IN THE COURT OF SUB- JUDGE, PATNA CITY, PATNA

(Ordinary Original Civil Jurisdiction)

CS (CIVIL) No. of 2018

M/S GYAN PRAKASH

Through its Sole Proprietor
Shri Ved Prakash ...Plaintiff

Versus

M/S S.S GYAN PRAKASH

Through its Proprietor
Shri Shambhu Kumar Yadav ...Defendant

INDEX
Serial No. Particulars Pages
1. Court Fees

2. Memo of Parties

3. Plaint with Affidavit in Support

4. List of Documents

5. Documents
i. The trade mark/logo of the Plaintiff –
ANNEXURE P-1
ii. Copies of the sales details for previous fifteen
(15) years – ANNEXURE P-2 (colly.)

iii. The copies of the Plaintiff’s trade mark

registrations related documents along with
certificate- ANNEXURE P-3 (Colly.)

iv. The links for internet sources proving

popularity of the Plaintiff ANNEXURE P-4
(Colly.)
v. Copy of the letter dated 31 August 2015
issued by the Plaintiff against the Defendant
in subject with the termination of employer-
employee or any other professional
relationship with the Defendant - ANNEXURE
P-5.

vi. The copies of the Defendant’s invoices,

invitation card, letterhead, business card-
ANNEXURE P-6 (Colly.)

vii. The copies of the Plaintiff’s legal notice dated

15 October 2015 along with its proof of
dispatch and delivery status report-
ANNEXURE P-7 (Colly.)

viii. The copy of the delivery status report of legal

 notice dated 15 October 2015- ANNEXURE
P-8
ix. Print out copy of the original email dated 19
October 2015 - ANNEXURE P-9
x. Copy of the delivery status issued by the
Postal Department for legal notice served by
the Plaintiff at Defendant’s shop’s address-
ANNEXURE P-10
xi. Copies of the disclaimer letter dated _________
issued by the Plaintiff along with its proof of
dispatch - ANNEXURE P-11 (Colly.).
xii. The copies of the Defendant’s reply to the
legal notice dated 29 October 2015 (12
November 2015 as per stamp of the post
office on the envelope of the reply letter)
along with its envelope – ANNEXURE P-12
(Colly.)
xiii. The copies of the Plaintiff’s rejoinder dated 16
November 2015 along with its proof of
dispatch – ANNEXURE P-13 (Colly.)
xiv. Copy of the delivery status report for the
rejoinder issued by the Plaintiff- ANNEXURE
P-14
xv. Copy of the computer generated Trade Mark
Search Report and application filed by the
Defendant clearing stating the details of
trademark application filing ANNEXURE P-
15(Colly.)

4. Certificate on behalf of the Plaintiff under

Section 65 (A) & (B) of the Evidence Act, 1872

5. Application under Order 39 Rule 1 & 2 along

with supporting Affidavit

6. Vakalatnama

FILED THROUGH:

_____________________
COUNSEL FOR THE PLAINTIFF
ADDRESS
PATNA-8000

PATNA
DATED: 00-07-2018
 IN THE COURT OF SUB- JUDGE, PATNA CITY, PATNA

(Ordinary Original Civil Jurisdiction)

CS (CIVIL) No. of 2018

M/S GYAN PRAKASH

Through its Sole Proprietor
Shri Ved Prakash ...Plaintiff

Versus

M/S S.S GYAN PRAKASH

Through its Proprietor
Shri Shambhu Kumar Yadav ...Defendant

MEMO OF PARTIES

M/S GYAN PRAKASH

Through its Sole Proprietor
Shri Ved Prakash
R/o Sai Daffodils Apartments, Flat No. 302,
Behind CDA Building, New Lalji Tola,
Patna-800003
Business at: First Floor, Teus Complex
Thakur Bari Road, Kadamkuan
Patna-800003 ….…..…..…….Plaintiff

Versus

M/S S.S GYAN PRAKASH

Through its Proprietor
Shri Shambhu Kumar Yadav
Sonartoli, Gurhatta, Main Road
Patna City, Pin- 800008
E-mail: [email protected]
Mo. No. 9525252625 and 9798064440

Also at
S/o Late Kashi Sardar
R/o Kila Road, Chamdoria
P.O. Jhauganj, Patna City
PIN- 800008 ...........................................................Defendant
FILED THROUGH:

_____________________
COUNSEL FOR THE PLAINTIFF
ADDRESS
PATNA-8000
PATNA
DATED: 00-07-2018
IN THE COURT OF SUB- JUDGE, PATNA CITY, PATNA

(Ordinary Original Civil Jurisdiction)

CS (CIVIL) No. of 2018

M/S GYAN PRAKASH

Through its Sole Proprietor
Shri Ved Prakash
R/o Sai Daffodils Apartments, Flat No. 302,
Behind CDA Building, New Lalji Tola,
Patna-800003

…….Plaintiff

Versus

M/S S.S GYAN PRAKASH

Through its Proprietor
Shri Shambhu Kumar Yadav
Sonartoli, Gurhatta, Main Road
Pata City, Pin- 800008

……Defendant

SUIT UNDER SECTIONS 134 AND 135 OF THE TRADE MARKS ACT,
1999 AS WELL AS UNDER SECTION 51 AND 63 OF THE INDIAN
COPYRIGHT ACT, 1957 FOR THE RELIEF OF PERMANENT INJUNCTION
TO RESTRAIN PASSING OFF, INFRINGEMENT OF TRADE MARK,
DELIVERY UP, RENDITION OF ACCOUNTS ETC.

