Madras High Court
Mars vs Akshay Industries on 16 June, 2021
C.S.No.306 of 2000
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 16.06.2021
CORAM
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
C.S.No.306 of 2000
Mars, Incorporated,
6885, Elm Street,
Mclean,
Virginia 22101-3883,
United States of America.
Rep. By its Power of Attorney
Mr.A.Arulselvan ...Plaintiff
.Vs.
1.Akshay Industries,
No.107, Rajshree Industrial Estate,
Chitalsar, Manpada,
Ghodbunder Road,
Thane (West), Mumbai – 400 607.
Rep. By its Proprietor
Mr.Raju Jituri
2.Kunal International
73, Diagonal Road,
Opp. IIIrd Block,
Post Office, Next to Jayanagar Medicals,
4th Block, Jayanagar,
Bangalore – 560 011.
3.Bhushan Goyal
... Defendants
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C.S.No.306 of 2000
Plaint filed under Order IV Rule 1 of the Original Side Rules,
Order VII Rule 1 of Code of Civil Procedure read with Sections 27, 105
and 106 of the trade and Merchandise Marks Act, 1958 praying for:
a) Granting a perpetual order and injunction restraining the
defendants by themselves, their partners, heirs, legal representatives,
successors in business, assigns, servants, agents, distributors, stockists,
representatives or any of them from selling, distributing or offering for
sale milk shake machines, ice slush machines, ice cream machines
bearing the mark GALAXY or in any manner passing off or enabling
others to pass-off the defendants milk shake/ ice slush machines as and
for the goods of the plaintiff by use of the trade mark GALAXY or any
mark similar thereto or in any other manner whatsoever;
b) a preliminary decree be passed in favour of the plaintiff
directing the defendants to render account of profits made by them by use
of trade mark GALAXY or any mark similar thereto and a final decree be
passed in favour of plaintiff for the amount of profits found to have been
made by the defendants after the latter have rendered accounts;
c) the defendants be ordered to surrender to plaintiff for
destruction all machines, moulds, labels, plates, blocks, dyes, prints,
packing material and other materials bearing the trade mark GALAXY or
any mark similar thereto and;
d) for costs of the suit.
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C.S.No.306 of 2000
For Plaintiff : Mr.Rahul M.Shankar
for Mr.Amarnath Babu
For Defendants : Mrs.Vasutha Thiyagarajan
********
JUDGMENT
The plaintiff has come up with the above suit seeking
a) To grant a perpetual order and injunction restraining the
defendants by themselves, their partners, heirs, legal representatives,
successors in business, assigns, servants, agents, distributors, stockists,
representatives or any of them from selling, distributing or offering for
sale milk shake machines, ice slush machines, ice cream machines
bearing the mark GALAXY or in any manner passing off or enabling
others to pass-off the defendants milk shake/ ice slush machines as and
for the goods of the plaintiff by use of the trade mark GALAXY or any
mark similar thereto or in any other manner whatsoever;
b) a preliminary decree in favour of the plaintiff directing the
defendants to render account of profits made by them by use of trade
mark GALAXY or any mark similar thereto and a final decree be passed
in favour of plaintiff for the amount of profits found to have been made
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C.S.No.306 of 2000
by the defendants after the latter have rendered accounts;
c) the defendants be ordered to surrender to plaintiff for
destruction all machines, moulds, labels, plates, blocks, dyes, prints,
packing material and other materials bearing the trade mark GALAXY or
any mark similar thereto and;
d) for costs of the suit.
2. Mr.Rahul M.Shankar, learned counsel representing the counsel
for the plaintiff would submit that there is no instructions from his client.
3. Mrs.Vasutha Thiyagarajan, learned counsel appearing for the
defendants is also in the same boat. She would however state that the
defendants have changed their name and therefore the cause of action
may not survive.
4. Since neither of the parties have shown interest in prosecuting
the suit, the suit is dismissed for non-prosecution reserving liberty for the
plaintiff to file a fresh suit in the event of any infringement or passing off
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C.S.No.306 of 2000
in future. No costs.
16.06.2021
dsa
Index : No
Internet : Yes
Non-speaking order
List of the witnesses examined on the side of the plaintiff: : Nil
List of Exhibits marked on the side of the plaintiff : Nil
List of the witnesses examined on the side of the defendants: Nil
List of Exhibits marked on the side of the defendants: Nil
16.06.2021
dsa
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C.S.No.306 of 2000
R.SUBRAMANIAN, J.
dsa
C.S.No.306 of 2000
16.06.2021
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