Trendz Paper & Stationers Vs M/S.Konark International

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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(ORDINARY ORIGINAL CIVIL JURISDICTION)

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MONDAY, THE 27th DAY OF AUGUST 2018

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THE HON'BLE MR. JUSTICE M.SUNDAR

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C.S. No.244 of 2009 and

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A. No.3328 of 2017

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Trendz Paper & Stationers (India) Pvt. Ltd., having its registered office at 2, Badria Garden Street, 1st Floor, Chennai-600 003.

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Mr.Vikas Sethia, No.2, Badria Garden Street, 1st Floor, Chennai-600 003. ... Plaintiffs/Applicants

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-Versus-

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M/s.Konark International, 642, Gali Bawli, 6 Tooti Chowk, Pahar Ganj, New Delhi-110 055.

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... Defendant/Respondent

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C.S. No.244 of 2009:-

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Civil Suit praying that this Hon'ble Court be pleased to pass a judgment and decree:

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a) granting permanent injunction restraining the defendant, by themselves, their servants, agents or anyone claiming through them from infringing the plaintiff's registered Trademark 'EVERY GLORY' and any mark that is similar/deceptively similar, including 'GLORY' and passing off their goods including 'cutters, blades, replacement blades for cutters, replacement blades, knives, and other stationery items etc' in their business as the business of the plaintiff, by using the mark that is similar to plaintiffs registered trade mark 'EVER GLORY' or any other expression visually, phonetically or deceptively similar to it either as or part of its business/trading name, or https://hcservices.ecourts.gov.in/hcservices/ otherwise in the course of their business, in their sign boards, correspondence, letter heads, trade literature,

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advertisement in the print or electronic media including as e-mail ID or Web address and in such other business literature and or enable others to pass off;

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b) granting a permanent injunction restraining the defendant, by themselves, their servants, agents, distributors, or anyone claiming through them from manufacturing, importing, selling, offering and advertising for sale using the Trade Mark 'Every Glory (Label) and/or deceptively similar mark 'GLORY' in 'stationary goods including cutters, blades, knives' etc. in any media and use the same in invoices, letterheads and visiting cards or any other trade literature or by using any other Trade Mark which is in anyway visually, phonetically or deceptively similar to the plaintiff's registered trademark No.1480795 in class 16 of the Trademark Act 1999, or in any manner infringing the plaintiff's aforesaid registered trademark by using the mark 'EVER GLORY' either as prefix or suffix in the course of business;

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c) directing the defendant to surrender to the plaintiffs for destruction all the packing material, cartons, advertisement materials and hoardings, letter heads, visiting cards, office stationary and all other materials containing/bearing the Trademark which is similar/deceptively or confusingly similar to plaintiffs registered Trade Mark 'Ever Glory' or any other deceptively similar Trademark;

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d) for a preliminary decree be passed in favour of the plaintiffs, directing the defendants to render accounts of profit made by them by the use of similar/deceptively or confusingly similar Trade Mark 'Glory' on the goods referred and a final decree be passed in favor of the plaintiffs for the amount of profits found to have been made by the defendants, after the defendants have rendered accounts;

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https://hcservices.ecourts.gov.in/hcservices/

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e) directing the defendants to pay Rs.4,29,000/- as damages @ Rs.3,000/- per day from 01.11.2008 till

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19.03.2009 and thereafter also at the same rate of Rs.3,000/- per day on all days when the defendant continues to use the trademark of the plaintiff after the filing of the present suit.

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f) directing the defendant to pay to the plaintiff the costs to the suit.

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A. No.3328 of 2017:-

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Application praying that this Hon'ble Court be pleased to record the memorandum of compromise filed under Order 23 Rule 1 CPC and decree may be passed in favour of the applicants and against the defendant by this Hon'ble Court incorporating the terms and condition of the memorandum.

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This suit along with the application coming on this day before this court for hearing in the presence of Mr.R.Nanda Kumar, advocate for the plaintiff in C.S. No.244 of 2009 and for the applicant in A. No.3328 of 2017 and Mr.M.Purushothaman, advocate for the defendant in C.S. No.244 of 2009 and for the respondent in A. No.3328 of 2017 and upon reading the pleadings filed in C.S. No.244 of 2009 and the Judge's Summons and the affidavit of Vikas Sethia filed in A. No.3328 of 2017 and the memorandum of

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compromise signed by the plaintiffs and the defendant herein and their respective advocates and the said advocates for the parties hereto praying this court to pass a decree in terms of the memo of compromise more fully set out in the schedule hereunder, it is ordered and decreed as follows:-

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That the defendant herein admit and acknowledge that the plaintiff is the prior adopter and registered proprietor of the Trademark EVERGLORY registered under Nos.1480795 and 1661199 in respect of goods registered by the plaintiff in classes 16 and 8 respectively and undertake not to resort to any proceeding in relation https://hcservices.ecourts.gov.in/hcservices/ thereto including applying for rectification thereto before the appropriate forum.

