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IN THE HIGH COURT OF JUDICATURE AT MADRAS Reserved on : 11.03.2021 Pronounced on :01.04.2021 CORAM THE HONOURABLE MR. JUSTICE C.V.KARTHIKEYAN O.A.Nos.359, 360, 361 and 362 of 2020 and A.Nos.423, 424 and 425 of 2021 in C.S.(Comm.Div) No.203 of 2020 O.A.Nos.359, 360, 361 and 362 of 2020 in C.S.(Comm.Div) No.203 of 2020 Manohar Singh Proprietor trading as M/s.Singh Mehandi Industries # 160m 10th Block, Above Annapoorneshwari Nagar Police Station, Service Road, Outer Ring Road, Nagarbhavi 2nd Stage, Bengaluru – 560072. ... Applicant/Plaintiff (in all Original Applications)
Vs.
1.Vimal Sehnaaz (India)
Samdar Castle, Flat No. G-2, Plot No.5, Chinnammal Nagar, Puzhuthivakkam, Chennai – 600091.
2.Golecha Henna World, Samdar Castle, Flat No. G-2, Plot No.5, Chinnammal Nagar, Puzhuthivakkam, Chennai – 600091.
3.Kalu Singh Rathore, Proprietor trading as M/s.Aditya Raj Mehandi Product, House No.11, Raj Hans Colony, Brahmapuri, Jaipur – 302 002.
Rajasthan.
4.Manak Fancy
356 Mint Street, Sowcarpet, Chennai – 600079.
5.Bharat Trading Co.
#Shop No.6,7 #11-42-29/30, Rathi Towers, Ramgopal Street, Vijayawada – 520001, Andhra Pradesh.
6.Ranawat Mehandi Industries H-101, IIIrd Phase, Industrial Area, Sojat, Rajasthan – 306104.
7.Radha Madhav Agency Pandey Hatta Chauraha, Raiganj Sauth Post – Gita press District – Gorkhpur, Uttar Pradesh – 273005.
8.Shree Radha Rani Enterprises
9/37 Shakuntla Complex Kanwari Ganj, Aligar, Uttar Pradesh – 202001.
9.Kamal Traders
225, Rama Krishna Market, Khanda Choti Choppar, Rajasthan - 302001.
10.GD Enterprises Near UCO Bank, Sundar Das Marg, Jhunjhunu, Rajasthan – 303303.
11.Nagpal Enterprises Shop No.21A, 1st Floor, Sadar Bazar, Sadar Bazar Road, Sri Ganga Nagar, Rajasthan – 335001.
12.Himanshu Traders Old Anaj Mandi, Bandikui, Rajasthan – 303313.
13.Amar Agencies Ward No.15, Girl School Road, Bandikui the Baswa, Rajasthan – 303313.
14.Aaditya Traders Bandikui Road, 2nd Floor, Near UCO Bank, Sikandra, Sikrai, Jhunjhunu, Rajasthan – 303326.
15.Vishvanath Sanjay Kumar Naman Tower, 2nd Floor, Near UCO Bank, Rani Sati Road, Jhunjhunu, Rajasthan – 333001.
16.Vikas Novelty Sedhi Complex, 1st Floor, Purohitji Ka Katla, Near Badi Choupad, Jaipur – 302002.
17.Mehandi House Ward No.9, Opposite Old Telephone Exchange Sadulsahar, Sri Ganganagar, Rajasthan – 335062.
... Respondents / Defendants (in all Original Applications)
A.Nos.423, 424 and 425 of 2021 in O.A.Nos.359, 360 and 362 of 2020 in C.S.(Comm.Div) No.203 of 2020 Kalu Singh Rathore, Proprietor trading as M/s.Aditya Raj Mehandi Product, House No.11, Raj Hans Colony, Brahmapuri, Jaipur – 302 002.
Rajasthan.
...Applicant/3rd Respondent/3rd Defendant (in all applications)
Vs.
1.Manohar Singh Proprietor trading as M/s.Singh Mehandi Industries # 160m 10th Block, Above Annapoorneshwari Nagar Police Station, Service Road, Outer Ring Road, Nagarbhavi 2nd Stage, Bengaluru – 560072. ...Respondent / Applicant / Plaintiff (in all applications)
2.Vimal Sehnaaz (India)
Samdar Castle, Flat No. G-2, Plot No.5, Chinnammal Nagar, Puzhuthivakkam, Chennai – 600091.
3.Golecha Henna World, Samdar Castle, Flat No. G-2, Plot No.5, Chinnammal Nagar, Puzhuthivakkam, Chennai – 600091.
4.Manak Fancy
356 Mint Street, Sowcarpet, Chennai – 600079.
5.Bharat Trading Co.
