Madras High Court
Mr.S.Sadhasivam vs Master Lungies on 24 June, 2021
Author: R.Subramanian
Bench: R.Subramanian
C.S.No.763 of 2002
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 24.06.2021
CORAM:
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
C.S.No.763 of 2002
and
A.Nos.4537 & 5318 of 2002, 4052 of 2004, 3115 of 2006,
O.A.Nos.762 & 763 of 2002
Mrs.S.Radharani
Prop. of Sadharani Tex,
191-A-5, Perathar Kadu,
Chinnappanaickenpalayam,
Komarapalayam – 638 183,
Rep. by its Power of Attorney,
Mr.S.Sadhasivam ...Plaintiff
Vs.
1.Master Lungies,
6-B, Cauvery Nagar,
Komarapalayam,
Tiruchengode Taluk,
Namakkal District.
Rep. By its Partner, Mr.P.Babu
2.P.Babu,
6-B, Cauvery Nagar,
Komarapalayam,
Tiruchengode Taluk,
Namakkal District.
3.P.Thangavel
6-B, Cauvery Nagar,
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C.S.No.763 of 2002
Komarapalayam,
Tiruchengode Taluk,
Namakkal District.
4.P.Dhakshinamoorthi
6-B, Cauvery Nagar,
Komarapalayam,
Tiruchengode Taluk,
Namakkal District.
5.Ponnammal
6-B, Cauvery Nagar,
Komarapalayam,
Tiruchengode Taluk,
Namakkal District. ...Defendants
Prayer: Plaint filed under Order VII Rule 1 of C.P.C., and Order IV Rule 1 of
the Original Side Rules r/w. Section 27, 28, 29, 105, 106 of the Trade and
Merchandise Marks Act, 1958 and Sections. 52, 55, 62 of the Copyrights
Act, 1957, praying as follows:-
a) a permanent injunction restraining the defendants, by itself, its
partners, men, servants, agents, distributors, stockists, representatives or any
one claiming through them from in any manner passing off and / or enabling
others to pass off the defendant' lungies as and for the plaintiff' lungies by
manufacturing, selling, or offering to sell, distributing, displaying, printing,
stocking, using, advertising lungies bearing an almost identical trademark
“KABUTTAR CHAAP label” or any other mark deceptively similar to the
plaintiff' trademarks “KABUTTAR CHAAP label” with identical colour
scheme, get up and layout or in any other manner whatsoever;
b) a permanent injunction restraining the defendants, by itself, its
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C.S.No.763 of 2002
partners, men, servants, agents, distributors, stockists, representatives or any
one claiming through them from in any manner committing acts of copyright
infringement by publishing, printing, manufacturing or using “KABUTTAR
CHAAP label” which are a substantial reproduction of plaintiff'
“KABUTTAR CHAAP label” in colour scheme, get up and layout or in any
other manner whatsoever;
c) the defendants be ordered to surrender to plaintiff for destruction of
all labels, dyes, blocks, moulds, screen prints, packing materials and other
materials bearing the trademark “KABUTTAR CHAAP” labels or any mark
deceptively similar to plaintiff' trademark and artistic work “KABUTTAR
CHAAP” labels.
d) a preliminary decree be passed in favour of the plaintiff directing
the defendants to render account of profits made by use of trademark and
copyright in the artistic work “KABUTTAR CHAAP label” and a final
decree be passed in favour of the plaintiff for the amount of profits thus
found to have been made by the defendants after the latter have rendered
accounts;
e) the defendants be ordered and decreed to pay to the plaintiff a sum
of Rs.1,00,000/- as damages for acts of passing off and infringement of
copyright committed by the defendants by manufacture and sale of lungies
bearing the trademark and artistic work “KABUTTAR CHAAP” labels;
f) for costs of the suit; and
g) pass such further or other reliefs as this Hon'ble Court may deem fit
and necessary in the circumstances of the case and thereby render justice.
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C.S.No.763 of 2002
For Plaintiff : Mr.Rahul M.Shankar for
Mr.A.A.Mohan
For Defendants : Mrs.Vasudha Thiagarajan
JUDGMENT
The suit is one for infringement of trademark and passing off. Though the suit was originally filed for passing off action, upon registration injunction granted, the suit is amended as one for infringement.
2.Mr.Rahul M.Shankar representing the learned counsel for the plaintiff would submit that he is unable to get instructions from the plaintiff.
The suit is of the year 2002. He is unable to state as to whether the defendants are continuing to infringe the mark of the plaintiff.
3.It is seen that there is an interim order restraining the defendants from using the mark. Mrs.Vasudha Thiagarajan, learned counsel appearing for the defendants would submit that the defendants are not using the disputed mark.
4.In view of the statement made, this suit is dismissed under Order 4/6 https://www.mhc.tn.gov.in/judis/ C.S.No.763 of 2002 13(a) of the Code of Civi Procedure as amended by the Commercial Courts Act with liberty to the plaintiff to take appropriate proceedings afresh, in the event of any infringement in future. No costs. Consequently, connected applications are closed.
24.06.2021 kkn Internet:Yes Index:No Non-Speaking List of witness and documents filed on the side of the plaintiff:
Nil List of witness and documents filed on the side of the defendants:
Nil 24.06.2021 kkn R.SUBRAMANIAN, J.
KKN 5/6 https://www.mhc.tn.gov.in/judis/ C.S.No.763 of 2002 C.S.No.763 of 2002 and A.Nos.4537 & 5318 of 2002, 4052 of 2004, 3115 of 2006, O.A.Nos.762 & 763 of 2002 24.06.2021 6/6 https://www.mhc.tn.gov.in/judis/