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That the defendant herein state that they had erroneously under a mistaken impression falsely used the trademark "Konark Glory" having similar and identical layout, design, artwork, colour scheme such as that of the Plaintiff's 'EVERGLORY'.

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That the defendant herein undertake that they shall neither use the label 'Konark Glory' as complained of by the Plaintiffs nor use the trademark 'Konark Glory' in respect of Blades, Paper Cutters, Replacement blades, Scissors, Knives and other items falling in Class 16/8 and the defendant herein also undertake not to use any other label similar to that of the plaintiffs label 'EVERGLORY' and shall cease to use to expression 'GLORY' in any of their marks.

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That the defendant herein further undertake not to use any trademark label identical or deceptively similar to the registered trademark of the plaintiff carrying the trademark EVERGLORY having GLORY as the essential feature.

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That the defendant herein concede that the Plaintiff's trademark 'EVERGLORY' is a well-known trademark and is solely identified by trade and public as the plaintiff's mark.

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That the defendant herein undertake not to advertise the offending 'Konark Glory' label or advertise any other mark deceptively similar thereto or use the mark/label or any other visual variation of the label in their pamphlets, catalogues, websites, promotional material, labels, cartons, packing materials or in any other manner whatsoever.

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That the defendant herein undertakes to cease to use the expression 'GLORY' in any of their marks.

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That the defendant herein undertakes to confirm that they do not have any stock of labels, advertisements, bills, cartons, dyes, blocks, moulds, screen prints, https://hcservices.ecourts.gov.in/hcservices/ promotional materials, packaging material carrying the offending 'Konark Glory'

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That M/s.Konark International, the defendant herein, by themselves, their servants, agents or anyone claiming through them be and are hereby restrained by an order of permanent injunction from (a) infringing the plaintiff's registered Trademark 'EVERY GLORY' and any mark that is similar/deceptively similar, including 'GLORY' and passing off their goods including 'cutters, blades, replacement blades for cutters, replacement blades, knives, and other stationery items etc' in their business as the business of the plaintiff, by using the mark that is similar to plaintiffs registered trade mark 'EVER GLORY' or any other expression visually, phonetically or deceptively similar to it either as or part of its business/trading name, or otherwise in the course of their business, in their sign boards, correspondence, letter heads, trade literature, advertisement in the print or electronic media including as e-mail ID or Web address and in such other business literature and or enable others to pass off; and (b) manufacturing, importing, selling, offering and advertising for sale using the Trade Mark 'Every Glory (Label) and/or deceptively similar mark 'GLORY' in 'stationary goods including cutters, blades, knives' etc. in any media and use the same in invoices, letterheads and visiting cards or any other trade literature or by using any other Trade Mark which is in anyway visually, phonetically or deceptively similar to the plaintiff's registered trademark No.1480795 in class 16 of the Trademark Act 1999, or in any manner infringing the plaintiff's aforesaid registered trademark by using the mark 'EVER GLORY' either as prefix or suffix in the course of business;

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That subject to the forgoing covenants the plaintiffs gives up all other reliefs sought for in the plaint.

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https://hcservices.ecourts.gov.in/hcservices/

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That this Memo of Compromise shall be binding on the Parties hereto and also their Successors in interest,

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Partners, Proprietors, Men, Servants, Agents, Distributors, Stockists, Representatives or any of them claiming there under.

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That there shall be no costs of this suit.

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SCHEDULE

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Memo of Compromise

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https://hcservices.ecourts.gov.in/hcservices/

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KLY

16.10.2018

C.S. No.244 of 2009 and A. No.3328 of 2017

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DECREE:

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DATED: 27.08.2018

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THE HON'BLE MR.JUSTICE M.SUNDAR

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FOR APPROVAL:11/12/2018

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APPROVED ON:12/12/2018

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https://hcservices.ecourts.gov.in/hcservices/

Trendz Paper & Stationers v. M/S.Konark International

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Trendz Paper & Stationers v. M/S.Konark International

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