Complaint
for infringement of trade mark [CD1]
Complainant
versus…
Accused opposite party
The humble petition of the
Complainant above-mentioned most respectfully
Sheweth:
1.
RP Co. Ltd. is a
manufacturer of and dealer in Computers for office purposes having its
registered office in San Francisco, U.S.A. and a Branch at No. 1 D.N Road,
Mumbai, Police Station Hare Street.
2.
The complainant is the
Registered Proprietor of the Trade Mark comop in respect of the computer for
office purposes and its components being Registered Trade Mark No. 5 in Class I
in respect of Computers for office purposes and its components. A certified
copy of the registration of the said Trade Mark which is subsisting is annexed
hereto marked 'A'.
3.
The complainant made
application for registration of the said Trade Mark at the Trade Mark Registry,
15/1 Jawaharlal Nehru Road, Mumbai within the jurisdiction of this Learned
Court. The said application was advertised in Trade Marks Journal No. 6
dated………..at page 10. A Xerox copy of the said advertisement as appearing in
the said Journal in relation to the said Trade Mark is annexed hereto marked
'B'.
4.
The said Trade Mark is valid
and subsisting and will remain to be so for another three years.
5.
The complainant is the
Registered Proprietor of the said Trade Mark and has been using the same in
India and abroad since last several years.
6.
The complainant has spent
huge sums of money for advertisement in respect of the said Trade Mark.
Particulars of expenses are given in a Schedule annexed hereto marked 'C-
7.
The sale of the computers
under the said Trade Mark both in Indian market and in foreign markets for the
last 10 years are given in a schedule annexed hereto marked 'D'.
8.
The complainant has been
spending huge sums of moneys in carrying out the sales promotion and publicity
of its products under the said Trade Mark and built up high reputation about
the goods, goodwill and utility of its products and the name has been
associated in the minds of the purchasing public with the name of the
complainant and no one else and the said Trade Mark and no other Trade Mark.
Such reputation and goodwill are still enjoyed by the complainant in Mumbai and
elsewhere in India and abroad.
9.
The complainant has recently
come to know that the accused opposite party is using an identical Trade Mark
in respect of computers for office use with similar description to those of the
complainant and selling the same in the market in Mumbai. The accused opposite
party has also issued advertisements and leaflets and packing materials/cash
memos which will show that the name of the complainant has been falsely used by
the accused opposite party. Copies of certain cash memos, advertisement
materials and cartons and labels are annexed hereto collectively marked 'E'.
10.
The accused opposite party
made deceptive sales of and deceptive advertisements in Mumbai within the police
station Hare Street and within the jurisdiction of this Learned Court. The
office of the accused opposite party is also situated within the Police Station
Hare Street, Mumbai and the advertisements of the complainant's Trade Mark also
appeared in the newspapers appearing in places within the Police Station Hare
Street, Mumbai within the jurisdiction of this Learned Court.
11.
The complainant is the
Registered Proprietor of the said Trade Mark and is using the same and the said
Trade Mark has acquired high reputation as will be evident from the documents
annexed hereto as also the fact of deceptive use of the identical mark in
respect of the computers for office purposes and/or of similar description by
the accused opposite party and "false trade description" within the
meaning of s. 2(1)(f) of Trade and Merchandise Marks Act 1958. The accused
opposite party has falsified the said Trade Mark of the complainant inasmuch as
the accused has used the Trade Mark without the assent of the complainant, the
Registered Proprietor of the Trade Mark, and has made and used that Trade Mark
as deceptively similar Mark. The accused opposite party has thus committed
offence under s. 57(1) of the Trade and Merchandise Marks Act 1958.
12.
The accused opposite party
has falsely applied the complainant's Trade Mark to the accused's own goods on
packages and cartons containing those goods, namely, computers for office
purposes without the assent of the complainant being the Registered Proprietor
of the said Trade Mark com of. The accused opposite party has thus committed
offence under s. 77(2) of the Trade and Merchandise Marks Act 1958.
13.
The accused opposite party
has packed, wrapped and put in cartons sub-standard products for sale to the
unwary purchaser falsifying the complainant's said Trade Mark COMOF thereon and
thus the accused has also committed an offence under s. 420 of the Indian Penal
Code.
14.
The accused opposite party
has committed offences under the said Trade and Merchandise Marks Act 1958
under ss. 78 and 79 thereof and also under the Indian Penal Code and is thus
liable to be punished accordingly.
15.
The complainant submits that
cognizance should be taken of the offences committed by the accused opposite
party and processes issued and the accused be tried and punished in accordance
with the provisions of law.
16.
The said offences have been
committed, inter alia, at places within the Police Station Hare Street, Mumbai
and the accused also carried on business and/or is situated at a place within
the Police Station Hare Street, Mumbai within the jurisdiction of this Learned
Court.
17.
Your petitioner therefore
prays Your Honour to issue process against the accused opposite party for
offence committed under ss. 77, 78 and 79 of the Trade and Merchandise Marks
Act 1958 and under s. 420 of the Indian Penal Code and to try and punish him in
accordance with law.
Verification[CD2]
I.........son
of 2010 by occupation service working for gain at 1 D.N Road, Mumbai do hereby
solemnly affirm and say as follows:
I
am the Constituted Attorney and a principal officer of the RP Co. Ltd. at its
Mumbai Office, I know and I have made myself acquainted with the facts and
circumstances of this case and I am able to depose thereto. I am duly
authorised and competent to make the present complaint and also sign the
verification.
I
do make verify the complaint for and on behalf of RP Co. Ltd.
The
statements in paragraphs Nos. 1 to 14 above are true to my knowledge based on
information derived from record maintained by RP Co. Ltd. at its Mumbai Office
and believed by me to be true and those in paragraph Nos. 15 and 16 hereof are
my humble submissions to this Learned Court.
Solemnly affirmed by
the said Mr. ..................-at Court House
at Bank shall Street, Mumbai on this 15th day of November 2010.
Before
me Magistrate
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