M/S.KAMDHENU LTD v. M/S.RAGHUVEER METALINDUSTRIES LTD

1. Learned couhsel fof'theipietifiSner''submits/tMi?t^^^ is a register proprietor of trkde'm^fk/fSAMDHENU-tfin'rc^ td TMT Steel Bars. This activity was shl^e^u^Mytlxpa^pfi^i^^ other products. The petitioner entered info X^f6tkil"^cence agreement with the respondent on 02.01.2014 for the use of Trademark KAMDHENU as per the terms set out in the said agreement. According to the petitioner, the said licence agreement expired on 02.01.2016, necessary notice of termination was issued to the respondent since the respondent continued to use the trademark of the petitioner illegally, the petitioner was force to file a suit for permanent injunction restraining infringement of trademark, trademark of copyright, passing of rendition of account, delivery up etc. The aforesaid matter was listed before the trial Court CM(M).620/2016 Page 1 of[5] 2016:DHC:8619 on 09.06.2016 when the trial Court on an application under Order XXXIX Rule 3 restrained the defendant itself as also through their proprietors, directors, agents, servants, assigns, representatives, successors, distributors and all others acting for and on their behalf from using, manufacturing, selling, offering for sale, advertising or displaying directly or indirectly or dealing in any other manner or mode in TMT Bars and allied and cognate goods or in any other goods under the Trademark/Label KAMDHENU or any under any other trade mark/label identical with or deceptively similar to the plaintiffs trademark/label / trad^maifr^'MiDHENU^r from doing any other,, IB I acts or deeds amounting-to^^i' ~ %

(i) Infringemenf of'fhe trademarkN^KAMDHENU under numbef§=^717214, 872188,'^li8H'260, 1508433 allinClai06. | {7 ti «i-' )/ f| (ii)Passing offand violation o|;d^9fi|laihliffs common law|rights in their trademark^ifradename/LabbtKAMDI&NU /; V> \hw. *f -.rr*TTlSxTTT, j (iii)InfringemerilN^ KAMDHENU Trademark/LabefEMdenmheAtilLnext-'date dE|iearing.

2. However,on an appiitMlpmunl^Drdbr-^ 9,the prayer made for appointment of Local Commissioners was declined. The Trial Court observed as under: "As far as application under Order XXVI Rule 9 CPC, Order XXXIX Rule 7read with Section 151 CPC is concerned,the same cannot be allowed at this stage as the plaintiffis very much aware about the work being done by the defendant since plaintiff was in agreement with defendant. More so nowhere in the plaint or in the present application, plaintiff has disclosed the address from where the impugned product as alleged is being sold by the defendant. Further no invoice has been placed on record CM(M).620/2016 Page2of[5] ascertaining this fact that defendant is dealing with impugned trademark as alleged. It is also evident from the record that plaintiff himself granted opportunity to defendant to stop his dealings in KAMDHENU and to exhaust the entire stoek on or before 15.06.2016. Considering the averments and the arguments raised before me, at this juncture 1 am not inclined to appoint any Loeal Commissionerto and to take custody ofthe goods as prayed for." Mr.Chetan Sharma,learned Senior Counsel appearing for the petitioner submits that the grounds on whieh appointment of Local Commissioners have beemd'efelined are efronepus for the reason thatthe Trial Court was satisfiedUhaT'the''plaintiffmad>made out a strong case for an ex parte inifinetion<and[^mch"'*was ^antpd. Counsel further contends thai ffoMoubt tlieMaiiiifi^as?aware ab^t'the work being done by th^'defendantsineMe||Jai^t|ffhad entered mtoi'an agreement with the defendant,butthe saidlagreement was terminated and after the 'm O*' t' 7 termination|oftheagreemenf|h|inseyo^fheimpugnedtrade mark bythe defendant i^illegal^^oi^se^&feAb^^\that the learned Trial ^ Court has erred^ftmi^the>;splaintiff has not^jsclosed^the address from where the impughdcLprq^uGts^ure b^eiftgcspld^hy'the defendant as the addresses find mention in"paragraphsi^n'd"in the prayer elause ofthe applieation. Copy ofthe application has been placed on record ofthis Court. Counsel has also eontended that the Trial Court has erred in observing that the bills/invoices of respondent have not been filed..Counsel contends that bills/invoices ofthe respondent dated 14.06.2016 and 16.06.2016 evidencing the fact that the respondent is still carrying out the impugned activity under the trade mark KAMDHENU have been filed. Mr. Sharma has also contended that the respondents are selling sub-standard quality of the impugned product under the trade CM(M).620/2016 Page3of[5] mark/label KAMDHENU in the market which is tarnishing the reputation and good will ofthe plaintiffstrade mark.

4. I have heard learned senior counsel for the petitioner.

5. Taking into consideration the submissions made more particularly the fact that the prime reason why the Trial Court declined to appoint the Local Commissioner as is evident upon reading of the order of 09.06.2016 is that in the plaint or in the application,the addresses have not been mentioned, neither any invoice has been placed on record. The address already stands?m"ehtiUhud4h^par,a 2 and in the prayer ofthe application. Invoices dat^|Ml()^^201^tandJ16.O[6];2O16 have also been placedonrecord y

6. Accordingly: ^\ 'I si i) Mrl Nikhil Chawla,fy'mydcUtp (Mobile No.9560353449/Tele. P jm ^ V{i\ 'I Nol20-4331538)is.appdinteMas a Local Commissioner to visit t fi J.[1] •c., A yfi/k IDti^ T[7] 1?r^o'4 Orsrs T^cilrlQ Mill,l^eaifRailway LHhefBhiTvi^ara,..Rajasthah# ii) Mr. Samlt>;TCLolsa,.";^dvoc^e^(M^ is appointed as a^LofaL^mmBjion'ef'to visit the premises at Raghuveer Metal Industries Ltd., Village Bidikchyawas, Near Mangaliyawas,Naseerabad Road,Ajmer-305601;and iii) Mr. Harsit Khurana, Advocate (Mobile No.9910009277) is appointed as a Local Commissioner to visit the premises ofits dealer namely Shiv Kumar,Proprietor M/s. Shyam Steel, Near Blue Castle,Parav,Ajmer.

7. The Local Commissioners shall make an inventory of TMT Bars and allied and cognate goods including other incriminating materials like stationery, packing material, stationery, cartons, blocks, containers, CM(M).620/2016 Page4of[5] r display boards, sign boards, advertising material, dies or blocks, semi finished, unfinished packed, unpacked impugned under the impugned trade mark/label KAMDHENU.

8. The fee ofthe Local Commissioners is fixed at Rs.1,00,000/- each, as suggested by the counsel for the plaintiff, besides all out of pocket expenses,which shall be borne by the Plaintiff. The Superintendent ofPolice ofthe concerned area is directed to ensure police assistance to the Local Commissioners to enable them to execute the orders passed by this,,p0urt~

10. The petition stands dispjsfe'i of. 4®' % # -I,

11. Dasti underthesignature0|C0umI%s|bJ JUNE 20,2016 gm/pst G.|.SISTANI,J ^VACAipON JUDGE)