Madras High Court
M/S. Mahesh Valve Products Private ... vs Kapila Rubber Industries on 23 September, 2019
Author: N.Sathish Kumar
Bench: N.Sathish Kumar
C.S.No.155 of 2011
and O.A.Nos.226 to 228 of 2011
and A.No.1388 of 2011
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 23.09.2019
Coram
The Honourable Mr.Justice N.SATHISH KUMAR
C.S.No.155 of 2011
and O.A.Nos.226 to 228 of 2011
and A.No.1388 of 2011
1.M/s. Mahesh Valve Products Private Limited,
No.19, 2nd Street,
Dr.Subburayan Nagar,
Kodambakkam, Chennai – 600 024,
Represented by its Managing Director,
S.Nagarajan
2.S.Nagarajan
No.19, 2nd Street
Dr.Subburayan Nagar,
Kodambakkam,
Chennai – 600 024. ...Plaintiff
Versus
1.Kapila Rubber Industries,
Opposite Sutlej Road,
Kapurthala,
Jalandhar.
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C.S.No.155 of 2011
and O.A.Nos.226 to 228 of 2011
and A.No.1388 of 2011
2.Raj
Person In-Charge
Kapila Rubber Industries
Sundar Vihar,
Near Basti Nav,
Jalandhar – 100 442.
Punjab.
3.Rajan Kapila
S/o. Sudershan Kumar,
Partner, M/s. Kapila Rubber Industries,
Opposite Sutlej Road, Kapurthala,
Jalandhar.
4.Mr.Ravi Kapila
S/o. Mr.Sudershan Kumar
Partner, M/s. Kapila Rubber Industries,
Opposite Sutlej Road, Kapurthala,
Jalandhar.
5.Mr.Suital Kapila
S/o. Mr.Sudershan Kumar
Partner, M/s. Kapila Rubber Industries,
Opposite Sutlej Road, Kapurthala,
Jalandhar. ...Defendants
(Name of the plaintiff's Company and
Address of the first defendant amended as
per order dated 16.04.2013 in A.No.1391 of 2013)
(Defendants 3 to 5 impleaded as per order
dated 25.01.2017 in A.No.3037 of 2013
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C.S.No.155 of 2011
and O.A.Nos.226 to 228 of 2011
and A.No.1388 of 2011
This Civil Suit is filed under Order IV Rule 1 of Original Side
Rules r/w Section 27, 134 and 135 of the Trade Marks Act, 1999
and section 51, 55, 58 and 62 of the Copyright Act 1957 (a) a
perpetual injunction restraining the defendants, its distributors,
stockist, servants, agents, retailers, representatives or any other
person claiming under/through them from in any manner infringing
the plaintiffs' registered trademark 'Stumper' by manufacturing,
selling, offering for sale, stocking, advertising, either directly or
indirectly any goods and in particular rubber play balls under the
trademark 'Stumped' and/or “Slumped” and/or any other mark
either in English or any other language, identical with and/or
deceptively similar to plaintiffs' registered trademarks or in any
other manner whatsoever;
(b) a perpetual injunction restraining the defendants, its
distributors, stockiest, servants, agents, retailers, representatives
or any other person claiming under/through them from in any
manner infringing the plaintiffs' copyright over its pouch 'Stumper'
by manufacturing, selling, offering for sale, stocking, advertising,
either directly or indirectly any goods and in particular rubber play
balls under the trademark 'Stumped' and/or “Stumped” and/or any
other mark either in English or any other language, identical with
and/or deceptively similar to plaintiffs' pouch or in any other
manner whatsoever;
(c) a perpetual injunction restraining the defendants, its
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C.S.No.155 of 2011
and O.A.Nos.226 to 228 of 2011
and A.No.1388 of 2011
distributors, stockiest, servants, agents, retailers, representatives
or any other person claiming under/through them from in any
manner manufacturing, selling, offering for sale, stocking,
advertising, either directly or indirectly any goods and in particular
rubber play balls under the trademark 'Stumped' and/or “slumped”
and/or any other mark either in English or any other language
which is identical with or deceptively similar to the plaintiffs'
trademark 'Stumper' so as to pass off the defendants' goods as and
for the goods of the plaintiffs' or in any other manner whatsover
connected with the plaintiffs;
(d) The defendant be ordered to surrender to plaintiffs for
destruction all goods, labels, dyes, blocks, moulds, screen prints,
packing materials and other materials bearing the trademark
'Stumped' and/or “Slumped”;
(e) A preliminary decree be passed in favour of the plaintiffs
directing the defendant to render account of profits made by use of
trademark 'Stumped' or “Slumped and a final decree be passed in
favour of the plaintiffs for the amount of profits thus found to have
been made by the defendant after the latter have rendered
accounts;
(f) The defendant be ordered and decreed to pay to the
plaintiffs a sum of Rs.10,01,000/- as damages for acts of passing
off and infringement of trademark committed by the defendant;
(g) for costs of the suit.