RESPECTFULLY SHOWETH:-

1. The Plaintiff M/S Gyan Prakash through its sole proprietor Shri Ved

Prakash is engaged in the business of marketing and distribution and

selling of various books of schools in name and style of M/s Gyan

Prakash in Bihar and Jharkhand (referred to as "the said service and

business") since October 2002 which was started on a small scale by its

proprietor Shri Ved Prakash with the help of his nephews. Shri Ved

Prakash being the sole proprietor of the Plaintiff is duly authorized to

institute and file this suit, depose to its facts, sign and verify its pleadings
 and do all acts necessary for its conduct and pursuance. Shri Ved Prakash

is also otherwise aware of the facts and circumstances of the case.

2. The Plaintiff has been engaged in the said service and business since the

year 2002 which was expanded on wide level since 2004. In the year

2002 the Plaintiff adopted the Trade Marks Gyan Prakash with device

of GP under Rising sun (word per se and in an artistic manner) and has

been using the same by itself as also in an artistic logo. The trade

mark/logo of the Plaintiff are annexed herewith as ANNEXURE P-1.

3. In the year 2002 the Plaintiff honestly, bonafidely and in the course

of trade, adopted the trade mark Gyan Prakash with device of GP

under Rising sun. The Plaintiff has been using the said Trade Mark/Logo

since then up till present time continuously, uninterruptedly, as an

exclusive proprietor and owner. The Plaintiff is prior and senior adopter of

the said trade mark/logo in relation to said service and business.

(Hereinafter referred to as "the said Trade Mark/logo/trade name").

Copies of the documents pertaining to sales

details for previous fifteen (15) years are

annexed herewith and marked as ANNEXURE

P-2 (Colly).

4. The said trade mark/logos are registered under the provisions of Trade

Marks Act, 1999 in favor of the Plaintiff, particulars whereof are set out

herein under:-

Trade Mark :Gyan Prakash with device of GP under

Rising sun
Regd. Trade Mark No. :3084438
Class : 35
Goods & Service : Marketing and Distributions of Books
Status : Registered
Effective from : 24 November, 2016
 Copies of the Plaintiff’s trade mark

registrations related documents along

with certificate are annexed herewith as

ANNEXURE P-3 (Colly).

5. Since the year 2002 respectively the Plaintiff has been honestly,

bonafide and in the course of trade using the said Trade Mark/logo/trade

name as proprietor thereof in respect of his said service and

business, continuously, openly and without any interruption or

interference from any corner whatsoever and has built up a valuable

trade, goodwill and reputation thereunder and acquired proprietary

rights therein.

6. The Plaintiff is the proprietor, prior and senior adopter and user of his said

trade mark/logo/trade name. The said service and business being carried

on by the Plaintiff under his said trade mark/logo/trade name is a very

extensive one and the said service and business thereunder have been

practically provided in Bihar and Jharkhand states of the Country. The said

service and business under the said trade mark/logo/trade name are

identified as exclusively originating from the Plaintiff's source and are

identified with the Plaintiff. The said trade mark/logo has already become

distinctive and associated with the Plaintiff and the Plaintiff’s said service

and business on account of its long, continuous, extensive and exclusive

user thereof since 2002 respectively till date. The service and business

bearing the said trade mark/logo/trade name are highly demanded in

the markets on account of his standard quality and precision.

7. The Plaintiff's service and business under his said trade mark/logo/trade

name has acquired tremendous goodwill and enviable reputation in the

markets and the Plaintiff has already built up a handsome and valuable

trade thereunder. The Plaintiff thereunder has already commanded

 handsome sales and got popular in a very short span of time since its said

inception, adoption and user thereof.

The URL(Uniform Resources Locator)/links for

internet sources proving popularity of the

Plaintiff are filed herewith as ANNEXURE P-4

(Colly.).

8. The Plaintiff has been continuously promoting his said service and

business under his said trade mark/logo through different means and

modes including through his advertisements and publicity in leading

newspapers, internet etc. The Plaintiff has already spent enormous

amounts of money on its publicity thereof. In consequence thereof and

having regard to the aforesaid including to the excellent quality and

the high standards of the Plaintiff’s marketing skills and trade under

his said trade mark/logo, he enjoy solid, enduring and first class

reputation in the markets.

9. The Plaintiff maintains the highest standards of marketing & distribution

of books and trade of his said service and business. The Plaintiff’s said

trade mark/logo are well known Trade Marks within the meaning of

Section 2(1) (zg) of the Trade Marks Act, 1999.

10. The said Trade Mark/logo has already become a distinctive indicium of

the Plaintiff and the Plaintiff’s said service and business thereunder. The

purchasing public, trade and public at large associates, identifies and

distinguishes the said trade mark/logo with the Plaintiff and the

Plaintiff’s said service and business alone. The Plaintiff's service and

business are dependent thereon. The Plaintiff contends that the said

trade mark/logo has acquired secondary significance denoting the said

service and business of the Plaintiff and is recognized with the

 Plaintiff’s source alone. It has become synonymous with the service and

business of the Plaintiff.

