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“A stitch in time saves nine.”
As the Black’s Law Dictionary goes to define an injunction; it can be understood as nothing but a prohibitive writ issued by the court asking a defendant or his servants or agents or any other person so authorised, to either do or not to do a certain act which is unjust and inequitable and whose happening/ non-happening might result as injurious for the plaintiff.
Indian jurisdiction recognizes injunction in the simplest of it forms which can be classified as:
- Temporary injunction
- Permanent/ Perpetual injunction
Temporary injunction has been discussed under Section 94 and 95 read along with Order XXXIX of the Code of Civil Procedure (“CPC”). Similarly, permanent injunction has been covered under Sections 37 and 38 of the Specific Relief Act, 1963.
One such unique kind of injunction is the Quia timet injunction which literally translates to, ‘because he fears.’ This simply means that the plaintiff files such an injunction in the court of law because he fears that the defendant might in future cause some harm and infringe his rights. Hence, in such a case the Court is required to first assess whether or not a cause of action has arisen in favour of the Plaintiff, and then go ahead with deciding the injunctive relief. Quia timet injunction is in the nature of a permanent injunction. For instance, in intellectual property rights, the defendant is prevented from launching such a product or service till the time the term of the Plaintiff’s patent expires.
Also read: IPR Laws in India
Gee explains the jargon as: a quia timet injunction is the one where no kind of an actionable wrong has taken place and such an injunction is awarded in order to prevent the very occurrence of an actionable wrong, or to prevent repetition of an actionable wrong. In a landmark 2012 English case a quia timet injunction was granted as the Plaintiff had brought up an action for the removal of trees even though no actual damage had occurred. As the facts of the case made it pretty evident that upon the growth of the roots of the tree, the property would face huge loss, therefore the roots needed to be removed.
Pearson J. held that there are two ingredients that need to be fulfilled for a Quia timet injunction to be granted:
- In case no actual damage has been proved, then the proof of imminent and substantial danger needs to be established; and
- The damage must be shown to be irreparable, because if that is not done then the Court shall have no reason to believe that delay in remedy might lead to any damage to the plaintiff.
Pearson J. concluded by saying that the damage should be of such a nature that it would become impossible for the Plaintiff to protect himself from the damage that might occur in future.
There are a variety of factors which ought to be considered while assessing the first essential:
- What actions, if any were taken by the Plaintiff to ensure that the infringement does not take place;
- Whether or not the attitude of the defendant points to the fact that he might commit such an infringement; whether adequate steps have been taken to prevent the action despite which a certain degree of threat persists and most importantly whether awarding of interim injunction along with the damages would be an effective remedy equivalent to the anticipated harm.
- The duration between the application for relief and the threatened infringement may be relevant;
- Where the acts leading to future damage have already been committed, it is to be considered whether it is possible that the defendant’s intentions were less significant than the natural and probable consequences of their act.
Indian courts and quia timet injunction
Indian courts have over the years accepted the application of quia timet injunction and borrowed understanding of the principle from various English judgements. However, they still remain sceptical while granting the same to the Plaintiffs, fearful of the fact that the Plaintiffs don’t always approach the Courts with clean hands. Quia timet injunctions have primarily been granted in intellectual property matters especially trademark and patent.
So far, Indian courts have not had a systematic approach in determining the exact standard for establishing the proof of imminent danger before awarding a quia timet injunction. It has been observed that quia timet actions in India came into the lime light after the denial of interim reliefs based on application of equitable factors like those of irreparable damage or presence of public interest.
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From the above parameters it can be deduced that there doesn’t exist any straight jacket formulae for determining what can amount to proof of imminent danger in a patent case. Mere indicators such as regulatory approvals, marketing approvals, and silence on launch plans by generic or mere allegations of clinical trials cannot be sufficient to prove the presence of imminent danger. The rationale that trademarks do not have an expiry period makes it easy for us to conclude that even in trademark matters the degree of threat of future damage instances can be ascertained conclusively, as the Defendant would clearly have no intention of waiting. As we all know, with great power comes greater responsibility; which is what the judicial system in India needs to realise for this particular principle of law.
Before granting a quia timet injunction it is the Author’s firm belief, that the Courts need to have a standard test for determining the imminent threat in future and restrict its application before they are highly misused. Having said that, we cannot undermine the reasonableness the Courts have adopted until now to grant a quia timet injunctions, considering the newness of this concept to the Indian courts. Primarily pharmaceutical companies are the one’s approaching Courts with a quia timet action suit, for instance Novartis was awarded the injunction successfully against Bajaj healthcare, Cadila healthcare, Alembic Pharmaceutical’s and Glenmark Generics.
Authors: Stuti Mandhotra, student of School of Law, UPES, Dehradun and Advocate Avijit Sharma.
Editor: Astha Garg, Junior Editor, LexLife India.