Madras High Court
M/S.Kaleesuwari Refinery Private ... vs M/S.Bansiwala Products on 25 April, 2022
Author: Senthilkumar Ramamoorthy
Bench: Senthilkumar Ramamoorthy
C.S.(Comm.Div.) No.55 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 25.04.2022
CORAM
THE HONOURABLE MR.JUSTICE SENTHILKUMAR
RAMAMOORTHY
C.S.(Comm.Div.) No.55 of 2022
and O.A.No.157 of 2022
M/s.Kaleesuwari Refinery Private Limited,
Represented by its Manager (Legal),
Mr.A.Saravanan (M - 45 years),
No.53, Rajasekaran Street,
Opp: Kalyani Hospital, Dr.Radhakrishnan Salai,
Mylapore, Chennai - 600 004. ... Plaintiff
vs.
M/s.Bansiwala Products,
NH - 6, Bargarh,
Odisha - 768 028. ... Defendant
PRAYER: Plaint filed under and Order IV Rule 1 of the O.S.Rules Read
With Order VII Rule 1 of CPC Rules Read With Sections 134 and 135 of
Trademarks Act, 1999 prayed for Judgment and Decree:-
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C.S.(Comm.Div.) No.55 of 2022
(i) For a permanent injunction to restrain the Defendant, their men,
agents, associates and / or assignees or any person claiming rights from
them from infringing the plaintiff's reputed and well known registered
Trademark "DHEEPAM" by using the offending Trademark "DEEPAM"
or any mark or word deceptively similar to the aforesaid Trademark of the
plaintiff's for any edible oil marketed by the Defendant, their men, agents,
associates and / or assignees or any person claiming rights from the
Defendant.
(ii) For a permanent injunction to restrain the Defendant its men,
agents, associates and / or assignees or any person claiming rights from
therein from passing-off their inferior product, as that of the plaintiff's
"DHEEPAM" lamp oil by using the offending words "DEEPAM" or any
other words or mark and offending packing Material / Pouch / Bottles
deceptively similar to the plaintiff's trademark "DHEEPAM" and Trade
dress for "DHEEPAM".
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C.S.(Comm.Div.) No.55 of 2022
(iii) Direct the Defendant their men, agents, assignees, dealers and /
or retailers, distributor to surrender to the plaintiff all offending
"DEEPAM" bottle / container / packing materials label, advertising
materials hoarding, letter heads office stationary and all other goods
containing / bearing offending mark / label "DEEPAM" with distinct color
scheme, get up or any other mark visually or phonetically similar to the
plaintiff's well known trademark "DHEEPAM" label and bottle / container
for destruction by an order of this Court.
(iv) To pay for the costs of the suit.
For Plaintiff : Mr.Vijayan Subramanian
**********
JUDGMENT
The suit was filed for injunctive relief in respect of alleged trademark infringement and passing off, surrender of infringing material for destruction and costs.
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2. By order dated 24.03.2022, notice was issued to the respondent. At the hearing on 11.04.2022, the applicant filed an affidavit of service indicating that notice was served on the respondent on 31.03.2022. The applicant also produced a communication dated 06.04.2022 from the respondent stating that he has stopped using the brand name DHEEPAM on his products.
3. In spite of service of notice and the printing of the respondent's name on the cause list, there is no representation for the respondent/defendant. However, the applicant / plaintiff has produced an affidavit affirmed by Mr.Ashwini Mittal, the Proprietor of the defendant, on 12.04.2022. By such affidavit, the defendant has agreed not to use the trademark "DHEEPAM" or any mark which is similar or identical thereto. The defendant has also agreed to remove all infringing goods, materials, etc. bearing the impugned mark. The defendant has further stated that the said affidavit may be taken on record and that orders may be passed on such basis. In effect, the defendant has submitted to a decree in terms of prayers 4/6 https://www.mhc.tn.gov.in/judis C.S.(Comm.Div.) No.55 of 2022
(i) and (ii) of paragraph 34 of the plaint. As regards prayer (iii), the defendant agreed to destroy the infringing goods in his possession. On closely examining the said affidavit, there is no impediment to the issuance of a decree in terms thereof.
4. Accordingly, C.S.(Comm.Div.) No.55 of 2022 is decreed in terms of prayers (i) and (ii) of paragraph 34 of the plaint read with the affidavit dated 12.04.2022. The said affidavit shall be an integral part of the decree. In the facts and circumstances, there will be no order as to costs. Consequently, O.A.No.157 of 2022 is closed.
25.04.2022 rna Index : Yes / No Internet : Yes / No 5/6 https://www.mhc.tn.gov.in/judis C.S.(Comm.Div.) No.55 of 2022 SENTHILKUMAR RAMAMOORTHY,J rna C.S.(Comm.Div.) No.55 of 2022 and O.A.No.157 of 2022 25.04.2022 6/6 https://www.mhc.tn.gov.in/judis