KOXAN INDIA Vs. RAMESH MARDIA
LAWS(DLH)-2009-3-144
HIGH COURT OF DELHI
Decided on March 06,2009

Koxan India Appellant
VERSUS
Ramesh Mardia and Ors. Respondents

JUDGEMENT

Badar Durrez Ahmed, J. - (1.)THESE applications have been filed under Order 39 Rules 1 & 2 read with Section 151, CPC by the plaintiffs in the said two suits which are in the nature of cross -suits. By an order dated 20.08.2007, the suits were directed to be consolidated. In the said suits, the opposite parties claim exclusive rights in the trademark /label „MARDIA CABLES? in respect of electrical cables, electrical wires and accessories. IA 1941/2006 is by Koxan India, who is the plaintiff in CS(OS) 328/2006. IA 7308/2006 has been filed by Mr Ramesh Mardia proprietor of Mardia Cables and who is the plaintiff in CS(OS) 1352/2006. It may also be noted that in the suit filed by M/s Koxan India, Ramesh Mardia has been arrayed as defendant No. 1, M/s Mardia Cables as defendant No. 2 and one Shree Raj Ventech Power Cab Limited as defendant No. 3. In the suit filed by Mr Ramesh Mardia as proprietor of Mardia Cables, Mr Kamlesh Jain and Mrs Lalita Jain, who are the partners in M/s Koxan India, have been arrayed as defendant Nos. 1 and 2. M/s Koxan India is the defendant No. 3 in that suit. The tussle in both the suits is over the exclusive rights in respect of the trademark/label "MARDIA CABLES". There is also a dispute with regard to the copyright in the art work involved in the trademark/label "MARDIA CABLES". However, the main and central point is with regard to the exclusive ownership of the trademark/label "MARDIA CABLES".
(2.)IN these applications in the cross suits, M/s Koxan India, on the one hand, seeks an ad interim injunction restraining Ramesh Mardia, who is the sole proprietor of "MARDIA CABLES" from using the trademark/label "MARDIA CABLES" in relation to electrical cables, electrical wires and accessories. On the other hand, Ramesh Mardia also seeks an ad interim injunction restraining M/s Koxan India and its partners from using the trademark/label "MARDIA CABLES" in respect of electrical cables, electrical wires and accessories. According to M/s Koxan India, the trademark/label "MARDIA CABLES" was initially registered in the name of Ramesh Mardia trading as M/s Mardia Cables vide Registration No. 568306 in Class -9 w.e.f. 25.02.1992. There is no dispute with regard to this fact. It is alleged on behalf of Koxan India that Ramesh Mardia duly assigned the trademark "MARDIA CABLES" alongwith its registration and goodwill to Mr Kamlesh Jain through a deed of assignment dated 01.03.2002. There is also no dispute with regard to this fact also.
Thereafter, the said Mr Kamlesh Jain and Mr Ramesh Mardia filed a joint application in Form TM -23 alongwith the supporting affidavits before the Registrar of Trademarks to record the said transfer and assignment in favour of Mr Kamlesh Jain. By his order dated 26.02.2004, the Registrar of Trademarks allowed the said request and registered Mr Kamlesh Jain as the proprietor of the trademark/label "MARDIA CABLES" in respect of the electrical cables, electrical wires and accessories. This fact was also advertised in the Trademarks Journal of 1316 dated 01.04.2004.

(3.)IT is also alleged on the part of Koxan India that initially, Mr Kamlesh Jain was carrying on business through his sole proprietorship concern under the name of Kevin Mardia Cab Industries. Subsequently, a partnership deed dated 14.11.2003 was executed by the said Mr Kamlesh Jain and Mr Mahaveer Jain and the name of the erstwhile sole proprietorship concern Kevin Mardia Cab Industries was changed to its present name M/s Koxan India. It is alleged that the said partnership between Kamlesh Jain and Mr Mahaveer Jain was dissolved by virtue of the dissolution deed dated 07.05.2004 w.e.f. 01.04.2004. By virtue of Clause 3 of the said dissolution deed, Mr Kamlesh Jain took over the entire business of the partnership concern. On the same date, i.e., on 07.05.2004, a fresh partnership deed was executed between Mr Kamlesh Jain and Ms Lalita Jain. It is submitted that the said constitution of the firm M/s Koxan India continues till date.


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