Madras High Court
Trendz Paper & Stationers (India) Pvt. ... vs M/S Konark International on 27 August, 2018
Author: M.Sundar
Bench: M.Sundar
IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated:27.08.2018 CORAM THE HON'BLE MR.JUSTICE M.SUNDAR C.S.No.224 of 2009 1.Trendz Paper & Stationers (India) Pvt. Ltd. having its registered office at 2 Badria Garden Street, 1st Floor, Chennai - 600 003. 2. Mr.Vikas Sethia .. Plaintiffs Vs. M/s Konark International 642, Gali Bawli, 6 tooti Chowk, Pahar Ganj, New Delhi - 110055 ..Defendant This Civil Suit is preferred, under Order IV Rule 1 O.S. Rules and Order VII, Rule 1 of the C.P.C read with Section 27,29,134 and 135 of the Trademarks Act, 1999, seeking for permanent injunction, restraining the Defendant, by themselves, their servants, agents, or anyone claiming through them from infringing the plaintiff's registered Trademark 'EVERY GLORY' and any mark that is similar/ deceptively similar, including, 'GLORY' and passing off their goods including 'cutters, blades, replacement blades for cutters, replacement blades, knives, and other stationery items etc' in their business as the business of the Plaintiff, by using the mark that is similar to Plaintiff's registered trade mark 'EVER GLORY' or any other expression visually, phonetically or deceptively similar to it either as or part of its business/ trading name, or otherwise in the course of their business, in their sign boards, correspondence, letter heads, trade literature, advertisement in the print or electronic media including as e-mail ID or Web address and in such other business literature and or enable others to pass off; seeking for a permanent injunction restraining the defendant, by themselves, their servants, agents, distributors, or anyone claiming through them from manufacturing, importing, selling, offering, and advertising for sale using the Trade Mark "Ever Glory (Label) and/or deceptively similar mark 'GLORY' in 'stationary goods including cutters, blades, knives' etc. in any media and use the same in Invoices, letterheads and visiting cards or any other trade literature or by using any other Trade Mark which is in anyway visually, phonetically or deceptively similar to the Plaintiff's Registered Trademark No 1480795 in class 16 of the Trademark Act 1999, or in any manner infringing the Plaintiff's aforesaid Registered Trademark by using the mark 'EVER GLORY' either as prefix or suffix in the course of business; to direct the Defendant to surrender to the plaintiff's for destruction all the packing material, cartons, advertisement materials and hoardings, letterheads, visiting cards, office stationary and all other materials containing/bearing the Trademark which is similar/deceptively or confusingly similar to Plaintiff's registered Trade Mark 'Ever Glory' or any other deceptively similar Trademark; seeking for a preliminary decree be passed in favour of the Plaintiffs, directing the Defendants to render accounts of profit made by them by the use of similar/deceptively or confusingly similar Trade Mark 'Glory' on the goods referred and a final decree be passed in favor of the Plaintiffs for the amount of Profits found to have been made by the Defendants, after the Defendants have rendered accounts; to direct the defendants to pay Rs.4,29,000/- as damages @ Rs.3,000/- per day from 01.11.08 till 19.03.2009 and thereafter also at the same rate of Rs.3,000/- per day on all days when the defendant continues to use the trademark of the plaintiff after the filing of the present suit and for costs. For Plaintiffs : Mr.M.Purushothaman For Defendants : Ms.Rekha Kumari No Appearance JUDGMENT
Read this in conjunction with orders made by this Commercial Division today in A.No.3328 of 2017.
2. The Memorandum of Compromise entered into between the plaintiffs and the sole defendant reads as follows:
"MEMORANDUM OF COMPROMISE FILED BY PLAINTIFF AND THE DEFENDANT UNDER ORDER 23 RULES 1 CPC READ WITH SECTION 151 CPC.
1. The Plaintiff and the Defendant have arrived at a settlement on the following terms and conditions.
2. The defendant admit and acknowledge that the plaintiff is the prior adopter and registered proprietor of the Trademark EVERGLORY registered under Nos.1480795 and 1661199in respect of goods registered by the plaintiff in classes 16 and 8 respectively and undertake not to resort to any proceeding in relation thereto including applying for rectification thereto before the appropriate forum.
3. The defendant state that they had erroneously under a mistaken impression falsely used the trademark "Konark Glory" having similar and identical layout, design, artwork, colour scheme such as that of the Plaintiff's 'EVERGLORY'.
4. The defendant undertake that they shall neither use the label 'Konark Glory' as complained of by the Plaintiffs nor use the trademark 'Konark Glory' in respect of Blades, Paper Cutters, Replacement blades, Scissors, Knives and other items falling in Class 16/8. The defendant also undertake not to use any other label similar to that of the plaintiffs label 'EVERGLORY' and shall cease to use to expression 'GLORY' in any of their marks.
5. The defendant further undertake not to use any trademark label identical or deceptively similar to the registered trademark of the plaintiff carrying the trademark EVERGLORY having GLORY as the essential feature.
6. The defendant concede that the Plaintiff's trademark 'EVERGLORY' is a well-known trademark and is solely identified by trade and public as the plaintiff's mark.
7. The defendant undertake not to advertise the offending 'Konark Glory' label or advertise any other mark deceptively similar thereto or use the mark/label or any other visual variation of the label in their pamphlets, catalogues, websites, promotional material, labels, cartons, packing materials or in any other manner whatsoever.
8. The defendant undertakes to cease to use the expression 'GLORY' in any of their marks.
9. The defendant undertakes to confirm that they do not have any stock of labels, advertisements, bills, cartons, dyes. Blocks, moulds, screen prints, promotional materials, packaging material carrying the offending 'Konark Glory'
10. The 1st Plaintiff's present Registered office address is at No.19, E.V.K. Sampath Lane, Gr.Floor,Vepery, Chennai-600007 and 2 nd Plaintiff's now residing at No.8/16, Vinayaga Maistry Street, Chennai-6000079, this may be duly noted.
11. That the suit may be decreed as prayed for in paras 29 (a) and (b) of the Plaint in favour of the Plaintiff and against the defendant.
12. That subject to the forgoing covenants the plaintiffs gives up all other reliefs sought for in the plaint.
13. That this Memo of Compromise will be binding on the Parties hereto and also their Successors in interest, Partners, Proprietors, Men, Servants, Agents, Distributors, Stockists, Representatives or any of them claiming there under.
It is therfore prayed that this Memorandum of Compromise may be recorded and decree may be passed in favour of the Plaintiff and against the defendant by this Hon'ble Court incorporating the terms of the Memorandum as stated above and thus render justice Dated at Chennai on this April 2017 Sd/- Sd/-
Plaintiff Defendant Sd/- Sd/- Counsel for Plaintiff Counsel for Defendant"
In the light of the request made by the learned counsel for the plaintiffs and in the light of prayer in the aforesaid application i.e, A.No.3328 of 2017 not being opposed, there shall be decree in terms of aforesaid Memorandum of Compromise in the main suit which has been extracted supra.
The aforesaid Memorandum of Compromise shall form part of the decree.
The suit decreed on above terms. No costs.
27.08.2018 Speaking/Non-Speaking order Index : Yes/No gpa/kan To M/s Konark International 642, Gali Bawli, 6 tooti Chowk, Pahar Ganj, New Delhi - 110055 M.SUNDAR, J.
gpa/kan C.S.No.244 of 2009 27.08.2018