(Note:- Each Facts, which deserved to be proved should be mentioned in the body of the Suit/ Writ Petition/ criminal complaint etc; including in the pre-suit notice. Something which is not alleged at that place, cannot be proved. Thus, write clearly names of each books/ novels published by the person about whom the allegation is made in above paragraph – Author).
There is an estimate that, these books ran into approximately 10,000 copies. The approximate cost price of each book is Rs. 25-00 in a round figure, thus the sale price is Rs.2,50,000-00 out of which net profit for each book will be 10%, that is Rs.25000-00, multiplied by number of books he published. In this defendant’s case it is Rs.11,75,000-00 (Rupees eleven lakhs seventy five thousands only).
16.5. Following are the counterfeit and passed off Books Published by the 5th defendant, M/S hhh Pocket Books. These Books are being SOLD by the 14th Defendant, M/S yyy and Co. Pvt. Ltd.
(Note:- Each Facts, which deserved to be proved should be mentioned in the body of the Suit/ Writ Petition/ criminal complaint etc; including in the pre-suit notice. Something which is not alleged at that place, cannot be proved. Thus, write clearly names of each books/ novels published by the person about whom the allegation is made in above paragraph – Author).
There is an estimate that, these books ran into approximately 10,000 copies. The approximate cost price of each book is Rs. 25-00 in a round figure, thus the sale price is Rs. 2,50,000-00 out of which net profit for each book will be 10%, that is Rs. 25,000-00. Thus, the amount to be recovered from one publisher/defendant is Rs. 25000-00 Multiplied by number of books he published. In this defendant’s case it is Rs. 2,00,000-00 (Rs. Two lakhs only).
16.5.1. After receiving the Pre-suit notice from the plaintiff, this Defendant obtained a “back dated” document, with date ... from the defendant no-32, in which he purchased copyright for 36 number of novels for a sum of Rs.5000/-. These novels are, in the words of defendant no-32, written by himself with the penname/ trademark “King cobra” and at no place he wrote that, he is permiting the defendant to publish them in the present manner, to pass-off as if those books were written by his deceased father. The defendant had annexed the said document in his Case filed at Hon’ble Distt. Judge’s Court, Mumbai and the plaintiff obtained certified copy of this document.
16.6. Following are the counterfeit and passed off Books Published by the 6th defendant, M/S jjj Prakashan. These Books are being SOLD by the 14th Defendant, M/S yyy and Co. Pvt. Ltd.
(Note:- Each Facts, which deserved to be proved should be mentioned in the body of the Suit/ Writ Petition/ criminal complaint etc; including in the pre-suit notice. Something which is not alleged at that place, cannot be proved. Thus, write clearly names of each books/ novels published by the person about whom the allegation is made in above paragraph – Author).
There is an estimate that, these books ran into approximately 10,000 copies. The approximately cost price of each book is Rs. 25-00 is a round figure, thus the sale price is Rs. 2,50,000-00 out of which net profit for each boook will be 10%, that is Rs. 25,000-00. Thus, the amount to be recovered from one publisher/defendant is Rs. 25000-00 multiplied by number of books he published. In this defendant’s case it is Rs. 1,75,000-00 (Rs. One lakh seventy five thousands only).
16.6.1. After receiving the Pre-suit notice from the plaintiff, this Defendant obtained a “back dated” document, with date ..., from the defendant no-32, in which he purchased copyright for 21 number of novels for a sum of Rs.5000/- These novels are, in the words of defendant no-32, written by himself with the penname/ trademark “King cobra” and at no place he wrote that, he is permitting the defendant to publish them in the present manner, to pass-off as if those books were written by his deceased father. The defendant had annexed the said document in his Case filed at Hon’ble Distt. Judge’s Court, Mumbai and the plaintiff obtained certified copy of this document.
16.7. Following are the counterfeit and passed off Books Published by the 7th defendant, M/S kkk Pocket Books. These Books are being SOLD by the 14th Defendant, M/S yyy and Co. Pvt. Ltd.
(Note:- Each Facts, which deserved to be proved should be mentioned in the body of the Suit/ Writ Petition/ criminal complaint etc; including in the pre-suit notice. Something which is not alleged at that place, cannot be proved. Thus, write clearly names of each books/ novels published by the person about whom the allegation is made in above paragraph – Author).
