IN THE
COURT OF DISTRICT JUDGE
SS
... Plaintiff
Versus
TT ... Defendant
SUIT UNDER SECTIONS
134 AND 135 OF THE TRADE MARKS ACT, 1999 AS WELL AS UNDER SECTION 51 OF THE
INDIAN COPYRIGHT ACT, 1957 FOR THE RELIEF OF PERMANENT INJUNCTION TO RESTRAIN
PASSING OFF, INFRINGEMENT OF TRADE MARK AND COPYRIGHT, DELIVERY UP, RENDITION
OF ACCOUNTS ETC.
RESPECTFULLY
SHEWETH:-
1. The plaintiff SS_________________is
engaged in the business of manufacture, marketing and sale of food for human
consumption including confectionary, spices, chatni and other allied and
related goods (referred to as "the said goods and business"). SS is
duly authorized to institute and file this suit, depose to its facts, sign and
verify its pleadings and do all acts necessary for its conduct and pursuance. He is also otherwise
aware of the facts and circumstances of
the case.
2. The plaintiff has been engaged in the said goods and
business since the year _______. In the year ______ the plaintiff adopted the
Trade Marks HS LOGO Label (word per
se and in an artistic manner) and has been using the same by itself as also in
an artistic label. The trade mark/label of the plaintiff are annexed herewith
as ANNEXURE P-I (colly).
3. In
the year 1995 the plaintiff honestly, bonafidely and in the course of
trade, adopted the trade mark HS LOGO
Label. The plaintiff has been using the said Trade Mark/Label
since then uptill present time continuously, uninterruptedly, as an exclusive
proprietor and owner. The plaintiff is prior and senior adopter of the said
trade mark/label in relation to said
goods and business. (hereinafter
referred to as "the said Trade Mark/label/trade name").
4. The
said trade mark/labels are
registered under the provisions of Trade Marks Act, 1999 in favour of the
plaintiff, particulars whereof are setout hereinunder:-
I
Trade
Mark : HS
Logo
Regd.
Trade Mark No.: xxxxxxxxxxx
Class : 30
Goods : Food for human consumption including
spices,etc.
Status : Registered .
Effective from : 13 June,xxxx
The copies of
the plaintiff’s trade mark registrations as well as pending applications are
annexed herewith as ANNEXURE .
5. That The Copyright
involved in the
said Trade Mark/label are original artistic works within the meaning
of Indian Copyright Act, 1957 (the Copyright Act) and the plaintiff
is the author, owner and
proprietor thereof. The Labels of
the plaintiff are duly with the Registrar of Copyright under nos. A-xxxxxx/2009
and A-xxxxxx/2003 respectively. Copy of the aforesaid are annexed herewith as ANNEXURE . All references to the
said Trade Mark/label include their respective copyright therein as well.
6. Since
the year 1995 respectively the plaintiff has been honestly, bonafidely
and in the course of trade using the said Trade Mark/label/trade
name as proprietor thereof in
respect of his
said goods and business, continuously, openly
and without any interruption
or interference from any
corner whatsoever and has built up a
valuable trade, goodwill and reputation thereunder and acquired proprietary rights therein.
7. The plaintiff is the proprietor, prior
and senior adopter and user of his said trade mark/label/trade
name. The said goods and business being
carried on by the plaintiff under his said trade mark/label/trade name is a
very extensive one and the said goods and business thereunder have been
practically distributed in major parts of the country. The said goods and
business under the said trade mark/label/trade name are
identified as exclusively originating from the plaintiff's
source and are identified with the plaintiff. The said trade mark/label have
already become distinctive and
associated with the plaintiff and
the plaintiffs said goods and business
on account of its long, continuous,
extensive and exclusive user thereof since
1995 respectively till date. The
goods and business bearing
the said trade mark/label/trade
name are
highly demanded in the
markets on account of their
standard quality and precision.
