Madras High Court
M/S Brilliant Learning Solutions ... vs Brilliant Tutorials Educational ... on 10 November, 2021
C.S.No.668 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 10.11.2021
CORAM :
THE HONOURABLE MR. JUSTICE N.ANAND VENKATESH
C.S.No. 668 of 2019
M/s Brilliant Learning Solutions Pvt Ltd,
Represented by its Director Mrs.Vasanti Neelakantan,
Having registered office at No.24, Gilchrist Avenue
Chetpet, Chennai – 600 031. ...Plaintiff
Vs.
Brilliant Tutorials Educational Institute Pvt Ltd,
Represented by its Director,
H.No.3122, LIG Avas Vikas – 3 Panki Kalyanapur,
Kanpur, Uttar Pradesh – 208 017. ...Defendant
Prayer: Plaint filed and numbered as Civil Suit under Order 4 Rule 1 of the
Madras High Court Original Side Rules, read with Order 34 Rule 7 of the
Code of Civil Procedure, praying for judgment and decree:
(a) granting a perpetual injunction restraining the Defendant, their
men, agents, servants, employees, representatives and any other person
claiming under the Defendant from infringing the registered Trade Mark No.
479276 & 479277B and/or any other colorable imitations of the same either
by way of Hardcopy or Softcopy (offline & online) in their website.
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C.S.No.668 of 2019
(b) granting a perpetual injunction restraining the Defendant, their
men, agents, servants, employees, representatives and any other person
claiming under the Defendant from passing off their services as that of the
Plaintiff.
(c) granting a perpetual injunction restraining the Defendant, their
men, agents, servants, employees, representatives and any other person
claiming under the Defendant from infringing the copyright of “Brilliant
Tutorials” and “B Logo” or any other colorable imitation of the same.
(d) granting a preliminary decree be passed in favour of the Plaintiff
directing the Defendant to render account of profits made by use of the
registered Trade Mark No. 479276 & 479277B and/or any other colorable
imitation of the same and a final decree be passed in favour of the Plaintiff
for the amount of profits thus found to have been made by the Defendant
after the latter have rendered accounts.
(e) directing the Defendant to pay the Plaintiff a sum of Rs.5,00,000/-
as damages.
For plaintiff : Mr.J. Jeya Sabare Eswaran
*****
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C.S.No.668 of 2019
JUDGMENT
This Suit has been filed by the registered trade mark holder, seeking
for the relief of perpetual injunction against the Defendant by restraining the
Defendant from infringing the registered Trade Mark of the plaintiff and from
passing of the services of the plaintiff and from using the Trade Mark
“Brilliant Tutorials” and “B Logo” in the course of their business. The
Plaintiff has also sought for a preliminary decree directing the Defendant for
rendering accounts.
2. The case of the Plaintiff is that the Trade Mark “Brilliant Tutorials”
and “B Logo” originally belonged to one N.Thanu and later on it was passed
on to M/s Brilliant Tutorials Pvt Ltd., on 02.08.2001 by way of a Deed of
Assignment. Thereafter, it was once again assigned by M/s.Brilliant Tutorials
Pvt. Ltd., to M/s.Brilliant Learning Solutions Pvt. Ltd., on 14.02.2014 by way
of Deed of Assignment and thereby, the Plaintiff claims to be the absolute
owner of the Trade Mark rights.
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C.S.No.668 of 2019
3. The grievances of the Plaintiff is that the Defendant is trying to
piggy back on the reputation and goodwill of the Plaintiff and illegally
infringing the Trade Mark of the Plaintiff. It is stated that the Defendant is
using the Trade Mark without any authorization and thereby, unlawfully
enriching himself. As a result of the same, the present Suit has been filed.
4. Notice was served on the Defendant and the Defendant has also
been called absent and set ex-parte, by an order dated 14.06.2021.
5. The Director of the Plaintiff Company examined herself as P.W.1
and Exs.P1 to P12 were marked on the side of Plaintiff.
6. Heard Mr.J.Jeya Sabare Eswaran, the learned counsel appearing on
behalf of the Plaintiff.
7. The issue that is required to be answered by this Court is as to
whether the Plaintiff is entitled to the relief sought for by virtue of the
infringement of the registered Trade Mark of the Plaintiff by the Defendant
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C.S.No.668 of 2019
and whether the Defendant is passing off the Mark of the Plaintiff and
thereby is enriching themselves unlawfully.
