M/S The Coronation Fireworks Factory v. The Gemini Fireworks
OA NOs. 872, 873, 874 of 2024 C.S.(Comm Div) No.228 of 2024 and A.No.5890 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 17-03-2025
CORAM
THE HONOURABLE MR JUSTICE SENTHILKUMAR RAMAMOORTHY OA NOs. 872, 873, 874 of 2024 C.S.(Comm Div) No.228 of 2024 and A.No.5890 of 2024 M/s THE CORONATION FIREWORKS FACTORY 7-A, Chairman A. Shanmugam Road, Post Box.
278, Sivakasi-626 123 Applicant(s) Vs The Gemini Fireworks No.152,-D, Everest Building, Sevvalpatti, New Road, Kovilpatti - 628 501, India.
Respondent(s) For Applicant(s):
M/s.Avinesh V For Respondent(s):
No appearance COMMON ORDER In a suit seeking relief in respect of the alleged infringement of trademark and copy right, and passing off, by these applications, the plaintiff seeks interim relief to prevent alleged infringement of trademark and copy right, and passing off.
2. On 18.11.2024, notice was issued in the interim applications. Upon receipt of notice, Mr.A.Santhana Sinakarthan, learned counsel, entered appearance on behalf of the sole respondent/defendant and took time to file a counter. At the hearing on 05.02.2025, learned counsel for the defendant requested for time to obtain instructions as to whether the defendant is willing to modify the label. At the hearing on 10.03.2025, learned counsel for the defendant took further time to obtain instructions. The defendant was directed to file the counter latest by 17.03.2025.
3. At today's hearing, the counter has not been filed and the defendant is not presented. Therefore, the matter is proceeded with in the absence of the defendant.
4. Learned counsel for the plaintiff submits that the plaintiff is a registered partnership firm which was established in the year 1974. By referring to invoices placed on record by the plaintiff, learned counsel submits that the plaintiff adopted and used the following device mark in relation to fire crackers produced by the plaintiff:
5. By further relying on the legal user certificate in relation thereto, learned counsel submits that the document discloses that the plaintiff has used the mark since 01.01.1979. By referring to the impugned label of the defendant, learned counsel submits that the defendant has adopted a deceptively similar label containing the image of a gorilla with a machine gun. He also points out that the colour scheme is identical. In addition to the trademark registration, learned counsel points out that the label was registered as an artistic work under the Copyright Act, 1957.
6. The plaintiff has placed on record invoices indicating the sale of fire crackers since 10.10.1981. Such sales have been effected under the name Coronation Fire Works Factory. The plaintiff has also placed on record the legal user certificate in relation to the device mark set out above. Such device mark has been registered with effect from 16.05.2008. The certificate indicates use since 01.01.1979.
7. Before filing the suit, the plaintiff issued lawyer's notice dated 19.09.2024. The said notice was replied to by the defendant on 09.10.2024. In the reply, in relevant part, the defendant stated as under:-
" 17, Your client has provided erroneous information about my client and constrained you to send an indecorous legal notice. The alleged label bearing the name 'GEMINI SHIKARI' does not belong to my client.
Only the name 'GEMINI SHIKARI'
belongs to my client. That name has achieved a tremendous name and fame amongst the people and the traders all around India. By that name my client selling flower pots alone. Without knowing this fact, your client has given false information that my client is carrying on atom bomb sale through the label as shown in your legal notice".
8. In effect, the defendant has taken the stand that he is the proprietor of the mark 'GEMINI SHIKARI', but, does not use the following impugned label:
9. The plaintiff has, however, placed on record the label used by the plaintiff and that used by the defendant. On examining these two labels, it appears that the defendant has adopted a deceptively similar label insofar as the image of the gorilla with a machine gun is concerned. The two labels are also similar with regard to the colour scheme. In these circumstances, especially by taking into account the reply of the defendant, a strong prima facie case has been made out to restrain use of the impugned label at page No.33 of the typed set (supra at paragraph 8). Unless interim relief is granted, irreparable hardship would be caused to the plaintiff, whereas, the defendant would be in a position to continue to market its goods using the mark 'GEMINI SHIKARI', albeit by modifying the label.
10. Therefore, these applications are disposed of by restraining the defendant from directly or indirectly using the impugned label at page No.33 of the typed set or any other deceptively similar label. For the avoidance of doubt, it is made clear that this order does not restrain the defendant from using the mark 'GEMINI SHIKARI' in relation to sale of fire crackers. 17-03-2025 sr 1⁄2
SENTHILKUMAR RAMAMOORTHY.J., sr OA NOs. 872, 873, 874 of 2024 in C.S.(Comm Div) No.228 of 2024 1⁄2 17.03.2025