Sri Preety Kumar Mullick and ors. Vs. Union of India and ors. - Court Judgment

Excerpt:
[mohit s. shah; s.j. vazifdar, jj.] - the respondents contended that they are the proprietors inter-alia of the trade mark 555 written in a stylized manner. the respondents claim to be the assignees of this mark. the mark was assigned from time to time. ultimately by a deed of assignment dated 14.9.2004, the registered trade mark label 555 was assigned to the respondents. the application for renewal of the mark is pending. the respondents have used the trade mark label 555 in conjunction 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. 1. the court :- the petitioners in this art.226 petition dated november 9, 2010 are seeking a mandamus commanding the first five respondents to pay water tax demanded or to be demanded by the kolkata municipal corporation and also to reimburse them proportionately with respect to water tax they have already paid for the premises parts whereof have been rented by those respondents. 2. counsel concedes that the tenancies were created according to the provisions of the transfer of property act, 1882 and that the tenants are entitled to protections under provisions of the west bengal premises tenancy act, 1997. faced with the question of maintainability of the petition, he has referred me to orders of this court made in two previous art.226 petitions and has said that seeking the reliefs the petitioners are entitled to approach the high court under art.226. 3. it is evident from the orders made in the previous cases that in none of them the question whether an art.226 petition concerning the tenancy is maintainable before the high court was raised or examined. 4. in my opinion, the petition is not maintainable. in the refusal, if any, on the part of the first five respondents or anyone of them to pay water tax, in my opinion, no element of public law is involved. the obligation, if any, is a private law obligation according to the terms and conditions of the respective tenancies. 5. in my opinion, the petitioners remedy, if any, was before the civil court or the forum, if any, mentioned in the statutes applicable to the tenancies. they are not entitled to approach the high court under art.226. 6. for these reasons, the petition is dismissed. no costs.

Judgment:
1. The Court :- The petitioners in this art.226 petition dated November 9, 2010 are seeking a mandamus commanding the first five respondents to pay water tax demanded or to be demanded by the Kolkata Municipal Corporation and also to reimburse them proportionately with respect to water tax they have already paid for the premises parts whereof have been rented by those respondents.

2. Counsel concedes that the tenancies were created according to the provisions of the Transfer of Property Act, 1882 and that the tenants are entitled to protections under provisions of the West Bengal Premises Tenancy Act, 1997. Faced with the question of maintainability of the petition, he has referred me to orders of this Court made in two previous art.226 petitions and has said that seeking the reliefs the petitioners are entitled to approach the High Court under art.226.

3. It is evident from the orders made in the previous cases that in none of them the question whether an art.226 petition concerning the tenancy is maintainable before the High Court was raised or examined.

4. In my opinion, the petition is not maintainable. In the refusal, if any, on the part of the first five respondents or anyone of them to pay water tax, in my opinion, no element of public law is involved. The obligation, if any, is a private law obligation according to the terms and conditions of the respective tenancies.

5. In my opinion, the petitioners remedy, if any, was before the Civil Court or the forum, if any, mentioned in the statutes applicable to the tenancies. They are not entitled to approach the High Court under art.226.

6. For these reasons, the petition is dismissed. No costs.