VISHVAJEET SHARMA Vs. STATE

JUDGEMENT

(1.) THIS petition under Section 482 of the code of Criminal Procedure 1973 ('crpc')seeks the quashing of the Complaint No. 55/ 1/ 2005 (titled Spaceage Multi Products pvt. Ltd. Vs. Darshan Singh and Ors.) and fir No. 52 of 2006 dated 12th January 2006 registered at Police Station (PS)Saraswati Vihar under Section 63 of the copyright Act and all proceedings consequent thereto.

(2.) THE background to the filing of this petition is that the Petitioners are partners of the firm m/s. Deemark Healthcare having its office at new Delhi. The firm deals with the various healthcare products such as exercisers and walkers. It is stated that the Petitioners adopted the trade marks with the word "walker". Their main trade mark is DEEMARK and the word "walker" is stated to be descriptive and generic for the walking exercise machines as it is to convey an idea that the use of the machine is a substitute for walking.

(3.) IT is further stated that two notices dated 17th August 2005 and 14th December 2005 were issued by the lawyers of Respondent no. 2 M/s. Spaceage Multi Products (P) Limited having its office at Kolkata to the Petitioner no. 2 Mr. Darshan Singh. A copy of the second notice dated 14th December 2005 has been enclosed. It was claimed by Respondent No. 2 in the said notice that they were the sole owners of the trademarks "morning Walker, easy Walker, Walker, and Morning Walker (Label)" and that they were also proprietors of the artistic work in 'morning Walker'. It was stated therein that the Respondents had applied for registration of the trademark 'morning Walker' in Classes 10 and 28 and the applications were pending. The particulars of the copyright registration No. A-70290/ 2005 dated 27th April 2005 were given. It was alleged by Respondent No. 2 that Petitioner no. 2 had copied the main feature of its get-up and/or artistic work by offering for sale the product 'home Walker' and that this also constituted infringement of the copyright registration of Respondent No. 2 The said notice called upon the Petitioner No. 2 to immediately cease using the mark 'home walker' which was deceptively similar to the trademark 'morning Walker' and/or 'walker' and/or any mark having prefix or suffix 'walker' in respect of Classes 10 and 28 goods including health oxygen equipments of all kinds.