8. This Court has carefully considered the submissions made by the
learned counsel for the Plaintiff and the averments made in the pleadings,
oral and documentary evidence that are available on record.
9. This Court is convinced that the Plaintiff is the lawful owner of the
registered Trade Mark and has gained the reputation by using the Trade
Mark. The Defendant without any permission / authorization has infringed
upon the Trade Mark of the Plaintiff and thereby, made an attempt to take
undue advantage of the same to unlawfully enrich themselves. The Plaintiff
has sufficiently proved their case and hence, they are entitled for the relief
sought for in this Suit. The issue is answered accordingly.
10. In the result, there shall be a decree in favour of the Plaintiff for :
(a) a perpetual injunction restraining the Defendant, their men, agents,
servants, employees, representatives and any other person claiming under the
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C.S.No.668 of 2019
Defendant from infringing the registered Trade Mark No. 479276 &
479277B and/or any other colorable imitations of the same either by way of
Hardcopy or Softcopy (offline & online) in their website.
(b) a perpetual injunction restraining the Defendant, their men, agents,
servants, employees, representatives and any other person claiming under the
Defendant from passing off their services as that of the Plaintiff.
(c) a perpetual injunction restraining the Defendant, their men, agents,
servants, employees, representatives and any other person claiming under the
Defendant from infringing the copyright of “Brilliant Tutorials” and “B
Logo” or any other colorable imitation of the same.
11. This Court has also taken into consideration the hardship and the
cost incurred by the Plaintiff by instituting the present suit. Accordingly, the
Suit is allowed by imposing cost of a sum of Rs.3,50,000/- on the Defendant.
While imposing the exemplary cost, this Court has taken in to consideration
the attempt made by the Defendant to unjustly enrich themselves on the
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C.S.No.668 of 2019
registered Trade Mark of the Plaintiff and also the attitude of the Defendant
in not coming before this Court to justify their action.
10.11.2021
Internet: Yes
Index: Yes / No
Speaking order /Non speaking order
ssn/shk
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C.S.No.668 of 2019
I. Witnesses :
Plaintiff:
P.W.1 Mrs.Vasanthi Neelakantan
Defendant: Nil
II. Exhibits :
Plaintiff:
Exhibits Date Particulars
P1 20.07.2011 The Printout of the certificate of
Incorporation of the Plaintiff company.
P2 01.10.1987 The photocopy of the Extract of Registered
Trade Mark No.479276.(Ex.P2 is marked
subject to proof and admissibility).
P3 01.10.1987 The photocopy of the Extract of Registered
Trade Mark No.479277B.(Original is
produced, compared and it is undertaken by
the plaintiff that it can be produced as and
when required.)
P4 14.02.2014 The photocopy of the Assignment Deed in
favour of the Plaintiff.(Original is produced,
compared and it is undertaken by the
Plaintiff that it can be produced as and when
required).
P5 06.02.2017 The photocopy of the Certificate of
Incorporation of the Defendant company.
P6 -- The photocopy of the Extract from the
website of the Defendant
P7 06.12.2018 The Office copy of the Legal notice sent by
the Plaintiff to the defendant.
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C.S.No.668 of 2019
Exhibits Date Particulars
P8 20.12.2018 The original returned envelope
Endorsement marked as 'Left'.
P9 01.07.2019 The photocopy of the Email communication
from coral DRAW to the Plaintiff.
P10 05.09.2019 The photocopy of the Email reply sent by
Director of the Plaintiff Company.
P11 28.07.2021 The Original Legal User Certificate for
Trademark No.479276.
P12 28.07.2021 The Original Legal User Certificate for
Trademark No.479277B
(Ex.P1,Ex.P5,Ex.P6, Ex.P9 and Ex.P10 are
the printouts of screenshot of websites as
extracted from my computer for which
Certificate under Section 65B of Indian
Evidence Act, 1872 is filed).
Defendant: Nil
10.11.2021
(2/2)
Internet: Yes
Index: Yes / No
Speaking order /Non speaking order
ssn/shk
Copy to
1.Sub-Assistant Registrar, Original Side, High Court, Madras.
2. Record Keeper, Original Side Records Section, High Court, Madras.
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C.S.No.668 of 2019
N.ANAND VENKATESH,J
ssn/shk
C.S.No.668 of 2019
10.11.2021
https://www.mhc.tn.gov.in/judis