11. The Plaintiff is the sole proprietor of his said trade mark/logo both

under the statutory law and under the common law. Nobody can be

permitted to use or deal with the same or any other Trade Mark/logo

identical with or deceptively similar thereto, either by itself or in its

essential/constituent features including the copyright thereon in

relation to the same/similar/allied/cognate service or business as that

of the Plaintiff or for that matter any specification of service or business

without the leave and license of the Plaintiff. Any such violative use will

be in violation of the Plaintiff’s proprietary Trade Mark and copyright

rights thereto.

12. That the Defendant proprietor Shri Shambhu Kumar Yadav an employee

with designation of Sales Manager on temporary basis under the Plaintiff

from the year 2003 was terminated from the service by the Plaintiff on

dated 31 August, 2015.

Copy of the letter dated 31 August 2015

issued by the Plaintiff against the

Defendant is annexed herewith as

ANNEXURE P-5.

13. That the Defendant after being terminated from the service of the

Plaintiff on dated 31 August, 2015 started the same/similar trade and

business as that of the Plaintiff, namely, in the marketing and

distribution of books and other allied and related services under the trade

marks, logo script “SSGP embedded in rising sun” with the office

address at Sonartoli, Gurhatta, Main Road, Patna City, Patna-800008.

[referred to as the "impugned services and business" and a term that

 includes services of allied/cognate nature and "impugned trade

mark/logo/trade name"].

14. That the Defendant is commercially and in the course of trade using

the impugned Trade Mark/logo as a Trade Mark in relation to its impugned

services and business on its invitation cards, sign board of his shop,

banners meant for inaugural function and also reproducing the same and

impugned copyright therein on its invoices, letterhead and business

cards. The Defendant is doing so without the leave and license of the

Plaintiff. The Defendant is not the proprietor of the impugned Trade

Mark/logo.

The copies of the Defendant’s invoices,

invitation card, letterhead, business card are

annexed herewith as ANNEXURE P-6 (Colly.).

15. The impugned Trade Mark/logo/trade name is identical with and

deceptively similar respectively to the Plaintiff’s said Trade Mark/logo in

each and every respect including phonetically, visually, structurally, in

basic idea, in its essential features, in its placements as well as in its

artistic features. The Defendant impugned services and business is also of

the same/similar/allied/cognate nature to the said services and business

of the Plaintiff.

16. By its impugned adoption and user of the impugned Trade Mark

/logo/trade name the Defendant is –

(a) Infringing the registered trademarks of the Plaintiff.

(b) Passing off and enabling others to pass off his services and

business as that of the Plaintiff. The Defendant is thus thereby

violating the Plaintiff’s common law rights in the Plaintiff’s said

Trade Mark/logo/Trade Name;

 (c) Infringing the Plaintiff’s Copyright in the said Trade Mark/logo

by inter alia using, publishing, reproducing and otherwise

commercially and for the purposes of trade using the

impugned identical with and deceptively similar impugned

trade mark/logo respectively for the purposes of its impugned

services and business as also passing off the Plaintiff's

common law rights therein;

(d) Not only that the Defendant is further guilty of falsification

and unfair and unethical trade practices.

17. The Defendant is not the proprietor of the impugned trade

mark/logo/trade name and has no right to adopt or use the same as a

trade mark or as a copyright or in any other manner whatsoever

including under the laws of equity, common law and statutory law in

respect of the impugned services and business or allied/cognate thereto

or otherwise being in complete violation of the Plaintiff’s aforesaid

rights.

18. The impugned adoption and user by the Defendant are dishonest,

tainted, malafide and fraudulent. The Defendant adopted and

started commercially using the impugned trade mark/logo/trade name

in respect of the impugned services and business out of greed and

with a view to take advantage and to trade upon the reputation

and goodwill of the Plaintiff and further with a view to calculate

deception and confusion in the markets and to pass off his impugned

services and business as that of the Plaintiff and to make easy money

at the cost of the Plaintiff. The Defendant is fully aware or ought to be

aware of the Plaintiff’s said rights, users and reputation of the Plaintiff in

the Plaintiff’s said trade mark/logo/trade name, at the time of his

impugned adoption and user of the impugned trade mark/logo/trade

name.
19. The resemblance between the Plaintiffs’ said trade mark/logo/trade

name and of the impugned trade mark/logo/trade name

respectively of the Defendant are so close that it can hardly occur except

by deliberate imitation. The Defendant adopted and started using the

impugned trade mark/logo/trade name in full knowledge of the

Plaintiff’s said rights. The unwary purchasers which include each and

every section of society people are bound to be deceived and are

being deceived in dealing with and purchasing the Defendant’s

impugned services and business under the impugned trade mark/logo

under the impression that it is emanating from the Plaintiff source or

that some vital links exist between the Plaintiff and the

Defendant. Defendant appear to have been tempted by the singular

reputation of the Plaintiff. By its impugned adoption and user of the

impugned trade mark/logo/trade name, the Defendant is disseminating

confusion and deception in the markets with the result that the

spurious services of the Defendant are being passed off as the genuine

services of the Plaintiff. By the impugned adoption and user deception

and confusion is caused in the market.

20. In about the beginning of October 2015 the Plaintiff came across the

impugned services of the Defendant under the impugned trade

mark/logo/trade name in the markets. Constrained the Plaintiff

launched inquiries in the markets to ascertain the Defendant’s impugned

activities under the impugned mark/logo/trade name. The inquiries of the

Plaintiff revealed that the Defendant had just about recently and in the

beginning of October 2015 had started commercially using the impugned

Trade Mark/logo/trade name on its vendible articles viz. the impugned

services and formally going to inaugurate his shop for distribution and

marketing of books and stationaries on dated October 20, 2015. The

Defendant is carrying on its impugned activities in clandestine manner.

