R.Balasubramanian v. Shanthi Hosiery And 12 Others
IN THE HIGH COURT OF JUDICATURE AT MADRAS
(ORDINARY ORIGINAL CIVIL JURISDICTION) THURSDAY, THE 8TH DAY OF JULY, 2021 THE HON'BLE MR. JUSTICE R. SUBRAMANIAN C.S. No.715 of 1998 Mr. R. BALASUBRAMANIAN, trading as MAKESAH KUMAR MILLS, 17/65, Kumarappapuram 2nd st., Rayappapuram Extension, Tiruppur - 641 602.
..Plaintiff Vs.
1. SHANTI HOSTERY, 14, Nithyadhan Mukerjee Road, Howrah - 711 101.
2. Mr. Sankaar, 5/1, Yutham, A.T.R. Oshline, Salkiya, Howrah.
3. My Choice, 14, Nityadhan Mukherjee Road, (5th Floor), Samabaika Hat, Howrah - 711 101.
4. R.R. Roy, 1, Mahendranath Roy Lane, Howrah - 711 101.
5. R.K.Traders, 14, Nityadhan Mukherjee Road, (5th Floor), Howrah - 711 101.
6. Ashok Kumar Daga, 14, Nityadhan Mukherjee Road,
(5th Floor), Howrah - 711 101.
7. Sunita Hosiery, 13, Nityadhan Mukherjee Road, (4th Floor), Howrah - 711 101.
8. S.R.S. Biswajit Saha, 14, Nityadhan Mukherjee Road, Samayikahat (4th floor) Howrah - 711 101.
9. Prodip Chandraroy Nihar Ranjan Roy 20, Alipur Road, P.O.Nimta, Calcutta - 49
10. S.R.S. & Sons, 14, Nityadhan Mukherjee Road, Samabiyaka Hat (4th Floor) Howrah - 711 101.
11. K.C.Jain, 14, Nityadhan Mukerjee Road, (5th floor), Howrah - 711 101.
12. Balaji, 14, Nityadhan Mukerjee Road, 5th floor, Howrah - 711 101.
13. D. Banik, 14, Nityadhan Mukerjee Road, 5th floor, Howrah - 711 101.
... Defendants Civil Suit praying that this Hon'ble Court be pleased to pass prays for a Judgement and Decree:
(a) granting permanent injunction restraining the defendants themselves, their servants or agents or anyone claiming through them from in any manner infringing the plaintiff's well established trade mark M-K-M
GARRY AMERICAN CASUALS by using the offending trade mark M-KM GARRY AMERICAN CASUALS or any other mark or marks which are deceptively similar to or a colourable imitation of the plaintiff's well established Trade mark M-K-M GARRY AMERICAN CASUALS; b) granting permanent injunction restraining the defendants by themselves, their servants or agents or anyone claiming through them from in any manner infringing the Plaintiff's Copyright over the artistic work MK-M GARRY AMERICAN CASUALS by using the offending artistic work "M-K-M GARRY AMERICAN CASUALS" or any other work or works which are deceptively similar to or a colourable imitation of the Plaintiff's Copyright over the artistic work M-K-M GARRY AMERICAN CASUALS; c) granting permanent injunction restraining the defendants themselves, their servants or agents or anyone claiming through them from in any manner passing off of their hosiery products including T.
Shirts bearing the offending trade mark and artistic work M-K-M GARRY AMERICAN CASUALS as and for the Plaintiffs' hosiery products including T.
d) directing the defendants to render true and faithful accounts of the profits earned by them by using the offending trade mark and artistic work M-K-M GARRY AMERICAN CASUALS and directing the payment of such profits to the Plaintiffs by way of damages; and e) directing the defendants to surrender to the Plaintiffs the entire stock of unused hosiery products including T.shirts bearing the offending "M-K-M GARRY AMERICAN CASUALS" trade mark label together with the blocks and dyes for destruction.
This Civil Suit coming on this day before this court for hearing the plainttiff and the defendants herein not appearing in person or by advocate and upon reading the plaint filed herein and this court is of the view that since the lead counsel for the plaintiff is no more and the other counsel was serving on the bench of the Intellectual Property Appellate Board, this court had by order dated 28/04/2021 directed notice to be issued to the plaintiff accordingly, a notice is issued and the same was served on the plaintiff on 05/06/2021 and despite such service the plaintiff has not chosen to enter appearance to prosecute the suit and, it is ordered as follows:-
1. That the suit in C.S. No. 715 of 1998, be and is hereby dismissed
for non-prosecution.
2. That there shall be no costs of this suit. WITNESS THE HON'BLE JUSTICE MR. SANJIB BANERJEE, THE CHIEF JUSTICE, HIGH COURT AT MADRAS AFORESAID, THIS THE 8TH DAY OF JULY, 2021.
Sd./- ASSISTANT REGISTRAR (COMM. CASES) //Certified to be true copy// Dated at Madras this the day of 2021. COURT OFFICER(O.S.) From 25th Day of September 2008 the Registry is issuing certified copies of the Orders/Judgments/Decrees in this format.
VF-15.07.2021 C.S. No.715 of 1998 ORDER :- DATED: 08.07.2021 THE HON'BLE MR. JUSTICE R. SUBRAMANIAN FOR APPROVAL: 16/07/2021 APPROVED ON: 19/07/2021
IIN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 08.07.2021
CORAM
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN C.S.No.715 of 1998 R.Balasubramanian ...Plaintiff .Vs.
1.Shanthi Hosiery, 14, Nithyadhan Mukerjee Road, Howrah - 711 101.
