Amir Biri Factory & Ors vs Saheb Mondal on 22 December, 2014

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Calcutta High Court

Amir Biri Factory & Ors vs Saheb Mondal on 22 December, 2014

Bench: Soumen Sen

                              GA No. 2920 of 2014
                              CS No. 336 of 2014

                      IN THE HIGH COURT AT CALCUTTA
                  Ordinary Original Civil Jurisdiction
                              ORIGINAL SIDE



                                    AMIR BIRI FACTORY & ORS.

                                         -Versus-

                                    SAHEB MONDAL


                                                                          Appearance:
                                                              Mr. Debnath Ghosh, Adv.
                                                        Mr. Soumya Roychowdhury, Adv.
                                                                ...for the plaintiff.
     BEFORE:
     The Hon'ble JUSTICE SOUMEN SEN

     Date : 22nd December, 2014.


            The   Court   :    In   spite     of       substituted    service    the

defendant is not represented.

            The   petitioner    claims   to       be    a   leading   manufacturer,

trader and merchant in tobacco products including biri and chewing

tobacco. The petitioner started manufacturing biri under the mark

'Tara/Tara Biri' since 1979. The petitioner states that the mark

Tara is an essential feature and the main predominant part of the

petitioner's trademark and the petitioners' are solely entitled to

use and apply the same.         In order to accord statutory protection

to its trademark 'Tara/Tara Biri', both word per se and represent

in    various     stylized     manner,      the        petitioner     applied    for

registration of the said trademarks.               The petitioner in paragraph

5 of the petition has given particulars of the said application
                                             2


and the status of such application.                The petitioners' various and

other tobacco products are sold in packaging having distinctive

colour scheme and get up. The same is clamed to be an original

work within the meaning of Copyright Act, 1957.                       The petitioner's

products are of premium quality and have extensive goodwill and

reputation all over the country.                  The petitioner has also given

the turnover since 2005.

              It is stated that on or about the last week of August,

2014,    it    came   to     the   knowledge      of    the    petitioner    that    the

respondents are also purporting to sell the biri under the same

mark 'Tara/Tara Biri' in a deceptively similar packaging as that of the petitioner. The word Tara/Tara Biri also forms an essential feature of the respondent'' packaging.

It appears that the products of the defendants are deceptively similar to that of the plaintiff. In view of the averments made in the petition as well as the documents disclosed in this proceeding, it appears that the petitioner has been able to make a strong prima facie case and the balance of convenience lies in favour of passing an order in favour of the petitioner. In view thereof, there shall be an order in terms of prayer (a) of the petition. The defendants shall file their affidavit-in- opposition on or before 21st January, 2015; reply thereto, if any, by 28th January, 2015. The matter shall appear as Motion (Adjourned) in the monthly list of February, 2015. The gist of 3 this order shall be published once in 'The Sunday Statesman' and once in Bartaman, Sunday edition on or before 5th January, 2015.

In the event, no affidavit-in-opposition is filed, this matter shall be taken up as Motion Adjourned (Unopposed).

Urgent certified website copy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.

(SOUMEN SEN, J.) A/s.

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