21. The Plaintiff issued upon the defendant legal notice dated 15 October

2015 which was duly received by the Defendant on 17 October 2015 at

his above mentioned addresses as mentioned in Memo of Parties and the

Defendant replied to the same through his counsel vide letter dated 29

October 2015 on false claims and assertions.

The copies of the Plaintiff’s legal notice dated

15 October 2015 along with its proof of

dispatch and delivery status report are

annexed herewith as ANNEXURE P-7 (Colly.)

and ANNEXURE P-8 respectively .

22. That the Plaintiff through its counsel also served the scanned copy of

the legal notice dated 15 October 2015 on dated 19 October 2015 via

email. Furthermore, original copy of the legal notice dated 15 October

2015 vide Speed Post Article ED329693332IN was duly served to the

Defendant at his office address as well which was duly received by the

Defendant on 20 October 2015. Print out copy of the original email dated

19 October 2015 is annexed herewith as ANNEXURE P-9 and copy of the

delivery status issued by the Postal Department for legal notice served by

the Plaintiff at Defendant’s shop’s address is annexed herewith as

ANNEXURE P-10.

23. That the Plaintiff also issued a disclaimer letter dated ______________ to

its Bank named Corporation Bank _______________ branch intimating the

same about the termination of every professional relationship between

the Plaintiff and the Defendant. Further the Plaintiff also cautioned its

Bank against Defendant’s impugned activities under the impugned

mark/logo/trade name.
 Copy of the disclaimer letter dated

_________ issued by the Plaintiff along

with its proof of dispatch are annexed

herewith as ANNEXURE P-11 (Colly.).

24. That the envelope of the reply to the legal notice dated 29 October

2015 showed stamp of receiving by post office and the date marked in

the stamp of the post office is of 12 November 2015 which again bust the

malafide juggling intentions of the Defendant.

The copies of the Defendant’s reply to

the legal notice dated 29 October 2015

(12 November 2015 as per stamp of the

post office on the envelope of the reply

letter) along with its envelope are

annexed herewith as ANNEXURE P-12

(Colly.).

25. That the Plaintiff being disgruntled with the reply given by the

Defendant, was constrained to issue rejoinder dated 16.11.2015 vide

Speed Post Article ED687153255IN which was duly received by the

Defendant on 16 November 2015 but remained unanswered and

unheeded till date.

The copies of the Plaintiff’s rejoinder

dated 16 November 2015 along with its

proof of dispatch and delivery status

report are annexed herewith as

ANNEXURE P-13 (Colly.) and

ANNEXURE P-14 respectively.

26. That the plaintiff also launched inquiries further with the Registrar of

Trade Marks at Kolkata which revealed that the Defendant had even
 filed trade mark application under No.3424571 in class 35 in respect of

trade mark M/s S S Gyan Prakash in end of year 2016. The aforesaid

application is false, fraudulent and illegal and Plaintiff has filed his

objections dated _______________ thereto under Sections 18 and 19 of The

Trade Marks Act, 1999.

Copy of the computer generated Trade

Mark Search Report and application filed

by the Defendant clearing stating the

details of trademark application filing are

annexed herewith as ANNEXURE P-

15(Colly) .

27. The cause of action arose in favor of the Plaintiff and against the

Defendant in the beginning of October 2015 when the Plaintiff learnt of

the Defendant’s impugned adoption and user. The cause of action also

arose on 15 October 2015 when Plaintiff issued upon the Defendant legal

notice. The cause of action further arose on 12 November 2015

when the defendant failed to comply with the requisition of plaintiff’s legal

notice and replied to through counsel vide letter dated 29 October 2015

(12 November 2015 as per stamp of the post office on the envelope of the

reply letter) on false claims and assertions. The cause of action further

arose when Plaintiff being disgruntled with the reply given by the

Defendant, was constrained to issue rejoinder dated 16.11.2015 vide

Speed Post Article ED687153255IN which was duly received by the

Defendant on 16 November 2015 but remained unanswered and

unheeded till date. The cause of action further arose when Defendant filed

false, fraudulent and illegal trade mark application under No.3424571 in

class 35 in respect of trade mark M/s S S Gyan Prakash with logo SSGP

embedded in rising sun in end of year 2016. The cause of action is a

continuous one and is accruing every day and shall continue to so

accrue till the Defendant cease with his impugned adoption and user
 of the impugned trade mark/label amounting to complete violation of the

Plaintiff’s rights in the said trade mark/logo.

28. That this Hon’ble Court has the territorial jurisdiction to try and

adjudicate upon the present suit. The Defendant is committing the

impugned acts within the jurisdiction of this Hon’ble Court by conducting,

soliciting, selling and marketing his impugned services and business

under the impugned trade mark/label/Logo/trade name in Patna besides

other parts of the Bihar. The Plaintiff’s shop is registered in Bihar under

Bihar Shops & Establishment Act 1953 and is operative from Patna, Bihar

only. The Plaintiff is carrying on its said services and business under the

said Trade Mark/label in Bihar and Jharkhand. The Defendant is carrying

on his impugned business within the jurisdiction of this Hon’ble Court. The

Plaintiff has tremendous goodwill and reputation in its said

trademarks/logo in Bihar which is being tarnished by Defendant impugned

activities of the Defendant in Bihar. This Hon'ble Court, as such, has the

jurisdiction to try and adjudicate the present suit by virtue of Section 62

(2) of the Indian Copyright Act 1957 and Section 134 of the Trade Marks

Act.

