Civil Procedure Code (CPC)

Share on Facebook

Share on Twitter

Share on LinkedIn

Share on Email

Share More

lexbery (d)     26 June 2015

Trade mark case 20 lac

we are running a pvt ltd company since 2010,now in march 2015 a foreign firm( i want to keep the name private) has filled and got injunction from using the name of their firm name (the first word of their firm is similar to the 1st word of our firm,ours is a dictionary word,while their's they have added a extra letter to the word,both sound similar)they have 4 pvt ltd company running with the same name in india.

they have filled a inital suit of 20,00,0000/- at delhi (we are in different state) ,we have now changed the name of our firm,and informed them,but they are not accepting to withdraw the case,they said even if they withdraw we have to give their legal lawyers fees(until now they have appered only once while filling the case ,the next date is september 2015) and court fees which as per them is rs 5,00,000/-

we are a small firm,we can't afford paying more than 1,00,000/- to settle the case outside the court,but they do not agree.

now i want to know should i close the pvt ltd company( i and my son are the directors) to avoid attachment of bank account by court decree and start a parnership firm(i and my son will be the partner)

how to do business and also avoid loosing 5 lac or 20 lac whatever the court order may be.



 9 Replies

Rama chary Rachakonda (Secunderabad/Highcourt practice watsapp no.9989324294 )     26 June 2015

Even if you close your company, directors cannot escape from the damages. How registrar of companies allowed you to same name to your company ? contact registrar of companies. 

lexbery (d)     27 June 2015

dear sir, now what to approch roc for?its been 5 years,is their any onus on them?
i heard directors liability is limited then how come we cant escape it?heard made cases that pvt ltd co do fraud and close the firm and directors start new firm,then how does all this hppen?

Amol Kende (No)     28 June 2015

Dear Lexbery

do you have co. reg certificate attested by the authorities and specify its date, what certificate that co. received and when the date of certificate cross check if you certificate is earlier and that co have name change certificate after yours then you can challange them directly that your brand other co can use without permission now case is not closed now crosscheck details with the co. registrar also collect proofs if you are not guilty after all other co change and added that pronounce in that co name which is simmilar to your co name dont be scard in this you present your side that no fault liability, because whether you applied but how come company registrar not reject that application of company name when its pronounce same, co. name approval authority is the co. regisrar how do you know the similar named company what ever registered or not its information is with the company registrar you have in no fault liability if you applied with same name of other company then registrar need to reject the application with proper reason its not. suggest not leave your brand its your goodwill and other company not own this co. name its directly owing your goodwill too turn back in the case and fight for your justice.

lexbery (d)     29 June 2015

dear amol,we had a sole proprietorship firm with the same name before any of their pvt ltd co registered in india,but then we changed our co to pvt ltd only 5 years ago,on which they say they their are registerd before us and since its a mnc their 1st name is a well know word in the whole world,but we made our 1st name by dictionary word.

as per your reply i didnt understand clearly we have original roc date of incorporation with us.

can any one clearly tell me if i close my pvt ltd and dnt have any assests in the name of pvt ltd and start new patnership firm can they still claim money???

i cant afford to pay 3 lac leave alone 20 lac

subramanian (consultant)     11 July 2015

You case falls under the Registrar of companies.If some person applies for registration of a company, the registrar of companies conducts a search through their records and if no similar name is registered earlier with them then only the name will be registered.In your case the Registrar has registered your company .Hence it can be assumed that no similar company has been registered, If the MNC is aggrieved and if they had registered a similar name earlier than yours they can take up the matter with the Registrar of companies You can also check up with the registrar and also with the MNC to find out whether they have registered  a similar name with the registrar before you in India.Youhave stated that you had registered your sole proprietors name I hope with the registrar of firms  earlier and you have converted it  now to a Pvg ltd .If it is so you have a better right to use your name.These facts can be bought to the notice of The MNC .The MNC should have served a notice to you before unnecessarily dragging you to court  as your company is already registered and using it for more than 5 years.Dont be afraid of any MNC.'

This case does not relate to trademarks as you are not selling any goods under their trademarkMake Registrar of companies a party to the proceedings

T.R.Subramanian

lexbery (d)     15 July 2015

dear sir subramanian,

the name of our sole propritorshipship was not registered.

also the date on which they served their notice and creation of the private ltd firm is 4 years 6 months,so 5 year not completed.

we told them ROC is liable but they did not listen.

we have now changed the name of the pvt ltd.will they still claim damages,or their lawyer fees?

subramanian (consultant)     17 July 2015

If you have registered your  company with the Registrar of companies India prior to the MNC irrespective of the fact whether  you have used it one day or for five years you have a better right  to the name.Howeveryou have now changed the name of your firm due to the case filed by the MNC without contesting.Normally by way of caution  the MNC should have given a notice to you on the matter by way of caution and to avoid unnecessary litigation.It appears they have not done so.Hence it is not necessary to pay lawyers fees.You may inform the MNC accordingly

T.R.Subramanian

lexbery (d)     20 July 2015

sir we are a very small trading firm,so we didnot know anything about registration of trademark and all,so they have registration (with addional letter in their name)but not in the spelling of our name before us.

they sent letter two times we refuted their claims,3rd time they sent injuction notice and also a caveat from the high court,thats why we canged our name to carry own normal business operations.

how will the lawyer fee cliamed/judged? can they claim 5lacs,do we need to pay so much?cant we do direct communication with the firm and not their lawyer requesting to end the matter out of court as we have already changed their name?we are not capable to spend on cases

lexbery (d)     10 August 2015

 dear sir,

with reference to the above case,we are in talk with the other side for compromise,i have also received the compromise draft.

in the draft they mentioned the following:

1.The Defendants acknowledge that the first Plaintiff is the registered proprietor  

2.The Defendants submit to a permanent injunction of this Hon'ble Court  

 

iii The Defendants, hereby agree that any breach/default of any condition set forth above would be a material default/breach of the compromise decree and the consequences as entailed in paras (viii), (ix) and (x) below attributable to such breach/default would immediately follow;

viii.    In case the Defendants are found to be in default and/or breach of any condition set forth herein above, then the Plaintiffs will first approach the Defendants informing them of the default and/or breach and demand the rectification of such default and/or breach within a stipulated period of 1 week and it is only in the case of not rectifying the breach within the said stipulated period that the following clause 6(ix) will come into operation;

ix.    The Defendants agree to pay to the Plaintiffs without any demur or protest a sum of INR 10,00,000/- (Ten Lakhs only) in the event  of the occurrence of any future default/breach by them of any  condition set forth herein above;

x.    The Defendants hereby agree and undertake that the present decree is a money decree for each and every purpose and shall become executable immediately on the breach and/or default by them of any condition set forth herein above and not rectified within a period of one week from the date of information of such breach and/or default.

xi. The parties shall bear their own cost of the proceedings.

It is therefore most humbly prayed that:

i.    the suit be decreed in terms of prayer clauses A, B, C of the Plaint against the Defendants;

ii.    that the present application and the terms of settlement listed in paragraph 6 above be made a part of the decree;

iii.    the Plaintiff’s be given a refund of half of the Court Fees paid;

iv.    any other relief which the Hon’ble Court thinks fit and proper in the circumstances of the case be granted to the Plaintiff.

my query:

is this terms ok?they have not mentioned it that demand for 20 lac is dropped or that they demand cost of suit will not be raised?(they say its not required to be mentioned both of them)
kindly advise


Leave a reply

Your are not logged in . Please login to post replies

Click here to Login / Register  


Related Threads


Loading

Post a Suggestion for LCI Team
Post a Legal Query