M/S. Nexmo Inc v. M/S. Nexmoo Solutions (India)

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 18.06.2018

CORAM

The HON'BLE MS.INDIRA BANERJEE, CHIEF JUSTICE AND The HON'BLE MS.JUSTICE P.T.ASHA O.S.A.No.121 of 2018 and C.S.No.876 of 2015 Nexmo Inc.

rep. by its CEO, Tony Jamous having office at 4th Floor, 217, Second Street San Fracisco, CA - 94105 United States of America.

.. Appellant in OSA.121/18/ Defendant in CS.876/2015 Vs.

Nexmoo Solutions (India) Private Limited rep. by its Managing Director, S.Pandiarajan 18/8, Selvarangaraja Street Little Mount, Saidapet Chennai - 600 015.

.. Respondent in OSA.121/18/ Plaintiff in CS.876/2015 PRAYER in O.S.A.No.121 of 2018: Appeal under Order XXXVI Rule 9 of the Original Side Rules read with Clause 15 of the Letters Patent against the order dated 1.3.2018 made in O.A.No.1171 of 2015 in C.S.No.876 of 2015.

PRAYER in C.S.No.876 of 2015: Plaint filed under Order VII Rule 1 of CPC read with Order IV Rule 1 of the Original Side Rules and Sections 134 and 135 of the Trade Marks Act, 1999 seeking a judgment and decree granting: (i) a permanent injunction restraining the defendant, its directors, officers, servants, agents, legal representatives, successors-in-business, assigns or any one claiming through or under them from passing off or enabling others to pass of the defendant business/goods/services as and for the business/goods/services of the plaintiff by using the corporate trading style/trade name of Nexmo Inc and domain name www.nexmo.com or any other trading style/trade name and/or e-email address, website address bearing the name of Nexmo or any other mark deceptively

similar to the plaintiff's trade name 'Nexmoo' thereto or any other manner whatsoever connected with the Plaintiff; (b) the defendant to be ordered to surrender to the plaintiff for destruction of all goods, cartons, containers, name boards, signage, labels, bills, advertisement materials, printed matters bearing the trademark/trade name of Nexmo or mark deceptively similar to plaintiff's trademark and service mark 'Nexmoo'; (c) a preliminary decree be passed in favour of the plaintiff directing the defendant to render true and faithful account of profits made by use of trade name trading style or trade mark Nexmo by use of trade name Nexmo Inc., domain name www.nexmo.

com or using the mark and a final decree may be passed in favour of the plaintiff for the amount or profits so ascertained; (d) the defendant may be ordered to pay to the plaintiff a sum of Rs.26,00,000/- as liquidated damages for committing continuous acts of violation by using mark of "Nexmo" in various manner which is deceptively and phonetically similar to the plaintiff's trade mark/trade name "Nexmoo"; (e) for costs of the suit. For Appellant/ Defendant : Mr.K.Harishankar For Respondent/ Plaintiff : Mr.G.S.Vivekmani for M/s.

JUDGMENT

(Made by Ms.Indira Banerjee, Chief Justice) The appeal and the suit are disposed of in terms of the memorandum of settlement filed in Court today. The memorandum of settlement shall form part of the decree. No costs. Consequently, C.M.P.No.7817 of 2018 is closed. Sd/- Assistant Registrar(CCC) //True Copy// Sub Assistant Registrar sasi

To:

The Sub Assistant Registrar Original Side High Court, Madras.

+2cc to Mr.K.HARISHANKAR, Advocate, S.R.No.38140 +1cc to M/s.GIRIDHAR & SAI Advocate, S.R.No. 38625 O.S.A.No.121 of 2018 and C.S.No.876 of 2015 NM(CO) TR(23/07/2018)