Radhe Shyam Saraf (Huf) and ors. Vs. Central Bank of India - 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. g.a 2485 of 2009 and g.a 2486 of 2009 have been filed for return of the plaint on the ground of lack of pecuniary jurisdiction and the plaint not 2 disclosing any cause of action. such applications have been filed in 2009 i.e. much after the filing of the application filed under chapter xiiia. in fact the applications have been filed after the hearing had commenced and the same is an afterthought and belated. the only reason given for the delayed filing is miscommunication between the defendant and its erstwhile advocate, who has been changed only for the purposes of filing the said applications. except for the said bald explanation, backed by no particulars, no other explanation is forthcoming for the said delay. 2. as held in various decisions that the banks affairs are looked after by its officers for whose delay the bank should not be penalised will not come to the defendants aid as the bank has a legal department which is headed by a law officer who is equipped to advice the bank. in any event this is not a ground taken for filing the application at this stage. 3. in fact the amendment application was allowed and the appeal filed dismissed. no special leave petition was filed therefrom. therefore, the jurisdiction of the court was accepted so also existence of a cause of action. the defence taken in these applications if taken at the initial stage may have aided the defendant, but not at this stage, when in fact the said defence has not been taken in the affidavit filed to the chapter xiiia application and in the 3 written statement both of which were filed in january, 2006. in fact the defence taken in the written statement and the affidavit to the chapter xiiia application is the same. 4. for all the said reasons g.a 2485 of 2009 and 2486 of 2009 merit no order and are dismissed.

Judgment:
1. G.A 2485 of 2009 and G.A 2486 of 2009 have been filed for return of the plaint on the ground of lack of pecuniary jurisdiction and the plaint not 2 disclosing any cause of action. Such applications have been filed in 2009 i.e. much after the filing of the application filed under Chapter XIIIA. In fact the applications have been filed after the hearing had commenced and the same is an afterthought and belated. The only reason given for the delayed filing is miscommunication between the defendant and its erstwhile advocate, who has been changed only for the purposes of filing the said applications. Except for the said bald explanation, backed by no particulars, no other explanation is forthcoming for the said delay.

2. As held in various decisions that the banks affairs are looked after by its officers for whose delay the bank should not be penalised will not come to the defendants aid as the bank has a legal department which is headed by a law officer who is equipped to advice the Bank. In any event this is not a ground taken for filing the application at this stage.

3. In fact the amendment application was allowed and the appeal filed dismissed. No Special Leave Petition was filed therefrom. Therefore, the jurisdiction of the Court was accepted so also existence of a cause of action. The defence taken in these applications if taken at the initial stage may have aided the defendant, but not at this stage, when in fact the said defence has not been taken in the affidavit filed to the Chapter XIIIA application and in the 3 Written Statement both of which were filed in January, 2006. In fact the defence taken in the Written Statement and the affidavit to the Chapter XIIIA application is the same.

4. For all the said reasons G.A 2485 of 2009 and 2486 of 2009 merit no order and are dismissed.