Bangalore District Court
; M/S Sri.Venkateshwara Sweet Meat ... vs ; M/S Sri.Venkateshwara Sweets on 21 January, 2015
IN THE COURT OF XVIII ADDL. CITY CIVIL JUDGE
AT BENGALURU CITY [CCH NO.10]
Dated this day the 21st January, 2015
PRESENT
SRI K.AMARANARAYANA., B.Com., LL.M.
XVIII Addl. City Civil Judge.
O.S.No.7060/2014
Plaintiff ; M/s Sri.Venkateshwara Sweet Meat Stall,
No.181, Balepet,
B A N G A L O R E - 560053.
Represented by its Managing
Partner V.Nagaraj,
S/o Late Venkatachalapathy Setty,
Aged about 58 years,
[By.Sri.H.S.H. Advocate for Plaintiff]
--V/S--
Defendant ; M/s Sri.Venkateshwara Sweets,
No.60, Agrahara Dasarahalli,
Magadi Main Road,
B A N G A L O R E - 560079.
Represented by its proprietor
[Placed Exparte]
Date of institution of suit ; 12.09.2014.
Nature of the suit [Pronote, ; Permanent Injunction,
--2-- O.S.No.7060/2014
Suit for declaration and ; Render accounts and
Possession, suit for Injunction Damages.
etc]
Date of the commencement ; 08.01.2015.
of recording of the evidence
Date on which the judgment ; 21.01.2015.
was pronounced.
Total Duration ; Year/s Month/s Day/s
00 04 09
(K.AMARANARAYANA)
XVIII Addl. City Civil Judge, Bengaluru.
JUDGMENT
The plaintiff filed this suit against the defendant prays to pass judgment and decree of permanent injunction restraining the defendant, their servants, agents or any one claiming through them in any manner infringing and passing off the plaintiffs well established registered copyright SVSMS by using offending copyright SVS or any other similar get-up, design and colourable imitation or plaintiffs registered copyright for manufacturing and marketing of sweets and savories, further restraining the defendant, their servants or agents or any one claiming through them in any manner infringing and passing
--3-- O.S.No.7060/2014 off the plaintiffs well established registered trademark 'SRI VENKATESHWARA SWEET MEAT STALL by using offending Trademark SRI VENKATESHWARA SWEETS or any other trademark which is deceptively similar to plaintiffs trademark for manufacturing and marketing of sweets and savories and direct the defendants to surrender to the plaintiff the entire stock of unused offending trademark bills, negatives, positives, transpencies, blocks for destruction, to direct the defendants to render honestly and faithfully true account of the profit that the defendants have derived by promoting their company by using offending trademark and directing payment of such profits to the plaintiff by way of damages for infringing the copy right of plaintiff, and to direct the defendants to pay a sum of Rs.25,000/- per month from the date of filing the suit towards damages and infringing the plaintiffs trademark SRI VENKATESHWARA SWEETS and for costs.
2. Case of the plaintiff in brief is as follows;
That one Venkatachalapathy Setty who is the father of plaintiff V.Nagaraj commenced business under the trading style 'SRI VENKATESHWARA SWEET MEAT STALL' at No.G.46, Rangaswamy Temple Street, Balepet, Bangalore - 560053 in the year 1954 as a proprietary concern. The trading style has become popular
--4-- O.S.No.7060//2014 and it became household name very soon in Bangalore and other neighbouring districts. The said Venkatachalapathy Setty moved his business from old premises to present premises at No.181, Balepet, Bangalore - 560053 in the year 1972. That on 1.8.1974 he changed the proprietary concern into a partnership concern by taking his only son V.Nagaraj as a partner. The trading style of SRI VENKATESHWARA SWEET MEAT STALL is distinctive with plaintiff on account of continuous user since 1954. In order to secure title in respect of SRI VENKATESHWARA SWEET MEAT STALL, plaintiff got registered the trademark in trademark No.1501855 in Class-29, 1501852 in Class-30, 1501854 in Class-29. The plaintiff have adopted trademark SRI VENKATESHWARA SWEET MEAT STALL with a particular artistic work, design and get-up the same in distinctive with the plaintiff. They have protected under the Copyright Act 1947 under No.A83434 and copyright in respect of SVSMS under No.A-83435/2008 and the said registrations are valid and subsisting. They came to know that the defendant adopted the trademark/copyright/trading style SRI VENKATESHWARA SWEETS for manufacturing and marketing sweets and savories which is deceptively similar to their trademark within the territorial jurisdiction of this court. It amounts to infringement of their trademark and copyright. The defendant is deliberately adopted their
--5-- O.S.No.7060/2014 trademark and is liable for action of passing off. The defendant is selling the sweets at cheaper rate by using sub-standard materials and thereby the reputation of plaintiff in respect of SRI VENKATESHWARA SWEET MEAT STALL is being diluted. The trademark and copy right adopted by the defendant is phonetically, visually and structurally similar to their well-established trademark style SRI VENKATESHWARA SWEET MEAT STALL and SVSMS. The colour schedule and design adopted by the defendant in respect of SRI VEKATESHWARA SWEET and SVS is also exactly similar to their trademark/copyright SRI VENKATESHWARA SWEETS MEAT STALL and SVSMS. The defendant has no authority to use the trademark SRI VENKATESHWARA SWEETS since the plaintiff is a prior user of trading style SRI VENKATESHWARA SWEET MEAT STALL. Hence the suit is filed for the above relief's.