8. The plaintiff's goods and business
under his said trade mark/label/trade name has acquired
tremendous goodwill and enviable
reputation in the markets and the plaintiff has already built up a handsome and valuable
trade thereunder. The plaintiff
thereunder has already commanded
handsome sales running into lakhs
and lakhs of Rupees every year since
its said inception, adoption and user thereof.The Sales Figures of the
plaintiff are filed herewith as ANNEXURE .
9. The plaintiff has been continuously
promoting his said goods and business
under his said trade mark/label through different means and modes
including through their advertisements and
publicity in leading
newspapers, of trade literature, trade
hoardings and boards etc.
The plaintiff has already
spent enormous amounts of money
on its publicity thereof. In consequence
thereof and having regard to the
aforesaid including to the
excellent quality and the
high standards of the
plaintiffs manufacture and trade under his
said trade mark/label, they enjoy solid, enduring and first
class reputation in the markets.
10. The plaintiff maintains the highest standards
of manufacture and trade of his said goods and business. The plaintiffs said
trade mark/label are well
known Trade Marks within the
meaning of Section 2(1) (zg) of the Trade Marks Act, 1999.
11. The
said Trade Mark/label have already
become a distinctive indicium of the plaintiff and the plaintiff’s said goods and business
thereunder. The purchasing public, trade
and public at large associates, identifies and
distinguishes the said
trade mark/label with
the plaintiffs and
the plaintiffs said goods and
business alone. The plaintiff's
goods and business are dependent
thereon. The plaintiff
contends that the
said trade mark/label have acquired secondary significance denoting the
said goods and business of the plaintiff
and are recognized with the plaintiffs source alone. They have become synonymous with the goods and
business of the plaintiff.
12. The plaintiff is the proprietor of his
said trade mark/label both
under the statutory law and under
the common law. No body can be permitted to use or deal with the same or any other Trade Mark/label identical
with or deceptively similar thereto, either by itself or in its
essential/constituent features including
the copyright thereon in
relation to the same/similar/allied/cognate goods or
business as that of the plaintiff or
for that matter any specification
of goods or business without the leave
and license of the plaintiff. Any such violative use will be in violation of the plaintiff proprietary
Trade Mark and copyright rights thereto.
13. That
the defendant in the same/similar trade and business as
that of the plaintiff, namely,
in the manufacture
and trade of spices
and other allied and related goods under
the trade marks HS Logo. [referred
to as the "impugned goods
and business" and a term
that includes goods of
allied/cognate nature and "impugned trade mark/label/trade name"]. The plaintiff
is not aware of the
exact constitution of the defendant and he is called upon to disclose the same. The impugned
trade mark/label of the are annexed herewith as ANNEXURE .
14. The defendant are commercially and in the
course of trade using the impugned Trade Mark/label as a Trade Mark in relation
to its impugned goods and business
as also reproducing the impugned
copyright therein on its cartons
and boxes. The defendant are doing so
without the leave and license of
the plaintiff. The defendant is not the proprietor of the
impugned Trade Mark/label.
15. The impugned Trade Mark/label/trade name is
identical with and deceptively
similar respectively to the plaintiffs said Trade Mark/label in each and
every respect including
phonetically, visually, structurally, in
basic idea, in its
essential features, in its placements as well as
in its artistic features. The defendant impugned
goods and business is also of the same/similar/allied/cognate nature to the
said goods and business of the plaintiff.
16. By
its impugned adoption and user of the impugned Trade Mark /label/trade name the
defendant is –
(a)
Infringing the registered trade marks of the plaintiff.
(b) Passing off and enabling others to pass off
their goods and business as that of the plaintiff. The defendant are thus thereby violating the
plaintiff common law rights in the plaintiff’s said Trade Mark/label/Trade Name;
(c) Infringing
the plaintiff Copyright in the said
Trade Mark/label by inter alia using,
publishing, reproducing and otherwise
commercially and for
the purposes of trade using the
impugned identical with and deceptively similar impugned trade mark/label
respectively for the purposes of its impugned goods and business
as also passing
off the plaintiff's
common law rights therein;
(d) Not only
that the defendant are
further guilty of falsification and unfair and unethical
trade practices.
