KEITH VARGHESE Advocate Supreme Court of India & High Court of Delhi 29, Nizamuddin East, New Delhi-110014 Tel: 9687775463; Email: varghesekeith@gmail.com Kabir Foundation Near Osaka Guest house, Sevagram, Khajuraho
22.08. 2017
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I am concerned for my client, Janwaar Castle Community Organization, who has instructed me to state as under: 1. That on 29.01.2016, the Janwaar Castle Community Organization (hereinafter referred to as JCCO) was incorporated as a not for profit company. JCCO was founded by Mr. Shyamendra Singh, Mr. Mrutyunjay Mishra as founding Directors and Ms. Ulrike Reinhard as CEO. In March 2016, Mr. Mehmood Khan was invited to join the Board and to chair the same. 2. That it is pertinent to note that on 13.01.2017, due to unforeseen circumstances, Ms. Ulrike Reinhard rendered resignation from JCCO. That from 13.01.2017, the board members and the decision makers of JCCO have been the three Board members i.e. Mr. Shyamendra Singh, Mr. Mrutyunjay Mishra and Mr. Mehmood Khan and no agreement written / oral could be entered into legally with my client and which could enforced without the written consent and approval of all the board members. 3. My client has been working for the development and upliftment of the children of the village of Janwaar primarily by constructing a skateboard park and providing skate boards and other facilities inter alia for the underprivileged children since a long period of time. 4. The social development of the children of the village Janwaar through the sport of skateboarding and providing facilities such as skateboards for the same, to the children in the village of Janwaar, free of cost; such activities are solely undertaken by my client, in the said village of Janwaar. 5. My client has recently learnt that a campaign titled ‘Internet Access for Janwaar Castle’ was commenced on the web based platform of Ketto and amount to the tune of Rs 3,400 /- (Rs. Three Thousand Four Hundred Only) was raised for your foundation and the name and logo of my client was used as a ‘Campaigner’ to raise funds. My client states that no agreement / Memorandum of Understanding or any such document expressing directly or impliedly the intention of collaboration, has been ever entered between, my clients and you, for the purposes of this campaign or any other campaign whatsoever. My client further
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states that no permission – written / oral or any other manner which directly or impliedly proves intention to enter into agreement, of my client, was ever entered between my client and yourself, to use the name and logo of my client as a ‘Campaigner’ to raise the said funds. My client states that the funds so raised as disclosed by Ketto on its web based platform for the aforesaid campaign, has been raised illegally using the name and logo of my client without any permission whatsoever and further, illegally misusing the name and logo of my clients for your benefit. There has been no communication in intimating my client in any manner whatsoever on the commencement of the campaign. The said campaign ended on 03.07.2017 and during the illegal commencement of the campaign and till date, the said funds that have been raised illegally using the name and logo of my client, have not been transferred in any manner whatsoever to my client by you or any other related organization. That the aforesaid campaign and the funds raised are illegal in nature, for using the name and logo of my client illegally and raising money for your benefit. The said campaign by you and the funds so raised is criminal, illegal and shall also be termed as gaining profit by ‘fraud’, ‘criminal conspiracy’, ‘passing off‘, inter alia, which is punishable by law. My client recently learnt that another fund raising campaign has commenced on the web based platform of Ketto titled as ‘Krayons for Janwaar’ and the benefitting NGO thereunder for the aforementioned campaign is again your foundation i.e. the ‘Kabir Foundation’. My client states that the said campaign, uses the reference to the work being undertaken by my clients and till date funds to the tune of Rs. 4,03,800 /- (Rs Four Lakhs Three Thousand and Eight Hundred only) have been raised on Ketto for this campaign, using the goodwill and benefit of my clients. The said funds have been raised through the campaign, by using the photograph of 3 children wearing attire that categorically bears the logo of my client and holding skateboards that are property of my client. Further, it is pertinent to note that the said picture has also been captured at the premises of my client. The said webpage of the campaign on Ketto further mentions below the picture that, the instant campaign aims to raise funds for the children from the remote village of Janwaar. My client states that the aforestated fund raising campaign for your benefit has illegally made use of my clients work and good will and the campaign page has also been designed to contain and consist of deceptively similar reference to the work as undertaken by my client. My client states that no agreement / Memorandum of Understanding or any such document expressing directly or impliedly the intention of collaboration has been ever entered into between my clients and you and /or Krayon and /or Sri Ram School and / or Ketto for the said programme. That the said campaign, commenced for your benefit, is raising funds through the goodwill of my client That the campaign and the funds raised, are illegal in nature for using the goodwill of my client, without any permission and raising money for your benefit. The said campaign that has been commenced for your benefit is illegal, criminal, punishable in law and shall also be termed as gaining profit by ‘passing off‘ services of my client as that of yourselves and raising money, which is in direct contravention to the provisions of the Trade Marks Act,
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1999 and other relevant statutes; and is punishable by law. My client states that the funds raised so far have been raised, illegally using the reference and good will of my client and passing off the services of my client as that of yourselves, for the illegal benefit of yourself. That any fund so raised by using any goodwill or reference to my client, is not only illegal but, the benefits of which can accrue solely to my client and for the charitable use for which my client so desires. Any agreement that has been entered into with anyone other than the board members and legal decision makers of my client is voidable and any act done in pursuance to the same is illegal. My client further states that individuals using the name and reference of my clients, are taking the kids outside Janwaar village, to be a part of fund raising campaigns / activities however, such activities are being conducted without any permission or acknowledgment from my clients. Further, the funds raised by such activities are being diverted to your foundation and no benefit material / immaterial is accrued to my client in any manner whatsoever. My client shall not be liable in any manner whatsoever, in the event of any mishap or any other unfortunate accident that may occur during any such activities conducted by you or anyone else for your benefit, using the trademark or reference of my client, without the permission / acknowledgment of my client. In the circumstances, my client hereby calls upon you to forthwith pay a sum of Rs. 3,400 /(Rs. Three Thousand Four Hundred Only) alongwith interest @ 18% p.a. as liquidated damages for raising the said amount illegally in the name of my client. In the circumstances, my client hereby calls upon you to forthwith replace your name as the benefitting NGO of the Campaign titled ‘Krayons for Janwaar’, with that of my client after entering into a written agreement with my client and render an unconditional written apology for the misuse of the logo and the name of my client, on the platform of Ketto. Further, any monetary benefit whatsoever accrued till date and / or that which may accrue from hereon directly or incidental to the said campaign, should be transferred to my clients immediately at the end of the campaign. In the circumstances, my client hereby calls upon you to forthwith inform and provide a detailed statement of the amount received or any other benefits accrued to your foundation so far using the direct / indirect reference to my client or / and his trademark and thereafter provide a time bound action plan detailing the time period in which the said money will be returned to JCCO, which is the legal and rightful owner to the same. The Bank account details of my client have been mentioned herein below for the transfer of the aofrestated funds, which have been raised illegally by you using the trademark of my clients.
Bank A/C details: Janwaar Castle Community Organisation A/c. No.: 50200018330071 Bank: HDFC Bank Ltd.
Branch: Deer Park, Safdarjung Enclave, New Delhi – 29 IFSC: HDFC0000503 17. In the event that you fail to adhere to the aforesaid legal obligation of paying a sum of Rs. 3,400 /- (Rs. Three Thousand Four Hundred Only) alongwith interest @ 18% p.a. and further, replacing your name from the benefitting NGO of the Campaign, with the name of my client, my client states that it would be constrained to adopt such legal proceedings as it may be advised, the costs & consequences of which shall solely be your liability.
Yours Truly, Keith Varghese Advocate