rule 18 of CPC 1908; and the emphasis of the term and expression of urgent interim
relief.
Issue 02. Whether the suit contemplates any urgent interim relief, justifying the
bypassing of the mandatory provisions under the Commercial Courts Act 2015.
The argument that the counsel of the respondent have put in regards to this issue is how the
present suit does not contemplate the very expression of urgent interim reliefs. This has been
accomplished by drawing a reference to the descriptions of these legal jargons mentioned in
various Lexicons and cases. By drawing this reference, we can have a better picture of what
comes under the ambit of an undescribed expression that is urgent interim relief in the
Section 12-A of the CC Act 2015. Another analogy has been drawn by putting the facts of the
case as building blocks of arguments showing the false claim of the petitioners over this
amended interim relief.
Issue 03. Whether the trademark of Appellant is identical to the trademark of
Respondent infringing the provisions of the Trademark Act 1999.
The sole argument is based on concrete references of the legal canvas of IPR in Bhojpal, the
specific provisions that govern the trademark registration and operation in trademark matters,
various jurisprudential doctrines that hold emphasis and distinct discussion over the facts of
the case present. With special emphasis on the Trademark Act 1999 and the Trademark Rules
2017, the argument presented by the counsel brings the basis from various other global
legislations as well.
10
WRITTEN ARGUMENTS
Issue 01
Whether the plaint should be rejected for non - compliance with the pre - institution
mediation requirement under the Commercial Courts Act, 2015.
The respondent (Tipping Mr. RC Pvt. Ltd.) in this case is standing firmly on their belief that
in the recent appeal ( Civil Appeal No. 086/2024 ) by the ld. Counsel representing “The
Krusty Corporation” should be rightfully rejected for non compliance of the law and to
maintain the Doctrine of Stare Decisis. It is vividly established, since the beginning of this
suit, the very fact that the opposing party did not address the formative procedural steps
enshrined in the law i.e. The Commercial Courts Act 2015 (to be read with the “Commercial
Courts (Amendment Act) 2018). Neither did they acknowledge the provisions enshrined in
Section 12-A of the above mentioned act but also neglected the milestone precedent of Patil
Automation (P) Ltd. v. Rakheja Engineers (P) Ltd.1, that mandates for any commercial matter
(if not presented with an urgent interim relief) to go through mediation from any of the
forums that are established by the Hon’ble High Courts of that particular state.
The country of Bhojpal is experiencing an unprecedented boom in the commercial market
which the populace are not accustomed to. This boom in the market opens doors to new
businesses, startups and industries that were not handed the exposure to compete in this
distant market which has elevated an important sector of this market i.e. food and restaurant
or Quick Service Restaurant (hereinafter QSR) industry. According to the Agron & Allen
associates, the global restaurant consultants, the food services sales in Bhojpal are growing at
about 20% annually which is double the rate as compared with a much more mature
Restaurant industry in America. In such a prospective environment, it is incontrovertible the
influx of new businesses, the Constitution of Bhojpal also provides the fundamental right “to
practise any profession, or to carry on any occupation, trade or business2”.
In this influx of business upsurge, the probability of a parallel upsurge of commercial cases is
also apprehended and to secure both the aggrieved parties and the judicial machinery from
the exhausting procedure of these cases the Supreme Court of Bhojpal presented the
suggestion of “Pre Institution Mediation” which provides for an alternative medium of
1
2022 SCC ONLINE SC 1028
2
INDIA CONST. art. 19, cl. 1 (g)
11
dispute resolution therefore securing the image and expenses of the parties in the suit by
providing speedy adjudication of the commercial disputes. Moreover, the Commercial
Courts (Pre Institution Mediation and Settlement) Rules, 2018 were also framed in line
with the aforesaid act for the purpose of resolving the matters relating to commercial
disputes in an efficacious and expeditious manner3.
The Hon’ble High Court bench of New Valley consisting of Justice Prateek Jalan has very
well stated in one of its judgement dated 01/03/2024 that, Section 12-A of the Act outlines
the mandatory requirement for pre-institution mediation before filing a suit, provided urgent
interim relief is not sought. The bench also sheds light on the matter of whether a plaint that
has not accompanied urgent interim relief in their application be rejected. The order states
“Para 6. In Patil Automation [supra], the Court has examined the purpose behind the
requirement for pre-institution mediation, and held that any suit instituted, violating the
mandate under Section 12-A of the Act, must be visited with the rejection of the plaint, which
power can be exercised suo moto. This declaration has been made effective from 20.08.2022.
The present suit was instituted well after the said date”4. The bench eventually dismissed the
application and rejected the plaint by invoking Order VII of Rule 11 of the Code of Civil
Procedure 1908.
There have been many such precedents by the hon’ble Supreme Courts and High Courts of
various states where they have pondered about the importance of the term “contemplates” or
“urgent interim relief” and their emphasis in the very legislation and the application ab initio.
❖ What is the pertinence and emphasis of the terms “Contemplates” and “Urgent”
in terms of seeking Urgent Interim Relief through Section 12-A of the CC Act
2015?
The nomenclature used in the legislations and applications have much emphasis on
the jurisprudential value of that law as it defines the very ideal on which the law was
established. The Section 12-A states -
12A5. Pre-Institution Mediation and Settlement (1) A suit, which does not contemplate any
urgent interim relief under this Act, shall not be instituted unless the plaintiff exhausts the
remedy of pre-institution mediation in accordance with such manner and procedure as may be
prescribed by rules made by the Central Government.
3
NATIONAL LEGAL SERVICE AUTHORITY, https://nalsa.gov.in (last visited May 7, 2024)
4
M/s Sabsons Agencies Private Limited Vs M/s Harihar Polymers & Anr. (2024)
5
Commercial Courts Act, 2015, § 12 - A
12
The law clearly established the very pertinence of contemplation of urgent interim
relief by making it the basis of the law, inferring that the application must have the
presence of “contemplation towards an urgent interim relief” prima facie rather than
summoning the provision after the establishment of that petition. We submit that when
a plaint is filed under the CC Act, with a prayer for an urgent interim relief, the
commercial court should examine the nature and the subject matter of the suit, the
cause of action, and the prayer for interim relief. The prayer should not be a disguise
or mask to wriggle out of and get over Section 12-A of the Commercial Courts Act.
In the judgement of the Hon’ble High Court of Judicature at Zombay in “Kaulchand

