TaxTMI 
TaxTMI 
TaxTMI 
2022 (2) TMI 1505
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.... injunction from manufacturing, importing, marketing, advertising, promoting, offering for sale, selling, exporting and/ or using the impugned product ORPAT FX-991ES PLUS bearing the Plaintiff's Registered Design bearing Nos. 214283 and 214282 dated 16/01/2008 in Class 18-01 for its scientific calculator CASIO FX-991ES PLUS by itself or in combination with any other design(s); and/ or other articles/ goods/ products bearing the impugned design or any other design which is identical to or is a fraudulent imitation of Plaintiff's Registered Designs, so as to commit piracy of the Plaintiff's Registered Design Nos. 21483 and 214282. B. The Defendants, their directors, agents, sellers, retailers, distributors, suppliers, franchisees, representatives, employees, affiliates and assigns be directed by a decree of mandatory injunction directing that they at their own expense: i. Recall all the impugned products and/ or any marketing, promotional and advertising materials that bear or incorporate the impugned design or any other articles/ goods/ products which bears a design which is a fraudulent or an imitation of the Plaintiff's Registered Designs, which has been manufactur....
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....arties, a settlement was arrived at vide a Settlement Agreement dated 16.05.2019. The High Court decreed the suit on 03.07.2019 in terms of the Settlement Agreement. Subsequently, an Application was filed by the Appellant under Sections 152 and 153 read with Section 151 of the CPC for correction/ rectification/ amendment of the judgment dated 03.07.2019. The Appellant stated in the said Application that the Settlement Agreement pertains only to trademark "FX-991ES PLUS'/ 'FX-991". However, there was an inadvertent typographical error of the trademark in the Settlement Agreement as "FX-991ES PLUS/ FX/ 991". As stated above, the High Court dismissed the Application. Hence, this Appeal. 4. We have heard Mr. K.V. Viswanathan, learned Senior Counsel appearing for the Appellant and Dr. Abhishek Manu Singhvi and Mr. Chander Lal, learned Senior Counsel appearing for the Respondents. On behalf of the Appellant, it was contended that the High Court committed an error in dismissing the Application by considering the same to have been filed only under Section 152 of the CPC. It was submitted that the High Court ought to have considered the Application by referring to Order 23 Rule 3 read with....
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....ator and finally, the Court examined the terms of the Agreement in terms of which a decree was passed. After applying its mind to the Settlement Agreement, the High Court passed a decree in terms of the Agreement. A perusal of the correspondence between the advocates for the parties would clearly demonstrate that the Respondent made it clear that the Appellant should not use "FX-991ES PLUS"/ "FX-991ES" or any deceptively or confusingly similar mark. Referring to the judgments relied upon by the learned Senior Counsel for the Appellant, Dr. Singhvi argued that consent decrees create estoppel by judgment against the parties and cannot be interfered with unless the decree is vitiated by fraud, misrepresentation or a patent or obvious mistake. He submitted that Respondent No. 1 has adopted trademark 'FX' for scientific and electronic calculators since the year 1985. Respondent No. 1 obtained a Design registration for the mark "FX" bearing No. 5010491 in Class-9 and claiming use since 29.01.1999. Countering the submissions of Mr. Viswanathan, learned Senior Counsel that "FX" is used by other manufacturers, Dr. Singhvi, learned Senior Counsel relied upon a list of 3rd part....
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....similar packaging, which is identical and/ or deceptively and confusingly similar to the First Party's packaging/ trade dress for its scientific calculators FX-991ES PLUS;" 7. A modified Settlement Agreement was communicated by the advocate for the Appellant to the advocate for the Respondent on 07.03.2019 in which it was mentioned as follows: "a. The third party undertakes never to adopt and/ or manufacture and/ or sell and/ or offer of sale and/ or advertise/ promote or use in any manner the impugned design, which shall mean and include the subject matter of the challenge in Suit being C.S.(COMM.) No. 1254 of 2018 before the High Court of Delhi or any other design similar to that of the First party's registered designs bearing nos. 214283 and 214282 dated 16/01/2008 in Class 18-01. The Third Party further undertakes never to adopt and/ or advertise/ promote or use in any manner, any goods or services which incorporate the First Party's FX991ES PLUS/ FX-991ES marks, in their entirely or the numeral 991.; b. xx xx xx c. The Third Party reiterates that since and from 30.11.2018 it has neither manufactured nor marketed nor dispatched any calculator bearing the impugned....
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....rtakes to never use the packaging/ trade dress of the First Party's scientific calculator FX-991ES PLUS First Party's registered designs of FX-991ES PLUS bearing nos. 214283 and 214282 dated 16/01/2008 in Class 18-01, annexed herewith as Annexure A or any other packaging, which is identical and/ or deceptively and confusingly similar to the First Party's packaging/ trade dress above as described in aforementioned Annexure A.' e. The Third Party has already recalled all the products bearing the impugned design and/ or any marketing, promotional and advertising materials that bear or incorporate the impugned design or any other articles/ goods/ products which bears the impugned design, which have been manufactured or promoted in the market, including but not limited on online retail/ ecommerce websites.; f. In view of the aforesaid recall, the Third Party undertakes that it has already sent e-mails/ notice to all its distributors and retailers who have having direct business relation with the Third party to recall the impugned products from the market. Copyies of one such e-mails/ notices dated sent by the Third Party are collectively annexed herewith as Annexure B[Colly]. Howe....
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....he parties. 11. In Banwari Lal v. Chando Devi (Smt.) (through LRs.) & Anr. [(1993) 1 SCC 581] this Court was concerned with a compromise on the basis of which the Appellant delivered possession of the disputed land to the Respondent. Later, on verification and inspection of the records, the Appellant realized that his advocate colluded with the defendants in the suit and had played fraud on him by filing a fabricated petition of compromise. The Trial Court recalled the order on the ground that the compromise petition was not signed by the parties as required by proviso to Rule 3 of Order 23 of the CPC. The Revision Petition filed by the Respondent was allowed by the High Court against which the Appellant filed an Appeal before this Court. It was held in the said case that an Application to exercise the power under proviso to Rule 3 of Order 23 can be labelled under Section 151 of the CPC. It was observed in the judgment that the illegality and validity of a compromise can be examined under Section 151 of the CPC. Mr. Viswanathan, learned Senior Counsel relied upon a judgment of the Privy Council in Sourendra Nath Mitra & Ors. (supra) in support of his submission that the Courts re....