Calcutta High Court
Shyam Sel And Power Limited vs Atibir Industries Company Limited on 28 January, 2020
Author: Debangsu Basak
Bench: Debangsu Basak
OD-1
GA 64 of 2020
With
CS 1 of 2020
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
ORIGINAL SIDE
SHYAM SEL AND POWER LIMITED
Versus
ATIBIR INDUSTRIES COMPANY LIMITED
BEFORE:
The Hon'ble JUSTICE DEBANGSU BASAK
Date : 28th January, 2020.
Appearance:
Mr. Ranjan Bachawat Sr. Adv.
Mr. Rudraman Bhattacharya, Adv.
Mr. Suvarish Sengupta, Adv.
Ms. Debjani Chatterjee, Adv.
...for the petitioner.
The Court : Affidavit of service filed in Court today be taken on record. Today is third day when the petition is taken up for consideration. On the two previous days, learned Advocate appearing for the defendant sought adjournment and the same was granted. Today Court is informed that the defendant obtained change from the erstwhile Advocate-on-record.
None appears for the defendant.
Learned senior advocate appearing for the plaintiff submits that, the plaintiff is the prior user of the marked 'SEL'. He submits that, the mark was initially registered. However, registration lapsed due to non-payment of fees. He 2 draws the attention of the Court to the mark used by the defendant which is 'ISEL'. He submits that the defendant is using the prefix 'I' to the word 'SEL'. He submits that, the mark of the defendant is deceptively similar to that of the plaintiff. He draws the attention of the Court to the actual TMT Bars manufactured by the plaintiff and the defendant. He submits that, the mark of the defendant cannot be distinct as claimed by the defendant in the reply to the cease and desist notice issued by the plaintiff. He seeks orders in terms of prayers (a) and (b) of the petition. So far as prayer (b) is concerned, he submits that, the defendant is also using a domain name which is deceptively similar to that of the mark of plaintiff.
In the present case, it appears from the materials made available on record, that the plaintiff is using the marked 'SEL' to market TMT Bars. The defendant is also manufacture of TMT Bars. It is marketing its products under the name of 'ISEL'. There is only a prefix 'I' to the word 'SEL'. This prefix in my view, at this stage, does not distinguish the products of the defendant sufficiently so as to claim that the mark is not deceptively similar to that of the plaintiff. The plaintiff claims to be prior user of the mark 'SEL'. The domain name used by the defendant is deceptively similar to the mark of the plaintiff. That being the situation, there will be an order in terms of prayers (a) and (b) of the petition.
List the petition on February 18, 2020 under the same heading.
(DEBANGSU BASAK, J.) SK.