There is an estimate that, these books ran into approximaerly 10,000 copies. The approximate cost price of each book is Rs. 25-00 in a round figure, thus the sale price is Rs. 2,50,000-00 out of which net profit for each will be 10%, that is Rs. 25,000-00. Thus, the amount to be recovered from one publisher/defendant is Rs. 25000-00 multiplied by number of books he published. In this defendant’s case it is Rs. 3,75,000-00 (Rs. three lakhs seventy five thousands only).
16.8. Following are the counterfeit and passed off Books Published by the 8th defendant, M/S LLL Pocket Books. These book are being SOLD by the 14th Defendant, M/S yyy and Co. Pvt. Ltd.
(Note:- Each Facts, which deserved to be proved should be mentioned in the body of the Suit/ Writ Petition/ criminal complaint etc; including in the pre-suit notice. Something which is not alleged at that place, cannot be proved. Thus, write clearly names of each books/ novels published by the person about whom the allegation is made in above paragraph – Author).
There is an estimate that, these books ran into approximately 10,000 copies. The approximate cost price of each book is Rs. 25-00 in a round figure, thus the sale price is Rs. 2,50,000-00 out of which net profit for each boook will be 10%, that is Rs. 25,000-00. Thus, the amount to be recovered from one publisher/defendant is Rs. 25,000-00 multiplied by numbeer of books he published. In this defendant’s case it is Rs. 2,00,000-00 (Rs. Two lakhs only).
16.9. Following are the counterfeit and passed off Books Published by the 9th defendant, M/S mmm Pocket Books. These books are being SOLD by the 14th Defendant, M/S yyy and Co. Pvt. Ltd.
(Note:- Each Facts, which deserved to be proved should be mentioned in the body of the Suit/ Writ Petition/ criminal complaint etc; including in the pre-suit notice. Something which is not alleged at that place, cannot be proved. Thus, write clearly names of each books/ novels published by the person about whom the allegation is made in above paragraph – Author).
There is an estimate that, these books ran into approximately 10,000 copies. The approximate cost price of each book is Rs. 25-00 in a round figure thus the sale price is Rs. 2,50,000-00 out of which net profit for each book will be 10%, that is Rs. 25,000-00. Thus, the amount to be recovered from one publisher/defendant is Rs. 25000-00 multiplied by number of books he published. In this defendant’s case it is Rs. 12,00,000-00 (Rs. Twelve Lakhs Only).
16.9.1. After receiving the Pre-suit notice from the plaintiff, this Defendant obtained a “back dated” document, with date ..., from the defendant no-32, in which he purchased copyright for 49 number of novels for a sum of Rs.5000/-. These novels are, in the words of defendant no-32, written by himself with the penname/ trademark “King cobra” and at no place he wrote that, he is permiting the defendant to publish them in the present manner, to pass-off as if those books were written by his deceased father. The defendant had annexed the said document in his Case filed at Hon’ble Distt. Judge’s Court, Mumbai and the plaintiff obtained certified copy of this document.
16.10. Following are the counterfeit and passed off Books Published by the 10th defendant, M/S nnn Pocket Books. These book are being SOLD by the 14th Defendant, M/S yyy and Co. Pvt. Ltd.
(Note:- Each Facts, which deserved to be proved should be mentioned in the body of the Suit/ Writ Petition/ criminal complaint etc; including in the pre-suit notice. Something which is not alleged at that place, cannot be proved. Thus, write clearly names of each books/ novels published by the person about whom the allegation is made in above paragraph – Author).
There is an estimate that, these books ran into approximate 10,000 copies. The approximate cost price of each book is Rs. 25-00 in a round figure, thus the sale price is Rs. 2,50,000-00 out of which net profit for each book will be 10%, that is Rs. 25,000-00. Thus, the amount to be recovered from one publisher/defendant is Rs. 25000-00 multiplied by number of books he published. In this defendant’s case it is Rs. 11,75,000-00 (Rs. Eleven Lakhs Seventy Five Thousands only).
