J.K. Sons Vs. Parksons Games and Sports and Mr. Ketan Mehta, Sole Proprietor of K.D. Corporation (Decided on 18.03.2011) MH/0370/2011
Infringement of Trade Mark - Passing off - Whether respondents themselves having infringed the mark of another, were entitled to any protection in respect thereof including as against the Appellants even assuming that they had otherwise made out a case for passing off and/or infringement of trade marks or of copyright?
Held, it was necessary for the Appellants to establish that the third party was in fact the proprietor of the mark 555 and that the respondents had infringed the same - In the instant case, there were no averments, to indicate that the Respondents' marks/cartons/labels were an imitation of the mark State Express 555 - There was no evidence whatsoever to the effect that the third party used the mark 555 or created the labels/cartons or marks prior to the creation of and use by the Respondents of the marks/labels and cartons - Appellants had not produced any evidence, and the pleadings were insufficient, to hold that the goods were such as to cause deception - Thus the Appellants must fail on facts - Appeal dismissed.
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