29. That the Plaintiff values the suit for purposes of Court fee and

jurisdiction in the following manner: -

(a) for the grant of permanent injunction as prayed for in para 29 (a)

to (b) and for delivery up as prayed for in para 29(c) it is valued for the

purpose of court fee and jurisdiction at Rupees______ each and court fee of

Rupees_____each totaling Rupees______is affixed.

(c) for an order for rendition of accounts of profits illegally earned by the

Defendant it is valued for the purposes of jurisdiction and court fee at

Rupees _________ and court fee of Rupees __________ is affixed thereon as the

Plaintiff estimates that such an amount shall be found due to the Plaintiff

from the Defendant on rendition of accounts having gone in to. The Plaintiff
undertakes to pay such additional court fees it may be directed to pay by

this Hon’ble Court on the Defendant’s rendition of accounts and as

ascertained of the actual amount due to the Plaintiff.

Total court fee affixed is_______. This Hon’ble Court has jurisdiction to

try and entertain the present suit.

30. The Plaintiff, therefore, prays: -

(a) for a decree of permanent injunction restraining the Defendant

by themselves as also through his individual proprietors, partners,

directors, C and f agents, agents, representatives, distributors, assigns,

heirs, successors, stockiest and all others acting for and on his

behalf from using, selling, soliciting, exporting, displaying, advertising

- by visual, audio, print mode - or by any other mode or manner or

dealing in or using the impugned trade mark SSGP with logo

SSGP embedded in rising sun or any other identical with and/or

deceptively similar word/mark/name in relation to his impugned

services and business of marketing and distribution of books and

related/allied services or any other services and from doing any other

acts or deeds amounting to or likely to amount:-

(i) Infringement of Plaintiff's registered trademarks.

(ii) Passing off and violating the Plaintiff’s common law rights

in the plaintiff’s GP Trade Mark/logo/trade name;

(iii) Infringing the Plaintiff’s Copyright and also passing off the

Plaintiff’s common law rights therein.

(b) For an order for delivery up of all the Defendant’s impugned services

and business bearing the impugned trade mark/logo including letterhead,

business cards, boxes or any other incriminating material including display

boards and sign boards and trade literature to the Plaintiff for the purposes

of destruction and erasure.

(c) For an order of rendition of accounts of the Defendant and a decree to

the Plaintiff on the amount so ascertained.

(d) For an order for cost of the proceedings;

and

(e) For such other and further relief(s) as this Hon’ble Court may deem fit

and proper in the facts and circumstances of this case.

Prayed accordingly.

Ved Prakash

Plaintiff

FILED THROUGH:

_____________________
COUNSEL FOR THE PLAINTIFF
ADDRESS
PATNA-8000
PATNA
DATED: 00-07-2018

Dated, this _______ day of _______, 2018.

VERIFICATION:-

I, Ved Prakash, R/o Sai Daffodils Apartments, Flat No. 302, Behind

CDA Building, New Lalji Tola, Patna-800001, do hereby verify that the

contents of paras No.1 to 27 of the plaint are true to my knowledge as

derived from the records of the Plaintiff firm as also from my own

knowledge and those of paras No.28 to 29 are true on information

received and believed to be true. Last para is by way of prayer to this

Hon’ble Court. The legal submissions are on advice, believed to be true.

Signed and verified at Patna on this ________ day of ________, 2018.

 Ved Prakash

Proprietor

FILED THROUGH:

_____________________
COUNSEL FOR THE PLAINTIFF
ADDRESS
PATNA-8000

PATNA
DATED: 00-07-2018
IN THE COURT OF SUB- JUDGE, PATNA CITY, PATNA

(Ordinary Original Civil Jurisdiction)

CS (CIVIL) No. of 2018

M/S GYAN PRAKASH

Through its Sole Proprietor
Shri Ved Prakash ...Plaintiff
Versus

M/S S.S GYAN PRAKASH

Through its Proprietor
Shri Shambhu Kumar Yadav ...Defendant

AFFIDAVIT IN SUPPORT OF THE PLAINT

Affidavit of Ved Prakash, R/o Sai Daffodils Apartments, Flat No. 302,
Behind
CDA Building, New Lalji Tola, Patna-800001.
I the above named deponent do hereby solemnly affirm, declare and
say as under:-

1. I am proprietor of the Plaintiff firm and have been duly entitled to

institute and file this suit as also verified its pleadings and depose to its
facts. I am aware of the facts and circumstances of this case and can swear
this affidavit.

2. I say that the contents of paras No.1 to 24 of the plaint are true to
my knowledge as derived from the records of the plaintiff firm as also
from my own knowledge and those of paras No. 25 to 26 are true on
information received and believed to be true. Last para is by way of prayer to
this Hon’ble Court. The legal submissions are on advice, believed to be true.