H. Jogani v. M/s Shree Vardhan Investment & Ors6” such observations were drawn,
“Para 31. In my considered view, the proper course would be to assess whether there
are elements which prima facie indicate that the suit may contemplate an urgent
interim relief irrespective of the fact as to whether the plaintiff eventually succeeds in
getting the interim relief. In the worst case scenario, where an application for
interim relief is presented without there being any justification whatsoever for the
same, to simply overcome the bar under Section 12-A, the court may be justified in
recording a finding that the suit in effect does not contemplate any urgent interim
relief and then the institution of the suit would be in teeth of Section 12-A
notwithstanding a formal application” According to the Hon’ble High Court of New
Valley, in a judgement of 2022, “Para 35. This court is of the view that the question
whether a suit involves any urgent interim relief is to be determined solely on the
basis of the pleadings and the relief (s) sought by the plaintiff.7”
Observing the precedent that flows from the above mentioned case, the hon’ble bench
can draw a parallel picture with this case as well. The petitioner i.e. The Krusty
Corporation found the presence of the respondent much earlier in March of 2018
through the online news portal yet no cognizance was taken that can be considered as
“urgent”per se. The first legal notice that was sent to the respondents alarming them of
the situation was sent much later on 30th September 2019. The delay in initiation of
the plaint can be argued as the fact that the petitioners had no condition grappling
them to resort to an “urgent” relief. Not barring the fact that, the original petition did
6
Kaulchand H. Jogani v. M/s Shree Vardhan Investment & Ors (2022) SCC 4752
7
Chandra Kishore Chaurasia v. R.A. Perfumery Works (P) Ltd. (2022) SCC 3529
13
not have the mention of a prayer asking for an “urgent interim relief”. It was brought
through an amendment in the petition through Order 6 Rule 17 of CPC.
❖ Whether the Plaintiff can bring an amendment in the suit that can alter the
In regards to that, the Supreme Court Bench Comprising Justices C.T. Ravikumar
and Rajesh Bindal, while reversing the High Court's decision which had allowed the
application seeking an amendment of the suit, observed that an application seeking
amendment to the suit under Order 6 Rule 17 CPC shall not be allowed after the trial
has commenced unless the Court concludes that despite due diligence, the party could
not have raised the matter before the commencement of trial8. The issue brought up in
the above mentioned case was to inspect whether the plaintiff could seek an
amendment into the suit whereby the nature of the suit can be changed.
The fact that the plaintiff has set the ball rolling by invoking the Order 6 Rule 17 of
CPC seeking a change of prayer by adding “granting of urgent interim relief of
temporary injunction…” changes the very nature of the suit by projecting their
position as an aggrieved seeking for urgent relief where it is not. The fact that the
amending the petition and seeking for urgent interim relief has been done with an
intent to bypass the Section 12-A of the CC Act 2015 explicitly projected by the act of
the petitioner. This malafide act by the petitioner puts the respondent in a vulnerable
position and suffocates their stand. This issue has been addressed in the Hon’ble Apex
Court of Bhojpal in the case of Revajeetu Builders and Developers v. Narayanaswamy
& Sons & Ors9 where the bench led by Justice Harjit Singh Bedi and Dalveer
Bhandari enumerated the factors to be taken into consideration by the court while
dealing with an application for amendment. One of the important factors is as to
whether the amendment would cause prejudice to the other side or it fundamentally
changes the nature and character of the case or a fresh suit on the amended claim
would be barred on the date of filing the application. Therefore suggesting that any
application seeking any sort of amendment in the suit should not be allowed if it
jeopardises the interest of other parties.
8
BASAVARAJ VERSUS INDIRA AND OTHERS, (2012) CIVIL APPEAL NO. 2886
9
2009 AIR SCW 6644
14
It is coherent to the respondent that the amendment in the plea of the petitioners
through Order 6 Rule 17 of CPC adding the terms “granting urgent interim relief”
changes the very essence of the case. This claim of the respondent is backed by the
above mentioned Chandra Kishore Chaurasia v. R.A. Perfumery Works Pvt. Ltd.10
stating “Para. 34. The use of the words “contemplate any urgent interim relief” as
used in Section 12(1) of the Commercial Courts Act 2015 are used to qualify the
category of the suit. This is determined solely on the frame of the plaint and the relief
sought. The plaintiff is the sole determinant of the pleadings in the suit and the relief
sought”. Hence , the addition through the amendment into the prayer in the formative
years distorts the fundamental character of the suits as it alters the very category of the
suit.
This was upheld by the hon’ble apex court in a case dated 14th February 201911 where
the issue in front of the court was to address the question as to whether the plaintiff
could seek an amendment to the suit whereby the very character of the suit can be
changed. The court answered the question by stating that any amendment that alters
