ARCHIE COMIC PUBLICATIONS Vs. PURPLE CREATIONS PVT LTD

JUDGEMENT

(1.) By way of the present appeal the Appellant lays a challenge to the order dated 20th April, 2008 whereby the application of the Appellant being I.A. No. 5271/2006 in CS (OS) No. 1420/2005 under Order 6 Rule 17 CPC for amendment of the plaint was dismissed and the application of the Respondents herein being I.A. No. 238/2006 under Order 7 Rule 11 CPC was allowed, thereby returning the plaint of the Appellant for the purposes of filing before the competent Court.

(2.) The Appellant had instituted a suit inter alia for permanent injunction, infringement of trademark, damages, against the Respondents claiming to be engaged in the field of printed matter, paper articles, newspapers, periodicals, books, comic magazines, cartoons strips, story books, films and a myriad of licensed products including: glassware, lipstick, vanity sets, nailtips, body mist, clothing items such as T-shirts, polo shirts, night-shirts and in particular clothing for children, beach towels, hats etc. According to the Appellant they are the proprietor of Archie Comic Publication Inc. and own the "ARCHIE" trademark with its variations like "ARCHIE", "ARCHIES", "LITTLE ARCHIE", "THE ARCHIES" "THE NEW ARCHIES", "ARCHIE COMICS" etc. It is claimed by the Appellant that since they are using the said trademark "ARCHIE" since 1942, by virtue of its long, continuous and extensive use consumers all over the world, including those in India associate the trade mark "ARCHIE" with that of the Appellant.

(3.) The Appellant had applied for registration of "ARCHIE and eads" on 17th October, 1989 in Class 16 and it is claimed that they have been extensively using this mark in India since 1979. According to the Appellant they came to know that the Respondents have started using their trademark for the first time in June, 2004 when they came across an advertisement for the trademark "ARCHIES and device", "PURPLE ARCHIE" and "ARCHIES" in Class 25, which was published in the trademark journals. The Respondents are allegedly involved in the business of manufacturing and selling kids wear under the said trademark.