Partly allowed

Narayana Pearls and Gems v. Saidaiah Thondappu,Prop of

Madras HC20 Oct 2016CS/48/2010

Case brief

AI extract

What is this about?

This pre-delivery order passed on consent decree terms resolves a trademark infringement suit. The court recorded a joint memo of compromise where the defendant ceased business and undertook not to use similar marks. The court granted permanent injunctions but dismissed claims for accounts and delivery of documents. Costs were divided.

What did the court decide?

Permanent injunctions granted; claims for surrender of documents and accounts of profits dismissed; decree passed on consent terms.

Narayana Pearls and Gems Vs Saidaiah… — Civil Procedure and Limitation | Madras HC (2016)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED : 20.10.2 0 1 6

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CORAM

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THE HONOURABLE MR. JUSTICE C.V.KARTHIKEYAN

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C.S.No.4 8 of 201 0

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And

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O.A.Nos. 68 & 69 of 2010

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Narayana Pearls and Gems Company Represented by its Partner Mr.K.Venkoji Rao Having registered office at Shop No. 4, Basement, Kasi Arcade, 116, Sir Thyagaraya Road Chennai – 600 017.

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... Plaintiff

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Vs.

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Mr.Saidaiah Thondappu Proprietor of Narayanee Pearls, Gems & Jewellery (formerly Sri Laxmi Muthu Maaligai) Shop No. 8 & 9, Ground Floor Kasi Arcade 116, Sir Thyagaraya Road Chennai – 600 017. ... Defendant

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PRAYER : This Civil Suit filed under Order IV Rule 1 O.S. Rules and Order VII Rule 1 CPC read with Sections 134 and 135 of the Trade Marks Act 1999, praying for the following reliefs:

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(a) granting a permanent injunction restraining the defendant, his men,

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agent, servant, distributor or anyone claiming under him from infringing the plaintiff's trade marks 'Narayana Pearls' and 'Narayana Pearls & Gems' with logo 'NP', by using it as his trade mark, web address, e-mail i.d., trading style or service mark, on letter heads, exhibits packing material, or any other material containing the trade mark 'Narayana Pearls' and 'Narayana Pearls & Gems' with word 'NP', or by using 'Narayanee Pearls, Gems & Jewelry' or any other trade mark which is in any manner visually, phonetically or deceptively similar to the plaintiff's registered trade marks in the course of his trade and business;

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(b) granting a permanent injunction restraining the defendant, his men, agent, servant, distributor or anybody claiming under him from in any manner passing off the defendant's goods and services using the trade name/mark 'Narayana pearls' and/or 'Narayana Pearls & gems' with any suffix or prefix and with logo 'NP', as and for the plaintiff's goods or do any act or deed calculated to deceive the consumers or use “Narayanee Pearls”, Gems & Jewelry” or any trade name, business name which is identical or deceptively and phonetically similar to that of the trade name of the plaintiff 'Narayana Pearls' and 'Narayana Pearls & gems' and pass off their business as that of the plaintiff;

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(c) to surrender on oath and deliver up the defendant's labels, marks, letter heads, stationery, bill boards and such other documents and articles with the trade name “Narayanee Pearls, Gems and Jewelry” or mark 'Narayana Pearls' and/or 'Narayana pearls and gems' and logo 'NP' used by the defendant for the purpose of its business and ancillary purposes for destruction;

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(d) Preliminary decree in favour of the plaintiff to render true account of

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profits made by the defendant using the name “Narayanee Pearls, Gems & Jewelry” infringing plaintiff's trade mark 'Narayana Pearls' and/or 'Narayana Pearls & gems' with logo 'NP' and a final decree for the amount of profits found to have been made by the defendant; and

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(e) to pay costs of the suit to the plaintiff.

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For Plaintiff : M/s. AV.K.Ezhilmani

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JUDGMENT

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The learned counsel for the plaintiff, learned counsel for the defendant and

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the plaintiff and the defendant are present.