the very nature of the suit will be considered “impermissible”. The court opined that
an application for amendment may be rejected if it seeks to introduce totally different,
new, and inconsistent cases or changes the fundamental character of the suit.
The respondent, through the arguments addressing the issues and the subissues, have
established the reason as to why the plaint should be rejected for non-compliance with the
pre-institution mediation requirement under that CC Act 2015 and how the petitioners were
in no situation per se that required them to invoke urgent interim relief and exempt
themselves from the mandatory procedure of mediation by maliciously amending the prayer
through Order 6 Rule 11 of CPC to alter the nature of proceedings. The footsteps leading up
to the conclusion that pre institution mediation is a mandatory procedure to ease the burden
on the judicial machinery and to provide early resolution of commercial disputes, stated in
the Zombay High Court case of Deepak Raheja vs Ganga Taro Vazirani12. The Hon’ble High
Court of New Valley has mercifully provided the respondents relief by acknowledging that
the petitioner has failed to demonstrate the urgency initially, by filling a suit without seeking
urgent interim relief and later amend it in order to evade the provisions enshrined in the
10
(2022) SCC 3529
11
M.Revanna vs Anjanamma (Dead) By Lrs. AIR 2019 SUPREME COURT 940
12
2021
15
Commercial Courts Act 2015. We truly believe and humbly address it to the court that the
doctrine of Stare Decisis and the doctrine of Precedent should be practised in order to secure
the nature and essence of law.
Issue 02
Whether the suit contemplates any urgent interim relief, justifying the bypassing of the
mandatory provision under the Commercial Courts Act 2015.
The council representing the respondents are of the belief that the suit in no manner at the
time of initiation contemplated any urgent interim relief; we also submit that the opposing
party was never in any need of an urgent interim relief and the sole reason for them to seek
such prayer is to exempt themselves from the mandatory provision lotted in law.
The present case has bona fide ties with the Section 12-A of the Commercial Courts Act 2015
that provides the corporations to mandatorily participate into pre institution mediation in any
forthcoming commercial/corporate dispute if any “contemplation” of “urgent interim relief”
is not sought off. The two legal jargons at play in this particular section are “contemplate”
and “urgent interim relief”.
The ld. Commercial Division of the High Court of Madras have noticed in a case dated
10/11/2022 that “the term “contemplate” or expression “urgent interim relief” occurring in
the Section 12-A have not been elucidated”13. Frisking the legal canvas, one ponders upon
the Mohamed Aboobacker Chank Lungi Pvt. Ltd vs Revathy Textiles14 in order to gain a qua
elucidation for both the terms. The above mentioned case provides “Para. 6. (xxv) A careful
perusal of the meaning of the term ‘contemplate’ makes it clear that a thoughtful look and a
profound thought at length would essentially be the determinants qua ‘contemplate’.
Therefore it is not for the asking qua plaintiff to say that urgent interim orders are required.
In this case on the other hand, inter alia owing to there being no cease and desist notice, no
notice at all and more particularly plaintiff going into deep slumber for nearly two month,
this Commercial Division has no hesitation in coming to the conclusion that it cannot be
gainsaid by the plaintiff that there is contemplation of urgent interim orders in the case on
hand”. Similar to the context of the above mentioned reason, the plaintiff in the present case
13
Arvind Gupta v. Punjab National Bank & Ors. (2022) C.S.(Comm.Div) No. 216
14
2022 C.S(Comm. Div.)No.208
16
has failed to notify the presence to the respondent for a long time, a deep slumber, for that
sake.
As previously mentioned in this submission; The petitioners “The Krusty Corporation” were
aware about the presence of the respondent in the urban QSR market of Bhojpal since March
2018 yet no cognizance was taken rather the first “abrupt” notice was received by the
respondent on 30th September 2019 - after One year Four months. Not just that, the first
outlet established by The Krusty Corporation was on 9th August 2017, if given a hindsight,
the Crusty Crab (Respondent) food chain was established in the year 2005 and till the
emergence of Krusty Corporation in the Bhojpal market, they were having flourishing
business in 28 outlets throughout the urban regions of Bhojpal. Considering the well-known
name and mark of the respondent in the market and the coherent nature of advertisement i.e.
word of mouth, the petitioner did not even bother to acknowledge the presence of the
respondents. Adding another instance is when the petitioners formatively did not mention the
need for an “urgent interim relief” and then amended their prayer in order to bypass the
mandatory provision of the CC Act. This contradicts the very base of the description of the
tem “contemplation” that is “A thoughtful look and a profound thought at length.”
In the K. Varathan15 case, a descriptive lining was formed of the terms mentioned in the
above discussed jargons.
Term/ Expression Name of Lexicon / Meaning

