Earlier user till the day is entitled for interim injunction for infringement of copy rights - Or.39, rule 1 & 2 filed by Plaintiff and also filed by Defendant Or.39, rule 4 vacation of injunction order - Infringement of copy rights - The plaintiff company through its predecessor “First Aryco India Ltd.” had adopted a trade mark “PREMIER” on 10.01.1997 for manufacturing and marketing of a wide range of tissue paper products namely Tissues, Tissue Paper, Facial Tissues, Hanky Packs, Kitchen Towels, Toilet Tissues, Jumbo Rolls, Pop Up Napkins, Specialty Napkins. (Cocktail, Luncheon, Dinner), Serviettes, C-Fold Hand Towels, Napkins, Pop U Dispensers, Soap Dispensers etc. It is further averred that sometime in the first week June, 2011 the plaintiff came to know that the defendants are engaged in unauthorized manufacturing, packing and marketing of tissue papers under the trademark “PREMIUM” in packing/boxes which are deceptively similar to the trademark “PREMIER” and “PREMIER SPECIAL TISSUE BOX” the artwork, layout, pattern, get up, fonts, design placement and colour combination of the defendants‟ boxes is also deceptively similar to the plaintiffs‟ boxes. According to the plaintiff, its investigation revealed that the said infringing tissue boxes of the defendant are being sold in various shops and by roadside vendors in Delhi as well as other parts of the country. The defendants have challenged the validity of documents filed by plaintiff by stating that these cannot be looked into. But, this Court is of the view that apart from the documents challenged, there are large number of other documents available on record which are cogent and clear evidence of prior user i.e. from the year 1998. 43. In view of the above, it appears from the record that two set of packaging are almost similar. Both marks, PREMIER and PREMIUM are deceptively similar. The defendants could not have designed their packaging without placing the packaging of the plaintiff. Prima facie, it is clear that it is a case of violation of vested rights of the plaintiff and pirator thereof cannot become rightful owner in any manner. Thus, the plaintiff has made out a strong case of injunction. 44. Under these circumstances, I am of the considered view that the plaintiff has been able to make a strong prima facie case for infringement of trade mark, copyright and passing off. The balance of convenience also lies in favour of the plaintiff and against the defendants. Incase the defendants/counter claimant is not stopped from using the mark and trade dress in the similar packaging, the plaintiff will suffer irreparable loss and injury, which cannot be compensated in terms of money. Therefore, plaintiff‟s application, being I.A. No.10846/2011 under Order XXXIX, Rules 1 and 2 read with Section 151 CPC, is allowed. The defendants, their dealers, retailers, servants, agents or any one acting for and on their behalf, are restrained from using the trade mark PREMIUM and/or any other trade mark, which is deceptively and confusingly similar to the plaintiff‟s registered trade mark PREMIER as well as similar packaging/trade dress amounting to infringement of copyright and passing off their goods as that of the plaintiff in respect of tissues of all kinds, or any other allied and cognate goods. It is clarified that the finding arrived by this Court about the defendants‟ user is tentative and prima facie view which shall have no bearing when the matter would be considered after the trial on merit. 2015 Delhi(2012)msklawreports

