017-SLLR-SLLR-1998-V-2-CEYLON-TEA-MARKETING-LTD-.-v.-PREPACKED-EXPORT-PVT-LTD-.-AND-OTHERS.pdf
146
Sri Lanka Law Reports
(1998) 2 Sri LR.
CEYLON TEA MARKETING LTD.
v.PREPACKED EXPORTS (PVT) LTD. AND OTHERS
SUPREME COURTFERNANDO, J.,
DHEERARATNE, J„
GUNAWARDENA, J.
S.C. H.C. LA NO. 3/97HC (CIVIL) NO. 8/96(3)
D.C. COLOMBO NO. 4545/Spl.
AUGUST 27, 1997.
High Court of the Provinces (Special Provisions) Act, No. 10 of 1996 – CommercialHigh Court – Jurisdiction of other High Courts of the Western Province sittingin Colombo.
Held:
Under the High Court of the Provinces (Special Provisions) Act, No. 10 of 1996every High Court of the Western Province sitting in Colombo has jurisdiction underthis Act.
APPEAL from the order of the Commercial High Court.
Chula de Silva with S. Srikantha and M. Maharoof for petitioner.
Bimal Rajapakse with Ajith Anawaratne for respondents.
Cur. adv. vult.
August 27, 1997FERNANDO, J.
Mr. Chula de Silva on behalf of the plaintiff-petitioner submits thatthe learned High Court Judge erred in refusing the interim injunctionbecause of this mistaken assumption that the plaintiff-petitioner wasseeking to restrain the defendant from using the trade mark "LuckyLeaf". Mr. de Silva submits that his case was that while the defendantwas entitled to imitate the registered trade mark "Get up" of theplaintiff, and that such conduct was in violation of the plaintiff's rightunder section 117 of the Cpde of Interlectual Property Act, and alsoconstituted passing off as well an unfair competition. The defendant
SC Ceylon Tea Marketing Ltd. v. Prepacked Exports;'(Pvt) Ltd.
and Others (Fernando, J.)147
does not claim to have had any prior use of that "Get up". Thedefendant's right are confined to the registered trade mark “LuckyLeaf".
Court.accordingly grants special leave to appeal upon the questionsset out in paragraph 10 of the petition.
Counsel invite Court to determine this appeal forthwith…
At this stage Mr. Rajapakse concedes that the plaintiff should begranted an interim injunction as prayed subject to the exception thatthe defendant is entitled to use his registered trade mark, as appearsin H1.
Court makes order accordingly.
Both counsel state that under the High Court of the Provinces(Special Provisions) Act, No. 10 of 1996, every High Court of theWestern Province sitting in Colombo has jurisdiction under that Act.
Since the learned High Court Judge who heard this matter appearsto have expressed a concluded opinion on the merits of the case,it is desirable that the trial be heard by another Judge.
Court accordingly direct the senior High Court Judge presiding inCourt No. 1, to hear this case or to nominate another Judge to hearthis case.
Registrar will forward a copy of this order to the High Courtimmediately as the case is fixed for trial on 4.9.97.
No costs.
DHEERARATNE, J. – I agree.
GUNAWARDENE, J. – I agree.
The Senior High Court Judge presiding in Court No. 1 directed tohear the case or nominate another judge to hear the case.