K.N.BASHA,CHAIRMAN - (1.) THE learned counsel for the applicant Mr. Arun C. Mohan as well as the learned counsel for the respondent Mr. V. Sivakumar submitted before the Board that the matter was amicably settled between the parties before the Hon'ble High Court of Madras in C.S. No.1003 of 2008 on the basis of certain terms and conditions.
(2.) TODAY the learned counsel for the respondent would produce the judgement copy of the Hon'ble High Court of Madras dated 03/07/2013 in C.S. No.1003 of 2008. It is seen that the suit was filed for permanent injunction restraining the defendant by themselves, their proprietor/partners/directors as the case may be, their associate companies, heirs, legal representatives, successors in business, assigns, servants, agents, transporters, distributors, printers, stockists, wholesalers, dealers, retailers or any one claiming through or under them from committing acts of infringement of plaintiff's registered trademark SILVER FOAM XXX package/wrapper/label by use of a similar trademark XLENT in their SUPER FOAM XLENT package/wrapper/label or any other mark similar thereto or in any other manner whatsoever.
(3.) THE applicant before this Board is the plaintiff and the respondent before this Board is the defendant in the above said suit. It is pertinent to note that a joint memo of compromise dated 03/07/2013 was taken on record by the Hon'ble High Court of Madras which reads as follows : - "The defendant was using Xlent label/wrapper, a specimen whereof is annexed hereto and marked as Annexure -A. In view of the compromise arrived at the defendant has changed the colour scheme and get up of Xlent label/wrapper. The amended Xlent label/wrapper is annexed hereto and marked as Annexure -B. The defendant has agreed to subject itself to an order of permanent injunction as prayed for in prayers (b) and (c) of the plaint: - (b) a temporary ad -interim, interim injunction restraining the defendant by themselves, their proprietor/partners/directors as the case may be, their associate companies, heirs, legal representatives, successors in business, assigns, servants, agents, transporters, distributors, printers, stockists, wholesalers, dealers retailers or any one claiming through or under them from committing acts of copyright infringement by making substantial reproduction of the plaintiff's registered artistic work SILVER FOAM XXX LABEL by use of identical colour scheme of red, white and yellow with blue background for their SUPER FOAM XXX package/wrapper or in any other manner whatsoever; (c) a temporary ad -interim, interim injunction restraining the defendants by themselves, their proprietor/partners/directors as the case may be, their associate companies, heirs, legal representatives, successors in business, assigns, servants, agents, transporters, distributors, printers, stockists, wholesalers, dealers, retailers or any one claiming through or under them from committing acts of passing off and enabling others to pass off by manufacturing, distributing, marketing, selling, offering for sale, advertising or in any other manner dealing in detergent powder, detergent cake, washing powder etc. or any other product bearing the trademark XLENT and/or package, wrapper, container, carton, label with colour scheme, getup, layout which are similar to plaintiff's trade dress in XXX package/wrapper; The plaintiff concedes that the suit may be dismissed as far as the prayer a, d, e and f and agrees for a decree to be passed accordingly. The parties shall bear their own costs." Apart from the above said terms of compromise the defendant had also undertaken to file fresh application in respect of new label before the Copyright Board as per the judgement of Hon'ble High Court of Madras as here under: "Besides the above compromise, the defendant undertakes to file a fresh application before the Copyright Board in respect of the new label and as a consequence the plaintiff will withdraw his complaint on the old label, which will not be used by the defendant. Since the defendant has undertaken not to use the old label and file a fresh application before the Copyright Board in respect of the new label with the new colour scheme, the proceedings before the Copyright Board shall be withdrawn by the plaintiff giving liberty to the defendant to file a fresh application before the Copyright Board in respect of the new label." ;