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2007 Supreme(Bom) 1450

BOMBAY HIGH COURT
Before : A.M.KHANWILKAR, J.
Tele Mart Inc. .. Plaintiff
Versus
GTM Tele Shopping Pvt.Ltd. .. Respondents
Notice of Motion No. 3402 of 2007 In Suit No. 2501 of 2007 along with Notice of Motion No. 3737 of 2007 and Chamber Summons No. 1640 of 2007 In Suit No. 2501 of 2007,
decided on 8th October, 2007.

Advocates:
Advocate Appeared
Mr. Amit Jamsandekar i/by D.H.Law Associates for plaintiffs.
Mr. D.D.Madon, Sr.Adv. a/w Mr. S.V. Rajeshwar for defendants 1 and 2.

Headnote:(a) Copy Right Act, 1957, Section 51--Trade Marks Act, 1999, Section 134—Code of Civil Procedure, 1908, Sections 19, 20 and 120--Letters Patent Clause 12--Iinfringement of copy right and action of passing off and for compensation--Defendant carrying on business at Indore--No leave has been sought before moving for ex parte ad-interim relief--Plaintiff not making out any case regarding part of cause of action having arisen within limits of Bombay--Notice of motion for grant of interim relief rejected with exemplary cost by holding that Bombay High Court has no territorial jurisdiction.[Paras 29]

       (b) Code of Civil Procedure, 1908 Section 20 r.w. Section 120--Letters Patent, Clause 12--Original jurisdiction of High Court--Principle underlying Section 20 of Code of civil Procedure,1973 cannot be pressed into service, in so far as Suit filled before High court.[Para 17]

Judgment

1. The plaintiff claiming to be a registered Partnership Firm, instituted this suit, inter alia, seeking to restrain the defendant from infringing the plaintiff’s copyright in respect of artistic and literary works, sound recording, film computer programme and from committing acts of passing off their products as that of the plaintiff’s by using the label/trade dress similar and/or deceptively similar to the plaintiff label/trade dress and by using the plaintiff’s trade mark ‘English Guruji’ which is deceptively similar to the plaintiff’s mark and by issuing deceptively similar advertisements of the products and by using the persona of the advertiser and its distinctive features, which is solely and exclusively associated with the plaintiff. The plaintiff has claimed reliefs, inter alia, of permanent injunction, delivery of, accounts of profit and/or damages etc.. The plaintiff has claimed following reliefs in the suit :- (a) That the Defendant by itself, its servants, directors, agents, distributors, stockists and/or any other person claiming through, by or under it be restrained by a perpetual order and injunction of this Hon’ble Court from in any manner, directly and/or indirectly, using, reproducing in any manner and/or in any format the impugned label/trade dress or exporting, or exposing for sale any goods, bearing the impugned label/trade dress, being Ex."L" hereto and/or any other label/trade dress which is a colourable imitation or substantial reproduction of the Plaintiff’s artistic works so as to infringe the Plaintiff’s copyright in the said label/trade dress, being Ex."B" and "C" hereto and/or in any manner using or reproducing the impugned literary work being Ex."M" hereto or any substantial part thereof for selling any of its products so as to infringe the Plaintiff’s copyright in the literary work being Ex."D" hereto; (b) That the Defendant by itself, its servants, directors, agents, distributors, stockists and/or any other person claiming through, by or under it be restrained by a perpetual order and injunction of this Hon’ble Court from in any manner, directly and/or indirectly, using, reproducing/ copying the contents of the compact disc of the Plaintiff being Ex.F hereto and/or using the same in any format or for sale of any of it’s products exporting or exposing for sale or communicating it to the public or issuing copies of the impugned Compact disc being Ex."N" hereto or in any other manner or form so as to infringe the plaintiff’s copyright in the literary and artistic work and the sound recording and the cinematograph film and the computer program stored/depicted in the compact disc, being Ex."F" hereto; (c) That the Defendant by itself, its servants, directors, agents, distributors, stockists and/or any other person claiming through, by or under it be restrained by a perpetual order and injunction of this Hon’ble Court from in any manner, directly and/or indirectly, using, applying, affixing the impugned mark "English Guruji" and/or any other mark similar/deceptively similar to the Plaintiff’s mark "English Guru" in respect of any goods, products or services sold by the Defendant so as to pass off or enable others to pass off the Defendant’s goods, products or services as and for the goods and services of the Plaintiff’s. (d) That the Defendant by itself, its servants, directors, agents, distributors, stockists and/or any other person claiming through, by or under it be restrained by a perpetual order and injunction of this Hon’ble Court from in any manner, directly and/or indirectly, using, affixing, applying the impugned label/trade dress being Ex."L" hereto or any other label/trade dress similar or deceptively similar to the Plaintiff’s label/trade dress being Ex.B and C hereto so as to pass off or enable others to pass off the Defendant goods as and for the goods and services of the Plaintiff. (e) That the Defendant by itself, its servants, directors, agents, distributors, broadcasting org


















































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