Madras High Court
Aqua Pump Industries vs Shanti Devi Kumbhat on 29 January, 2016
Author: M.Sathyanarayanan
Bench: M.Sathyanarayanan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 29-1-2016 CORAM THE HONOURABLE MR.JUSTICE M.SATHYANARAYANAN CIVIL SUIT No.708 of 2005 1.Aqua Pump Industries rep. By its Managing Partner Ramaswamy Kumaravelu Thudiyalur Post Coimbatore 641 034 having their Branch Office at No.21, P.H. Road Koyambedu, Chennai 600 107 2.Aqua Sub Engineering rep. By its Managing Partner Ramaswamy Kumaravelu Thudiyalur Post Coimbatore 641 034 having their Branch Office at No.21, P.H. Road Koyambedu, Chennai 600 107 .. Plaintiffs vs Shanti Devi Kumbhat Trading as M/s.Golden Cab Industries 447, Patpar Ganj Industrial Area, New Delhi .. Defendant Civil suit filed under Order IV Rule 1 of Original Side Rules, 1956 and Order VII Rule 1 of Code of Civil Procedure read with Sections 27, 134 and 135 of the Trade Marks Act, 1999, praying for a judgment and decree granting (i) permanent injunction restraining the defendant by itself, it's servants, agents, distributors, or anyone claiming through them, from manufacturing, selling, offering and advertising for sale using the Trade Mark TEXMO upon the goods or in any media and use the same in invoices, letterheads and visiting cards or any other trade literature or by using any other Trade Mark which is in any way visually, phonetically or deceptively similar to the plaintiffs' registered Trade Mark TEXMO or in any manner infringing the plaintiffs' registered Trade Mark Nos.315049 (SP-I), (SP-II) and 315050 (SP-I), (SP-II) and (ii) permanent injunction restraining the defendant, by themselves, their servants, agents men or anyone claiming through them from manufacturing, marketing, distributing, offering or advertising for sale P.V.C. Wires and Cables using the Trade Mark TEXMO or similar sounding names in the course of their business and pass off their goods P.V.C. Wires and Cables using the Trade Mark TEXMO or with additions as and for the goods of the applicant or enable others to pass off and issuing a direction to the defendant to surrender to the plaintiffs all types of P.V.C. Wires and Cables containing/bearing the Trade Mark TEXMO or other deceptively similar Trade Marks and for a preliminary decree in favour of the plaintiffs directing the defendant to render an account of profits made by them by the use of the Trade Mark TEXMO on the goods referred and for a final decree in favour of the plaintiffs for the amount of the profits found to have been made by the defendant, after the defendant has rendered accounts and for costs. For Plaintiffs : Ms.Gladys Daniel For Defendant : Set ex-parte JUDGMENT
The plaintiffs would aver in the plaint, as follows:-
(i) The plaintiffs are the manufacturers of different types of electrical motors and pumps ever since from 1.4.1974, and are also selling the following categories of pumps and motors:-
(a) Motors which run on single phase current with capacities ranging between < H.P. (one fourth Horse Power) and 1 H.P. (One Horse Power).
(b) Deep-well Jet Pumps, Jet Monoblocks, Multistage Jet Pumps and Monoblocks of any capacity which run on single phase current.
(c) Centrifugal Pumps and Monoblocks up to and including 1 H.P. (One Horse Power) which run on single phase current.
(d) Lateral channel pumps and Lateral channel monoblocks of any capacity which run on single phase current.
(e) Submersible monoblocks of any capacity which run on single phase current.
(f) Reciprocating pumps for domestic use which run on single phase current.
(g) Any other type of pump or monoblock including self priming centrifugal pumps and monoblocks, which run on single phase current used for domestic purposes.
(h) Components and spares for the above products.