17. The
defendant is not the
proprietor of the impugned trade mark/label/trade name and
has no right to adopt or use the same as a trade mark or as a copyright or in
any other manner whatsoever including under the laws
of equity, common law and statutory law in respect of the impugned
goods and business or allied/cognate thereto or
otherwise being in complete
violation of the plaintiffs aforesaid rights.
18. The impugned adoption and user by the defendant
are dishonest, tainted, malafide
and fraudulent. The defendant adopted
and started commercially
using the impugned
trade mark/label/trade name in respect of the impugned goods and
business out of
greed and with a
view to take
advantage and to
trade upon the reputation and
goodwill of the plaintiff and
further with a view
to calculate deception
and confusion in the markets and
to pass
off their impugned goods and business as that of the plaintiff
and to make
easy money at the cost of the
plaintiff. The defendant is fully aware or ought to be aware of the plaintiff said rights,
users and reputation of the
plaintiff in the plaintiff said trade mark/label/trade name, at the time
of their impugned adoption and user of the impugned trade mark/label/trade name.
19. The resemblance between the plaintiff
said trade mark/label/trade name and
of the impugned
trade mark/label/trade name
respectively of the defendant are so close that it can
hardly occur except by deliberate imitation. The defendant adopted
and started using the impugned
trade mark/label/trade name in
full knowledge of
the plaintiff said
rights. The unwary purchasers which include each
and every section of
society including the not so well
educated people are bound
to be deceived
and are being deceived in
dealing with and purchasing the defendant
impugned goods and business under the
impugned trade mark/label
under the impression that it is
emanating from the
plaintiff source or
that some vital
links exist between
the plaintiff and
the defendant. Defendant appear to have been tempted by the
singular reputation of
the plaintiff. By its
impugned adoption and
user of the impugned trade mark/label/trade name, the defendant
are disseminating confusion and deception in the markets with the
result that the spurious goods of the defendant are being passed
off as
the genuine goods of the
plaintiff. By the impugned
adoption and user deception and
confusion is caused in the
market.
20. In
about the beginning of March 2xxx the
plaintiff came across the impugned goods of the defendant under the impugned
trade mark/label/trade name
in the
markets. Constrained the plaintiff
launched inquiries in the
markets to ascertain
the defendant’s impugned activities under the impugned
mark/label/trade name. The inquiries of the plaintiff revealed that the defendant
had just about recently and in the beginning of March 2xxx had started
commercially using the impugned Trade
Mark/label/trade name on its vendible articles viz. the impugned goods. The defendant are carrying on its
impugned activities in clandestine
manner. The defendant are not issuing any
formal bills and invoices against its sales. The plaintiff also launched
inquiries with the Registrar of Trade
Marks at Delhi
which revealed that
the defendant had even filed trade mark application under No.xxxxxxx
in class 30 in respect of trade mark HS
LOGO. The aforesaid application is false, fraudulent and illegal and
plaintiff has filed their objections dated 23 March 2xxx thereto under Sections
18 and 19 of The Trade Marks Act,1999. The plaintiff also issued upon the defendant
cease and desist notice dated 1 March 2006 which was replied to through counsel
by the defendant by letter dated 16
April 2xxx on false claims and assertions.
21. The
cause of action
arose in favour
of the plaintiff and against the defendant in the beginning of
March 2007 when the plaintiff learnt of the
defendant impugned adoption and
user. The cause of action also arose on 23 March
2007 when plaintiff issued upon the defendant cease and desist notice. The cause of action further arose on
16.4.2xxxx when the defendant failed to comply with the requisition of
plaintiff’s cease and desist notice .The cause of action is a continuous one
and is accruing every day and shall continue to so accrue till the defendant
cease with their
impugned adoption and
user of the impugned trade mark/label amounting to
complete violation of the plaintiffs rights
in the said trade mark/label.