16.10.1. After receiving the Pre-suit notice from the plaintiff, this Defendant obtained a “back dated” document, with date ...., from the defendant no-32, in which he purchased copyright for 45 number of novels for a sum of Rs.5000/-. These novels are, in the words of defendant no-32, written by himself with the penname/ trademark “King cobra” and at no place he wrote that, he is permiting the defendant to publish them in the present manner, to pass-off as if those books were written by his deceased father. The defendant had annexed the said document in his Case filed at Hon’ble Distt. Judge’s Court, Meerut and the plaintiff obtained certified copy of this document.
16.11. Following are the counterfeit and passing off books published by the 11th defendant M/S ppp Pocket Books. These books are being sold by the 14th Defendant M/S yyy and Co. Pvt. Ltd.
(Note:- Each Facts, which deserved to be proved should be mentioned in the body of the Suit/ Writ Petition/ criminal complaint etc; including in the pre-suit notice. Something which is not alleged at that place, cannot be proved. Thus, write clearly names of each books/ novels published by the person about whom the allegation is made in above paragraph – Author).
There is an estimate that, these books ran into approximately 10,000 copies. The approximate cost price of each book is Rs. 25-00 in a round figure, thus the sale price is Rs.2,50,000-00 out of which net profit for each book will be 10%, that is Rs.25000-00, multiplied by number of books he published. In this defendant’s case it is Rs. 3,00,000-00 (Rupees three lakhs only).
16.12. Following are the counterfeit and passing off books published by the 12th defendant. M/S qqq Pocket Books. These books are being sold by the 14th Defendant M/S yyy and Co. Pvt. Ltd. He published two books, with following names:... and ... There is an estimate that, these two books ran into approximately 10,000 copies. The approximate cost price of each book is Rs. 25-00 in a round figure, thus the sale price is Rs.2,50,000-00 out of which net profit for each book will be 10%, that is Rs.25000-00, multiplied by number of books he published. In this defendant’s case it is Rs.50,000-00. (Rupees fifty thousands only).
16.13. Following are the counterfeit and passing off books published by the 13th defendant. M/S rrr Pocket Books. (1) ... (2) ... There is an estimate that, these books ran into approximately 10,000 copies. The approximate cost price of each book is Rs. 25-00 in a round figure, thus the sale price is Rs.2,50,000-00 out of which net profit for each book will be 10%, that is Rs.25000-00, multiplied by number of books he published. In this defendant’s case it is Rs.50,000-00. (Rupees fifty thousands only).
17. The deceased is survived by his two sons, Sh.vvv aged approximately 31 yrs, and Sh.WWW Kalia aged approximately 40 yrs, who are defendants 32 and 33. The plaintiff submits that, the deceased gave copy-right of a few books to him and for other publishers, he used to write only on royalty. Resultanty, after the death of the deceased, the copyright on those books will be with his sons. This resulting in the profits stated at para 16.1. to 16.13 will be distributed among all three copyright owners, namely the plaintiff, Sh. vvv Kalia and Sh. www Kalia, who are defendants 32 and 33 respectively. The Plaintiff beg to submit that, defendants 1 to 13 are liable to give money to them as follows:
17.1. The 1st defendant, M/S ccc Prakashan, had made an illegal profit of Rs. 3,50,000/-, which is to be distributed by him, that is, to the plaintiff Rs. 1,16,000/-; to Sh. vvv Kalia, Rs. 1,17,000/-; and to Sh. www Kalia Rs. 1,17,000/-, who are defendants 32 and 33 respectively.
17.2. The 2nd defendant, M/S ddd Paper Books, had made an illegal profit of Rs.1,80,000/-, which is to be distributed by him, that is, to the plaintiff Rs. 60,000/-; to Sh. vvv Kalia, Rs.60,000/-; and to Sh. www Kalia Rs. 60,000/-, who are defendants 32 and 33 respectively.
17.3. The 3rd defendant, M/S eee Publications/ Prakashan, had made an illegal profit of Rs. 1,00,000/-, which is to be distributed by him, that is, to the plaintiff Rs. 33,000/-; to Sh. vvv Kalia, Rs. 34,000/-; and to Sh. www Kalia Rs. 33,000/-, who are defendants 32 and 33 respectively.
17.4. The 4th defendant, M/S ggg Pocket Books, had made an illegal profit of Rs. 11,75,000/-, which is to be distributed by him, that is, to the plaintiff Rs. 3,87,500/-; to Sh. vvv Kalia, Rs. 4,00,000/-; and to Sh. www Kalia Rs. 3,87,500/-, who are defendants 32 and 33 respectively.
