The High Court dismissed a suit filed in 2003 for trademark infringement and passing off seeking injunctions and account of profits, as the entire proceeding had become inordinate because the defendant appeared to have not been served notice.
The suit was dismissed. No order as to costs was made.
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.
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 16.03.2021
CORAM:
THE HONOURABLE MR. JUSTICE C.V.KARTHIKEYAN
C.S.No.854 of 2003
1.Kailashmull Dugar, Proprietor,
M/s.Kesavardhinin Products,
Plot nos.1 to 4, Choudary Nagar,
Arcot Road, Chennai – 600 087.
2.Gaurav Dugar, Proprietor,
M/s.Kesavardhini Products (Madras)
151, Mint Street,
Chennai – 600 079.
.. Plaintiffs
/versus/
M/s.Vaidya Patwardhan Research Foundation
S.V.Patel Road,
Raopura,
Vadodara – 390 001.
Gujarat
(Constitution not known)
.. Defendant
1/4
This Civil Suit is filed under Order IV Rule 1 of the High Court Original Side Rules and Order VII Rule 1 of the Code of Civil Procedure, 1908, read with Section 134 and 135 of the Trade Marks Act, 1999, prayed for a Judgment and Decree:-
A.Granting a permanent injunction restraining the defendant, their men, servants, agents or anyone claiming through or under them from, in any manner, infringing the plaintiffs' registered Trade Mark 'KESAVARDHINI' by using the offending Trade Marks 'KESHVARDHINI' or any other mark or marks which are similar or in any way deceptively similar to or a colourable imitation of the plaintiff's registered Trade Mark 'KESAVARDHINI' either by manufacturing the Hair-oil products or selling or offering for sale or in any manner advertising the same;
B.Granting a permanent injunction restraining the defendant, their men, servants, agents or anyone claiming through or under them from, in any manner passing off their Hair oil products as that of the plaintiffs' by using the offending Trade Marks labels 'KESHVARDHINI' or any other trademark which similar or deceptively similar to that of the plaintiffs' established trade mark 'KESAVARDHINI' either by manufacturing the Hair-oil or selling or offering for sale or in any manner advertising the same;
C.Directing the defendant to render a true and faithful account of the profits earned by them through the sale of Hair Oil bearing the offending trade marks “KESHVARDHINI” and directing payment of such profits to the plaintiffs by way of damages for passing off committed by the defendant;
D.Directing the defendant to surrender to the plaintiffs the entire stock of unused offending goods with the Trade Mark 'KESHVARDHINI' together with cartons, labels, brochures, printing blocks, containers, boxes, etc., bearing the offending Trademark for destruction;
E.Directing the defendant to pay the plaintiffs the costs of the suit.
For Plaintiffs : Mr.Prasanna Venkat. For Defendant : No Appearance.
C.V.KARTHIKEYAN,J.
smv
JUDGMENT
The suit had been pending from the year 2003. There is also no indication that the defendant has been served.
2.Heard the learned counsel for the plaintiffs. 3.The suit is dismissed. No order as to costs. 4.However, liberty is granted to the plaintiff to institute a fresh suit with a fresh cause of action with respect to the same trademark, if it is found that either the defendant or any other person acting under the defendant or any third party is violating the mark. 16.03.2021 smv Internet : Yes / No Index : Yes / No Speaking Order : Yes / No
C.S.No.854 of 2003
2 issues framed by the court
Whether to grant injunctions and damages for alleged trademark infringement against a defendant who has not appeared.
How to proceed with a long-pending civil suit for trademark infringement where the defendant was likely not served notices.
2 provisions across 2 enactments
Kailashmull Dugar, Proprietor, M/s.Kesavardhinin Products
Gaurav Dugar, Proprietor, M/s.Kesavardhini Products (Madras)
M/s.Vaidya Patwardhan Research Foundation
C.V.Karthikeyan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
