Dismissed

S.Radharani,Prop.of Sadharani v. 1.MASIER Lungies

Madras HC24 Jun 2021CS/763/2002

Case brief

AI extract

What is this about?

The Madras High Court dismissed a suit for trademark infringement and passing off, along with connected applications, due to the plaintiff's inability to provide instructions and lack of evidence of defendant's current infringement. The court retained the plaintiff's right to initiate fresh proceedings if infringement occurs in the future.

What did the court decide?

The suit and connected applications are dismissed; the plaintiff may take fresh proceedings if future infringement occurs.

S.Radharani,Prop.of Sadharani Vs 1.MASIER Lungies — Intellectual Property | Madras HC (2021)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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(ORDINARY ORIGINAL CIVIL JURISDICTION)

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THURSDAY, THE 24TH DAY OF JUNE, 2021

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THE HON'BLE MR. JUSTICE R.SUBRAMANIAN

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C.S. No.763 of 2002 and O.A.No.762 and 763 of 2002 and A.Nos.4537 and 5318 of 2002 and A.No.4052 of 2004 and A.No.3115 of 2006

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C.S. No.763 of 2002 and O.A.Nos.762 and 763 of 2002, A.No.4537 of 2002 and A.No.3115 of 2006

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Mrs.S.Radharani Prop. of Sadharani Tex, 191-A-5, Perathar Kadu, Chinnappanaickenpalayam, Komarapalayam – 638 183, Rep. by its Power of Attorney, Mr.S.Sadhasivam

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...Applicant/Plaintiff

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Vs. 1.Master Lungies, 6-B, Cauvery Nagar, Komarapalayam, Tiruchengode Taluk, Namakkal District. https://hcservices.ecourts.gov.in/hcservices/ Rep. By its Partner, Mr.P.Babu

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2.P.Babu,

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6-B, Cauvery Nagar, Komarapalayam, Tiruchengode Taluk, Namakkal District.

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3.P.Thangavel 6-B, Cauvery Nagar, Komarapalayam, Tiruchengode Taluk, Namakkal District.

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4.P.Dhakshinamoorthi 6-B, Cauvery Nagar, Komarapalayam, Tiruchengode Taluk, Namakkal District.

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5.Ponnammal 6-B, Cauvery Nagar, Komarapalayam, Tiruchengode Taluk, Namakkal District.

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...Respondents/Defendants

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C.S. No.763 of 2002

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Civil Suit praying that this Hon'ble Court may be pleased to grant a judgment and decree on the following terms:-

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https://hcservices.ecourts.gov.in/hcservices/ manufacturing, selling, or offering to sell, distributing, displaying, printing,

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stocking, using, advertising lungies bearing an almost identical trademark

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“KABUTTAR CHAAP label” or any other mark deceptively similar to the

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plaintiff' trademarks “KABUTTAR CHAAP label” with identical colour

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scheme, get up and layout or in any other manner whatsoever;

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b) a permanent injunction restraining the defendants, by itself, its partners, men, servants, agents, distributors, stockists, representatives or any one claiming through them from in any manner committing acts of copyright infringement by publishing, printing, manufacturing or using “KABUTTAR CHAAP label” which are a substantial reproduction of plaintiff' “KABUTTAR CHAAP label” in colour scheme, get up and layout or in any other manner whatsoever;

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c) the defendants be ordered to surrender to plaintiff for destruction of all labels, dyes, blocks, moulds, screen prints, packing materials and other materials bearing the trademark “KABUTTAR CHAAP” labels or any mark deceptively similar to plaintiff' trademark and artistic work “KABUTTAR CHAAP” labels.