Dictionary
Contemplate New 9th Edition of Oxford To think carefully about

Dictionary and accept the possibility of
happening
Urgent P.Ramanatha Aiyar’s Demanding prompt action

Advanced Law Lexicon (5th
Edition)
Interim New 9th Edition of Oxford Intended to last for only a

Dictionary short time until more
permanent is found;
in the interim - during the
period of time between two
events; until a particular
event happens
15
K. Varathan v. Prakash Babu Nakundhi Reddy, [CS(COMM) 202/2022]
17
Relief P.Ramanatha Aiyar - The The remedy which a Court

Law Lexicon of Justice may afford in
relation to some actual or
apprehended wrong;
Through this, we see that the petitioner has used the terms and expressions in drawing their
own well being and securing their own goodwill. Therefore, the respondents are of the
opinion that the Commercial Courts should act in order to scrutinise the nature and the
subject matter of the suits, the cause of action, and the prayer for interim relief. They must
ensure that the expression of “urgent interim relief” should be used as a disguise or mask to
wriggle out of and get over the Section 12-A of the Commercial Courts Act. It becomes
starkly arduous to be content with the preposition that plaintiff has the out-and-out choice to
paralyse Section 12-A of the CC Act by making a prayer for urgent interim relief. Therefore
Camouflage and guise should be checked when deception and falsity is apparent or
established.
“It is of much importance to highlight that the act suggests that the suit must ‘contemplate’
which means the plaint, documents and facts should actually show and indicate the need for
an urgent interim relief”16. These were the suggestions provided by the bench of Hon’ble
Justice Sanjeev Khanna and Justice S.V.N. Bhatti. It is important to note that neither of the
above mentioned prerequisites were fulfilled by the plaintiff in the present case.
In the case of Chandra Kishore Chaurasia v. R.A. Perfumery works Pvt. Ltd.17, the ld.
Council of the respondent in that particular case submitted that “Para. 24. …the appellant
cannot be the sole judge of determining whether the provisions of Section 12-A of the
Commercial Courts Act, 2015 are applicable. Therefore, it was necessary for the appellant to
file an application seeking exemption from the provision of pre institution mediation.”. A
similar parallel was formed, where the court in that particular case observed that “the plaintiff
had neither filed an application seeking exemption nor leave in the present suit for exempting
the plaintiff from the process under Section 12-A of the Commercial Courts Act, 2015.18”.
The landmark case of Patil Automation Pvt. Ltd. and Ors. v. Rakheja Engineers Pvt. Ltd. :
2022 SCC Online SC 1028 have also states in their judgement “the provisions of the Section
16
Yamini Manohar v. T K D Keerthi (2023) 32275/2023
17
(2022) SCC 3529
18
Anil Gupta v. Baburam Singla, Proprietor of Singla Sweets & Anr. (2020) CS(OS) 201/2020
18
12-A of the CC Act 2015 are mandatory and on an analogy of Section 80 of the CPC - which
was also referred to by the Supreme Court in its decision - it was necessary for the plaintiff to
make an application seeking exemption from the provisions of the Section 12-A of the
Commercial Courts Act, 2015.
After a deep insight into the hon’ble Supreme Court’s stand in the landmark judgement of
Patil Automation Pvt. Ltd. and Ors. v. Rakheja Engineers Pvt. Ltd., it is apparent from the
above that the Apex court was also of the opinion that compulsory mediation is foisted only
on a plaintiff who does not contemplate urgent interim relief. It is implicit that it is only the
plaintiff that can contemplate the relief that is sought in a suit. And, pre-institution mediation
is necessary only in cases where a plaintiff does not contemplate urgent interim relief.
The precedents that are mentioned above in this submission provide for enough argument for
denying the qua justification of bypassing of the mandatory provision under the commercial
CC Act 2015; but apart from them the council would like to furnish another de facto based
argument. The plaintiff contends that the sole reason for their ask of “urgent interim relief” is
the apprehensive or in present loss that the corporation might be facing or will face in the
coming future because of this particular suit. The council submits the argument against this
false proposition of the ld. opposing council.
The petitioner, The Krusty Corporation, is a global corporation with 5.000 QSR working
under them worldwide in 20 different countries. The total revenue that the Krusty
Corporation has generated from the initiation of their branch in the State of New Valley in
2017 i.e. in 8 years , is approximately 26 Crores, as per the FY 2023. This turnover is 6 crore
more than the respondents, The Tipping Mr. RC Pvt. Ltd., who took 14 years to reach this
mark since their establishment. The utmost profit that the petitioners are gaining is parallel to
the respondents presence in the market which suggests that they are lucrative and are
suffering no customer wash to claim a damage or a loss per se. Rather we submit that the
Krusty Corporation is using Tipping Mr. RC Pvt. Ltd. as a springboard to sabotage their
customer link and manoeuvre their profit wagon to their discretion. Therefore not amounting
to any urgent interim relief that they have contemplated.
19
Issue 03
Whether the trademark of Appellant is identical to the trademark of Respondent