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C.S.No.155 of 2011
and O.A.Nos.226 to 228 of 2011
and A.No.1388 of 2011
For Plaintiffs : Mr.Madhan Babu
For Defendants : Mr.C.Hanumantha Rao for D1
Suit dismissed against D2
vide order dated 22.11.2011
JUDGMENT
The suit has been filed for the following releifs:
(a) a perpetual injunction restraining the defendants, its distributors, stockist, servants, agents, retailers, representatives or any other person claiming under/through them from in any manner infringing the plaintiffs' registered trademark 'Stumper' by manufacturing, selling, offering for sale, stocking, advertising, either directly or indirectly any goods and in particular rubber play balls under the trademark 'Stumped' and/or “Slumped” and/or any other mark either in English or any other language, identical with and/or deceptively similar to plaintiffs' registered trademarks or in any other manner whatsoever;
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(b) a perpetual injunction restraining the defendants, its distributors, stockiest, servants, agents, retailers, representatives or any other person claiming under/through them from in any manner infringing the plaintiffs' copyright over its pouch 'Stumper' by manufacturing, selling, offering for sale, stocking, advertising, either directly or indirectly any goods and in particular rubber play balls under the trademark 'Stumped' and/or “Stumped” and/or any other mark either in English or any other language, identical with and/or deceptively similar to plaintiffs' pouch or in any other manner whatsoever;
(c) a perpetual injunction restraining the defendants, its distributors, stockiest, servants, agents, retailers, representatives or any other person claiming under/through them from in any manner manufacturing, selling, offering for sale, stocking, advertising, either directly or indirectly any goods and in particular rubber play balls under the trademark 'Stumped' and/or “slumped” and/or any other mark either in English or any other language which is identical with or deceptively similar to the plaintiffs' 6/10 http://www.judis.nic.in C.S.No.155 of 2011 and O.A.Nos.226 to 228 of 2011 and A.No.1388 of 2011 trademark 'Stumper' so as to pass off the defendants' goods as and for the goods of the plaintiffs' or in any other manner whatsover connected with the plaintiffs;
(d) The defendant be ordered to surrender to plaintiffs for destruction all goods, labels, dyes, blocks, moulds, screen prints, packing materials and other materials bearing the trademark 'Stumped' and/or “Slumped”;
(e) A preliminary decree be passed in favour of the plaintiffs directing the defendant to render account of profits made by use of trademark 'Stumped' or “Slumped and a final decree be passed in favour of the plaintiffs for the amount of profits thus found to have been made by the defendant after the latter have rendered accounts;
(f) The defendant be ordered and decreed to pay to the plaintiffs a sum of Rs.10,01,000/- as damages for acts of passing off and infringement of trademark committed by the defendant;
(g) for costs of the suit.
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2. The learned counsel appearing for the defendant submitted that the defendant is no longer infringing the trademark of the plaintiff. He further submitted that the copyright also will not be infringed by the defendant and the defendant has no issue if decree is passed in respect of prayer (a) to (c) in the plaint. The learned counsel appearing for the plaintiff has not disputed the same and further submitted that they are not pressing for damages.
3. Since the defendant has made an admission of infringement and also submitted that they also desist from infringing hereafter, this Court is of the view that it is the fit case, where the decree and judgment itself can be passed under Order XII Rule 6 of C.P.C. In view of the above, the admission of the defendant's counsel taken on record and the suit is decreed. 8/10 http://www.judis.nic.in C.S.No.155 of 2011 and O.A.Nos.226 to 228 of 2011 and A.No.1388 of 2011
4. According, the suit is decreed in respect of prayers 'a' to 'c'. As far as prayers 'd' to 'f' are concerned, the suit is dismissed. Consequently, connected Applications are closed. No costs.
23.09.2019 Index : Yes/No rst 9/10 http://www.judis.nic.in C.S.No.155 of 2011 and O.A.Nos.226 to 228 of 2011 and A.No.1388 of 2011 N.SATHISH KUMAR, J., rst C.S.No.155 of 2011 and O.A.Nos.226 to 228 of 2011 and A.No.1388 of 2011 23.09.2019 10/10 http://www.judis.nic.in