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d) a preliminary decree be passed in favour of the plaintiff directing the defendants to render account of profits made by use of trademark and copyright in the artistic work “KABUTTAR CHAAP label” and a final decree be passed in favour of the plaintiff for the amount of profits thus found to have been made by the defendants after the latter have rendered

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

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accounts;

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e) the defendants be ordered and decreed to pay to the plaintiff a sum

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of Rs.1,00,000/- as damages for acts of passing off and infringement of

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bearing the trademark and artistic work “KABUTTAR CHAAP” labels;

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f) for costs of the suit;

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O.A.No.762 of 2002

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Original Application praying that this Hon'ble Court be pleased to grant an order of an interim, ad-interm or temporary injunction restraining the defendants, by itself, its partners, men, servants, agents, distributors, stockists, representatives or an one claiming through them from in any manner passing off and/or enabling others to pass off the Defendant' lungies as and for the Applicant/Plaintiff' lungies by manufacturing, selling, or offering to sell, distributing, displaying, printing, stocking, using, advertising lungies bearing an almost identical trademark “KABUTTAR CHAAP label” or any other mark deceptively similar to the Applicant/Plaintiff' trademark “KABUTTAR CHAAP label” with identical colour scheme, get up and layout or in any other manner whatsoever;

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O.A.No.763 of 2002

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Original Application praying that this Hon'ble Court be pleased

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to grant an order of an interim, ad-interm or temporary injunction https://hcservices.ecourts.gov.in/hcservices/ restraining the defendants, by itself, its partners, men, servants, agents,

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distributors, stockists, representatives or any one claiming through them from in any manner committing acts of copyright infringement by publishing “ KABUTTAR CHAPP label” which are a substantial reproduction of Applicant/Plaintiff “KABUTTAR CHAAP label” in colour scheme, get up and layout or in any other manner whatsoever.

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A.No.4537 of 2002

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Application praying that this Hon'ble Court be pleased to grant an order of appointment of an Advocate Commissioner to visit the premises of the respondents at 6-B, Cauvery Nagar, Idappadi Road, Komarapalayam, Tiruchengode Taluk, the premises of its proprietor/partners, its Godowns, wear houses, stockiest points and such other premises in the control of the respondents and to seize and take into actual physical custody of all spurious lungies bearing the trademark BABUTTAR CHAAP label, which are identical to the Applicant's trademark and registered Copyright in the artistic work KABUTTAR CHAAP label and to take into custody of labels, dyes, blocks, moulds, books of accounts invoices and other documents containing information about the respondent's use of KABUTTAR CHAAP lable and to ascertain from the respondent.

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A.No.3115 of 2006

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

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Application praying that this Hon'ble Court be pleased to permit the

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applicant/plaintiff to amend the plaint to include the following:-

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Para 22(F) A permanent injunction restraining the Defendants, by

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itself, its partners, men, servants, agents, distributors, stockists, representatives or any one claiming through them from in any manner infringing the plaintiff's registered trade mark KABUTTAR CHAAP label under no.1047932 in class 24 by use of an identical trade mark “KABUTTAR CHAAP label” or any other mark deceptively similar to the Plaintiff's registered trademark “ KABUTTAR CHAAP label” or in any other manner whatsoever.

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A.No.5318 of 2002 and

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A.No.4052 of 2004

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Master Lungies, 6-B, Cauvery Nagar, Komarapalayam, Tiruchengode Taluk, Namakkal District.

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2.P.Babu,

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6-B, Cauvery Nagar, Komarapalayam, Tiruchengode Taluk, Namakkal District.

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3.P.Thangavel 6-B, Cauvery Nagar, Komarapalayam, Tiruchengode Taluk, Namakkal District.

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

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4.P.Dhakshinamoorthi

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6-B, Cauvery Nagar, Komarapalayam, Tiruchengode Taluk, Namakkal District.

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5.Ponnammal 6-B, Cauvery Nagar, Komarapalayam, Tiruchengode Taluk, Namakkal District.

