Trade Mark
Passing Off Suit [CD1]
Suit No…………of 2010
In
the High Court at Mumbai Ordinary Original Civil Jurisdiction
Plaintiff………….
versus..___
Defendant…………..
The plaintiff states:
1.
The plaintiff carries on business as the
manufacturer of and dealer in Electronic goods in Mumbai. The plaintiff has
agents in various places in India for sale of its products. The plaintiff's
products have acquired good reputation and its products have distinctive
features on the shape, size, layout marking as also the packaging.
2.
The plaintiff uses its Trade Mark XY on all its
products. The sale of the plaintiff's products are quite substantial both in
India and abroad.
3.
The plaintiff has advertised its products under
its said Mark extensively since the last six years and spent a minimum sum of
Rs. 6 lakhs on account thereof.
4.
By reason of such extensive advertisement and
sale of the products, the public associated the said mark XY to the plaintiff
and with the plaintiff's products. As such the plaintiff enjoys good reputation
abroad and throughout India including Mumbai within the jurisdiction of this
Hon'ble Court.
5.
The goods of the plaintiff are manufactured in
Mumbai and sold in domestic market and exported abroad. Particulars of the
sales for the last 5 years are given in a Schedule annexed hereto marked 'A'.
Copies of some newspaper cuttings of advertisements are annexed hereto
collectively marked 'B'. Particulars of advertisement costs year wise are given
in a Schedule annexed hereto marked 'C.
6.
The plaintiff compiled with all the necessary
formalities and provisions of law for the registration of its products under
the Trade Mark XY. The plaintiff's Trade Mark XY was registered with the
Registrar of Trade Marks, Chowringhee Road, Mumbai being Trade Mark No. 1 in
Class I in respect of the electronic goods and computers both hardware and
software. The Office of the Registrar of Trade Marks, the Register concerned and
the Record Containing registration of the plaintiff's said products are all
within the jurisdiction of this Hon'ble Court. Certified copies of the
application as also of the Certificate of Registration are annexed hereto
collectively marked 'D'.
7.
The said mark XY became very popular among the
purchasers of the plaintiff's products and the Mark XY became very much
associated with the plaintiff's products. On or about 10th September 2005 it
was brought to the plaintiff's knowledge by the Trade Marks
Registry, Mumbai that the respondent has applied for
registration of the alleged Trade Mark XZ for similar goods as that of the
plaintiff. A copy of the Letter of Registrar of Trade Marks, Mumbai is annexed
hereto marked 'E' informing the plaintiff of the said application of the
defendant.
8.
The defendant has been wrongfully selling the
electronic goods and computers software and hardware through its sale outlets
in Mumbai with the said Trade Mark XZ within the jurisdiction of this Hon'ble
Court. Copies of certain cash memos showing the dealer's name, address,
articles and the Trade Mark used thereon are annexed hereto collectively marked
'F'.
9.
The plaintiff states that the sale of the said
products by the defendant under the Trade Mark XZ has amounted to passing off
of the plaintiff's goods as the goods of similar description under a
deceptively similar Mark. The defendant has therefore infringed the plaintiff's
said Trade Mark in as much as the articles marked XZ is deceptively similar to
that of the plaintiff's Trade Mark XY and the goods are similar and of the same
description.
10.
The defendant's Trade Mark has been so much
similar to the plaintiff's Trade Mark that the defendant has been passing off
its goods as those of the plaintiff's goods and/or the defendant is enabling
the others to do so and thus the defendant is deriving the ultimate benefit out
of the reputation and goodwill of the plaintiff which the plaintiff was
enjoying during the last several years. Such goodwill and reputation were
created at a huge cost of the plaintiff.
11.
The plaintiff states that the conduct of the
defendant in respect of sale and advertisement of its products has been
fraudulent and deceptive in nature inasmuch as the same are calculated to
deceive the purchasers of the plaintiff's goods into believing that the
products of the defendant are very much similar to and very much connected with
the plaintiff. Thus the public have been made to wonder about the source or
origin of the products which are very much the same and/or of similar
description.
12.
The defendant is by reason of such sales and
advertisements causing great loss and injury to the public and to the
plaintiff. The plaintiff has suffered and is still suffering and will continue
to suffer substantial loss and injury if the defendant continues with its
wrongful acts. Until full discovery is made about the sales of the products of
the defendant the plaintiff is unable to quantify the total amount of financial
loss suffered by it and is likely to be suffered by the plaintiff due to the
wrongful acts of the defendant.
