Madras High Court
Ashok Kumar Sethi vs Amilal Ramkrishnan Dass on 15 November, 2021
Civil Suit No.338 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 15.11.2021
CORAM
THE HONOURABLE Mr. JUSTICE N.ANAND VENKATESH
Civil Suit No.338 of 2017
Ashok Kumar Sethi
Trading as M/s.Abhinav Export Corporation
Residing at : C-2, No.1 & 3
Swarup Heritage, II Street
Kasthuri Estate
Poes Garden, Chennai-600 086. .. Plaintiff
Vs.
Amilal Ramkrishnan Dass
A partnership firm having the following partnes
Ms.Sunita Garg
Mr.Varun Garg
Mr.Tarun Garn
No.674/2, Street No.2
Khatri Wara, Old Faridabad
Near Agrasen Chowk, Faridabad
Haryana - 121 002. .. Defendant
Prayer:-
Civil Suit has been filed under Order IV, Rule 1 of O.S. Rules, read
with Order VII Rule 1 of the Code of Civil Procedure red with Sections
54, 55 & 62 of the Copyright Act, 1957, praying to pass judgment and
decree against the defendants.
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Civil Suit No.338 of 2017
(a) granting a permanent injunction, restraining the defendant, by
themselves, their servants, agents, distributors, or anyone claiming
thorough them from reproducing by selling, advertising and or offering
for sale both domestic and exports by using the impugned Copyright
AMIL's as shown in Document No.2 upon the goods or in any media and
use the same in invoices, letter heads and visiting cards or by using any
other copyright which is in any way substantially reproduce the plaintiff's
copyright AMIN's the picture mark as shown in Document No.1 or in any
manner infringing the plaintiff's copyright as shown in Document No.1;
(b) granting a permanent injunction, restraining the defendant, by
themselves, their servants, agents, distributors, or anyone claiming
thorough them from manufacturing, distributing, advertising and or
offering for sale by using the impugned copyright AMIL's as shown in
Document No.2 in the course of their business both domestic and exports
upon the goods or in any media and use the same in invoices, letter heads
and visiting cards or by using any other Copyright which is in any way
visually, phonetically or deceptively similar to the plaintiff's Copyright
the picture mark as shown in Document No.1 or in any manner passing
off the plaintiff's copyright as AMIN's shown in Document No.1;
(c) directing the defendant to surrender to the plaintiff all the black
hennas, packing materials, cartons, advertisement materials and
hoardings, letter-heads, visiting cards, office stationery and all other
materials containing/bearing the impugned copyright AMIL's in respect
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Civil Suit No.338 of 2017
of black hennas;
(d) for a preliminary decree in favour of the plaintiff, directing the
defendant to render an account of profit made by them by the use of the
Trade Mark AMIL's on the goods referred and for a final decree in favour
of the plaintiff for the amount of the profits found to have been made by
the defendant, after the defendant have rendered accounts;
(e) directing the defendant to pay to the plaintiff the costs to the
suit;
For Plaintiff : M/s.C.Daniel and Gladys Daniel
For Defendant : Mr.P.V.Balasubramaniam
for M/s.BFS Legal
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JUDGMENT
This suit was filed by the plaintiff with the grievance that there
was infringement of the plaintiff's copyright by the defendant. Hence,
the plaintiff had sought for the relief of permanent injunction restraining
the defendant from infringing copyright. During the pendency of the
suit, the parties have arrived at a settlement and a memorandum of
compromise entered into between the plaintiff and the defendant has
been filed before this Court.
2. The terms of memorandum of compromise are extracted
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Civil Suit No.338 of 2017
hereunder:
'(a) The defendant acknowledges that the plaintiff is a
prior user of the suit Trademark/Copyright AMIN's as shown
in plaint document No.1 since 1998.
(b) It is agreed between the parties that the defendant
will continue to use the tradename AMIL/AMIL's in all
jurisdictions and geographies and would use the label,
artwork, color scheme on their carton/box/pouch/tubes etc.,
as is filed herein as ANNEXURE-A for their hennas/cosmetic
products.
(c) The defendant has not applied for
Copyright/Trademark applications in the name of
AMIN/AMIN's for registration. The defendant undertakes not
to apply in future for registration of the Copyright/Trademark
in the name of AMIN/AMIN's and the defendant undertakes
not to assert any right in respect of the Color scheme, get up
or layout as used by the plaintiff for their product AMINS as
is shown in the plaint document.
(d) The plaintiff has no objection to the use of the
puch/carton/box/tube etc., with the color scheme, artwork, get
up, lay out, tradename as shown in ANNEXURE A by the
defendant in all geographies and jurisdiction and plaintiff
agrees not to use the color scheme, artwork, get up or layout
as is agreed to be used by the defendant.
(e) The plaintiff submits that it has not applied for
Copyright/Trademark applications in the name of
AMIL/AMIL's for registration and will not apply in future for
registration of Copyright/Trademark in the name of
AMIL/AMIL's and will also not assert any right on respect of
color scheme, tradename, get up or layout as used in
AMIL/AMIL's henna/cosmetic products as impugned in the
suit.
(f) The parties agree that this agreement will be
binding on their successors and assigns.'
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Civil Suit No.338 of 2017
3. In view of the above, this Civil Suit is decreed in terms of
memorandum of compromise. The memorandum of compromise shall
form part of the decree. Consequently, connected applications are
closed, if any. There shall be no order as to costs.
15.11.2021
mk
Index : Yes/No
Speaking / Non-speaking
To
The Sub-Assistant Registrar,
Original Side,
High Court, Madras.
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Civil Suit No.338 of 2017
N.ANAND VENKATESH, J.,
mk
C.S.No.338 of 2017
15.11.2021
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