Madras High Court
Texmo Industries vs Rambhai Hargovandhas Patel on 3 July, 2019
Author: Krishnan Ramasamy
Bench: Krishnan Ramasamy
1
HIGH COURT OF JUDICATURE AT MADRAS
DATED : 03.07.2019
CORAM :
THE HONOURABLE Mr.JUSTICE KRISHNAN RAMASAMY
C.S.No.146 of 2015
and
OA.Nos.201 and 202 of 2015
Texmo Industries,
Registered Partnership firm,
Represented by its Constituted Attorney Mr.Palaniappan,
P.B.No.5303, Mettupalayam Road,
Coimbatore. ... Plaintiff
..Vs..
1. Rambhai Hargovandhas Patel,
Harikrupa Industries,
5/A, Mahasakthi Industrial Estate,
Behind Sonia Ciramics, Anil Road, Naroda Road,
Ahmedabad-380025, Gujarat.
2. Baldavbhai Rambhai Patel,
Harikrupa Industries,
5/A, Mahasakthi Industrial Estate,
Behind Sonia Ciramics, Anil Road, Naroda Road,
Ahmedabad-380025, Gujarat.
3. Jiviben Rambhai Patel,
Harikrupa Industries,
5/A, Mahasakthi Industrial Estate,
Behind Sonia Ciramics, Anil Road,
Naroda Road, Ahmedabad-380025,
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Gujarat.
4. Jigneshbhai Rambhai Patel,
Harikrupa Industries,
5/A, Mahasakthi Industrial Estate,
Behind Sonia Ciramics, Anil Road,
Naroda Road, Ahmedabad-380025,
Gujarat.
5. Mukeshbhai Baldevbhai Patel,
Harikrupa Industries,
5/A, Mahasakthi Industrial Estate,
Behind Sonia Ciramics, Anil Road,
Naroda Road, Ahmedabad-380025,
Gujarat.
6. Harikrupa Industries,
a partnership firm, represented by its partner,
Rambhai Hargovandhas Patel,
5/A, Mahasakthi Industrial Estate,
Behind Sonia Ciramics, Anil Road,
Naroda Road, Ahmedabad-380025,
Gurajat ... Defendants
Suit filed under order VII RULE 1 CPC Read with Order IV Rule 1
of the O.S.Rules of the Madras High Court, and Sections 11,27, 29,
134, 135 Trade Marks Act, 1999 praying for a judgment and decree
(A) Permanent injunction restraining the Defendants 1 to 6, their
directors, employees, officers, servants, agents and all others acting
for and on their behalf from making, selling distributing, advertising,
exporting, offering for sale, and in any other manner, directly or
indirectly, dealing in any product in the name of TEXNO or any other
similar mark amounting to an infringement of the Plaintiff's registered
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trademarks Nos.315049, 315050, 794417, 794418, 794425, 794426,
794432, 794434, 794436, 794451, 794464 & 794465 (B) A
Permanent injunction restraining the Defendant, its officers,
employees, servants and agents, from manufacturing, selling, offering
for sale, advertising and directly or indirectly dealing in any product or
service under the trademark TEXNO or any other similar marks
amounting to passing off of the products and services of the
defendants as and for that of the Plaintiff's mark TEXMO & TEXMO
INDUSTRIES. (C) To declare the Plaintiff's trademark TEXMO as a well
known Trade Mark; (D) To grant order of delivery up of any
brochures/printed material and/or any material which infringes of
plaintiffs' registered trademarks TEXMO; (E) To direct the defendants
for rendition of accounts in respect of their alleged activities especially
sale and promotion of products bearing the mark TEXMO and TEXMO
INDUSTRIES for their goods and business; (F) Costs and such other
relief as this Hon'ble Court may deem fit, in the circumstances of the
case,in the interests of justice and equity.
For Plaintiff : Mr.M.S.Bharath
JUDGMENT
When the matter is taken up for hearing, a Joint Memo of compromise dated 08.06.2019 has been filed on behalf of both the parties. The said Memo has been duly signed by both the parties and attested by their respective counsels. The terms of the Memo of http://www.judis.nic.in 4 Compromise reads as under:
"3. Pursuant to court notices issued to the Defendants, they have agreed to cease and desist from using the mark 'TEXNO' or any other similar name in any manner.