3. The defendant remained absent despite serving of summons. Hence, the defendant is placed exparte and the case is posted for plaintiff's evidence.
4. The plaintiff in order to prove its case has examined its Managing Partner as PW1, got marked Ex.P1 to Ex.P10 and closed its side.
--6-- O.S.No.7060/2014
5. Heard the arguments of learned counsel Sri.A.K.J for Sri.H.S.H advocate appearing for plaintiff. The learned counsel Sri.A.K.J appearing for the plaintiff has relied upon the decisions reported in (1) 2013 (54) PTC 424 (Del) (Tata Sons Limited -V/s- Arno Palmen and Another), (2) 2014 (58) PTC 650 (Del) (Cadila Healthcare Limited -V/s- Medipol Pharmaceutical India Private Limited).
6. The points that arise for my consideration is as follows;
1. Whether the plaintiff proves that the defendant has infringed the trademark 'SRI VENKATESHWARA SWEET MEAT STALL'?
2. Whether the plaintiff proves that the defendant has infringed its Copy Right by using the Logo SVSMS?
3. Whether the plaintiff is entitled for the relief as sought?
4. To what order or decree?
7. My answer to the above points is as follows;
Point No.1 ; Affirmative.
--7-- O.S.No.7060/2014
Point No.2 ; Affirmative.
Point No.3 ; Affirmative.
Point No.4 ; As per final order.
For the following reasons.
REASONS
8. Point No.1 to 4;- To avoid repetition all the points taken together for consideration. The oral evidence of PW1 and the documentary evidence Ex.P1 to Ex.P10 are relevant for consideration. PW1 has re-iterated the averments of plaint. It is to be noted that the oral evidence of PW1 and the documentary evidence Ex.P1 to Ex.P10 has not been challenged by the defendant. Therefore no reason to reason to disbelieve the oral evidence of PW1 and documentary evidence Ex.P1 to Ex.P10. It is seen from the oral evidence of PW1 that the plaintiff is a partnership firm carrying on business of manufacturing and trading sweets and savouries in the name and style SRI VENKATESHWARA SWEET AND MEAT STALL. One Mr.V.Nagaraj representing the suit as a Managing Partner of plaintiffs firm. Late Venkatachalapathy Setty who is no other than the father of Mr.V.Nagaraj commenced business of sweets and savouries in the year 1954 in the name and style Sri Venkateshwara Sweet and Meat Stall and built up very vast goodwill
--8-- O.S.No.7060/2014 and reputation under proprietorship is well founded from plaint averments and the evidence of PW1. The oral evidence of PW1 makes it clear that late Venkatachalapathy Setty changed the proprietorship concern into a partnership concern by taking his son V.Nagaraj as a partner on 1.8.1974. Ex.P1 evident that the plaintiffs firm is registered under the partnership Act-1932.
9. Ex.P2, Ex.P3 and Ex.P6 are the trademark certificates. PW1 has stated in his evidence that the trade name SRI VENKATESHWARA SWEET MEAT STALL has been registered before trademark registry, Chennai under different Classes. There is nothing to indicate that the defendant is the trademark owner to do the trade under the name and style M/s VENKATESHWARA SWEETS. Ex.P2, Ex.P3 and Ex.P6 evident that the plaintiff registered the trademark with trademark No's.1501855 in Class-29, 1501852 in Class-30, 1501854 in Class-29. Ex.P2, Ex.P3 and Ex.P6 evident that the trademark SRI VENKATESHWARA SWEET MEAT STALL is in usage of plaintiff since 1.1.2005. As per Ex.P8 to Ex.P12 the plaintiff became the registered owner of trademark SRI VENKATESHWARA SWEET MEAT STALL to do the business of goods described under Class-29 and 30. The doing of business of sweets and savouries is covered by Class-29 and 30. Ex.P4 and Ex.P5
--9-- O.S.No.7060/2014 evident that the plaintiff is the copyright holder of the label SVSMS Balepet since 1954. There is nothing on record to indicate that the defendant is in usage of the mark M/s VENKATESHWARA SWEETS and the logo SVS prior to the use of plaintiff. The prior use of trademark and logo by the plaintiff is well established. Therefore, the defendant cannot claim any exclusive right over the trademark M/s VENKATESHWARA SWEETS and the logo SVS which is identical and deceptively similar as that of plaintiffs trademark and logo.
10. Ex.P9 is the carry bag and Ex.P10 is the cartoon box said to be of defendant would indicate that the defendant is doing business of sweets in the trade name M/s VENKATESHWARA SWEETS with logo SVS at No.60, Agrahara Dasarahalli, Magadi Main Road, Bangalore. The oral evidence of PW1 would go to show that the business establishment at Agrahara is subsequent to the business establishment of plaintiff. The plaintiff has established the fact that it is a registered proprietor of trademark 'SRI VENKATESHWARA SWEET MEAT STALL. It is borne out from record that the plaintiff has not permitted the defendant to establish the business under the name and style M/s VENKATESHWARA SWEETS with log SVS in Bangalore or anywhere in India.
