The Supreme Court recently clarified whether a defendant can question a plaintiff during cross-examination about key issues in a trademark infringement case, even if the defendant’s written statement is not on record. The Court considered this issue in Shabu KN Achary vs Dharampal Premchand Limited, Civil Appeal No. 10260 of 2026, arising from SLP (C) No. 26887 of 2026. This question was important because the alleged infringement of the plaintiff’s brand was the basis for claiming damages.
The dispute before the Court arose from a suit in which the plaintiff had sought several reliefs, including a permanent injunction restraining the defendant from infringing the trade dress used for its product, a declaration regarding the plaintiff’s trademarks and damages. The plaintiff had asserted rights over its trademarks and packaging and alleged infringement by the defendant.
During cross-examination, the defendant sought to ask the plaintiff whether there was any document showing since when the impugned mark had been used. The specific question was whether the plaintiff had any document to establish the period from which the mark was being used.
The High Court did not permit the question to remain on record and treated it as a purely factual matter that went beyond the allowed scope of cross-examination, as the defendant’s written statement had not been taken on record. The question was accordingly expunged. It was again contended before the Supreme Court that since the written statement was not on record, the defendant was not entitled to put such a question to the plaintiff. However, the Supreme Court did not accept this contention.
The apex Court considered the nature of the plaintiff’s own allegations while deciding whether the question could be asked. The plaintiff’s affidavit with the prayer for injunction alleged that the defendant was using the plaintiff’s brand name with similar packaging and trade dress. According to the plaintiff, the packaging used by the defendant was identical to the unique trade dress and packaging of the plaintiff’s product. The plaintiff also alleged infringement of its registered copyright and trademark.
Against this background, the Court found that the period from which the plaintiff claimed to have used the brand name was directly connected with the plaintiff’s own case. The question did not arise independently of the suit. Instead, it sought to test the material relied upon by the plaintiff in support of its assertion of trademark infringement.
The Supreme Court held that where a plaintiff asserts trademark infringement, the defendant is entitled to question the plaintiff about documents that substantiate the period from which the relevant brand name has been used. Further, the Court held that this right to put the question was not taken away merely because the defendant’s written statement was not on record. The plaintiff had itself placed the use and infringement of the trademark in issue. Therefore, the defendant could ask whether the plaintiff possessed documentary material establishing when the brand name began to be used.
The Court’s reasoning remained confined to the acceptability of that question in cross-examination. It did not determine whether the plaintiff had established rights over the mark, whether infringement had in fact taken place or whether the defendant would ultimately succeed on any of its contentions.
The Supreme Court reversed the impugned order of the High Court and directed that the trial should continue after recalling the plaintiff and recording the plaintiff’s answer to the question. However, the Court expressly clarified that it had made no observations on the merits of the dispute. Both parties would remain free to raise their respective contentions during the trial. The appeal was accordingly allowed.
Conclusion
The order provides a difference between the lack of a written statement on record and the defendant’s ability to test the plaintiff’s own contentions during cross-examination. Where the plaintiff themselves base their claim on the use and infringement of a trademark, questions directed at the documents supporting that use may form part of the cross-examination.
In the present case, the Supreme Court found that asking the plaintiff to establish, through documents, the period from which the impugned mark had been used was directly connected with the trademark infringement claim raised in the suit. Therefore, the question could not be excluded merely because the defendant’s written statement had not been taken on record.
Authors: Manisha Singh and Shivi Gupta