KAMRUDDIN I. MEHSANIYA Vs. A. HAFSABI

JUDGEMENT

(1.) In the present Interim Application, the Applicant/ Plaintiff seeks to move for ad-interim reliefs with notice to the Defendants. The action in the present suit is for infringement of the Plaintiff's registered trade mark and registered copyright combined with an action for passing off. It is the case of the Plaintiff that the impugned marks KIMAA and KEEMA bearing a pirated artwork are deceptively similar to the Plaintiff's trade mark and original artistic work of KIMIA and hence a injunction is sought in the suit alongwith a prayer for damages. The Plaintiff seeks to move for ad- interim reliefs with notice to the Defendants. Plaintiff has effected service on both the Defendants vide mail dated 13.02.2020 and also through courier acknowledged by the Defendant No. 1 on 17.02.2020. The Plaintiff has fled affdavits as proof of such service. The Plaintiff has also produced before me copy of email dated 29.02.2020 whereby it has again notifed both the Defendants of the next date of hearing i.e. 02.03.2020. Despite such notices, none of the Defendants are present nor are represented by any Advocate. Dr. Tulzapurkar, the Ld. Sr. Counsel states that leave petition under Clause XIV of the Letters Patent (Bombay) has been lodged and pending hearing of the leave petition, presently seeks atleast ad- interim reliefs in terms of prayer clauses - (a) and (b).

(2.) The suit, as mentioned earlier, is for infringement and passing off. The concise statement of facts leading to the present controversy are that the Plaintiff is engaged in importing wet dates from Iran, Iraq and other Middle East countries, that are further processed, sorted and packed by the Plaintiff and sold in India under the Plaintiff's brand KIMIA. The Plaintiff states that he had in and around September 2011, honestly and independently conceived and adopted the trade mark KIMIA from his name for use in relation to wet dates. The Plaintiff's said trade mark is represented in artistic labels which bear distinctive artistic lay-out, get-up, color scheme, representation and trade dress, labels of which trade mark are appended at Exhibit 'A' to the Plaint.

(3.) According to the Plaintiff, in and around October 2011, he appointed a design agency to create for the Plaintiff certain artwork/s for its trade mark KIMIA, for which the Plaintiff has remunerated the author who has relinquished his rights in favour of the Plaintiff. Color copies of the artistic works bearing the trade mark KIMIA as designed for the Plaintiff is appended at Exhibit B to the Plaint. A letter confrming the designer relinquishing his rights in favour of the Plaintiff is appended at Exhibit 'C' to the Plaint.