The Madras High Court dismissed a plaintiff's civil suit for trademark and copyright infringement for non-prosecution. The court had previously directed notice to the plaintiff due to counsel unavailability; upon plaintiff's continued absence, the suit was dismissed.
Suit dismissed for non-prosecution; no costs awarded to either party.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF JUDICATURE AT MADRAS
(ORDINARY ORIGINAL CIVIL JURISDICTION)
THURSDAY, THE 8TH DAY OF JULY, 2021
THE HON'BLE MR. JUSTICE R. SUBRAMANIAN
C.S. No.715 of 1998
Mr. R. BALASUBRAMANIAN, trading as MAKESAH KUMAR MILLS, 17/65, Kumarappapuram 2nd st., Rayappapuram Extension, Tiruppur - 641 602.
..Plaintiff
Vs.
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(5th Floor), Howrah - 711 101.
... Defendants
Civil Suit praying that this Hon'ble Court be pleased to pass prays for a Judgement and Decree:
(a) granting permanent injunction restraining the defendants
themselves, their servants or agents or anyone claiming through them from
in any manner infringing the plaintiff's well established trade mark M-K-M
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GARRY AMERICAN CASUALS by using the offending trade mark M-KM GARRY AMERICAN CASUALS or any other mark or marks which are
deceptively similar to or a colourable imitation of the plaintiff's well established Trade mark M-K-M GARRY AMERICAN CASUALS;
b) granting permanent injunction restraining the defendants by themselves, their servants or agents or anyone claiming through them from in any manner infringing the Plaintiff's Copyright over the artistic work M- K-M GARRY AMERICAN CASUALS by using the offending artistic work “M-K-M GARRY AMERICAN CASUALS” or any other work or works which are deceptively similar to or a colourable imitation of the Plaintiff's Copyright over the artistic work M-K-M GARRY AMERICAN CASUALS;
c) granting permanent injunction restraining the defendants themselves, their servants or agents or anyone claiming through them from in any manner passing off of their hosiery products including T.Shirts bearing the offending trade mark and artistic work M-K-M GARRY AMERICAN CASUALS as and for the Plaintiffs' hosiery products including T.shirts bearing the well established trade mark and copyright
over the artistic work M-K-M GARRY AMERICAN CASUALS, either by https://hcservices.ecourts.gov.in/hcservices/ selling or offering for sale or in any manner advertising the same;
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d) directing the defendants to render true and faithful accounts of the
profits earned by them by using the offending trade mark and artistic work M-K-M GARRY AMERICAN CASUALS and directing the payment of such profits to the Plaintiffs by way of damages; and
e) directing the defendants to surrender to the Plaintiffs the entire stock of unused hosiery products including T.shirts bearing the offending “ M-K-M GARRY AMERICAN CASUALS ” trade mark label together with the blocks and dyes for destruction.
This Civil Suit coming on this day before this court for hearing the plainttiff and the defendants herein not appearing in person or by advocate and upon reading the plaint filed herein and this court is of the view that since the lead counsel for the plaintiff is no more and the other counsel was serving on the bench of the Intellectual Property Appellate Board, this court had by order dated 28/04/2021 directed notice to be issued to the plaintiff accordingly, a notice is issued and the same was served on the plaintiff on 05/06/2021 and despite such service the plaintiff has not chosen to enter appearance to prosecute the suit and, it is ordered as follows:-
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for non-prosecution.
WITNESS THE HON'BLE JUSTICE MR. SANJIB BANERJEE, THE CHIEF JUSTICE, HIGH COURT AT MADRAS AFORESAID, THIS THE 8TH DAY OF JULY, 2021.
Sd./-
ASSISTANT REGISTRAR (COMM. CASES)
//Certified to be true copy// Dated at Madras this the day of 2021.
COURT OFFICER(O.S.) From 25th Day of September 2008 the Registry is issuing certified copies of the Orders/Judgments/Decrees in this format.
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VF-15.07.2021
C.S. No.715 of 1998
ORDER :-
DATED: 08.07.2021
THE HON'BLE MR. JUSTICE R. SUBRAMANIAN
FOR APPROVAL: 16/07/2021
APPROVED ON: 19/07/2021
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IIN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 08.07.2021
CORAM
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
C.S.No.715 of 1998
R.Balasubramanian
...Plaintiff
.Vs.
14, Nityadhan Mukherjee Road, (5th Floor), Samabaika Hat, Howrah – 711 101.
4.R.R.Roy
5.R.K.Traders,
14, Nityadhan Mukherjee Road, (5th Floor), Howrah - 711 101.
13, Nityadhan Mukherjee Road, (4th Floor), Howrah - 711 101.
8.S.R.S.Biswajit Saha
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9.Prodip Chandraroy Nihar Ranjan Roy
10.S.R.S. & Sons,
14, Nityadhan Mukherjee Road, Samabiyaka Hat (4th Floor) Howrah – 711 101.