(ii) Since 12.11.1982, the second plaintiff has been manufacturing and selling submersible motors, pumps and pumpset, components and spares for the above said products and they became registered Proprietors of the trademark TEXMO in respect of the specific goods mentioned above, by virtue of the order passed by the Registrar of Trademarks on 20.4.1998, and thereafter, became the exclusive Proprietors of the above said trademark in respect of the specific goods stated in paras 3 and 4. The registered trademark numbers with respect to the above said goods, are 315049 SP-I and SP-II and 315050 SP-I and SP-II.
(iii) The plaintiffs have been exclusively using the above said trademark as registered, all over India continuously and substantially in respect of the goods allotted to them, from the respective dates of formation of the firms and acquired enormous goodwill in respect of the goods, and if any person uses the same/similar mark in respect of those goods or other related goods, the public will be confused regarding the identity of the goods. The plaintiffs are spending substantial sums of money towards advertisements, in respect of the trademark, and are also receiving several prestigious awards on account of the superior quality of their goods and export business.
(iv) The plaintiffs came to know that the defendant had filed a trademark application for the registration of the trademark TEXMO on 20.5.2003, claiming user of the mark TEXMO since 1.1.2002, in respect of P.V.C. Wires and Cables, through advertisement in the Trademark Journal No.1327 Supplement (5) dated 31.1.2005, and they immediately, filed opposition to the said application on 23.5.2005, and the same is yet to be disposed of.
(v) The defendant has adopted the identical trademark TEXMO solely for the purpose of exploiting the commercial goodwill. They know very well that quality pumps and motors are being manufactured and marketed by the plaintiffs, and hence, adopted the trademark TEXMO in respect of the related goods, which are sold across the same counter, and this has been deliberately done by the defendant with an oblique and mala fide motive solely for the purpose of exploiting the commercial goodwill gained by the plaintiffs through the trademark TEXMO.
(vi) The plaintiffs have acquired tremendous goodwill and reputation in respect of their trademark TEXMO and it is also reflected in the turnover particulars given in paragraph No.8 of the plaint, and since the defendant continues to use the identical and deceptive trademark in respect of the goods, for which, it is not registered, the same amounts to infringement of registered trademark and therefore, they cannot be permitted to do so and pass of the goods as that of the plaintiffs. Hence, they came forward to file the suit for the above said reliefs.
2.The plaintiffs, pendency of the suit, took out an application in O.A.No.793 of 2005 and obtained an ex-parte order of ad-interim injunction on 12.8.2005, and thereafter, it was made absolute on 26.9.2007.
3.Though the defendant was served, it remained absent and did not file written statement. Therefore, the defendant was called absent and set ex-parte.
4.On behalf of the plaintiffs, the General Manager (Finance), by virtue of the authorization under Ex.P1, has filed the proof affidavit in lieu of chief-examination, and marked Exs.P1 to P4 and M.O.1.
5.The learned Counsel appearing for the plaintiffs, would submit that as per Ex.P2 series user certificate, the registration of the trademark of the plaintiff has been reflected and on coming across the journal advertisement of the defendant under Ex.P3, they filed a notice of opposition on 23.5.2005, under Ex.P4, and the said application is yet to be disposed of and since the defendant has deceptively adopted the impugned trademark with respect to the related goods, the public will be confused regarding the identity of the goods and hence the plaintiffs were constrained to approach this Court and prays for decreeing the suit with costs.
6.This Court has considered the submission made by the learned Counsel appearing for the plaintiffs, and also perused the pleadings as well as the oral and documentary evidence. The following issues arise for adjudication:-
(i) Whether the trademark of the plaintiffs TEXMO has been infringed by the defendant?
(ii) Whether the trademark of the defendant is deceptively similar to that of the plaintiffs' trademark?
(iii) Whether the plaintiffs are entitled to the reliefs claimed in the suit?
(iv) To what other relief, the plaintiffs are entitled to?
