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Delhi District Court

The Suit For Permanent & Mandatory ... vs Order 39 Rules 1 & 2 & Section 151 Cpc And ... on 7 February, 2017

     IN THE COURT OF SH. SANJAY KUMAR, ADDITIONAL
             DISTRICT JUDGE-02, WEST, DELHI.

TM No. 04/2017


Gee Dee Educational Society

Versus

Bachpan Uniforms

                           ORDER

07.02.2017

1. The Suit for Permanent & Mandatory Injunction and Damages for Infringement of Copyright, Passing off and Unfair Trade Practice filed by the plaintiff. Another application under Order 39 Rules 1 & 2 & Section 151 CPC and another application filed on 04.02.2017 under Order 26 Rule 9 read with Order 39 Rule 7 & Section 151 CPC for appointment of Local Commissioner.

2. In brief the facts are that plaintiff is a registered society under Societies Registration Act, 1860 founded in 2003. The constituted Attorney Sh. Yash Dev Gupta is duly authorised to sign and verify the plaint and institute the proceedings on behalf of the plaintiff vide Resolution dated 01.12.2016. The plaintiff society has been running the School in the name and style of K. R. Mangalam, which is known for excellence in education and was awarded International School Award by British Council in 2008 and 2010. Plaintiff always makes innumerable efforts to make the students come with highest quality of education incorporating right blend of personal integrity and the fundamental values. Plaintiff is also lawful proprietor and only user of logo design "K. R. Mangalam" or TM No. 04/2017 Page No. 1/5 "K. R. Mangalam World School". It has become a brand since 2003.

3. Plaintiff Society opened its first school in the name of "K. R. Mangalam" at Greater Kailash Part-III, New Delhi in the year 2003 and thereafter two (02) more schools were opened at Delhi NCR, Faridabad and Indraprastha respectively. Plaintiff has been generating revenue in the tune of crores and lastly 2015-2016 it is having Rs. 20,17,913/-.

4. Plaintiff Society using the unique logo and peculiar script and trademark applications have been filed before the Trademark Registry on 03.03.2005 having application No. 1342296 and Trademark K. R. Mangalam World School with Globe Device, on 28.03.2013 having application No. 2503499 and Trademark K. R. Mangalam University (Device), on 28.03.2013 having application No. 2503500 and Trademark K. R. Mangalam University (Label), on 11.04.2016 having application No. 3233112 and Trademark K. R. Mangalam (Wordmark), on 11.04.2016 having application No. 3233114 and Trademark K. R. Mangalam University (Wordmark) and on 14.04.2016 having application No. 3235409 and Trademark K. R. Mangalam University (Device).

5. The defendant is selling low grade uniforms/dress imitating to the plaintiff's trademark and selling at his shop and over internet without authorisation of the plaintiff and without any license in writing. The spurious goods listed on the interent of e-commerce website www.schoolkart.com for sale. The shop of the defendant is located at GG-1/77A, Main Market, PVR Vishal Cinema Road, Vikaspuri, New Delhi. The TM No. 04/2017 Page No. 2/5 defendant has been fraudulently using the logo of the plaintiff society with the singular aim, object and purpose of making illegal gains and trading on the enviable reputation and valuable goodwill of the plaintiff. The trademark of the plaintiff society has been used by the defendant with malafide intention and causes irreparable harm, loss and injury to the plaintiff society.

6. The defendant's impugned logo bearing the impugned mark, getup, layout and arrangement of features are colourable imitation of reproduction of the plaintiff's artwork, design and layout, colour scheme and arrangement of features, which appears to be identical to the plaintiff's uniform. Defendant has entirely copied the artistic works of the plaintiff. There is infringement of copyright and continuous passing off by the defendant by adopting the impugned trademark logo and label.

7. Plaintiff's counsel seeks ex-parte injunction and appointment of Local Commissioner.

8. I have considered the material on record. I do not find sufficient material for ex-parte injunction. However, I allow the application of the plaintiff for appointment of Local Commissioner. Hence I appoint Sh. Birander Singh Rawat, Advocate having office at 2/2-B, Indira Vikas Colony, Mukherji Nagar, Delhi-110009 (Mobile No. 9718411836 & 9643514836) as Local Commissioner, who shall be the Representative of the plaintiff.

9. The Local Commissioner shall accompany the representative of the plaintiff and shall enter the premises of the defendant of those of its partners, servants, agents, representatives and assigns including that of any other person/party, who is found storing, selling and/or offering for sale the impugned products with authority to ask for the production of and to seize and secure all infringing/pirated/ counterfeit products, packaging cartons, unfinished products and any other material whatsoever reproducing the plaintiff's artwork or in any other manner infringing the plaintiff's copyright and trademark and or in any manner using the impugned packaging or any other packaging similar to the impugned products.

10. The Local Commissioner is directed to seize and seal all such materials, products and documents pertaining to the impugned wrapper/products and produce them in Court when required.

11. The Local Commissioner is empowered to break upon the locks and/or seal in case any of the premises of the defendant, as mentioned in the case title, is found locked and/or sealed.

12. The Local Commissioner is further empowered to seize and secure the above materials from any other premises where the offending/infringing products are found stocked or where there is reasonable apprehension that they are stocked.

13. The Local Commissioner is authorised to seek assistance of the police in the execution of the Commission and local police to provide all assistance to the Local Commissioner for executing the commission.

14. The fees of the Local Commissioner is fixed as Rs.15,000/- (Rupees Fifteen Thousand Only) shall shall be paid by the plaintiff.

15. The application stands disposed off.

Announced in the open court today the 07th February, 2017 (Sanjay Kumar) ADJ-02,West/Delhi 07.02.2017 TM No. 04/2017 Page No. 5/5