infringing the provisions of the Trademark Act, 1999.
(a). The Tipping Mr RC Pvt. Ltd. (Respondent)
(b). The Krusty Corporation (Petitioner)
The trademarks KRUSTY KRAB and CRUSTY CRAB of the petitioner and the respondent
respectively are although similar yet they cannot be considered identical. They share some
phonetic similarities but are visually and conceptually distinct enough to be differentiated by
an average consumer. The respondent’s mark CRUSTY CRAB has established its
own identity or an “acquired distinctiveness” and market presence independently since the
year 2005 when there was no other corporation in the food and service market of Bhojpal,
which decreases the likelihood of confusion. This is then complemented by the distinct
product and marketing. It must be emphasised that despite phonetic resemblances between
KRUSTY KRAB and CRUSTY CRAB; respondent holds distinctive visual elements creating
different overall impressions upon consumers’ minds. Operating for more than a decade and a
half, CRUSTY CRAB has carved out its own significant market territory that stands
independently recognized from Krusty Corporation’s mark—a testament to differentiation
rather than confusion.
20
The Hon’ble High Court of New Valley, in a recent decision Peps Industries Pvt. Ltd. v.
Kurlon Limited19, has added to the myriad decisions relating to descriptive marks and the
importance of use, to sustain an action for infringement. The court has also in this context
considered the Doctrine of Prior Use under the Trade Marks Act, 199920. The Court rejected
the Defendant’s prior use defence as it observed that the Defendant’s use of the mark ‘NO
TURN’, though prior in time to the Plaintiff’s use, was intermittent and not voluminous. At
the same time, it also refused to grant the Plaintiff any injunctive relief as the Court held that
use of the mark ‘NO TURN’ by the Plaintiff was -
(i) descriptive of the goods sold thereunder; and
(ii) the extent of use was not sufficient to demonstrate the extent of goodwill required to
prove acquired distinctiveness.
After examining the relevant provisions of the statute, various judicial precedents relating to
the rights of registered proprietors, limitations thereon and judgements relating to protection
available to descriptive marks, the Court arrived at a position as summarised as: A registered
proprietor may be sued for passing off by a prior user of the mark.Once a trademark is used,
a trademark registration is a mere recognition of pre-existing common law rights.
Where there are two registered proprietors, an evaluation of better rights in common law is
essential to decide whose rights are better and superior. A registered proprietor cannot
claim higher rights than a person who has been continuously using the mark prior to the
use of the mark by the proprietor in that jurisdiction.
Mere issuance of an advertisement or intermittent non-continuous use may not be sufficient

to claim such prior use / rights. Where prior use is set up as a defence to an action for
infringement, it is not only essential for the Defendant to demonstrate that the use was
commenced prior to the Plaintiff, but also that it was a continuous uninterrupted use of the
mark that the respondent is committing to for around half a decade by operating a well
functioning flourishing well respected business in 28 different outlets.
Equally, where the mark in question is a descriptive mark; extensive, continuous,