11.K.C.Jain
12.Balaji
13.D.Banik
... Defendants
Plaint filed under Order VII Rule 1 of Civil Procedure Code and under Sections 105 and 106 of the Trade and Merchandise Marks Act, 1958 and Sections 55 and 62 of the Copyright Act, 1957 praying for a judgment and decree :
a) granting permanent injunction restraining the defendants themselves, their servants or agents or anyone claiming through them from in any manner infringing the plaintiff's well established trade mark M-K-M GARRY AMERICAN CASUALS by suing the offending trade mark M-KM GARRY AMERICAN CASUALS or any other mark or marks which are deceptively similar to or a colourable imitation of the plaintiff's well established trade mark M-K-M GARRY AMERICAN CASUALS;
b) granting permanent injunction restraining the defendants by themselves, their servants or agents or anyone claiming through them from in any manner infringing the plaintiff's copyright over the aritstic work M- https://hcservices.ecourts.gov.in/hcservices/ K-M GARRY AMERICAN CASUALS by using the offending artistic work “M-K-M GARRY AMERICAN CASUALS” or any other work or works
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which are deceptively similar to or a colourable imitation of the plaintiff's copyright over the artistic work M-K-M GARRY AMERICAN CASUALS;
c) granting permanent injunction restraining the defendants themselves, their servants or agents or anyone claiming through them from in any manner passing off of their hosiery products including T.Shirts bearing the offending trade mark and artistic work M-K-M GARRY AMERICAN CASUALS as and for the plaintiffs' hosiery products including T.shirts bearing the well established trade mark and copyright over the artistic work M-K-M GARRY AMERICAN CASUALS, either by selling or offering for sale or in any manner advertising the same;
d) directing the defendants to render true and faithful accounts of the profits earned by them by using the offending trade mark and artistic work M-K-M GARRY AMERICAN CASUALS and directing the payment of such profits to the plaintiffs by way of damages and
e) directing the defendants to surrender to the plaintiffs the entire stock of unused hosiery products including T.shirts bearing the offending “ M-K-M GARRY AMERICAN CASUALS ” trade mark label together with the blocks and dyes for destruction and
f) for costs of the suit.
For Plaintiff : No appearance For Defendant : No appearance ********
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J U D G M E N T
The suit has been filed by the plaintiff for a decree and judgment:
a) granting permanent injunction restraining the defendants
themselves, their servants or agents or anyone claiming through them from in any manner infringing the plaintiff's well established trade mark M-K-M GARRY AMERICAN CASUALS by suing the offending trade mark M-KM GARRY AMERICAN CASUALS or any other mark or marks which are deceptively similar to or a colourable imitation of the plaintiff's well established trade mark M-K-M GARRY AMERICAN CASUALS;
b) granting permanent injunction restraining the defendants by themselves, their servants or agents or anyone claiming through them from in any manner infringing the plaintiff's copyright over the aritstic work M- K-M GARRY AMERICAN CASUALS by using the offending artistic work “M-K-M GARRY AMERICAN CASUALS” or any other work or works which are deceptively similar to or a colourable imitation of the plaintiff's copyright over the artistic work M-K-M GARRY AMERICAN CASUALS;
https://hcservices.ecourts.gov.in/hcservices/ c) granting permanent injunction restraining the defendants
themselves, their servants or agents or anyone claiming through them from
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in any manner passing off of their hosiery products including T.Shirts bearing the offending trade mark and artistic work M-K-M GARRY AMERICAN CASUALS as and for the plaintiffs' hosiery products including T.shirts bearing the well established trade mark and copyright over the artistic work M-K-M GARRY AMERICAN CASUALS, either by selling or offering for sale or in any manner advertising the same;
d) directing the defendants to render true and faithful accounts of the profits earned by them by using the offending trade mark and artistic work M-K-M GARRY AMERICAN CASUALS and directing the payment of such profits to the plaintiffs by way of damages and
e) directing the defendants to surrender to the plaintiffs the entire
stock of unused hosiery products including T.shirts bearing the offending “ M-K-M GARRY AMERICAN CASUALS ” trade mark label together with the blocks and dyes for destruction and
f) for costs of the suit.
2. Since the lead counsel for the plaintiff is no more and the other https://hcservices.ecourts.gov.in/hcservices/ counsel was serving the on the bench of the Intellectual Property Appellate
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Board, I had by order dated 28.04.2021 directed notice to be issued to the
plaintiff. Accordingly a notice is issued and the same was served on the plaintiff on 05.06.2021. Despite such service the plaintiff has not chosen to enter appearance to prosecute the suit.
3. The suit is therefore dismissed for non-prosecution. No costs.
Sd./- R.S.M.J.,
08.07.2021
List of the witnesses examined on the side of the plaintiff : Nil List of Exhibits marked on the side of the plaintiff : Nil List of the witnesses examined on the side of the defendants: Nil List of Exhibits marked on the side of the defendants: Nil
Sd./- R.S.M.J.,
08.07.2021
// Certified to be true copy// Dated at Madras this day of 2021.
Court Officer(O.S.) From 25th day of September 2008 the Registry is issuing certified copies of the Orders/Judgments/Decrees in this format.
1 issue framed by the court
Whether a suit filed for infringement of trademark and copyright should be dismissed if the plaintiff fails to enter appearance after notice despite missing previous deadlines due to counsel issues.
3 provisions across 3 enactments
Shanthi Hostery
Mr. Sankaar
My Choice
R.R. Roy
R.K. Traders
R. Subramanian
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