2.Sankaar, 3.My Choice, 14, Nityadhan Mukherjee Road, (5th Floor), Samabaika Hat, Howrah - 711 101.
4.R.R.Roy 5.R.K.Traders, 14, Nityadhan Mukherjee Road, (5th Floor), Howrah - 711 101.
6.Ashok Kumar Daga, 14, Nityadhan Mukherjee Road, (5th Floor), Howrah - 711 101.
7.Sunita Hosiery, 13, Nityadhan Mukherjee Road, (4th Floor), Howrah - 711 101.
8.S.R.S.Biswajit Saha
9.Prodip Chandraroy Nihar Ranjan Roy 10.S.R.S. & Sons, 14, Nityadhan Mukherjee Road, Samabiyaka Hat (4th Floor) Howrah - 711 101.
11.K.C.Jain 12.Balaji 13.D.Banik ... Defendants Plaint filed under Order VII Rule 1 of Civil Procedure Code and under Sections 105 and 106 of the Trade and Merchandise Marks Act, 1958 and Sections 55 and 62 of the Copyright Act, 1957 praying for a judgment and decree :
a) granting permanent injunction restraining the defendants themselves, their servants or agents or anyone claiming through them from in any manner infringing the plaintiff's well established trade mark M-K-M GARRY AMERICAN CASUALS by suing the offending trade mark M-KM GARRY AMERICAN CASUALS or any other mark or marks which are deceptively similar to or a colourable imitation of the plaintiff's well established trade mark M-K-M GARRY AMERICAN CASUALS; b) granting permanent injunction restraining the defendants by themselves, their servants or agents or anyone claiming through them from in any manner infringing the plaintiff's copyright over the aritstic work MK-M GARRY AMERICAN CASUALS by using the offending artistic work "M-K-M GARRY AMERICAN CASUALS" or any other work or works
which are deceptively similar to or a colourable imitation of the plaintiff's copyright over the artistic work M-K-M GARRY AMERICAN CASUALS; c) granting permanent injunction restraining the defendants themselves, their servants or agents or anyone claiming through them from in any manner passing off of their hosiery products including T.Shirts bearing the offending trade mark and artistic work M-K-M GARRY AMERICAN CASUALS as and for the plaintiffs' hosiery products including T.
shirts bearing the well established trade mark and copyright over the artistic work M-K-M GARRY AMERICAN CASUALS, either by selling or offering for sale or in any manner advertising the same; d) directing the defendants to render true and faithful accounts of the profits earned by them by using the offending trade mark and artistic work M-K-M GARRY AMERICAN CASUALS and directing the payment of such profits to the plaintiffs by way of damages and e) directing the defendants to surrender to the plaintiffs the entire stock of unused hosiery products including T.shirts bearing the offending "M-K-M GARRY AMERICAN CASUALS" trade mark label together with the blocks and dyes for destruction and f) for costs of the suit.
For Plaintiff : No appearance For Defendant : No appearance ********
J U D G M E N T
The suit has been filed by the plaintiff for a decree and judgment: a) granting permanent injunction restraining the defendants themselves, their servants or agents or anyone claiming through them from in any manner infringing the plaintiff's well established trade mark M-K-M GARRY AMERICAN CASUALS by suing the offending trade mark M-KM GARRY AMERICAN CASUALS or any other mark or marks which are deceptively similar to or a colourable imitation of the plaintiff's well established trade mark M-K-M GARRY AMERICAN CASUALS; b) granting permanent injunction restraining the defendants by themselves, their servants or agents or anyone claiming through them from in any manner infringing the plaintiff's copyright over the aritstic work MK-M GARRY AMERICAN CASUALS by using the offending artistic work "M-K-M GARRY AMERICAN CASUALS" or any other work or works which are deceptively similar to or a colourable imitation of the plaintiff's copyright over the artistic work M-K-M GARRY AMERICAN CASUALS; c) granting permanent injunction restraining the defendants themselves, their servants or agents or anyone claiming through them from
in any manner passing off of their hosiery products including T.Shirts bearing the offending trade mark and artistic work M-K-M GARRY AMERICAN CASUALS as and for the plaintiffs' hosiery products including T.shirts bearing the well established trade mark and copyright over the artistic work M-K-M GARRY AMERICAN CASUALS, either by selling or offering for sale or in any manner advertising the same; d) directing the defendants to render true and faithful accounts of the profits earned by them by using the offending trade mark and artistic work M-K-M GARRY AMERICAN CASUALS and directing the payment of such profits to the plaintiffs by way of damages and e) directing the defendants to surrender to the plaintiffs the entire stock of unused hosiery products including T.shirts bearing the offending "M-K-M GARRY AMERICAN CASUALS" trade mark label together with the blocks and dyes for destruction and f) for costs of the suit.
2. Since the lead counsel for the plaintiff is no more and the other counsel was serving the on the bench of the Intellectual Property Appellate
Board, I had by order dated 28.04.2021 directed notice to be issued to the plaintiff. Accordingly a notice is issued and the same was served on the plaintiff on 05.06.2021. Despite such service the plaintiff has not chosen to enter appearance to prosecute the suit.
3. The suit is therefore dismissed for non-prosecution. No costs. Sd./- R.S.M.J., 08.07.2021 List of the witnesses examined on the side of the plaintiff : Nil List of Exhibits marked on the side of the plaintiff : Nil List of the witnesses examined on the side of the defendants: Nil List of Exhibits marked on the side of the defendants: Nil Sd./- R.S.M.J., 08.07.2021 // Certified to be true copy// Dated at Madras this day of 2021. Court Officer(O.S.) From 25th day of September 2008 the Registry is issuing certified copies of the Orders/Judgments/Decrees in this format.