uninterrupted use for many years resulting in the consumers identifying the mark only with
19
2019 (C.S. COMM 174/2019 with IA 4871/2019 & IA 6715/2019)
20
The Trademark Act 1999, § 34, No. 47, Acts of Parliament, 1999 (India)
21
the proprietor claiming rights, must be demonstrated. It emerges from a reading of the order
that the burden upon the plaintiff claiming rights in a descriptive mark would be to
demonstrate that the mark has acquired the status of a well-known mark.
Absolute grounds of refusal of trademarks in the Trade Marks Act, 1999 contains absolute
and relative grounds for refusal of registration of a trade mark. The absolute grounds are
governed under Section 9 of the Act while the relative grounds of refusal are governed under
Section 11 of the Act. The absolute grounds of refusal are mentioned in 3 subsections of
Section 9 of the Act.
1. subsection 4 lays down the following grounds of refusal of trade mark: (a) the mark
lacks distinctiveness; (b) the mark is descriptive of the characteristics of the goods or
services; and (c) the mark consists exclusively of marks or indications which have
become customary in the current language or in the bona fide and established
practices of the trade.
2. subsection 5 says that a trademark is not to be registered if: (a) the mark is of such
nature as to deceive the public or cause confusion; (b) the mark is likely to hurt
religious sentiments; (c) the mark comprises scandalous or obscene matter; and (d)
the use of the mark is prohibited under the Emblems and Names (Prevention of
Improper Use) Act, 19506.
3. subsection 7 states that a mark shall not be registered as a trade mark if it consists
exclusively of: (a) the shape of goods which results from the nature of the goods
themselves; or (b) the shape of goods which is necessary to obtain a technical result;
or (c) the shape which gives substantial value to the goods.
“Distinctiveness is an exception of descriptiveness” A descriptive mark describes the

features or characteristic of the goods and services and is prohibited from being registered
under Section 9(1) of the Trade Marks Act, 1999. However, Section 9(1) not only lays down
absolute prohibition on descriptive marks being registered as trademark, but also comes with
an exception that, trade mark shall not be refused registration if before the date of application
for registration it has acquired a distinctive character as a result of the use made of it or is a
well�known trade mark. The Trade Marks Act of 1999 indirectly deals with “acquired
distinctiveness” or “secondary meaning” under the proviso to Section 9(1) and Section 32.
According to the proviso to Section 9(1) registration of the descriptive mark is possible only
22
if the mark has acquired distinctiveness before the application for registration. Wherein
Section 32 enumerates that “if any mark has been registered in breach of sub-section (1) of
Section 9 of the Act, the mark shall not be declared void, if it has acquired distinctiveness
after its registration and before commencement of any legal proceedings challenging the
validity of such registration”. Therefore it is well settled that under the Trade Marks Act,
1999, common words or descriptive words or names cannot be trademarked unless these
words or names have acquired a great reputation and goodwill in the market and have gained
secondary significance21.
This would then be an exception to the absolute grounds refusal stated under Section 9(1) of
the Trade Marks Act. “A mark is said to have acquired distinctiveness or secondary meaning
when due to the extensive and substantial use of the mark over a period of time it persuades
the consumers to relate the mark with a product or services and therefore acquired
distinctiveness under Section 9 is equivalent to being a mark well-known”22.
However in the recent case of ITC Ltd. V. Britannia Industries Ltd. 2016, the Delhi High
Court settled the question as to the time required to gain acquired distinctiveness and said that
to acquire secondary meaning, it is not necessary that product is in the market for a number of
years. If a new idea is fascinating and appeals to the consumers, it can become a hit
overnight. If the applicant satisfies that he has acquired a secondary meaning or a distinctive
character with constant usage for a considerable period of time or the consumers have really
fallen for the mark then the applicant can obtain exclusive rights to use a particular word with
a dictionary meaning as a trade mark. However, the use of the word must be to such an extent
that it has lost its primary meaning and has acquired a distinctive character and so whenever
the word is used, it must remind the consumer of the goods of the applicant. And therefore in
the case of Krusty Corporation vs Tipping Mr. RC Pvt. Ltd. Consumer Perception identifies
CRUSTY CRAB not with the Krusty Corporation but as a distinct brand known for its unique
Indo-American fusion cuisine, thereby negating the claim of likely confusion.
❖ Legal Framework in India
The legal framework surrounding acquired distinctiveness in India is primarily governed by

the Trade Marks Act, 1999; and the Trade Marks Rules, 2017. These statutes lay down the
21
Living Media (India) Ltd. V. Jitender V. Jain, 2002 SCC OnLine. 2002
22
Marico Ltd. v. Agrotech, 2010 SCC OnLine FAO(OS) No. 352/2010
23
requirements and procedures for the registration and protection of trademarks in India,
including those marks that have acquired distinctiveness over time.
Under Section 9 of the Trade Marks Act, 1999, trademarks that lack distinctive character
concerning the goods or services they represent are considered non-registrable. This includes
marks that are descriptive of the goods or services, their characteristics, or their intended
purpose. Such descriptive marks are perceived as lacking inherent distinctiveness and may
not be granted registration unless they have acquired distinctiveness in accordance with
Section 9(1)(ac).
Section 9(1)(ac) of the Act recognizes that a descriptive or generic mark may become
distinctive and capable of registration if it has acquired a secondary meaning due to its
extensive and exclusive use in relation to the specific goods or services. The section
emphasises that acquired distinctiveness must be proved concerning the relevant Indian
market.
❖ International Trademark Laws and Treaties
India’s recognition of the Acquired Distinctiveness doctrine is in line with international