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..Applicants

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Mrs.S.Radharani Prop. of Sadharani Tex, 191-A-5, Perathar Kadu, Chinnappanaickenpalayam, Komarapalayam – 638 183, Rep. by its Power of Attorney, Mr.S.Sadhasivam

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...Respondent

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A.No.5318 of 2002

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Application praying that this Hon'ble Court be pleased to grant

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interim suspension of the order of interim injunction granted in O.A.No.762

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of 2002 in C.S.No.763 of 2002 dated 1.11.2002 pending disposal of the vacate injunction application filed by the defendants in C.S.No.763 of 2002.

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A.No.4052 of 2004

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Application praying that this Hon'ble Court be pleased toissue appropriate directions to the Advocate Commissioner to release the goods which have been seized and kept in his custody pursuant to the directions of

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https://hcservices.ecourts.gov.in/hcservices/ this Hon'ble Court in Application No.4537 of 2002 in C.S.763 of 2002

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dated 1.11.2002.

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This Suit along with these applications coming on this day before this

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Court for hearing in the presence of Mr.Rahul M.Shankar for Mr.A.A.Mohan, Advocate for the plaintiff in C.S.No.763 of 2002 and for the applicant in O.A.Nos.762 & 763 of 2002 and A.No.4537 of 2002 and 3115 of 2006 and for the respondent in A.Nos.5318 of 2002 and 4052 of 2004 and Mrs.Vasudha Thiagarajan, Advocates for the defendants in C.S.No.763 of 2002 and for the respondents in O.A.Nos.762 & 763 of 2002 and A.Nos.4537 of 2002 and 3115 of 2003 and for the applicant in A.Nos.5318 of 2002 and 4052 of 2004 and upon reading the plaint filed in C.S.No.763 of 2002 and the Judges Summons and the Affidavit of P.Babu filed in A.No.5318 of 2002 and A.No.4052 of 2004 and the Judges Summons and the affidavit of S.Sadhasivam filed in A.No.3115 of 2006 and the order dated 1.11.2002 made in O.A.Nos.762 & 763 of 2002 and A.Nos.4537 of 2002 and the learned counsel for the plaintiff having submitted that he is unable to get instructions from the plaintiff. The suit is of the year 200, He is unable to state as to whether the defendants are continuing to infringe the mark of the plaintiff and the learned counsel for the defendants having submitted that the defendants are not using the disputed mark,

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

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it is ordered as follows:-

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That the suit in C.S.No.763 of 2002, be and is hereby dismissed

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under Order 13(a) of the Code of Civi Procedure as amended by the Commercial Courts Act.

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That the plaintiff herein, shall be at liberty to take appropriate proceedings afresh, in the event of any infringement in future.

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That these O.A.Nos.762 & 763 of 2002 and A.Nos.4537 & 5318 of

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2002, 4052 of 2004, 3115 of 2006 do stand closed.

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That there shall be no costs of this suit.

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WITNESS THE HON'BLE MR.SANJIB BANERJEE, CHIEF JUSTICE, HIGH COURT AT MADRAS AFORESAID, THIS THE 24th DAY OF JUNE 2021.

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Sd./-

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ASSISTANT REGISTRAR (Comm.Cases)

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//Certified to be true copy//

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Dated at Madras this the day of 2021.

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

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ky 06.08.2021

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C.S. No.763 of 2002 and O.A.No.762 and 763 of 2002 and A.Nos.4537 and 5318 of 2002 and A.No.4052 of 2004 and

A.No.3115 of 2006

ORDER :-

DATED: 24.06.2021

THE HON'BLE MR.JUSTICE R.SUBRAMANIAN FOR APPROVAL: 23.08.2021

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APPROVED ON: 25.08.2021

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

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED: 24.06.2021

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CORAM:

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THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN

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C.S.No.763 of 2002 and A.Nos.4537 & 5318 of 2002, 4052 of 2004, 3115 of 2006, O.A.Nos.762 & 763 of 2002

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Mrs.S.Radharani Prop. of Sadharani Tex, 191-A-5, Perathar Kadu, Chinnappanaickenpalayam, Komarapalayam – 638 183, Rep. by its Power of Attorney, Mr.S.Sadhasivam

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...Plaintiff

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Vs.

