FAO (OS) No. 260/2008

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IN THE HIGH COURT OF DELHI AT NEW DELHI

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FAO (OS) No. 260/2008

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Reserved on: 9^th July, 2010

Decided on: 10^th September, 2010

Archie Comic Publications Inc

(A company organized and existing under the laws of

State of New York, USA) having its office at

325, Fayettee Avenue,

Mamaroneck,

New York 10543,

United States of America

C/o Mr. Sudhir D. Ahuja,

Having his office at:

53, Syed Amir Ali Avenue,

Calcutta-700 019.

..... Appellant

Through:

Mr. C.M. Lall, Mr. Jyotideep Kaur,

Ms. Ekta Sarin and Mr. Subhash

Bhutoria, Advocates.

versus

1. Purple Creations Pvt Ltd.

B-123, Ghatkopar Industrial Estate,

L.B.S. Marg, Agra Road,

Ghatkopar (West), Mumbai-400 086.

2. Nagji Kheraj Vira,

Director,

Purple Creations Pvt. Ltd.

B-123, Ghatkopar Industrial Estate,

L.B.S. Marg, Agra Road,

Ghatkopar (West), Mumbai-400 086.

3. Pankaj Nagji Vira,

Director,

Purple Creations Pvt. Ltd.

8, Ramnik Villa, Uday Cinema Lane,

5^th Road, Ghatkopar (West),

Mumbai-400 086.

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FAO (OS) No. 260/2008

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4. Dipak Nagji Vira,

Director,

Purple Creations Pvt. Ltd.

8, Ramnik Villa, Uday Cinema Lane,

5^th Road, Ghatkopar (West),

Mumbai-400 086.

..... Respondents

Through:

Mr. Sanjeev Sachdeva and Mr. Preet

Pal Singh, Advocates.

Coram:

HON'BLE MR. JUSTICE VIKRAMAJIT SEN

HON'BLE MS. JUSTICE MUKTA GUPTA

1. Whether the Reporters of local papers may

be allowed to see the judgment?

Yes

2. To be referred to Reporter or not?

Yes

3. Whether the judgment should be reported

in the Digest?

Yes

MUKTA GUPTA, J.

1. By way of the present appeal the Appellant lays a challenge to the

order dated 20^th April, 2008 whereby the application of the Appellant

being I.A. No. 5271/2006 in CS (OS) No. 1420/2005 under Order 6 Rule

17 CPC for amendment of the plaint was dismissed and the application

of the Respondents herein being I.A. No. 238/2006 under Order 7 Rule

11 CPC was allowed, thereby returning the plaint of the Appellant for

the purposes of filing before the competent Court.

2. The Appellant had instituted a suit inter alia for permanent

injunction,

infringement

of

trademark,

damages,

against

the

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FAO (OS) No. 260/2008

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Respondents claiming to be engaged in the field of printed matter,

paper articles, newspapers, periodicals, books, comic magazines,

cartoons strips, story books, films and a myriad of licensed products

including: glassware, lipstick, vanity sets, nailtips, body mist, clothing

items such as T-shirts, polo shirts, night-shirts and in particular

clothing for children, beach towels, hats etc. According to the

Appellant they are the proprietor of Archie Comic Publication Inc. and

own the “ARCHIE” trademark with its variations like “ARCHIE”,

“ARCHIE‟S”,

“LITTLE

ARCHIE”,

“THE

ARCHIES”

“THE

NEW

ARCHIES”, “ARCHIE COMICS” etc. It is claimed by the Appellant that

since they are using the said trademark “ARCHIE” since 1942, by

virtue of its long, continuous and extensive use consumers all over the

world, including those in India associate the trade mark “ARCHIE” with

that of the Appellant.

3. The Appellant had applied for registration of “ARCHIE and

Heads” on 17^th October, 1989 in Class 16 and it is claimed that they

have been extensively using this mark in India since 1979. According

to the Appellant they came to know that the Respondents have started

using their trademark for the first time in June, 2004 when they came

across an advertisement for the trademark “ARCHIES and device”,

“PURPLE ARCHIE” and “ARCHIES” in Class 25, which was published

in the trademark journals. The Respondents are allegedly involved in

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the business of manufacturing and selling kids wear under the said

trademark.