norms and obligations. The Paris Convention for the Protection of Industrial Property, to
which India is a signatory, includes provisions on trademark protection and recognition.
Article 6bis of the Paris Convention requires member countries to provide protection to
well-known trademarks, which inherently includes trademarks with acquired distinctiveness
due to their secondary meaning.
Similarly, the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS

Agreement), a multilateral treaty administered by the World Trade Organization (WTO), also
sets standards for trademark protection. Article 15 of the TRIPS Agreement mandates
member countries, including India, to recognize well-known trademarks and provide
protection to marks that have acquired distinctiveness through use.
India’s compliance with these international treaties is evident in the incorporation of

provisions on acquired distinctiveness in its domestic trademark law. By allowing registration
of descriptive or generic marks with acquired distinctiveness, India meets its obligations
under the Paris Convention and the TRIPS Agreement.
24
❖ Elements of Acquired Distinctiveness
To establish acquired distinctiveness for a descriptive or generic mark in India, trademark

applicants must demonstrate the following elements:
Duration and Extent of Use in India
Applicants need to provide evidence of continuous and substantial use of the mark in the
Indian market over a significant period. The duration and extent of use are essential to
showcase the mark’s exposure to consumers and its role in identifying the goods or services
in question.
Advertising and Promotional Efforts within the Indian Market
The trademark owner must showcase their efforts in promoting the mark within India through
advertising campaigns, marketing initiatives, and other promotional activities. This evidence
illustrates the mark’s exposure to the target audience and its efforts to build brand
recognition.
Market Share and Reputation in India
Evidence of the mark’s market share and reputation in India is crucial in demonstrating its
acquired distinctiveness. This can include sales data, customer testimonials, market surveys,
and other data indicating the mark’s recognition and popularity among consumers in India.
Consumer Recognition and Association with the Mark in India
Perhaps the most critical element, applicants must provide evidence of consumer perception
and recognition of the mark as an indicator of the source of the goods or services. This can be
established through consumer surveys, feedback, or any other relevant evidence showcasing
the mark’s association with a particular business in the minds of consumers.The courts and
authorities typically require a combination of the above elements to be satisfied for a mark to
be considered to have acquired distinctiveness. The evidence provided by the trademark
owner must be robust, compelling, and specific to the Indian market, as acquired
distinctiveness is a jurisdiction-specific concept.
25
Burden and Standard of Proof to Establish Acquired Distinctiveness
In Indian trademark law, the burden of proof to establish acquired distinctiveness lies
squarely on the shoulders of the trademark applicant or owner. To successfully claim acquired
distinctiveness for a descriptive or generic mark, the applicant must provide compelling
evidence demonstrating that the mark has acquired secondary meaning and distinctiveness
through extensive and exclusive use in relation to the relevant goods or services in India.The
standard of proof required to establish acquired distinctiveness in Indian courts is a high one.
The evidence presented must be substantial, credible, and capable of convincing the court
that the mark has indeed transformed from being descriptive or generic to acquiring
distinctiveness through consumer recognition and association.
Relevant Indian Case Law and Precedents
Indian courts have dealt with numerous cases involving acquired distinctiveness, and these
cases provide valuable guidance on the evidentiary requirements and standards for
establishing acquired distinctiveness. Some notable case law on the subject includes:
1. N.R. Dongre v. Whirlpool Corporation (1996)23:
In this case, the court ruled that the mark “WASH WHIRL” had acquired
distinctiveness through substantial use and consumer recognition, allowing the mark’s
registration despite its descriptive nature.
2. Yahoo! Inc. v. Akash Arora (1999)24:
The court held that the mark “YAHOO!” had acquired distinctiveness and secondary
meaning through extensive use and promotion, thereby granting it protection despite
its generic dictionary meaning.
3. ITC Limited v. Philip Morris Products S.A. (2016)25:
23
1996, Appeal (civil) 10703 of 1996
24
1999 IIAD Delhi 229, 78 (1999) DLT 285
25
2016 CS (OS) 1894/2009
26
In this case, the court examined the mark “CLASSIC” and acknowledged that it had
acquired distinctiveness due to long-standing use, extensive sales, and consumer
recognition, leading to its protection as a well-known trademark.
These cases illustrate that Indian courts demand strong evidence to prove acquired
distinctiveness. Mere assertions of use or promotional efforts are insufficient. Instead,
trademark owners must provide concrete data, consumer surveys, sales figures, market share
data, and other relevant evidence to substantiate their claims.
The evidentiary requirements often necessitate a comprehensive and strategic approach to