#Shop No.6,7 #11-42-29/30, Rathi Towers, Ramgopal Street, Vijayawada – 520001, Andhra Pradesh.
6.Ranawat Mehandi Industries H-101, IIIrd Phase, Industrial Area, Sojat, Rajasthan – 306104.
7.Radha Madhav Agency Pandey Hatta Chauraha, Raiganj Sauth Post – Gita press District – Gorkhpur, Uttar Pradesh – 273005.
8.Shree Radha Rani Enterprises
9/37 Shakuntla Complex Kanwari Ganj, Aligar, Uttar Pradesh – 202001.
9.Kamal Traders
225, Rama Krishna Market, Khanda Choti Choppar, Rajasthan - 302001.
10.GD Enterprises Near UCO Bank, Sundar Das Marg, Jhunjhunu, Rajasthan – 303303.
11.Nagpal Enterprises Shop No.21A, 1st Floor, Sadar Bazar, Sadar Bazar Road, Sri Ganga Nagar, Rajasthan – 335001.
12.Himanshu Traders Old Anaj Mandi, Bandikui, Rajasthan – 303313.
13.Amar Agencies Ward No.15, Girl School Road, Bandikui the Baswa, Rajasthan – 303313.
14.Aaditya Traders Bandikui Road, 2nd Floor, Near UCO Bank, Sikandra, Sikrai, Jhunjhunu, Rajasthan – 303326.
15.Vishvanath Sanjay Kumar Naman Tower, 2nd Floor, Near UCO Bank, Rani Sati Road, Jhunjhunu, Rajasthan – 333001.
16.Vikas Novelty Sedhi Complex, 1st Floor, Purohitji Ka Katla, Near Badi Choupad, Jaipur – 302002.
17.Mehandi House Ward No.9, Opposite Old Telephone Exchange Sadulsahar, Sri Ganganagar, Rajasthan – 335062.
...Respondents/Defendants (in all applications)
Prayer in O.A.Nos.359 of 2020:- This Original Application filed under Order XIV Rule 8 of Original Side Rules read with Order XXXIX Rule 1 & 2 of C.P.C., praying that this Court should not be pleased to grant an interim injunction restraining the respondents/defendants, their men, assigns, servants, agents, officers, distributors, representatives, or anyone claiming through or under them from in any way or manner passing off and enabling others to pass off their products by using the mark 'BANSURi” or any other mark and /or getup and/or colour combination that is deceptively and/or phonetically and/or visually similar to that of the plaintiff's mark Bansuri in any way or manner whatsoever pending the disposal of the above suit and an ad interim injunction pending the disposal of the present application.
Prayer in O.A.Nos.360 of 2020:- This Original Application filed under Order XIV Rule 8 of Original Side Rules read with Order XXXIX Rule 1 & 2 of C.P.C., praying that this Court should not be pleased to grant an interim injunction restraining the respondents/defendants, their men, assigns, servants, agents, officers, distributors, representatives or anyone claiming through or under them from in any way or manner infringing the plaintiff's copyright over and in respect of his artistic work Bansuri by use of any work and / or mark which is identical and/or deceptively similar to the artistic work of the plaintiff pending the disposal of the above suit and an ad interim injunction pending the disposal of the present application.
Prayer in O.A.Nos.361 of 2020:- This Original Application filed under Order XIV Rule 8 of Original Side Rules read with Order XXXIX Rules 1 & 2 of C.P.C., praying that this Court should not be pleased to grant an interim injunction restraining the respondents/defendants, their men, assigns, servants, agents, officers, distributors, representatives, or anyone claiming through or under them from manufacturing, selling, offering for sale and distributing mehandi cones and or any other cosmetic products using the mark 'BANSURi” and /or any other mark which is deceptively and/or phonetically and/or visually similar to that of the plaintiff's mark Bansuri pending the disposal of the above suit and an ad interim injunction pending the disposal of the present application.
Prayer in O.A.Nos.362 of 2020:- This Original Application filed under Order XIV Rule 8 of Original Side Rules read with Order XXXIX Rules
1 & 2 of C.P.C., praying that this Court should not be pleased to grant an interim injunction restraining the respondents/defendants, their men, assigns, servants, agents, officers, distributors, representatives, or anyone claiming through or under them from in any way or manner infringing plaintiff's registered trademark Bansuri by using the mark 'BANSURi” or any other mark which is deceptively similar and/or identical and /or phonetically similar as that of the plaintiff's registered trademark Bansuri in any way or manner whatsoever pending the disposal of the above suit and an ad interim injunction pending the disposal of the present application.