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2 . Joint Memo of Compromise has been filed by both the parties. The

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plaintiff and the defendant acknowledged their signature in the Joint Memo of

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Compromise and also accepted the terms mentioned in the compromise memo.

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3. Joint Memo of Compromise is as follows:-

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“ 1 . It is sub mitted that the defendant herein had clos e d down his busine s s and shop in Kasi

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Arcad e, No. 116, Sir Thyagaraya Road, Chennai – 600 017.

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2. It is sub mitted that the defendant herein has cea s e d and desist from using the word “Narayane e Pearls, Ge m s & Jew ellery” as well as the word “Laksh mi Narayane e Pearls, Ge m s & Jew ellery”, the defendant assur e s that he will not use any word or Trade Mark identical or in any mann er similar to the plaintiff's registere d Trade Mark “Narayana Pearls & Ge m s” or it Logo, in resp e ct of his busine s s in any manner, in future.

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3. The parties have agre e d to se e k this Hon'ble Court to pas s a cons e nt decre e in term s of this Joint Mem o.

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costs.”

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4. In view of the undertaking given by the defendant that he will not use

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any word or trade mark identical or in any manner similar to the plaintiff's registered trade mark “Narayanee Pearls & Gems” or its Logo, in respect of his business in any manner, in future, a decree is passed.

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5. Recording the same, the plaintiff is granted (a) permanent injunction

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restraining the defendant, his men, agent, servant, distributor or anyone claiming under him from infringing the plaintiff's trade marks 'Narayana Pearls' and

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'Narayana Pearls & Gems' with logo 'NP', by using it as his trade mark, web address, e-mail i.d., trading style or service mark, on letter heads, exhibits packing material, or any other material containing the trade mark 'Narayana Pearls' and 'Narayana Pearls & Gems' with word 'NP', or by using 'Narayanee Pearls, Gems & Jewelry' or any other trade mark which is in any manner visually, phonetically or

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deceptively similar to the plaintiff's registered trade marks in the course of his trade and business; and

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(b) granting a permanent injunction restraining the defendant, his men,

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agent, servant, distributor or anybody claiming under him from in any manner passing off the defendant's goods and services using the trade name/mark 'Narayana pearls' and/or 'Narayana Pearls & gems' with any suffix or prefix and

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with logo 'NP', as and for the plaintiff's goods or do any act or deed calculated to deceive the consumers or use “Narayanee Pearls”, Gems & Jewelry” or any trade

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name, business name which is identical or deceptively and phonetically similar to

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that of the trade name of the plaintiff 'Narayana Pearls' and 'Narayana Pearls &

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gems' and pass off their business as that of the plaintiff.

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6. Since the parties had agreed to a compromise and the defendant

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had also voluntarily accepted to the terms of the compromise, and had closed

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down his business and has ceased from using the words “Narayanee Pearls,

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Gems and Jewellery” the reliefs sought by the plaintiff, namely,

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(a) to surrender on oath and deliver up the defendant's labels, marks, letter heads, stationery, bill boards and such other documents and articles with the trade name “Narayanee Pearls, Gems and Jewelry” or mark 'Narayana Pearls' and/or 'Narayana pearls and gems' and logo 'NP' used by the defendant for the purpose of its business and ancillary purposes for destruction; and

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(b) Preliminary decree in favour of the plaintiff to render true account of

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are negatived.

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7. The suit is partly decree in the above terms. Both parties to bear

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their respective costs. Consequently, connected O.A.Nos. 68 & 69 of 2010 is closed.

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8. The Joint Memo of Compromise shall form part of the record.

20.10.2016

vsg

C.V.KARTHIKEYAN , J.

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vsg

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Pre-delivery order in

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C.S.No.4 8 of 2010 And O.A.Nos. 68 & 69 of 2010

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20.10.2 0 1 6

Narayana Pearls and Gems v. Saidaiah Thondappu,Prop of

Case brief

What is this about?

What did the court decide?

Narayana Pearls and Gems v. Saidaiah Thondappu,Prop of

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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