22. This
23. That the plaintiff values the suit for
purposes of Court fee and jurisdiction in the following manner: -
(a) for the grant of
permanent injunction as
prayed for in para 24(a) to (b)
and for delivery up as prayed for
in para 24(c) it is valued for
the purpose of court fee and jurisdiction at Rs.______ each and court fee of
Rs._____each totaling Rs.______is affixed.
(b) for an order
for rendition of accounts of profits illegally earned by the defendant it is valued for the purposes of
jurisdiction and court fee at Rs. 1000/-
and court fee of Rs.150/- is affixed thereon as the plaintiff estimates that
such an amount shall be found due to the plaintiff from the defendant on
rendition of accounts having gone in to. The plaintiff undertakes to pay such
additional court fees it may be directed to pay by this
Total court fee affixed is_______. This
24. The
plaintiff, therefore, prays: -
(a) for
a decree of permanent injunction restraining
the defendant’ by themselves as also through their individual proprietors,
partners, directors, C and f agents, agents, representatives, distributors,
assigns, heirs, successors, stockists
and all others
acting for and on their
behalf from using, selling, soliciting, exporting,
displaying, advertising - by visual, audio,
print mode - or by any other mode or
manner or dealing in or using
the impugned trade mark HS Logo or any other
identical with and/or deceptively similar word/mark/name in relation to their impugned goods and business of spices and related/allied products or any other
goods/product and from doing any other
acts or deeds amounting to or likely
to amount:-
(i) Infringement of plaintiff's registered
trade marks.
(ii) Passing
off and violating the plaintiffs common law
rights in the plaintiff’s HS
LOGO Trade Mark/label/trade name;
(iii) Infringing the plaintiff’s registered Copyright and
also passing off the
plaintiff's common law rights therein.
(b) For
an order for delivery up of all the defendant impugned goods
and business bearing the
impugned trade mark/label
including packing material, carton boxes, carry bags, finished
and unfinished goods, boxes,
stickers, blocks, dies or any other incriminating material including
display boards and sign boards and trade literature to the plaintiff for the
purposes of destruction and erasure.
(c) For
an order of rendition of accounts of the defendant and a decree to the
plaintiff on the amount so ascertained.
(d)
For an order for cost of the proceedings;
and
(e) For
such other and further relief(s)
as this Hon'ble Court
may deem fit and proper in the
facts and circumstances of this
case.
Prayed accordingly
SS
Plaintiff
Through
ADVOCATE
Dated,
this _______ day of _______, 2017.
VERIFICATION:-
I, SS, do hereby verify that the contents of paras No.1 to ______ of the plaint
are true to my knowledge as
derived from the records
of the plaintiff
firm as also
from my own knowledge
and those of paras No.______ to ______ are
true on information received and
believed to betrue. Last para is by way of
prayer to this
Signed and
verified at New Delhi on this ________ day of ________, 2017.
SS
Proprietor
IN
THE COURT OF DISTRICT JUDGE
Suit
No. of 2017
SS
... Plaintiff
Versus
TT
... Defendant
AFFIDAVIT IN SUPPORT OF THE PLAINT
Affidavit
of SS___________ s/o ___________, aged about ______ years r/o ____________Delhi.
I
the above named deponent do
hereby solemnly affirm, declare
and say as under:-
1. I am proprietor of the plaintiff firm
and have been duly entitled to institute and file this suit as also verified
its pleadings and depose to its facts. I am aware of the facts and
circumstances of this case and can swear this affidavit.
2. I say
that the contents of paras No.1 to _____ of the plaint
are true to my knowledge as
derived from the records
of the plaintiff
firm as also
from my own knowledge
and those of paras No._____ to ______ are
true on information received and
believed to betrue. Last para is by way of
prayer to this
3. The
legal submissions are on advice, believed to be true.
4. The
documents in so far as they pertain to the plaintiff are true copies of
their respective originals.
DEPONENT
VERIFICATION: -
I,
the above named deponent do hereby verify that the contents of my above
affidavit are true and correct to my knowledge.
Signed and verified
at New Delhi on this ________ day of _________, 2017.
DEPONENT
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