The Reliefs: Section 135

In one line

Section 135 gives the same reliefs in infringement and in passing off, an injunction, and at the plaintiff's option either damages or an account of profits, with or without delivery up for destruction, and takes the money away from him in three named situations.

The provision

Section 135(1): "The relief which a court may grant in any suit for infringement or for passing off referred to in section 134 INCLUDES INJUNCTION (subject to such terms, if any, as the court thinks fit) and AT THE OPTION OF THE PLAINTIFF, EITHER DAMAGES OR AN ACCOUNT OF PROFITS, together with or without any order for the DELIVERY-UP OF THE INFRINGING LABELS AND MARKS FOR DESTRUCTION OR ERASURE."

Section 135(2): "The order of injunction under sub-section (1) may include an EX PARTE INJUNCTION or any interlocutory order for any of the following matters, namely:

(a) for DISCOVERY OF DOCUMENTS;

(b) PRESERVING of infringing goods, documents or other evidence which are related to the subject-matter of the suit;

(c) RESTRAINING THE DEFENDANT FROM DISPOSING OF OR DEALING WITH HIS ASSETS in a manner which may adversely affect plaintiff's ability to recover damages, costs or other pecuniary remedies which may be finally awarded to the plaintiff."

Broken down

"Includes" is the first word to notice. The list is not exhaustive. A court may grant declarations, costs, an order for rendition of accounts, an order to hand over infringing goods and dies, and anything else within its ordinary powers.

"Injunction" covers all three kinds: the perpetual injunction at the decree, the interlocutory injunction pending the suit, and the ex parte injunction granted before the defendant is heard.

"At the option of the plaintiff, either damages or an account of profits." The two are alternative, not cumulative. Damages compensate the plaintiff's loss; an account strips the defendant's gain. The plaintiff chooses, and the choice is his, not the court's.

"Together with or without" delivery up. So the order for delivery up is independent of the money remedy, and may be made alone.

And note what is delivered up: "the infringing LABELS AND MARKS", not the goods. Chapter 1130 works this narrowness.

The three bars in section 135(3)

"Notwithstanding anything contained in sub-section (1), the court SHALL NOT grant relief by way of DAMAGES (OTHER THAN NOMINAL DAMAGES) or on ACCOUNT OF PROFITS in any case:

(a) where in a suit for infringement of a trade mark, the infringement complained of is IN RELATION TO A CERTIFICATION TRADE MARK OR COLLECTIVE MARK; or

(b) where in a suit for INFRINGEMENT the defendant satisfies the court

(i) that at the time he COMMENCED TO USE the trade mark complained of, he was UNAWARE AND HAD NO REASONABLE GROUND FOR BELIEVING that the trade mark of the plaintiff was ON THE REGISTER or that the plaintiff was a registered user using by way of permitted use; and