Bombay High Court
Kores (Inida) Limited vs M/S M/S Whale Stationary Products ... on 28 September, 2012
Bench: S.J. Kathawalla
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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
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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
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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
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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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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.)