Earlier user till the day is entitled for interim injunction for infringement of copy rights - Or.39, rule 1 & 2 filed by Plaintiff and also filed by Defendant Or.39, rule 4 vacation of injunction order - Infringement of copy rights - The plaintiff company through its predecessor “First Aryco India Ltd.” had adopted a trade mark “PREMIER” on 10.01.1997 for manufacturing and marketing of a wide range of tissue paper products namely Tissues, Tissue Paper, Facial Tissues, Hanky Packs, Kitchen Towels, Toilet Tissues, Jumbo Rolls, Pop Up Napkins, Specialty Napkins. (Cocktail, Luncheon, Dinner), Serviettes, C-Fold Hand Towels, Napkins, Pop U Dispensers, Soap Dispensers etc. It is further averred that sometime in the first week June, 2011 the plaintiff came to know that the defendants are engaged in unauthorized manufacturing, packing and marketing of tissue papers under the trademark “PREMIUM” in packing/boxes which are deceptively similar to the trademark “PREMIER” and “PREMIER SPECIAL TISSUE BOX” the artwork, layout, pattern, get up, fonts, design placement and colour combination of the defendants‟ boxes is also deceptively similar to the plaintiffs‟ boxes. According to the plaintiff, its investigation revealed that the said infringing tissue boxes of the defendant are being sold in various shops and by roadside vendors in Delhi as well as other parts of the country. The defendants have challenged the validity of documents filed by plaintiff by stating that these cannot be looked into. But, this Court is of the view that apart from the documents challenged, there are large number of other documents available on record which are cogent and clear evidence of prior user i.e. from the year 1998. 43. In view of the above, it appears from the record that two set of packaging are almost similar. Both marks, PREMIER and PREMIUM are deceptively similar. The defendants could not have designed their packaging without placing the packaging of the plaintiff. Prima facie, it is clear that it is a case of violation of vested rights of the plaintiff and pirator thereof cannot become rightful owner in any manner. Thus, the plaintiff has made out a strong case of injunction. 44. Under these circumstances, I am of the considered view that the plaintiff has been able to make a strong prima facie case for infringement of trade mark, copyright and passing off. The balance of convenience also lies in favour of the plaintiff and against the defendants. Incase the defendants/counter claimant is not stopped from using the mark and trade dress in the similar packaging, the plaintiff will suffer irreparable loss and injury, which cannot be compensated in terms of money. Therefore, plaintiff‟s application, being I.A. No.10846/2011 under Order XXXIX, Rules 1 and 2 read with Section 151 CPC, is allowed. The defendants, their dealers, retailers, servants, agents or any one acting for and on their behalf, are restrained from using the trade mark PREMIUM and/or any other trade mark, which is deceptively and confusingly similar to the plaintiff‟s registered trade mark PREMIER as well as similar packaging/trade dress amounting to infringement of copyright and passing off their goods as that of the plaintiff in respect of tissues of all kinds, or any other allied and cognate goods. It is clarified that the finding arrived by this Court about the defendants‟ user is tentative and prima facie view which shall have no bearing when the matter would be considered after the trial on merit. 2015 Delhi(2012)msklawreports

Popular posts from this blog

Sec.20 of C.P.C - Territorial Jurisdiction - suit for recovery of money based on Contract - As per the admitted plaint averments, the office of the defendants is located in Pargi, the offer made by the petitioner was accepted at Pargi, the contract was entered between the petitioner and the respondents at Pargi and the same was executed within the jurisdiction of the Court at Pargi.- Plaint returned with objection - as an after thought added the acceptance of contract was received at Malkajgiri - Trail court returned the plaint to file in proper court - Revision - Their Lordships held that if filing of suit is based on making of a contract, the cause of action arises at the place where the offer is accepted and if the suit is based on termination of a contract, the cause of action arises at the place where such termination order is received. Admittedly, the suit is based on making of a contract and not on termination of the contract.- dismissed the revision - 2015 Telangana & A.P. msklawreports

Sec.482 Cr.P.C. - Section 8 of the Andhra Pradesh Public Examination (Prevention of Malpractice and Unfair Means) Act, 1997 - Part B question Paper was missed ( said to be distributed to A1 along with other students by A2 an invigilator ) - Charge - she was negligent in performing the invigilation duties. - Their Lordships held that Mere negligence in performing invigilation duties, does not attract the offence set-forth in the Act. Therefore, in absence of any allegation that the petitioner herein has committed the offence set out in Section 5 of the Act, she cannot be subjected to prosecution for which the penalty has been provided under Section 8 of the Act.- Quashed the criminal proceedings - 2015 Telganga & A.P. msklawreports

Section 5 of Andhra Pradesh Rights in Land and Pattadar Pass Books Act, 1971 read with Rule 9(1)(a)(i), (ii) and (iii) of the Rules of 1989. - Powers of Revenue Court - Petitioners are the legal heirs of Late Sri A. Penta Reddy and respondents 1 to 3 are the brothers of Penta Reddy - Petitioners claimed as Separate Property - Brothers/Respondents claimed as Joint family Property - MRO held summary enquiry and held that it is Joint family Property - No Appeal to RDO - after the lapse of 12 years filed Revision directly to Joint Collector - JC. dismissed the revision - this Writ - Their Lordships held that in the absence of any suit for Declaration of title after receiving Rule 9 notice with in 3 months, the MRO can decide the dispute summarily - since no appeal is filed nor any suit is filed in any court - the orders of MRO can not be challanged after the lapse of 12 years - dismissed the revision - -2015 Telangana & A.P. MSKLAWREPORTS