collecting evidence. Expert opinions, consumer surveys conducted by reputable agencies, and
market research data can significantly strengthen a claim of acquired distinctiveness.
Additionally, consistently using the mark in a distinctive manner, even during the descriptive
phase, can aid in building a stronger case for acquired distinctiveness. It is essential for
trademark owners and applicants to familiarise themselves with these precedents and the
specific evidentiary requirements set by Indian courts to better navigate the process of
proving acquired distinctiveness and secure robust protection for their trademarks.
❖ Longstanding Coexistence:
The fact that CRUSTY CRAB has been operating since 2005, prior to Krusty Corporation’s
entry into the Bhojpal market, suggests no infringement.Having been in operation for a
decade and a half, CRUSTY CRAB has successfully established its own significant market
territory, which is independently recognized and distinguished from Krusty Corporation’s
brand. This achievement is a testament to the company’s ability to differentiate itself from its
competitors and avoid any confusion in the market.
27
PRAYER
Wherefore, in the light of the issues raised, arguments advanced and authorities cited, it
is most humbly and respectfully prayed before this Hon’ble Court to adjudge that:
I. Hold: The petition by the Krusty Corporation to be rejected by the hon’ble Apex
Court for non-compliance of the mandatory provisions of the Commercial Courts Act
2015.
II. Provide: Rectification of the trademark in use with the Krusty Corporation from the
financial year 2017. Referring to the date from which the corporation initiated their
work in this practice jurisdiction.
III. Provide: compensation suited for the respondent considering the damage that has
been incurred by them through mediation. The part respondent humbly asks the bench
of the hon’ble apex court to acknowledge the defamation and loss of goodwill that the
respondent, namely, The Tipping Mr. RC Pvt. Ltd. and the CEO Mr. Ronak
Chaudhary has incurred because of this suit.
IV. Hold: That declare the trademark "CRUSTY CRAB" is validly registered and
protected under the laws of Bhojpal by the Respondent, Tipping Mr. RC Private
Limited, and does not constitute an infringement of any trademark.
V. Hold: The judgement of the hon’ble High Court in the Case No. 94/2020 providing
the respondent is this present case relief.
AND/OR
Pass any other order it may deem fit, in the interest of Justice, Equity and Good
Conscience.
All of which is most humbly and respectfully submitted
28
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Career College Of Law, Bhopal

1st Fali S. Nariman Memorial National Moot Court Competition, 2024

1. List of Abbreviations ………………………………………………………………..2

4. CPC - Code of Civil Procedure 1908

10. SCC - Supreme Court Cases

12. AIR - All India Reporter

● PARTIES OF THE SUIT

ISSUES RAISED IN FRONT OF THE HON’BLE BENCH OF THE SUPREME

ISSUE 03. Whether the trademark of Appellant is identical to the trademark of

In the judgement of the Hon’ble High Court of Judicature at Zombay in “Kaulchand

Term/ Expression Name of Lexicon / Meaning

Contemplate New 9th Edition of Oxford To think carefully about

Urgent P.Ramanatha Aiyar’s Demanding prompt action

Interim New 9th Edition of Oxford Intended to last for only a

Relief P.Ramanatha Aiyar - The The remedy which a Court

Whether the trademark of Appellant is identical to the trademark of Respondent

(a). The Tipping Mr RC Pvt. Ltd. (Respondent)

(b). The Krusty Corporation (Petitioner)

(i) descriptive of the goods sold thereunder; and

Mere issuance of an advertisement or intermittent non-continuous use may not be sufficient

Equally, where the mark in question is a descriptive mark; extensive, continuous,

“Distinctiveness is an exception of descriptiveness” A descriptive mark describes the

❖ Legal Framework in India

The legal framework surrounding acquired distinctiveness in India is primarily governed by

❖ International Trademark Laws and Treaties

India’s recognition of the Acquired Distinctiveness doctrine is in line with international

Similarly, the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS

India’s compliance with these international treaties is evident in the incorporation of

To establish acquired distinctiveness for a descriptive or generic mark in India, trademark

Duration and Extent of Use in India

Advertising and Promotional Efforts within the Indian Market

Market Share and Reputation in India

Consumer Recognition and Association with the Mark in India

Relevant Indian Case Law and Precedents

1. N.R. Dongre v. Whirlpool Corporation (1996)23:

2. Yahoo! Inc. v. Akash Arora (1999)24:

3. ITC Limited v. Philip Morris Products S.A. (2016)25:

The evidentiary requirements often necessitate a comprehensive and strategic approach to

All of which is most humbly and respectfully submitted

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