17.5. The 5th defendant, M/S hhh Pocket Books, had made an illegal profit of Rs. 2,00,000/-, which is to be distributed by him, that is, to the plaintiff Rs. 66,500/-; to Sh. vvv Kalia, Rs. 67,000/-; and to Sh. www Kalia Rs. 66,500/-, who are defendants 32 and 33 respectively.
17.6. The 6th defendant, M/S jjj Prakashan, had made an illegal profit of Rs. 1,75,000/-, which is to be distributed by him, that is, to the plaintiff Rs. 58,000/-; to Sh. vvv Kalia, Rs. 59,000/-; and to Sh. www Kalia Rs. 58,000/-, who are defendants 32 and 33 respectively.
17.7. The 7th defendant, M/S kkk Pocket Books, had made an illegal profit of Rs. 3,75,000/-, which is to be distributed by him, that is, to the plaintiff Rs. 1,25,000/-; to Sh. vvv Kalia, Rs. 1,25,000/-; and to Sh. www Kalia Rs. 1,25,000/-, who are defendants 32 and 33 respectively.
17.8. The 8th defendant, M/S LLL Pocket Books, had made an illegal profit of Rs. 2,00,000/-, which is to be distributed by him, that is, to the plaintiff Rs. 66,500/-; to Sh. vvv Kalia, Rs. 67,000/-; and to Sh. www Kalia Rs. 66,500/-, who are defendants 32 and 33 respectively.
17.9. The 9th defendant, M/S mmm Pocket Books, had made an illegal profit of Rs. 12,00,000/-, which is to be distributed by him, that is, to the plaintiff Rs. 4,00,000/-; to Sh. vvv Kalia, Rs. 4,00,000/-; and to Sh. www Kalia Rs. 4,00,000/-, who are defendants 32 and 33 respectively.
17.10. The 10th defendant, M/S nnn Pocket Books, had made an illegal profit of Rs. 11,75,000/-, which is to be distributed by him, that is, to the plaintiff Rs. 3,87,500/-; to Sh. vvv Kalia, Rs. 4,00,000/-; and to Sh. www Kalia Rs. 3,87,500/-, who are defendants 32 and 33 respectively.
17.11. The 11th defendant, M/S ppp Pocket Books, had made an illegal profit of Rs. 3,00,000/-, which is to be distributed by him, that is, to the plaintiff Rs. 1,00,000/-; to Sh. vvv Kalia, Rs. 1,00,000/-; and to Sh. www Kalia Rs. 1,00,000/-, who are defendants 32 and 33 respectively.
17.12. The 12th defendant, M/S qqq Pocket Books, had made an illegal profit of Rs. 50,000/-, which is to be distributed by him, that is, to the plaintiff Rs. 16,000/-; to Sh. vvv Kalia, Rs. 17,000/-; and to Sh. www Kalia Rs. 17,000/-, who are defendants 32 and 33 respectively.
17.13. The 13th defendant, M/S rrr Pocket Books, had made an illegal profit of Rs. 50,000/-, which is to be distributed by him, that is, to the plaintiff Rs. 16,000/-; to Sh. vvv Kalia, Rs. 17,000/-; and to Sh. www Kalia Rs. 17,000/-, who are defendants 32 and 33 respectively.
18. Vide Sec. 23 of the Copyright Act, to determine the term of copyright, the year of publication is must. None of the books at para 16, 16.1 to 16.13, printed and published by defendants 1 to 13 do have year of publications, which is an express proof of counterfeit and passed off by the defendants 1 to 13 on the society.
19. On the other hand, Defendant no-32 had given documents, to 6 defendants, with date ... and .... saying, he gave the copy right of 247 (two hundred forty seven only) novels, which were written by him, with the trade name King Cobra. In return on this sale, he got only Rs. 35000/-, means he got Rs. 142/- per novels, to surrender entire future re-print royalties. It is only about 6 out of 13 publishers. If other 7 publishers will release their claims, the entire ghost authors can be located. The original deceased author Mr.zzz who had the pen name King Cobra could write only 126 novels till his age of 62 yrs. The Junior King Cobra is claiming that, he wrote 247 novels till now, when he is only 31 yrs of age. Original King Cobra collected attractive amounts (to say with present inflated ratio, lakhs of rupees) as royalties from the plaintiff and other publishers. However, Junior King Cobra got only a negligible amount of Rs. 142/- per novels. It proves, these novels are written by Ghost authors.