4. The Defendants agree and acknowledge that the plaintiff is the registered proprietor of the well-known trademark 'TEXMO' as detailed below and has exclusive statutory rights by virtue of such registrations and proprietary and common law rights on account of prior, long and extensive use of trademark 'TEXMO' and 'TEXMO INDUSTRIES' to the exclusion of others S.NO. TRADEMARK FILING TM.NO. & CLASS STATUS YEAR
1. TEXMO 1998 794425 in class 2 Registered
2. TEXMO 1976 315049 in class 7 Registered
3. TEXMO 1976 315050 in class 7 Registered
4. TEXMO 1998 794426 in class 11 Registered
5. TEXMO 1998 794451 in class 11 Registered
6. TEXMO 1998 794432 in class 22 Registered
7. TEXMO 1998 794436 in class 23 Registered
8. TEXMO 1998 794464 in class 23 Registered TEXMO
9. 1998 794434 in class 24 Registered
10. TEXMO 1998 794465 in class 25 Registered
11. TEXMO 1998 794417 in class 25 Registered
12. TEXMO 1998 794418 in class 26 Registered
5.The defendants agree and http://www.judis.nic.in 5 undertake that they shall not use 'TEXNO' or any other mark similar thereto as a trademark, name, business name or in any other manner, in relation to any of their products, services and business, present or future.
6. The defendants' trademark 'TEXNO' filed under Application No.2027977 also stands abandoned as on date and the defendants confirm that no fresh trademark application in respect of the said mark or any mark similar to the plaintiff's trademark 'TEXMO' has been preferred by them.
7.The Defendants agree and undertake that they shall not use 'TEXNO' or any other mark similar thereto in any of their advertising/marketing/promotional material in any form or domain, including hoardings, letter heads, invoices or any other material used in respect of their business.
8. The defendants submit to the judgment and decree as prayed for in terms of Prayer 64 (A) and (B).
9. All the aforesaid undertaking will be binding henceforth on the said defendants,their directors, partners, successors-in-business, legal representatives and assignees.
10. It is therefore humbly prayed that the present memorandum of compromise may be recorded and a decree in terms of paragraphs 64(A) and (B) of the Plaint may be passed in favour of the Plaintiff and against the defendants by this Hon'ble Court, incorporating the terms of the settlement as a part thereof.
11. Should the defendants be found to be in breach or violation of the present http://www.judis.nic.in 6 Memorandum of Compromise at any future date, they agree to be liable to pay a sum of Rs.5,00,000/- (Rupees Five Lakhs only) as liquidated damages and such other amount as may be calculated as unliquidated damages to the Plaintiff.
12. Subject to the aforesaid express undertaking by the defendants, the plaintiff agrees to give up the other reliefs, i.e, Prayers 64 (C), (D), (E), & (F), claimed by them in the plaint."
2. The learned counsel appearing on either side has submitted that the suit may be decreed in terms of Memo of Compromise. In the said Memorandum of compromise, it is stated that the suit may be decreed in respect of prayers A and B and the plaintiff has given up the others reliefs in Paragraphs (C), (D), (E), & (F).
3. It is represented that the second Defendant passed away and in respect of which a death certificate has been filed before this Court.
4.In view of the same, this suit is dismissed as against the second defendant, as abated.
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5. Insofar as other defendants are concerned, recording the Joint Memo of Compromise dated 08.06.2019, this suit is decreed in terms of Joint Memo of Compromise. The Joint Memo of Compromise shall form part of the decree. No costs. Consequently, connected Applications stands closed.
03.07.2019 arr Index:Yes/No Internet:Yes/No http://www.judis.nic.in 8 KRISHNAN RAMASAMY, J arr C.S.No.146 of 2015 and OA.Nos.201 and 202 of 2015 03.07.2019 http://www.judis.nic.in 9 http://www.judis.nic.in 10 http://www.judis.nic.in