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1.Master Lungies, 6-B, Cauvery Nagar, Komarapalayam, Tiruchengode Taluk, Namakkal District. Rep. By its Partner, Mr.P.Babu

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2.P.Babu, 6-B, Cauvery Nagar, Komarapalayam, Tiruchengode Taluk, Namakkal District.

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3.P.Thangavel 6-B, Cauvery Nagar, Komarapalayam,

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https://hcservices.ecourts.gov.in/hcservices/ Tiruchengode Taluk, Namakkal District.

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4.P.Dhakshinamoorthi 6-B, Cauvery Nagar, Komarapalayam, Tiruchengode Taluk, Namakkal District.

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5.Ponnammal

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6-B, Cauvery Nagar, Komarapalayam, Tiruchengode Taluk, Namakkal District. ...Defendants

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Prayer: Plaint filed under Order VII Rule 1 of C.P.C., and Order IV Rule 1 of the Original Side Rules r/w. Section 27, 28, 29, 105, 106 of the Trade and Merchandise Marks Act, 1958 and Sections. 52, 55, 62 of the Copyrights Act, 1957, praying as follows:-

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a) a permanent injunction restraining the defendants, by itself, its partners, men, servants, agents, distributors, stockists, representatives or any one claiming through them from in any manner passing off and / or enabling others to pass off the defendant' lungies as and for the plaintiff' lungies by manufacturing, selling, or offering to sell, distributing, displaying, printing, stocking, using, advertising lungies bearing an almost identical trademark “KABUTTAR CHAAP label” or any other mark deceptively similar to the plaintiff' trademarks “KABUTTAR CHAAP label” with identical colour scheme, get up and layout or in any other manner whatsoever;

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

e) the defendants be ordered and decreed to pay to the plaintiff a sum of Rs.1,00,000/- as damages for acts of passing off and infringement of copyright committed by the defendants by manufacture and sale of lungies bearing the trademark and artistic work “KABUTTAR CHAAP” labels;

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f) for costs of the suit; and

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g) pass such further or other reliefs as this Hon'ble Court may deem fit and necessary in the circumstances of the case and thereby render justice.

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For Plaintiff : Mr.Rahul M.Shankar for Mr.A.A.Mohan

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For Defendants : Mrs.Vasudha Thiagarajan J U D G M E N T

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The suit is one for infringement of trademark and passing off. Though the suit was originally filed for passing off action, upon registration injunction granted, the suit is amended as one for infringement.

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https://hcservices.ecourts.gov.in/hcservices/ 2.Mr.Rahul M.Shankar representing the learned counsel for the

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plaintiff would submit that he is unable to get instructions from the plaintiff.

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The suit is of the year 2002. He is unable to state as to whether the

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defendants are continuing to infringe the mark of the plaintiff.

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3.It is seen that there is an interim order restraining the defendants from using the mark. Mrs.Vasudha Thiagarajan, learned counsel appearing for the defendants would submit that the defendants are not using the disputed mark.

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4.In view of the statement made, this suit is dismissed under Order 13(a) of the Code of Civi Procedure as amended by the Commercial Courts Act with liberty to the plaintiff to take appropriate proceedings afresh, in the event of any infringement in future. No costs. Consequently, connected applications are closed.

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SD/-R.S.M.J

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24.06.2021

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List of witness and documents filed on the side of the plaintiff:

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Nil

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List of witness and documents filed on the side of the defendants:

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Nil

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Sd/-R.S.M.J 24.06.2021 // Certified to be true copy//

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Dated at Madras this day of 2021.

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Court Officer(O.S.) https://hcservices.ecourts.gov.in/hcservices/ From 25th day of September 2008 the Registry is issuing certified copies of the Orders/Judgments/Decrees in this format.

S.Radharani,Prop.of Sadharani v. 1.MASIER Lungies

Case brief

What is this about?

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S.Radharani,Prop.of Sadharani v. 1.MASIER Lungies

Case brief

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