Dilip Kumar Shaw. Vs. Sukumar Maity and ors.

.....with other marks such as meredian, merelane delux and merelane premium. see also, fuentes trade marks (1891, 2 ch.,166)." the above observations establish that it is a defence even to an action for passing off or infringement of a trade mark that the plaintiffs (in this case the respondents) marks are an imitation of the mark of another to wit that the respondents had themselves infringed the mark of another. it is thus clear that the principle was applied to an action for infringement of trade mark and passing off. if the purchasers were in such a case to stamp their goods with the trade mark, "a.b. the basis of the ratio is to deny an infringer a right based on the mark or work which infringes the mark or work of another. the respondents in their affidavit in rejoinder denied the allegations that they had infringed the mark of state express 555. there are no averments, much less is there any evidence, to indicate that the respondents' marks/cartons/labels are an imitation of the mark state express 555. it is significant to note that there is no evidence whatsoever to the effect that the third party has used the mark 555 or created the labels/cartons or marks prior to the creation of and use by the respondents of these marks/labels and cartons which may have persuaded the court to come to the conclusion that the respondents had infringed the mark. if it is established that the mark is a well known mark, the mark being used in respect of different goods may make no difference. firstly, whether the principle would apply even if the mark is not established to be a well known mark. secondly, whether the principle would apply if such a mark i.e. not a well known mark, infringed by the respondents is applied to different goods. the goods need not be identical even if a well known mark is not involved. .....2009 passed by the learned civil judge (junior division), sixth court, alipore in rent control case no.37 of 2005 thereby rejecting an application filed by the defendant for dismissing the suit on the ground of being not maintainable.2. the short fact is that the plaintiffs/opposite parties filed an application under section 6 of the west bengal premises tenancy act, 1997 for eviction of the petitioner herein on the ground of default, sub-letting, reasonable requirement, etc. in that suit, the defendant/petitioner filed an application raising the question of maintainability of the suit. that application was rejected by the order impugned. being aggrieved, this application has been preferred.3. upon hearing the learned counsel for the parties and on perusal of the materials on record, i find that the contention of the petitioner is that the said r.c. case no.37 of 2005 is not maintainable in view of the provisions of section 8(3) of the west bengal thika tenancy (acquisition & regulation) act, 2001. the petitioner has contended that such an application for eviction is to be filed before the controller. but, in the instant case, the application was filed before the learned civil judge (junior division). the application was filed on february 2, 2005 for eviction on the grounds already stated. the plaintiffs/opposite parties have clearly stated that they are the thika tenants in respect of the land of the premises in suit and that the petitioner is a bharatia under them.4. this being the position, in view of the provision relating to the disputes between a thika tenant and his bharatia, so far as the eviction proceeding is concerned, the same shall be guided by the provisions of the west bengal premises tenancy act, 1997. in fact, an application under section 6 of the west bengal premises tenancy act, 1997 has been filed for eviction against the petitioner before the additional rent controller at alipore. the learned additional rent controller at alipore is included.....