20. During the life time, the deceased had registered his name “King Cobra” with photograph, as his trade mark, on date .... and .... and the Trade Mark Registry alloted him number ..... Thus, the impugned recent publications of defendants 1 to 13, with name “King Cobra” is clearly violation of Section 102 to 103 of the Trade Mark Act and by selling those books, the defendants 14 to 31 commits offence u/s 104 of the Trade Mark Act, 1999.
21. The Plaintiff begs to state that all defendants are also committing offences u/Ss 479, 481, 482, 483 and 486 IPC which defines “Property Mark”. To explain, when Late Sh. zzz wrote novels in the name “King Cobra”, he was desired of affixing his photo in the title pages. The said photo is his “Property Mark” under the IPC. Now all defendants are publishing and selling cheap literature written by ghost authors with the property mark of the deceased, to confuse the society and readers, to buy them, as if deceased author King Cobra is alive even today. It is done with the intention of committing counterfeit and passed off on the society and with the knowledge that, people want to read novels written by “King Cobra” and his name and photograph can sell any book.
22. The combination of “Mark” “King Cobra” and the photograph of the deceased author are not to be copied by any publishers and authors. The said behaviour is an offece U/S 487-488 IPC. the plaintiff requested all the defendants, not to repeat that offence anymore and to give him an undertaking to that effect and pay the damages to the sons of the deceased author and to the plaintiff, vide his pre-suit notices, which had been left unanswered by all the defendants.
23. Once defendant no-32 is admitting that, those books are written by him, the Trademark (the photograph and style of King Cobra) of the deceased author Mr.zzz were not to be printed on them, thus, the defendants had committed Infringemet of Trademark.
24. The novel writing is not a machine’s work. The individual author writes in accordance with his life experience. The Trademark (the photograph and style of King Cobra) of the deceased author Mr.zzz were not to be used on the books written by anybody else. The penname King Cobra can be used by anybody, but with different style and without photograph of deceased King Cobra. No permission could be given, by the copyright owners of deceased King Cobra, being, the Customers/ public are not to be confused. The necessary ingredients, to prove damageas, U/S 29 TM Act, had ben caused by the defendants.
25. The registered Trademark (the photograph and style of King Cobra) of the deceased author Mr.zzz is infringed, each time, when defendant no- 1 to 13 published each book written by ghost authors, by affixing this Trademark, as the Tradename of the ghost author. This also proves, violation of Sec. 29, TM Act.
26. The defendant no-14, the M/s yyy & Co. Pvt. Ltd. was requested to recall the counterfeit and passed off books, that is, other than the books stated at paragraph no-11; and ensure that there will not be further sale of counterfeit and passed off books. being the defendant no-14 is controlling 70% of Railway Station Bookstalls it was requested to take Special care. However, it had also not acknowledged or replied the Notice.
27. The defendant nos. 15 to 31, which are Railways, which is a Govt. institution, deemed to be impartial and administering justice, was requested to issue orders to all of it’s Bookstalls contractors, not to sell the counterfeit and passed off books, that is, other than the books stated at paragraph No-11; and to recall those counterfeit and passed off books. Unfortunately, it has also not acknowledged, replied or allowed the prayers in the Pre-suit Notice.
27.1. It is submitted that, the Railways department do own the entire Railway Properties, including the space from which the Books shop Constractors do sell books. The Books Shops of the 14th Defendant and other Book Shop Contractors cannot claim ownership over the space from which they are doing business. Consequently, the Licence is granted by the defendant nos. 15 to 31; which can be withdrawn by the same defendant nos. 15 to 31. The Book Shops do not require the permission of the defendant nos. 15 to 31, prior to selling a particular book from the Shop, which had been taken on contract. However, defendant nos. 15 to 31 do have the Jurisdiction to tell those Shops, not to sell certain books or Certain Classes (under Article 14 of the Constitution of India) of Books. The Station Masters and other employees of the defendant nos. 15 to 31 have the Power/ Jurisdiction and Duty to enter each shops operating from Railway Properties and do Inspection, and they can ensure compliance of orders passed by the defendant nos. 15 to 31. It is called Administrative Law Jurisdiction. Thus the defendant nos. 15 to 31 had the Jurisdiction to act upon the Pre-Suit Notice received and direct the defendant no. 14 and other Book Shop Contractors, to not to sell the Trade Name “King Cobra” books, other than 126 Novels which had been claimed to be Original. Their failure to do their Statutory Duty had resulted in this Suit against those Government defendant nos. 15 to 31.
