Delhi High Court - Orders
Indiyaa Distribution Network Llp vs Ashok Kumar & Ors on 16 March, 2020
Author: Rajiv Shakdher
Bench: Rajiv Shakdher
$~4
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(COMM) 1120/2018, I.A.Nos.12603/2018 & 15282/2019
INDIYAA DISTRIBUTION NETWORK LLP ..... Plaintiff
Through : Mr. N. Mahabir, Adv.
versus
ASHOK KUMAR & ORS. ..... Defendants
Through : Mr. Rakesh Kakkar, Adv. for
defendant nos.2, 3, 5 & 6.
CORAM:
HON'BLE MR. JUSTICE RAJIV SHAKDHER
ORDER
% 16.03.2020 CS(COMM) 1120/2018 & I.A.No.12603/2018
1. Learned counsel for the parties inform me that admission/denial of documents has taken place, albeit, via affidavits.
2. With the consent of learned counsel for the parties, the following issues are framed :
(i) Whether the plaintiff is the proprietor of the trademark SANDHI SUDHA? OPP.
(ii) Whether the plaintiff is the copyright owner of the packaging of the product under the mark SANDHI SUDHA? OPP.
(iii) Whether use of the similar packaging on the product SANDHI SUDHA by the defendants amount to infringement of plaintiff's copyright and passing off? OPP.
(iv) Whether use of trademark SANDHI SUDHA by the defendants amount to passing off of defendants' product as those of the plaintiff? OPP.
CS(COMM) 1120/2018 page 1 of 3 (v) Whether the defendants have a right to use the mark SANDHI
SUDHA being registered proprietor of the mark MEDSEA SANDHI SUDHA? OPD.
(vi) Whether the plaintiff is entitled to rendition of accounts/damages as claimed by the plaintiff? OPP.
(vii) Relief, if any.
3. I am informed by learned counsel for the plaintiff that in view of the fact that the defendants' trade mark is registered, the plaintiff proposes to approach the Intellectual Property Appellate Board (IPAB) for rectification.
4. I am further informed by learned counsel for the plaintiff that an application under Section 124 of the Trade Mark Act, 1999 has been filed and placed on record.
4.1 To be noted, this application is numbered as I.A.No.15282/2019.
5. The record, however, shows that defendant no.9 has not been served as the address was incomplete.
6. Learned counsel for the plaintiff, however, says that an affidavit of service was filed on 26.02.2020 vide diary no.5772.
7. List the matter before Joint Registrar (Judicial) on 14.04.2020 for ascertaining as to whether service qua defendant no.9 stands completed.
8. In case, service is not completed and steps have to be taken to serve defendant no.9, the plaintiff will furnish the requisite particulars concerning the said defendant's address.
9. List the matter before court on 29.07.2020.
I.A.No.15282/201910. Issue notice.
CS(COMM) 1120/2018 page 2 of 3
11. Mr. Rakesh Kakkar accepts notice on behalf of defendant nos.2, 3, 5 and 6.
12. I am informed by learned counsel for the plaintiff that the aforementioned defendants are the ones, who are concerned with the prayers made in the application, and therefore, no notice needs to be issued to the other defendants.
13. Mr. Kakkar says that he would have no difficulty if a timeline is fixed for the plaintiff to approach the IPAB with an application for rectification of the registered trade mark of the aforementioned defendants.
14. Liberty is given to the plaintiff to move the concerned Bench of the IPAB at the earliest, though, not later than 30 days from today.
15. If the application is filed by the plaintiff, the IPAB will endeavour to dispose of the same at the earliest, preferably, within three months from today.
16. Liberty is given to the aforementioned defendants to move the court for vacation/variation of the interim order in case the plaintiff does not move the IPAB within the timeline, referred to above.
17. The captioned application is disposed of in the aforesaid terms.
RAJIV SHAKDHER, J
MARCH 16, 2020
aj
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CS(COMM) 1120/2018 page 3 of 3