The suit is laid for the following reliefs:
(i) for a perpetual injunction restraining the defendant, including its Proprietor, employees, servants and agents, or anyone claiming through or under any of them, from in any manner infringing the plaintiff's registered Trademark ÉVER GLORY' registered under Trade Mark Nos.1480795 in Class 16 and 1661199 in Class 8 of the Trademarks Act 1999 more particularly by use of Trademark K GLORY and/or anyother mark that is similar/deceptively similar to the registered mark of the plaintiffs.
(ii) for a perpetual injunction restraining the defendant, including its Proprietor, employees, servants and agents, or anyone claiming through or under any of them, from in any manner manufacturing, importing, selling, offering, advertising, and or offering goods for sale using or applying the Trade Mark 'EVER GLORY' or any deceptively similar Trademark including “K GLORY” to that of the plaintiff's mark, and from passing off their goods including 'cutters, blades, replacement blades for cutters, replacement blades, knives, and other stationery items, etc. of their business as that of the business of the plaintiffs.
(iii) for a perpetual injunction restraining the defendants by themselves or their men, partners, proprietors, stockiest, dealers, servants, agents, franchisees, successors in interest, licensees, assignees, representatives, branches or any of them claiming through or under them from in any manner infringing the plaintiff's copyright over the artistic work, colour scheme, layout, get-up and lettering style, trade dress in the plaintiff's label 'EVER GLORY' by use of “K GLORY” label or any mark / label deceptively similar to that of the plaintiffs artistic work/label or by use of identical or deceptively similar trading style and/or artistic work upon their stated goods and or packaging and in any other manner whatsoever ;
(iv) Defendant to surrender to the plaintiffs for destruction, all the packing material, cartons, advertisement materials and hoardings, letterheads, visiting cards, office stationery and all other materials containing / bearing the Trademark which is similar/deceptively or confusingly similar to plaintiff's registered trademark 'EVER GLORY' more particularly “K GLORY” Trademark or any other deceptively similar Trademark.
(v) The defendant be ordered to prepare and submit an account of profits made by the defendant by the unlawful use of the Trademark label of the plaintiffs and thereafter to pass a final decree upon ascertaining the accounts, in favour of the plaintiffs and against the defendant ;
(vi) the defendant be ordered to pay punitive damages for the unlawful act complained of ;
(vii) for the costs of the suit
2. When the matter is taken up for hearing, placing reliance upon the memorandum of compromise dated 17.12.2016, filed as early as 19.01.2016 duly signed by the parties and attested by their counsel, it is submitted by the learned counsel for both sides that the suit may be decreed in terms of the said memorandum of compromise. The terms and conditions of the said memorandum of compromise read as under:
i) The defendants admit and acknowledge that the plaintiff is the prior adopter and registered proprietor of the Trademark EVERGLORY registered under nos.1480795 and 1661199 in respect of goods registered by the plaintiff in classes 16 and 8 respectively and undertake not to at any time to resort to any proceeding in relation thereto including applying for rectification thereto before the appropriate forum.
ii) The defendants state that they had erroneously under a mistaken impression falsely used the trademark ''K-
GLORY” having similar and identical layout, design, artwork, colour scheme such as that of the plaintiff's ''EVERGLORY” .
iii) The defendants undertake that they shall neither use the label “K-GLORY as complained of by the plaintiffs nor use the trademark “K-GLORY” in respect of blades, paper cutters, replacement blades, scissors, knives and other items falling in class 16/8. The defendants also undertake not to use any other label similar to that of the plaintiffs label “EVERGLORY” and shall cease to use to expression “GLORY” in any of their marks.
iv) The defendants further undertake not to use any trademark label identical or deceptively similar to the registered trademark of the plaintiff carrying the trademark EVERGLORY having GLORY as the essential feature.
v) The defendants concede that the plaintiff's trademark “EVERGLORY” is a well-known trademark and is solely identified by trade and public as the plaintiff's mark.
vi) The defendants undertake not to advertise the offending “K-GLORY” label or advertise any other mark deceptively similar thereof or use the mark/label or any other visual variation of the label in their pamphlets, catalogues, websites, promotional material, labels, cartons, packing materials or in any other manner whatsoever.
vii) The defendants undertake and do hereby withdraw the trademark application “K-GLORY” under no.3190942 class 16 filed before the Registrar of Trademarks and furnish duly acknowledged copy thereof as Annexure A.
viii) The defendants undertake to rectify and amend their mark and label “K-GLORY” to “K-GLOBE” and cease to use the expression “GLORY” in any of their marks. Copy of the amended “K-GLOBE” label over which the plaintiffs have no objection, is appended as Annexure B.
ix) The defendants undertake to forthwith put in circulation the revised/rectified label as per Annexure B and confirm that they do not have any stock of labels, advertisements, bills, cartons, dyes, blocks, moulds, screen prints, promotional materials, packaging material carrying the offending “K-GLORY” label as complained of by the plaintiff.
x) That the suit may be decreed as prayed for in para 32 of the plaint in favour of the plaintiff and against the defendant.
xi) That subject to the foregoing covenants, the plaintiff gives up all other reliefs sought for in the plaint.
xii) That this Memo of compromise will be binding on the parties hereto as also their successors in interest, partners, proprietors, men, servants, agents, distributors, stockists, representatives or any of them claiming there under.
Xiii) It is therefore prayed that this Memorandum of Compromise may be recorded and decree may be passed in favour of the plaintiff and against the defendant by this Court.
3. Accordingly, the suit stands decreed in terms of the memorandum of compromise dated 17.12.2016 and the memorandum of compromise shall form part of the decree. No costs. Consequently, connected applications are closed.
19.01.2017 rgr To The Sub Assistant Registrar, Original Side,High Court, Madras.
K.KALYANASUNDARAM, J.
rgr C.S.No.326 of 2016 19.01.2017 http://www.judis.nic.in