PRE-SUIT NOTICES.
28. There had been two pre-suit Notices issued, to defendants 1 to 31. To the Defendants 32 and 33, no pre-suit notices are issued, being they are compulsory parties U/S 52, Trade Marks Act, 1999 and Sec. 61, Copyright Act, 1957. The details of Pre-suit Notices are given below.
28.1. Pre-suit notice dated 21-2-2005 was issued to the 1st Defendant, M/S ccc Prakashan, vide Regd Letter No. A-1585, dated ....; from the Post Office Najafgarh, New Delhi-43. The envelop had not been received back, thus presumed delivered. However, no reply had been received.
28.2. Two Pre-suit notices dated .... and .... were issued to the 2nd Defendant, M/S ddd Paper Books, vide Regd Letter No. A-1586, dated .....; and Regd Letter No. 951, dated ....., both from the Post Office Najafgarh, New Delhi-43. Those envelops had not been received back, thus presumed delivered. However, no reply had been received.
28.3. Pre-suit notice dated ... was issued to the 3rd Defendant, M/S eee Publications/ Prakashan, vide Regd Letter No. A-1588, dated .....; from the Post Office Najafgarh, New Delhi-43. The envelop had not been received back, thus presumed delivered. However, no reply had been received.
28.4. Pre-suit notice dated ... was issued to the 4th Defendant, M/S ggg Pocket Books, vide Regd Letter No. 950, dated ....; from the Post Office Najafgarh, New Delhi-43. The envelop had been received back, with remarks by the post man:- “Refused. Returned to sender. Sd/- dated ...”. The envelop and it’s contents are produced alongwith this Suit.
28.5. Pre-suit notices to defendants 5 to 10 were isued as follows, vide registered letters from the Post Office Najafgarh, New Delhi-43. Those envelops had not been received back, thus presumed delivered. However, no reply had been received.
28.5.1. To the 5th Defendant, M/S hhh Pocket Books, vide Regd Letter RL-A-1587, dt ...
28.5.2. To the 6th Defendant, M/S jjj Prakashan, vide Regd Letter RL-A-1589, dt ....
28.5.3. To the 7th Defendant, M/S kkk Pocket Books, vide Regd Letter RL-A-1590, dt ...
28.5.4. To the 8th Defendant, M/S LLL Pocket Books, vide Regd Letter RL-A-1591, dt ....
28.5.5. To the 9th Defendant, M/S mmm Pocket Books, vide Regd Letter RL-A-1592, dt ...
28.5.6. To the 10th Defendant, M/S nnn Pocket Books, vide Regd Letter RL-A-1593, dt ...
28.6. Pre-suit notice dated 09-4-2005 was issued to the 11th Defendant, M/S ppp Pocket Books; vide Regd Letter No. 947, dated ...; from the Post Office Najafgarh, New Delhi-43. The envelop had been received back, with remarks by the post man:- “Refused. Returned to sender. Sd/- ...”. The envelop and it’s contents are produced alongwith this Suit.
28.7. Pre-suit notice dated .... was issued to the 12th Defendant, M/S qqq Pocket Books; vide Regd Letter No. 948, dated ...; from the Post Office Najafgarh, New Delhi-43. The envelop had been received back, with remarks by the post man:- “Ab is naam ki koi bhi nahin edhar rehta. Sd/- dated...”. The envelop and it’s contents are produced alongwith this Suit.
28.8. Pre-suit notice dated 09-4-2005 was issued to the 13th Defendant, M/S rrr Pocket Books, vide Regd Letter No. 949, dated ....; from the Post Office Najafgarh, New Delhi-43. The envelop had been received back, with remarks by the post man:- “Es Palace mein es naam ki ab koyi nahin, Atha vaapas. Sd/- dated...?