Calcutta High Court
Onaya Fashions Private Limited vs Bikash Dalmia on 12 April, 2022
Author: Ravi Krishan Kapur
Bench: Ravi Krishan Kapur
OD-14
IA NO. GA/5/2022
In CS/49/2019
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
ORIGINAL SIDE
ONAYA FASHIONS PRIVATE LIMITED
Vs
BIKASH DALMIA
BEFORE:
The Hon'ble JUSTICE RAVI KRISHAN KAPUR
Date : 12th April, 2022.
Appearance:
Mr. Sayantan Basu, Adv.
Mr. Tinkari Jana, Adv.
Mr. Prithwiraj Sinha, Adv.
Mr. Gautam Ray, Adv.
Mr. Gopal Das, Adv.
Mr. Sourav Jana, Adv.
The Court:- Affidavit of Service filed by the petitioner be kept with the
records. None appears on behalf of the respondent nor is any accommodation
prayed for on his behalf.
The suit has been filed, inter-alia, for infringement and passing off. By orders dated 10 April 2019, 30 August 2019 and 12 June 2019, a Co-ordinate Bench of this Court had, inter alia, granted an order of injunction restraining the respondent, his servants or agents from infringing the trade mark and trade name of the petitioner.
Briefly, the petitioner is engaged in the business of manufacturing and marketing of clothing and all types of ladies readymade garments under the 2 mark 'ONAYA'. The petitioner is a bonafide adopter and lawful proprietor of the said mark 'ONAYA'. The petitioner has also obtained a registration under the Trade Marks Act, 1999 to use the trade mark 'ONAYA' exclusively.
In or about the first week of December, 2018, the petitioner came to learn that the respondent was carrying on a business of selling similar products as that of the petitioner under a deceptively similar and/or identical mark 'ONAYAS' from its showroom at 7, Commercial Street, Bengaluru-560
001. Upon filing the suit the petitioner had moved an earlier application being GA/968/2019 which was ultimately disposed of by granting appropriate orders of injunction.
Notwithstanding service on the respondent, the respondent has chosen not to contest this proceedings. Recently, on 16 February 2022, the petitioner has come to learn that the respondent is continuing to sell products under the impugned mark 'ONAYAS' in violation of the subsisting orders of injunction.
In view of the aforesaid, I am prima facie of the view that there is a deliberate and calculated attempt of the respondent to carry out with the aforesaid acts of infringement and passing off contrary to and in violation of the subsisting orders of Court.
Accordingly, there shall be an order in terms of prayer (a) of Notice of Motion to the limited extent the Receiver shall, for the time being, only make an inventory of the infringing goods and the materials lying at the premises of the respondent at premises no.7, Commercial Street, Bengaluru - 560 001. 3
The matter is made returnable on 27 April 2022.
Mr. Gurudas Mitra, Advocate (Mobile No: 62908 83401) is appointed Receiver at a remuneration of 2500 gms to implement this order. The petitioner shall also bear all expenses of the Receiver and provide the Receiver with befitting accommodation. The Receiver is also directed to file a Report on the returnable date.
Liberty is also granted to the Receiver to take police assistance if the circumstances so warrant.
(RAVI KRISHAN KAPUR, J.) D.Ghosh