3. The legal submissions are on advice, believed to be true.

4. The documents in so far as they pertain to the Plaintiff are true copies
of his respective originals.

DEPONENT

FILED THROUGH:

_____________________
COUNSEL FOR THE PLAINTIFF
ADDRESS
PATNA-8000
PATNA
DATED: 00-07-2018
IN THE COURT OF SUB- JUDGE, PATNA CITY, PATNA

(Ordinary Original Civil Jurisdiction)

CS (CIVIL) No. of 2018

M/S GYAN PRAKASH

...Plaintiff

Versus

M/S S.S GYAN

PRAKASH ...Defendant

CERTIFICATE ON BEHALF OF THE PLAINTIFF UNDER SECTION 65

(A) & (B) OF THE EVIDENCE ACT, 1872

I ____________________, son of Shri _________________________, aged

__________ years, resident of
____________________________________________________ do hereby solemnly
affirm and state as follows:-

1. I state that I have produced the printouts of the email exchanged

between me and the Defendant.

 2. I also state that the other internet printouts taken from various

websites and other digital documents are exact replica of the

information as available of the respective websites.

3. I state further that the said computer system and the printer used

for this purpose are in good working condition and order and the

internet is regularly accessed from the said computer system and

the mails are also regularly downloaded on the said system and the

said computer system and the printer used for this purpose are

owned, maintained, operated and managed by me. The said

computer and printer details are as follows:-

OS Name ______________________

Version ________________________

OS Manufacturer _________________________

System Name _________________________

System Manufacturer _________________________

System Model _________________________

Start Up Disk __________________________

Installed Physical Memory _______________________

(RAM)

Signature

Dated this_______ Day of____________ 2018

FILED THROUGH:

_____________________
COUNSEL FOR THE PLAINTIFF
ADDRESS
PATNA-8000
PATNA
DATED: 00-07-2018

IN THE COURT OF SUB- JUDGE, PATNA CITY, PATNA

(Ordinary Original Civil Jurisdiction)

CS (CIVIL) No. of 2018

M/S GYAN PRAKASH ……...Plaintiff/Applicant

Versus

M/S S.S GYAN PRAKASH ...Defendant/Respondent

APPLICATION UNDER ORDER 39 RULE 1& 2 READ WITH SECTION

151 OF THE CODE OF CIVIL PROCEDURE, 1908

The Plaintiff/Applicant above named respectfully submit as follows:-

1. The Plaintiff/Applicant M/S Gyan Prakash through its sole proprietor

Shri Ved Prakash is engaged in the business of marketing, distribution

and selling of various books of schools in name and style of M/s Gyan

Prakash in Bihar and Jharkhand (referred to as "the said service and

business") since October 2002 which was started on a small scale by

its proprietor Shri Ved Prakash with the help of his nephews and very
 soon in 2004 it started winning best reputation in the markets of Bihar

and soon was expanded in the markets of Jharkhand as well due to its

distinguished marketing and selling techniques.

2. The Plaintiff/Applicant is using its Trade Mark and Name “M/s Gyan

Prakash” with its logo “GP embedded in rising sun between

hills” whole its services. The vending of Plaintiff/Applicant’s

services have sound base both inside and outside in Bihar.

3. For previous fifteen years Plaintiff/Applicant has advertised its services

and business under its said Mark by spending lakhs rupees for the

purpose of business networking and promotional activities.

4. The business and trade of Plaintiff/Applicant are operated from Bihar

and vended inside and outside Bihar in Jharkhand and hence the

Plaintiff/Applicant enjoys good /reputation in Bihar within the powers of

this Hon’ble Court. The contents and details of sales for previous

fifteen (15) years mentioned in the accompanying plaint are not

repeated here for the sake of brevity and the same may be treated to

as an integral part of the present application.

5. The Plaintiff/Applicant abided whole compulsory legal formalities and

enactments for registering of its services under under the provisions of

Trade Marks Act, 1999 in favor of the Plaintiff/Applicant bearing Trade

Mark No. 1 in Class 35 relating to marketing and distribution of books

effective from 24 November, 2016. The shop owned by the

Plaintiff/Applicant from where he is operating the concerned trade

/business is registered with Bihar Shops and Establishment Act and

Record bearing registration of Plaintiff/Applicant’s said shop are within

the jurisdiction of this Hon'ble high Court. The contents and details of

trademark certificate and documents issued in favour of the

 Plaintiff/Applicant mentioned in the accompanying plaint are not

repeated here for the sake of brevity and the same may be treated to

as an integral part of the present application.

6. The said mark “GP embedded in rising sun between hills”

became very famous among the buyers of the Plaintiff/Applicant’s

services and the Mark “GP embedded in rising sun between hills”

became very much concerned with the Plaintiff/Applicant’s services.

7. That the Defendant/Respondent proprietor Shri Shambhu Kumar Yadav

an employee with designation of Sales Manager under the

Plaintiff/Applicant from the year 2003 was terminated from his service

by the Plaintiff/Applicant on dated 31 August, 2015 and immediately

after his termination from Plaintiff/Applicant’s services, started the

same/similar trade and business as that of the Plaintiff/Applicant,

namely, in the marketing and distribution of books and other allied

and related services under the trade marks, logo script “SSGP

embedded in rising sun” with the office address at Sonartoli,

Gurhatta, Main Road, Patna City, Patna-800008. [referred to as the

"impugned services and business" and a term that includes services

of allied/cognate nature and "impugned trade mark/logo/trade

name"] in the beginning of the month of October 2015 and was

formally inaugurated on 20 October, 2015. The contents and details of

documents like letterhead, invoices, business card, invitation cards etc.

belonging to the service/ impugned trade mark and business by the

Defendant mentioned in the accompanying plaint are not repeated

here for the sake of brevity and the same may be treated to as an

integral part of the present application.

