Madras High Court
Dalmia Cement (Bharat) Limited vs Baskar Cements on 17 August, 2022
C.S.(Comm. Div.) No.102 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 17.08.2022
Coram:
THE HONOURABLE MR.JUSTICE SENTHILKUMAR RAMAMOORTHY
C.S.(Comm. Div.) No.102 of 2021
Dalmia Cement (Bharat) Limited
Fagun Mansion,
26, Ethiraj Salai,
Egmore,
Chennai-600 008
Represented by its Power Agent
Mr.R.Deepak .. Plaintiff
Vs.
Baskar Cements
9/454-4 Kumaran Nagar,
Venus School Backside,
C.A.K. Road,
Karur-639 001. .. Defendant
This Civil Suit has been filed under IV Rule 1 of Original Side Rules
and Order VII Rule 1 of CPC read with Sections 51, 55 and 62 of the
Copyright Act, 1957 and Section 7 of the Commercial Courts, Commercial
Division and Commercial Appellate Division of High Courts Act, No.4 of 2016
praying to grant a judgment and decree on the following terms: (a) A
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C.S.(Comm. Div.) No.102 of 2021
permanent injunction restraining the Defendant, themselves, its
proprietor/directors/partners and other unknown persons as the case may be,
successors-in-business, servants, agents, distributors, dealers, stockists, shop
keepers, wholesalers, retailers, representatives, assigns and all other persons
claiming through or under them from manufacturing, selling and /or
distributing cement products under an identical/deceptively similar label from
committing acts of copyright infringement by copying the Plaintiff's copyright
in the artistic work of “Dalmia DSP Cement” label by use of an identical label,
colour scheme, get up and placement of features or any other label similar or
identical thereto and in any other manner whatsoever; (b) a permanent
injunction restraining the Defendant, themselves, its
proprietor/directors/partners and other unknown persons as the case may be,
successors-in-business, servants, agents, distributors, dealers stockists, shop
keepers, wholesalers, retailers, representatives, assigns and all other persons
claiming through or under them from manufacturing, selling, offering for sale
and / or distributing cement products which would amount to passing off their
cement as and for the Plaintiff's “Dalmia DSP Cement” products by using an
identical artistic work/Trade Dress or any other Trade Dress deceptively similar
to the Plaintiff's “Dalmia DSP Cement” Package in get up, lay out and
arrangement of features or in any other manner whatsoever; (c)The Defendant
be ordered to surrender to the Plaintiff for destruction all labels, cartons,
containers, packaging materials, blocks, dyes, prints, screen prints, notices,
pamphlets, advertisements, hoardings, and other promotional materials bearing
the packaging/label which is identical or deceptively similar to the Plaintiff's
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C.S.(Comm. Div.) No.102 of 2021
“Dalmia DSP Cement” label; (d) The Defendant be ordered to pay to the
Plaintiff a sum of Rs.10,00,000/- as damages for committing acts of
infringement of trademark, infringement of copyright and passing off; (e) a
preliminary decree be passed in favour of the Plaintiff directing the Defendant
to render true and faithful account of profits earned by them by use of the Ultra
Crete label/Package and 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; and (f) for entire cost of the suit.
For Plaintiff : Mr.Keerthikiran Murali for
M/s.Arun C.Mohan
For Defendant : M/s.Venkadeshan &
R.Nilavazhagan
JUDGMENT
The suit was filed seeking relief in respect of alleged copyright
infringement and passing off.
2. Upon receipt of notice, the defendant filed an affidavit dated
01.02.2022. In paragraph 4 of the affidavit, the defendant stated inter alia as
follows:
“.... However this defendant after receiving
summons in the above suit, in order to refrain from
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C.S.(Comm. Div.) No.102 of 2021
unnecessary litigation and also to purchase peace had
stopped using the impugned mark since then. This
defendant hereby undertakes that this defendant shall
not use the impugned mark in future also.”
3. The suit was instituted on the ground that the defendant had used the
labels depicted at paragraph 16 of the plaint at pages 11 and 14 thereof.
Therefore, the undertaking of the defendant applies to the labels depicted in the
above mentioned pages. In effect, the defendant has agreed not to use the said
labels.
4. On instructions, learned counsel for the plaintiff states that the
plaintiff is relinquishing the reliefs prayed for in clauses (c) to (f) of paragraph
29 of the plaint provided the defendant is restrained from using the above
mentioned label or any other label which is deceptively similar to the plaintiff's
labels, which are also depicted in the said page Nos.11 and 14. The defendant
agrees not to use such deceptively similar labels.
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C.S.(Comm. Div.) No.102 of 2021
5. In the result, C.S.(Comm. Div) No.102 of 2021 is partly decreed by
issuing a permanent injunction restraining the defendant from using the labels
depicted at pages 11 and 14 of the plaint or any other label which is deceptively
similar to the corresponding labels of the plaintiff at pages 11 and 14 thereof.
The labels of the plaintiff and defendant, respectively, at pages 11 and 14 of the
plaint shall form part and parcel of the decree. In view of the affidavit filed by
the defendant immediately upon receipt of notice, there will be no order as to
costs.
17.08.2022
Index : Yes/No
Internet: Yes/No
kal
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C.S.(Comm. Div.) No.102 of 2021
SENTHILKUMAR RAMAMOORTHY, J
kal
C.S.(Comm. Div.) No.102 of 2021
17.08.2022
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