Calcutta High Court
Srmb Srijan Private Limited vs Uma Shankar Jaiswal on 23 December, 2020
Author: Debangsu Basak
Bench: Debangsu Basak
ORDER SHEET
OC-3
CS/165/2020
IA NO. GA/1/2020
IN THE HIGH COURT AT CALCUTTA
ORDINARY ORIGINAL CIVIL JURISDICTION
COMMERCIAL DIVISION
IN THE MATTER OF:
SRMB SRIJAN PRIVATE LIMITED
VERSUS
UMA SHANKAR JAISWAL
BEFORE:
The Hon'ble JUSTICE DEBANGSU BASAK
Date: 23rd December, 2020. (Via Video Conference) Appearance:
Mr. Debnath Ghosh, Adv.
Mr. Sudhakar Prasad, Adv.
Mr. P. Bose, Adv.
Mr. Baijayanta Banerjee, Adv.
The Court: Plaint presented and admitted subject to scrutiny by the department. Leave under Section 12A of the Commercial Courts Act, 2015 and Clause 12 of the Letters Patent, 1865 granted.
Affidavit of service filed in Court be taken on record. None appears for the defendant despite service.
In a suit for infringement of trademark and passing off the plaintiff seeks interim protection.2
Learned advocate appearing for the plaintiff submits that, the plaintiff is marketing iron rods with a distinctive design. The design is distinctive surface pattern. The plaintiff is using XRIBS as the surface pattern of the iron rod product. He submits that the pattern, as a 3D device, is registered as a trademark. He refers to the registration of the trademark. He submits that, the plaintiff is using such design since at least 2002. He refers to an advertisement published in 2002 as also a download from the website showing that the plaintiff was using such design from 2002. He refers to the cease and desist notice by the plaintiff and the response given thereto. In the initial response the defendant by a letter dated March 25, 2020 stated that the defendant was agreeable not to use the expression "XRIBS" as its trademark in respect of the product. The plaintiff pressed on the user of the design by the defendant on which, the defendant by its response dated April 11, 2020 claimed that the plaintiff did not have registration over the design.
Learned advocate appearing for the plaintiff submits that, there subsists orders in favour of the plaintiff on similar issues passed in at three different suits. He refers to such orders. He submits that the plaintiff is entitled to an order in terms of prayer (a) of the petition.
In the facts of the present case, since the plaintiff appears to be a prior user of the surface pattern/trade dress and since their exist orders of two High Courts in favour of the plaintiff on similar issues, it would be appropriate to grant an order in terms of prayer (a) of the petition at this stage. Such interim order will continue till March 31, 2021 or until further orders whichever is earlier.3
List the application under the heading "New Motion" on January 12, 2021.
(DEBANGSU BASAK, J.) sp/