By Lakmal Sooriyagoda
The Commercial High Court has refused to grant an interim injunction against Vortex Aventura (Private) Limited, restraining from directly or indirectly using any tradename or any business identifier, including domain names or email addresses, consisting of the word ‘Aventura’ in respect of the business carried on by the defendant in offering industrial and commercial equipment solutions. Hayleys Aventura (Private) Limited had obtained an ex parte enjoining order against the defendant. The defendant submitted that the term ‘Aventura’ is a generic name for which the plaintiff cannot have exclusivity.
The defendant further brought to the attention of the Court that the application for interim injunction couldn’t be entertained in terms of the Intellectual Property Act and made reference to the fact that marks are clearly distinguishable which are in different classes. The Commercial High Court Judge Pradeep Hettiarachchi, among other findings, has observed that it is trite law that a generic name could not be permitted to be registered by a single entity and excluded from use by others.
The Court also found that plaintiff’s mark and defendant’s mark and the way they are designed are different. Accordingly, the Court stated that it is difficult, if not impossible, to infer that an average consumer, when seeing Vortex Aventura would be confused or deceived as to whether it has some kind of link to Hayleys Aventura.
Accordingly, the Court dissolved the enjoining order already issued against the defendant and refused the interim injunction sought by the plaintiff with costs.
Charaka Jayaratne AAL with Amila Perera AAL, Chathuri Samarasinghe AAL, and Pasinduni Fernando AAL instructed by Dimuthu Kuruppurachchi appeared for the defendant.
Dr. Harsha Cabral PC with Kushan Illangathilake AAL, and Chamaka Ambagahawita AAL instructed by Julius & Creasy appeared for the plaintiff.