--10-- O.S.No.7060/2014 Therefore, the defendant has no right to establish and precede with the similar business in the name and style M/s VENKATESHWARA SWEETS which is subsequent to the establishment of business by the plaintiff at Bangalore. Thus the establishment of business by the defendant under the trademark M/s VENKATESHWARA SWEETS and logo SVS which is identical and phonetically similar to the trademark of SRI VEKATESHWARA SWEET MEAT STALL and logo SVSMS amounts to infringement within the meaning of section 29 of the Act. Thus the defendant has infringed the plaintiffs trademark SRI VENKATESHWARA SWEET MEAT STALL and the copyright by copying the logo SVS which is the artistic work of the plaintiff.
11. The plaintiff claimed damages of Rs.25,000/- per month from the defendant from the date of filing of this suit for infringing its registered trademark and copyright. The evidence on record would indicate that the defendant commenced business at Agrahara Dasarahalli, Magadi Main Road, Bangalore without plaintiff's permission or assignment. There is an infringement of plaintiff's trademark and copyright by the defendant. The defendant did not contest the suit. The evidence of PW1 would indicate that the use of plaintiff's trademark and copyright by the defendant is nothing but to
--11-- O.S.No.7060/2014 encash upon the goodwill and reputation of plaintiffs business. There is nothing on record placed by the plaintiff to show that their income had gone down due to the establishment of business by the defendant in the similar name at Agrahara Dasarahalli. Therefore, the plaintiff is not justified in claiming damages of Rs.25,000/- per month from the defendant. Looking to the infringement of plaintiffs trademark the defendants are liable to render true account of the profit and surrender entire stock of un sued offending trademark bills, negatives, positives, transpencies, blocks for destruction.
12. Therefore in view of foregoing reasons and under the circumstances it is crystal clear that the plaintiff proved the fact that it is a registered owner of trademark 'SRI VENKATESHWARA SWEET MEAT STALL', Copyright holder of logo SVSMS and carrying on business of sweets and savouries. The defendant have no right to use the trademark M/s VENKATESHWARA SWEETS and logo SVS to the establishment at Agrahara Dasarahalli, Magadi Main Road, Bangalore which is identical and deceptively similar to the plaintiffs trademark and copyright. Thus, the plaintiff is entitled for a decree of permanent injunction, direction to render accounts of profits and to surrender entire stock of unused offending trademark bills, negatives, positives, transpencies, and blocks for destruction as
--12-- O.S.No.7060/2014 prayed. Hence I answered Point No's.1 to 4 accordingly and proceed to pass the following.
ORDER The suit is partly decreed. The defendant, their servants, agents or any one claiming through them are hereby restrained from in any manner infringing and passing off the plaintiffs well established registered trademark SRI VENKATESHWARA SWEET MEAT STALL and logo SVSMS by using offending mark M/s VENKATESHWARA SWEETS and logo SVS or any other trademark which is deceptively similar to their trademark and copyright for manufacturing and marketing sweets and savouries at No.60, Agrahara Dasarahalli, Magadi Main Road, Bangalore by way of permanent injunction.
It is further decreed directing the defendant to surrender to the plaintiff the entire stock of unused offending trademark bills, negatives, positives, transparencies and blocks for destruction.
It is further decreed directing the defendant to render honest and true account of profit that defendant derived by promoting their business by using offending trademark and pay such profits to the plaintiff's as damages.
--13-- O.S.No.7060/2014 The prayer sought for damages is dismissed.
Draw decree accordingly.
[Prepared by me on the Laptop, Print out by the judgment writer, corrected and then pronounced by me in the open court dated this day the 21st January, 2015] [K.AMARANARAYANA] XVIII Addl. City Civil & Sessions Judge, Bengaluru.
A N N E X U R E S;
1. No. of witnesses examined on behalf of plaintiff;
PW1 ; V.Nagaraj.
2. No. of documents marked on behalf of plaintiff;
Ex.P1 ; Copy of Certificate of Registration of Firms. Ex.P2 ; Copy of Trademark Certificate under Class-29. Ex.P3 ; Copy of Trademark Certificate under Class-30.
Ex.P4 ; Copy Copyright Certificate. Ex.P5 ; Copy of Copyright Certificate. Ex.P6 ; Copy of Trademark Certificate under Class-29. Ex.P7 ; Plaintiffs Carry bag. Ex.P8 ; Plaintiffs Cartoon box. Ex.P9 ; Defendants Carry bag. Ex.P10 ; Defendants Cartoon box.
3. No. of witnesses examined on behalf of the defendant;
--Nil--
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4. No. of documents marked on behalf of the defendant;
--Nil--
[K.AMARANARAYANA] XVIII Addl. City Civil and Sessions Judge, Bengaluru.