IA Nos. 5840/2007 & 1827/2007 in CS (OS) No.900/2007

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IN THE HIGH COURT OF DELHI AT NEW DELHI

Pronounced on: 04.05.2010

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I.A. Nos. 5840/2007& 1827/2007

in CS(OS) No. 900/2007

KLAS TAPE COMPANY

..... Plaintiff

Through: Mr. H.P. Singh, Advocate.

versus

VINOD HARDWARE STORE & OTHERS ..... Defendants

Through: Mr. Manav Kumar with

Mr. Sushant Singh, Advocates.

CORAM:

MR. JUSTICE S. RAVINDRA BHAT

1.

Whether the Reporters of local papers

Yes.

may be allowed to see the judgment?

2. To be referred to Reporter or not?

Yes.

3. Whether the judgment should be

Yes.

reported in the Digest?

MR. JUSTICE S.RAVINDRA BHAT

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1. This order will dispose of an application for ad-interim injunction moved by the plaintiff

(IA 5840/2007) and the other related application (IA 1827/2007), both filed by the plaintiff, for

interim stay.

2. The plaintiff, by this suit, seeks a decree for permanent injunction to restrain the

defendants, their licencees as the case may be, their servants and agents, distributors, stockists

and the like (or anyone acting on their behalf) from manufacturing, marketing, selling, offering

for sale, advertising, directly or indirectly or dealing with, or passing off in any manner, the

measuring tapes having shape, configuration, label identical to or resembling the plaintiff‟s

2010:DHC:2505

IA Nos. 5840/2007 & 1827/2007 in CS (OS) No.900/2007

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registered trade mark BILLI and/or CAT, and from infringement of Copyright as well as Design

thereof.

3. The plaintiff is a partnership firm, established in the year 1986 under the trading

name/style “BLOOMING BUDS”, carrying on its business at, 41, Sarang Street, Mumbai-400

003, entered into the business of manufacturing and marketing measuring tapes of wide variety

under the trademark/trade-name „CAT, KLAS BILLIand/or DEVICE OF A CAT/BILLI‟. The

said partnership firm changed its name from “BLOOMING BUDS” to “KLAS TAPE CO.” with

effect from 1^st of April, 1995 with the same partners continuing.

4. The plaintiff in respect, of each of its trademark, viz. BILLI, DEVICE OF A CAT, KLAS

BILLI, and CAT claims to be the creator and originator of the artistically designed labels and

outer packing boxes/cartons, which bear an original work of art. Furthermore, says the plaintiff,

the word BILLI, CAT and/or DEVICE OF A CAT/ BILLI forms a prominent feature of the

trading style/trade name and these words are identified with the plaintiff alone. It is submitted

that the plaintiff‟s said labels/cartons in respect of the product, consists of original artistic work

and is registered under the Copyright Act, 1957 under No. A-57712/99. The usage of the mark in

respect of the measuring tape as also the registered proprietor of the mark KLAS MASTER in

Class 09 under the number 547192-B is with effect from 15^th March 1991.

5. The plaintiff contends that its product viz. measuring tape is unique and distinctive and

has a new and original shape, configuration, ornamentation and design as regards its outer shape.

The proprietor has also registered the proprietary design in relation to measuring tapes, in India,

under the provisions of the Designs Act, 2000; the design was registered as No. 188336 in

Class10.7. It is argued by the plaintiff that the said marks are etched in the minds of the

purchasing public, who are mainly, an illiterate class of workers and labourers who recognize

demand for the product as „BILLI‟ product, without identifying/ associating anything else, and in

the trade, to be exclusively associated with that of the plaintiff. The plaintiff states that after

registration of the said design and subsequent launch has witnessed a phenomenal and ever

increasing sale of the said product.

6. The plaintiff claims to have spent lakhs of Rupees towards publicity and advertising, in

various media, owing to which the tradema