KPP -1-
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
SUIT NO. 1573 OF 2007
Kores (India) Limited )
a Company incorporated under the Companies Act, 1913 )
having its office at Kores House, Plot No. 10, )
Off. Dr. E. Moses Road, Worli, Mumbai-400 018 )...Plaintiffs
vs.
M/s. Whale Stationery Products Limited,
a Company incorporated under the Companies Act, 1956
having its office at 80, Mohebewala Industrial Area,
)
)
)
Saharanpur Road,Dehradun, Uttaranchal, India. )..Defendants
Mr. Manish Saurashtri, instructed by M/s. Shantilal & Co., for the Plaintiffs.
CORAM: S.J. KATHAWALLA, J.
DATE: September 28, 2012
JUDGMENT:
1. This is an action taken by the Plaintiffs for infringement of Plaintiffs' copyright, infringement of Plaintiffs' trade mark and the wrongful acts of passing off committed by the Defendants by manufacturing and marketing the impugned goods with the infringing copyright and trade marks.
2. The Plaintiffs - Kores (India) Limited, carry on business in the field of stationery products of varied nature and kind for the past several decades. The Plaintiffs were incorporated on 26 th May, 1936. They contend that in or about ::: Downloaded on - 02/08/2016 16:43:29 ::: KPP -2-
1963, they adopted a trade mark consisting of word SAPPHIRE for use in respect of pencil carbon papers. The Plaintiffs also designed a label mark for use in respect of the said pencil carbon papers which contained the original artistic work, design, layout and get-up, along with the distinctive colour scheme essentially consisting of blue, silver and red colours as more particularly set out in paragraphs 6 and 7 of the affidavit of evidence.
3. According to the Plaintiffs, the Defendant is a Company incorporated under the Companies Act, 1956 and is engaged in and is carrying on business of manufacturing, packaging, marketing and distribution of stationery products including carbon papers.
4. The Plaintiffs have been using the trade mark SAPPHIRE in respect of the said carbon papers continuously, exclusively and extensively since the year 1963.
The said trade mark SAPPHIRE is registered under the Trade Marks Act under Registration No. 271033 as of 1 st April, 1971 and continues to be valid, subsisting and in force. By virtue of the extensive and exclusive use of the said trade mark "SAPPHIRE" in relation to the said carbon paper, the same has acquired tremendous reputation and goodwill and has come to be exclusively associated with the Plaintiffs' said product. The said goods bearing the said trade mark SAPPHIRE and the said distinctively and artistically designed labels have come to be exclusively associated and identified with the Plaintiffs alone and the ::: Downloaded on - 02/08/2016 16:43:29 ::: KPP -3-
same have a large sales spread all over the country. The Plaintiffs have spent large amount on promotion and advertisement.
5. Having come to know that the Defendants commenced marketing and selling similar goods under the mark SUPPERE and similar artistic works, designs, lay out, get up and colour scheme, the present suit was filed for infringement of copyright, trade mark and passing off.
6. The Plaintiffs led the evidence of Mr. Sanjay Sharma by filing his affidavit in lieu of examination-in-chief. The witness confirms the correctness of the contents of the affidavit. The affidavit, inter alia, reiterated what is stated in the plaint. Through the evidence, the compilation of documents is tendered in Court which is taken on record and marked Exhibit "X" Collectively.
7. There is nothing on record that militates against anything that has been averred in the plaint and deposed to by the witness. The Defendants have used the same/similar marks and similar artistic work. In assessing the deceptive similarity of the present case, no oral evidence is necessary.
8. The Defendants were served with the writ of summons and an affidavit of service of the writ of summons dated 17th September, 2008 is on record.
However, the Defendants have remained absent. The evidence of the witness is ::: Downloaded on - 02/08/2016 16:43:29 ::: KPP -4-
uncontroverted. The Plaintiffs are not pressing for damages.
9. In the circumstances, the suit is decreed in terms of prayer clauses (a),
(b), ( c) and (e). Costs to be quantified as per rules.
(S.J. KATHAWALLA, J.)
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KPP -5-
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
SUIT NO. 1573 OF 2007
Kores (India) Limited ..Plaintiffs
vs.
M/s. Whale Stationery Products Limited, ..Defendants
Name : Sanjay Sharma
Age : Adult
Occupation : Service
Address
: Plot No.10, Off. Dr. E. Moses Road, Worli,
Mumbai-400 018
CORAM: S.J. KATHAWALLA, J.
DATE: September 28, 2012
Examination-in-chief of Mr. Sanjay Sharma, Plaintiffs' Constituted Attorney, by Mr. Manish Saurashtri, learned Advocate for the Plaintiffs:
1. Mr. Manish Saurashtri, the learned Advocate appearing on behalf of the Plaintiffs tenders an affidavit dated 11 th June 2012 of Mr. Sanjay Sharma, containing his examination-in-chief. The witness has confirmed the truth of the affidavit. The witness has also produced compilation of various documents. The same are taken on record and marked Exhibit "X" Collectively. The witness has informed the Court that the Plaintiffs are not pressing for any damages.
2. The Defendants are absent.
3. No cross-examination.
(S. J. KATHAWALLA, J.) ::: Downloaded on - 02/08/2016 16:43:29 :::