8. The Defendant/Respondent has been erroneously selling and

marketing the school books through its vending outlets

 in Bihar bearing said Trade Mark “SSGP embedded in rising sun”

since October 2015 within the jurisdiction of this Hon'ble Court.

9. That the Defendant/Respondent is commercially and in the course of

trade using the impugned Trade Mark/logo as a Trade Mark in relation

to its impugned services and business on its invitation cards, sign

board of his shop, banners meant for inaugural function and also

reproducing the same and impugned copyright therein on its

letterhead and business cards. The Defendant/Respondent is doing so

without the leave and license of the Plaintiff/Applicant. The

Defendant/Respondent is not the proprietor of the impugned Trade

Mark/logo.

10. The resemblance between the Plaintiff/Applicant’s said trade

mark/logo/trade name and of the impugned trade

mark/logo/trade name respectively of the Defendant/Respondent are

so close that it can hardly occur except by deliberate imitation. The

Defendant/Respondent adopted and started using the impugned

trade mark/logo/trade name in full knowledge of the

Plaintiff/Applicant’s said rights. The unwary purchasers which include

each and every section of society people are bound to be

deceived and are being deceived in dealing with and purchasing

the Defendant/Respondent’s impugned services and business under

the impugned trade mark/logo under the impression that it is

emanating from the Plaintiff/Applicant source or that some vital

links exist between the Plaintiff/Applicant and the

Defendant/Respondent. Defendant/Respondent appear to have been

tempted by the singular reputation of the Plaintiff/Applicant. By its

impugned adoption and user of the impugned trade

mark/logo/trade name, the Defendant/Respondent is disseminating

confusion and deception in the markets with the result that the
 spurious services of the Defendant/Respondent are being passed off

as the genuine services of the Plaintiff. By the impugned adoption

and user deception and confusion is caused in the market.

11. In about the beginning of October 2015 the Plaintiff/Applicant

came across the impugned services of the Defendant/Respondent

under the impugned trade mark/logo/trade name in the markets.

Constrained the Plaintiff/Applicant launched inquiries in the markets

to ascertain the Defendant/Respondent’s impugned activities under

the impugned mark/logo/trade name. The inquiries of the

Plaintiff/Applicant revealed that the Defendant/Respondent had just

about recently and in the beginning of October 2015 had started

commercially using the impugned Trade Mark/logo/trade name on its

vendible articles viz. the impugned services and formally going to

inaugurate his shop for distribution and marketing of books and

stationaries on dated 20 October, 2015. The Defendant/Respondent is

carrying on its impugned activities in clandestine manner. The

contents and details of documents like letterhead, invoices, business

card, invitation cards etc. belonging to the service/ impugned trade

mark and business by the Defendant/Respondent mentioned in the

accompanying plaint are not repeated here for the sake of brevity and

the same may be treated to as an integral part of the present

application.

12. The Plaintiff/Applicant issued upon the defendant legal notice

dated 15 October 2015 which was duly received by the

Defendant/Respondent on 17 October 2015 at his residence address.

That the Plaintiff/Applicant through its counsel also served the scanned

copy of the legal notice dated 15 October 2015 sent on dated 19

October 2015 via email. Furthermore, original copy of the legal notice
 dated 15 October 2015 vide Speed Post Article ED329693332IN was

duly served to the Defendant/Respondent at his office address as well

which was duly received by the Defendant/Respondent on 20 October

2015 and replied to through counsel by the Defendant/Respondent by

letter dated 29 October 2015 on false claims and assertions. It is

noticeable that the envelope of the reply to the legal notice dated 29

October 2015 showed stamp of receiving by post office and the date

marked in the stamp of the post office is of 12 November 2015 which

again bust the malafide juggling intentions of the

Defendant/Respondent.

13. That the Plaintiff/Applicant being disgruntled with the reply given

by the Defendant/Respondent, was constrained to issue rejoinder

dated 16.11.2015 vide Speed Post Article ED687153255IN which was

duly received by the Defendant/Respondent on 16 November 2015 but

remained unanswered and unheeded till date.

14. That the Plaintiff/Applicant also issued a disclaimer letter dated

______________ to its Bank named Corporation Bank _______________

branch intimating the same about the termination of every

professional relationship between the Plaintiff/Applicant and the

Defendant/Respondent. Further the Plaintiff/Applicant also cautioned

its Bank against Defendant/Respondent’s impugned activities under

the impugned mark/logo/trade name.

15. That the Plaintiff/Applicant also launched inquiries further with

the Registrar of Trade Marks at Patna which revealed that the

Defendant/Respondent had even filed trade mark application under

No.3424571 in class 35 in respect of trade mark SSGP embedded in

rising sun in end of year 2016. . The contents and details of

documents pertaining to application for registration of the impugned

trade mark/ logo SSGP embedded in rising sun by the

 Defendant/Respondent mentioned in the accompanying plaint are not

repeated here for the sake of brevity and the same may be treated to

as an integral part of the present application.

16. The Defendant/Respondent’s act are illegal and unlawful. The

only remedy available to the Plaintiff/Applicant is to file the present

proceedings before the Hon’ble Court. An order of injunction is the only

efficacious relief which can curb the illegal acts of the

Defendant/Respondent.