13.
The financial loss or injury caused to the
plaintiff by the wrongful acts and conduct of the defendant cannot be
ascertained and as such the compensation in money cannot be adequate and
sufficient relief for the damages and loss suffered and/or likely to be
suffered by the plaintiff.
14.
The plaintiff claims delivery up of the
infringing dies, blocks, labels etc. for cancellation and destruction. The
plaintiff states that the defendant is not entitled to sell its products or
advertise the same in the market under the Trade Mark XZ and as such the
defendant should be restrained from selling its products under the Mark XZ or
giving any publicity in respect thereof.
15.
The plaintiff's cause of action for the suit is
arising day-to-day inasmuch as the defendant is passing off its products as the
products of plaintiff, inter alia, in Mumbai and Chennai outside the said
jurisdiction and in Mumbai within the jurisdiction of this Hon'ble Court day to
day and every day till date and intends to continue to do so.
16.
The plaintiff's substantial cause of action
arose in Mumbai where the defendant sold its products wrongly under the Trade
Mark XZ similar to the mark of plaintiff deceiving the general public into
believing that they have been purchasing the goods of the plaintiff1. The
office of the Trade Marks Registry is situated at Chowringhee Road, Mumbai,
within the jurisdiction of this Hon'ble Court where the plaintiff's said Trade
Mark XY is registered. As the said passing off took place both outside and
within the said jurisdiction the plaintiff prays for leave under cl. 12 of the
Letters Patent to institute this suit in this Hon'ble Court inasmuch as part of
the cause of action arose within the jurisdiction of the Hon'ble Court and part
of the cause of action arose in Chennai where the defendant is manufacturing
the goods and packing the same with the deceptive Mark XZ and selling the same
with the object of passing off the same as goods of the plaintiff outside the
jurisdiction of this Hon'ble Court.
17.
The plaintiff has other causes of action and
also other claims for the continuing infringement of the plaintiff's Trade Mark
and passing off the products of the defendant as the product of the plaintiff
and as such the plaintiff has other claims which cannot be ascertained now and
prays for leave under Or. 2, r. 2 of the Code of Civil Procedure 1908 to take
further and appropriate legal proceedings in such Forum as the plaintiff may be
advised.
18.
For the purposes of jurisdiction and court fees
the suit is valued at Rs...............on...............which court fees in
stamps have been paid and as such this Hon'ble Court has the jurisdiction to
entertain, try and determine this suit.
19.
The plaintiff therefore prays for leave under
Clause 12 of the Letters Patent under Or. 2, r. 2 of the Code of Civil
Procedure 1908 and claims:
(a)
Permanent Injunction restraining the defendant,
its agents, servants and representatives from wrongfully selling the products
or offering for sale or otherwise dealing in any goods similar to the goods of
the plaintiff under the Trade Mark XZ or any other Mark deceptively similar to
plaintiff's Trade Mark XY;
(b)
A Decree for accounts of the profits earned by the
defendant by wrongful use of the mark XZ similar to the mark of the plaintiff's
Trade Mark XY and a decree for such amount in favour of the plaintiff against
the defendant as may be found due on taking the accounts;
(c)An enquiry into the damages suffered by the
plaintiff due to the wrongful acts of the defendant and a decree against the
defendant for the sum found due on such enquiry;
(d)Decree for delivery up of the infringing dies,
blocks, labels, etc. including the packing and advertising materials and
destruction thereof;
(e)Receiver;
(f) Attachment;
(g) Injunction;
(h) Costs;
(i) Further
and other reliefs as the plaintiff is entitled to in law and in equity.
Name and address of the
plaintiff's Advocate
Signature of the plaintiff
I……………..son of…………by occupation service residing
at…………do hereby solemnly affirm and say as follows:
I am a principal officer and the Constituted Attorney
of the plaintiff and as such I am competent to sign this plaint and all
petitions, Vakalatnamas and affirm affidavits on behalf of the plaintiff. I
know and I have made myself acquainted with the facts and circumstances of this
case and I am able to depose thereto. The statements contained in the
paragraphs 1 to 16 of the foregoing plaint including the cause title thereof
are true to my knowledge based on records maintained by the plaintiff and
believed by me to be true and those mentioned in paragraphs 17 to 19 are my
humble submissions before this Hon'ble Court.
Solemnly affirmed by the said
Mr……………….at the Court
House in Mumbai on this…….day
of 2010
Sd/.
Before me Commissioner
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