CS COMM--1147/2016. Case: ARGUS COSMETICS LIMITED Vs. RAMESHCHANDRA R PANDEY & ORS. High Court of Delhi (India)

Case NumberCS COMM--1147/2016
CitationNA
Judgement DateAugust 09, 2019
CourtHigh Court of Delhi (India)

$~2 * IN THE HIGH COURT OF DELHI AT NEW DELHI

+ CS(COMM) 1147/2016

ARGUS COSMETICS LIMITED ..... Plaintiff Through: Mr. Saurabh Srivastava, Mr.

Singh Sidhu and Mr. Sawlani, Advs.

Versus

RAMESHCHANDRA R PANDEY & ORS ..... Defendants Through: Mr. Neeraj Grover and Ms.

Tapriya, Advs.

CORAM:

HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

O R D E R % 09.08.2019

IA No.1405/2019 (of plaintiff u/S 124 of Trade Marks Act, 1999)

  1. The counsel for the applicant/plaintiff and the counsel for defendants have been heard.

  2. The applicant/plaintiff instituted this suit for permanent restraining infringement of its label mark ‘Z’ in Class 3 by the by adopting a label mark also with the alphabets ‘ZX’ and for reliefs.

  3. The suit was entertained, though no ex-parte injunction granted to the plaintiff owing to the delay on the part of the applicant/plaintiff in instituting the suit.

  4. The defendants, in their written statement disclosed registration their own favour and amended their written statement, successively, to

    CS(COMM) 1147/2016

    the pleas with respect to two other registrations granted in favour defendants during the pendency of the suit.

  5. Finding the label mark of the applicant/plaintiff as well as defendants to be similar / deceptively similar, I have straightway from the counsel for the defendants, why the application should allowed.

  6. The counsel for the defendants has contended, (i) that the plaintiff, the replication to the original written statement filed by the disclosing registration in their favour, did not take the plea of invalidity the registration in favour of the defendants; (ii) that no such plea was in the replication filed to the amended written statement disclosing second registration in favour of the defendant; (iii) that only in replication of the year 2016 to the subsequent amendment of the statement, disclosing the third registration in favour of the defendant, whisper been made of the registrations in favour of the defendants wrong, without expressly taking the defence of invalidity; (iv) that as per the dicta of the Supreme Court in Patel Field Marshal Agencies Vs. Diesels Ltd. (2018) 2 SCC 112, the permission under Section 124 Trade Marks Act, 1999 is to be granted only if an issue of invalidity is raised in the suit and the question of an issue of invalidity arising in the suit, in the absence of the material pleas on the part of the plaintiff replication in this regard, does not arise; (v) that the plaintiff is aware least the...

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