17. The fraudulent acts of the Defendant/Respondent are completely

unwarrantable and unconstitutional and the same is liable to be curbed

by an order of injunction by this Hon’ble Court. The

Defendant/Respondent is also liable to pay damages and/or render

accounts to the Plaintiff/Applicant for all the monetary gains made by

them.

18. The Plaintiff/Applicant is, therefore, entitled to an immediate

order of ex-parte ad interim injunction from this Hon’ble Court

restraining the Defendant/Respondent from continuing with his illegal

and forbidden activities and using a deceptively similar mark.

Irreparable loss and injury is likely to be caused to the

Plaintiff/Applicant if the Defendant/Respondent’s activities are not

curbed by an ex-parte ad-interim injunction which is the only

efficacious remedy available to the Plaintiff/Applicant for protection of

his legal rights.

19. The balance of convenience is in favour of the Plaintiff/Applicant

and the Plaintiff/Applicant has established a prima facie case against

the Defendant/Respondent. The impermissible use by the

 Defendant/Respondent of identical or deceptively similar trademark is

likely to lead to enormous injury to the Plaintiff/Applicant’s rights in the

said trademark and logo and irrespective of whosoever be the user of

the mark the same is liable to be curbed. The Plaintiff/Applicant enjoys

enormous goodwill and has an excellent reputation in the mark/logo.

Under such circumstances, it would be just, fair and reasonable that

this Hon’ble Court protects the rights of the Plaintiff/Applicant against

the Defendant/Respondent.

20. The Plaintiff/Applicant has a prima facie case in the present suit.

The trademark/logo “GP embedded in rising sun between hills”

was originally coined and adopted by the Plaintiff/Applicant herein and

by virtue of long, continuous and extensive use is immediately

associated by public at large with the Plaintiff/Applicant only. The

Defendant/Respondent is obviously the subsequent and dishonest

adopter of the infringing mark. The Defendant/Respondent is using the

mark “SSGP embedded in rising sun” as its trademark, trying to

establish false connection and association with the Plaintiff/Applicant

among public and other traders, damaging the Plaintiff/Applicant’s

hard-earned reputation. The damage would be irreversible to the

Plaintiff/Applicant.

21. The Plaintiff/Applicant, therefore, respectfully prays that the

following relieves be granted in its favour:-

(i) An order of interim injunction restraining the

Defendant/Respondent by themselves as also through his individual

proprietors, partners, directors, C and f agents, agents,

representatives, distributors, assigns, heirs, successors, stockiest and

all others acting for and on his behalf from using, selling, soliciting,

exporting, displaying, advertising - by visual, audio, print mode - or by

 any other mode or manner or dealing in or using the impugned

trade mark SSGP embedded in rising sun or any other identical

with and/or deceptively similar word/mark/name in relation to his

impugned services and business of marketing and distribution of

books and related/allied services or any other services and from

doing any other acts or deeds amounting to or likely to amount:-

(a) Infringement of Plaintiff/Applicant's registered trademarks.

(b) Passing off and violating the Plaintiff/Applicant’s common law

rights in the Plaintiff/Applicant’s GP embedded in rising sun

between hills Trade Mark/logo/trade name;

(c) Infringing the Plaintiff/Applicant’s Copyright and also passing off

the Plaintiff’s common law rights therein.

(ii) For an interim order for delivery up of all the Defendant/Respondent’s

impugned services and business bearing the impugned trade mark/logo

including invoices, letterhead, business cards, boxes or any other

incriminating material including display boards and sign boards and trade

literature to the Plaintiff/Applicant for the purposes of destruction and

erasure.

(iii) Ex-parte order in the above mentioned terms;

(iv) Any such further orders as this Hon’ble Court may deem fit and proper

in the facts and circumstances of the present case be passed in favor of the

Plaintiff/Applicant and against the Defendant/Respondent.

Ved Prakash

Plaintiff/Applicant
FILED THROUGH:

_____________________
COUNSEL FOR THE PLAINTIFF
ADDRESS
PATNA-8000
PATNA
DATED: 00-07-2018

IN THE COURT OF SUB- JUDGE, PATNA CITY, PATNA

(Ordinary Original Civil Jurisdiction)

CS (CIVIL) No. of 2018

M/S GYAN PRAKASH

Through its Sole Proprietor
Shri Ved Prakash ...Plaintiff
Versus

M/S S.S GYAN PRAKASH

Through its Proprietor
Shri Shambhu Kumar Yadav ...Defendant

AFFIDAVIT IN SUPPORT OF THE APPLICATION

Affidavit of Ved Prakash, R/o Sai Daffodils Apartments, Flat No. 302,
Behind
CDA Building, New Lalji Tola, Patna-800001.
I the above named deponent do hereby solemnly affirm, declare and say as
under:-

1. I am proprietor of the Plaintiff/Applicant firm and have been duly

entitled to institute and file this case as also verified its pleadings
and depose to its facts. I am aware of the facts and circumstances
of this case and can swear this affidavit.

2. I have read the contents of the accompanying application and I say

that the contents therein are true to my knowledge.

DEPONEN
T
VERIFICATION:-

Verified at Patna City, Patna on this __________ day of July, 2018 that the

contents of my above affidavit are true to my knowledge and I say that no

part of it is false and nothing material has been concealed there from.

DEPONENT

FILED THROUGH:

_____________________
COUNSEL FOR THE PLAINTIFF
ADDRESS
PATNA-8000
PATNA
DATED: 00-07-2018