7.ISSUE No.(i):- The plaintiffs are the registered Proprietors of the trademark TEXMO vide registered trademark Nos. 315049 SP-I and SP-II and 315050 SP-I and SP-II. Ex.P2 deals with the User Certificate, which would reflect that they are using the trademark, and in the light of the said overwhelming document, the plaintiffs are entitled to protection in respect of the trademark TEXMO. It is the specific case of the plaintiffs that the defendant is also dealing in similar goods and the plaintiffs on coming across through the journal advertisement under Ex.P3, with regard to the attempts made by the defendant for registration of the similar trademark TEXMO, filed their opposition under Ex.P4 on 23.5.2005, and it is yet to be disposed of, and the conduct of the defendant would amount to infringement of the trademark of the plaintiffs. It is the submission of the learned Counsel appearing for the plaintiffs, that the defendant by deceptively using the trademark of the plaintiffs, is passing off the goods as that of the plaintiffs. Paragraph No.8 of the plaint gives the volume of trade and turnover particulars and according to the plaintiffs, as a consequence of the illegal acts of the defendant, their trade is likely to be affected. In the light of the discussion made above, issue No.(i) is answered in affirmative and in favour of the plaintiffs.
8.ISSUE No.(ii):- This Court has perused Ex.P2 series as well as Ex.P3 and it reveals that the defendant is adopting the similar trademark TEXMO, for which the plaintiffs are the registered Proprietors. As rightly pointed out by the learned Counsel for the plaintiffs, the goods and services rendered by the plaintiffs as well as by the defendant, are in similar type of trade and therefore, the consumers/customers bound to develop confusion regarding the identity of the goods and purchase the goods of the defendant as that of the plaintiffs. Therefore, issue No.(ii) is answered in affirmative and in favour of the plaintiffs.
9.ISSUE No.(iii):- The plaintiffs through overwhelming documentary evidence, had substantiated their case beyond all probabilities and therefore, are entitled to the reliefs claimed in the suit.
10.ISSUE No.(iv):- In the light of the findings given above, the suit is to be decreed with costs.
11.In the result, the suit is decreed with costs and the defendant by itself, it's servants, agents, distributors, or anyone claiming through them, are restrained by way of permanent injunction, from manufacturing, selling, offering and advertising for sale using the Trade Mark TEXMO upon the goods or in any media and use the same in invoices, letterheads and visiting cards or any other trade literature or by using any other Trade Mark, which is in any way visually, phonetically or deceptively similar to the plaintiffs' registered Trade Mark TEXMO, or in any manner infringing the plaintiffs' registered Trade Mark Nos.315049 (SP-I), (SP-II) and 315050 (SP-I), (SP-II) and the defendant by themselves, their servants, agents men or anyone claiming through them, are also restrained by way of permanent injunction, from manufacturing, marketing, distributing, offering or advertising for sale P.V.C. Wires and Cables using the Trade Mark TEXMO or similar sounding names in the course of their business and pass off their P.V.C. Wires and Cables using the Trade Mark TEXMO or with additions as and for the goods of the applicant or enable others to pass off and the defendant is directed to surrender to the plaintiffs all types of P.V.C. Wires and Cables containing/bearing the Trade Mark TEXMO, or other deceptively similar Trade Marks and there shall be a preliminary decree in favour of the plaintiffs directing the defendant to render an account of profits made by them by the use of the Trade Mark TEXMO on the goods referred.
29-01-2016 Index: no LIST OF WITNESSES P.W.1 T.Narendran LIST OF EXHIBITS Ex.P1 Authorization letter given in favour of PW1 by the plaintiffs Ex.P2 Photocopy of the four registration series certificates obtained by the plaintiffs for legal use issued by the Trade Mark Registry Ex.P3 31.1.2005 The script of trademark journal advertisement of the defendant Ex.P4 Office copy of the notice of opposition filed by the plaintiffs in the Trade Mark Registry against the defendant's trademark application LIST OF MATERIAL OBJECT:
M.O.1 C.D. Copy containing Ex.P3
29-01-2016
nsv
M.SATHYANARAYANAN, J.
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C.S.No.708 of 2005
Dt : 29-01-2016