Prayer in A.No.423 of 2021 in O.A.No.359 of 2020:- This Application filed under Order XIV Rule 8 of Original Side Rules read with Order XXXIX Rule 4 of C.P.C., praying to vacate the interim injunction granted in O.A.No.359 of 2020 in C.S.No.203 of 2020 Order dated
02.09.2020.
Prayer in A.No.424 of 2021 in O.A.No.362 of 2020:- This Application filed under Order XIV Rule 8 of Original Side Rules read with Order XXXIX Rule 4 of C.P.C., praying to vacate the interim injunction granted in O.A.No.362 of 2020 in C.S.No.203 of 2020 Order dated
02.09.2020.
Prayer in A.No.425 of 2021 in O.A.No.360 of 2020:- This Application filed under Order XIV Rule 8 of Original Side Rules read with Order XXXIX Rule 4 of C.P.C., praying to vacate the interim injunction granted in O.A.No.360 of 2020 in C.S.No.203 of 2020 Order dated
02.09.2020.
For Applicant : Rajeev Kumar Jain, Senior Counsel For Mr.Vivek Menon in O.A.Nos.359 to 362 of 2020 and A.No.1833 of 2020 For Applicant : Mr.R.Priyakumar in A.Nos.423 to 425 of 2021
COMMON ORDER
O.A.Nos.359 to 362 of 2020 have been filed by the plaintiff in the suit seeking an order of interim injunction restraining the respondents / defendants from passing off their products by using the mark 'BANSURI' or any other mark deceptively or phonetically or visually similar to the plaintiff's mark 'BANSURI' pending disposal of the said suit and for an order of interim injunction restraining the respondents / defendants from infringing the copyright of the plaintiff with respect to the artistic work 'BANSURI' and for an interim injunction restraining the respondents / defendants from offering for sale and distribute Mehandi cone or any other cosmetic products using the mark 'BANSURI' and for an interim injunction restraining the respondents / defendants from infringing the registered trademark of the plaintiff 'BANSURI'.
2.These applications came up for consideration on 02.09.2020 and holding that a prima facie case had been made out by the plaintiff and that the balance of convenience was also in favour of the plaintiff, an order of ex-parte interim injunction as prayed was granted in O.A.No.359, 360 and 362 of 2020. The said orders of injunction are still in force.
3.It is also to be mentioned that pending the proceeding, the plaintiff had entered into a Memo of Compromise with the 4th, 11th, and 15th defendants. The Memos of Compromise have also filed into the Court and the Court had also passed a judgment dated 25.02.2021 recording the Memo of Compromise as against the 4th defendant and partly decreed the suit with respect to reliefs A, B, C and D relating to grant of injunction as stated above and dismissed the suit as against the
4th defendant with respect to reliefs.
4.The 3rd defendant had filed A.Nos.423 of 2021, 424 of 2021 and
425 of 2021 seeking to vacate the interim injunction in O.A.Nos.359 of
2020, 360 of 2020 and 361 of 2020.
5.The plaintiff, Manohar Singh, Proprietor, trading as M/s.Singh Mehandi Industries, having address at Bengaluru, had filed the suit as against the 17 defendants seeking protection of the registered copyright with respect to the artistic packaging and also seeking protection of the registered trademark 'BANSURI' from infringement. It is to be noted that the plaintiff is carrying on business in manufacturing and marketing various Mehandi products which are categorized as Herbal / Ayurvedic Cosmetic Products. They manufacture and market Mehandi Powder, Mehandi Paste and Herbal Hair Dyes. The plaintiff has its head office at Bengaluru and has various other offices across the country including M/s.Singh Mehandi & Cosmetics at Rajastan, Singh Mehandi Industries Private Limited and Singh Mehandi Industries, a Partnership Firm. All these entities have been constituted as one single unit. The plaintiff claimed that their business has spread throughout the length and breadth of the country.
6.The plaintiff seeks protection of their copyright and trademark (Logo and Trademark word) and a pictorial representation of the same is shown below:
7.The plaintiff claimed that they are in this business from the year
1997 and have been using the mark 'BANSURI' both logo and word mark and also the copyright in the artistic design and colour scheme continuously and they also claimed that they have built up substantial market across the country. This reflected in the turnover for the financial year 2019-2020 which was Rs.62,51,73,490/- till 17.03.2020. They had also expended a sum of Rs.4,07,59,456/- in promoting their products.
8.In the plaint, it had been further stated that the plaintiff had come across the 3rd defendant, who attempted to copy and imitate the plaintiff's registered copyright over the artistic packing and registered trademark 'BANSURI'. This was in the year 2012. The plaintiff gave a complaint before the jurisdictional Police Station on 26.07.2012 under various sections of the Indian Penal Code and Copyright Act, 1957. The defendants stopped the sales of the infringing products. Therefore,
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