Madras High Court
Dixcy Textiles Pvt Ltd vs Poddar And Sons on 17 September, 2019
Author: N.Sathish Kumar
Bench: N.Sathish Kumar
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IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 17.09.2019
CORAM:
THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR
C.S.No.608 of 2013
and
O.A.No.674 of 2013
Dixcy Textiles Pvt Ltd.,
Dixcy Campus,
SF No.10/5N, Maniosai Nagar,
Poosaripalayam, Chengapalli,
Tirupur-628812,
Tamil Nadu,
represented by K.Subramaniam
its Assistant General Manager ... Plaintiff
Vs.
Poddar and Sons
2318/9, 1st Floor,
Punjabi Chatta Ekta Market,
Near Rui Mandi Sadar Bazar,
Delhi-110006. ... Defendant
PRAYER: Civil Suit filed under Order VII, Rule 1 of CPC and Order
IV Rule 1 of O.S.Rules read with Sections 27,28, 29, 105 and 106 of
the Trade and Merchandise Marks Act, 1958 and Sections 51, 55
and 62 of the Copyright Act, 1957 to grant a judgment and decree
on the following terms:
a) a permanent injunction restraining the Defendant, by
itself, its men, servants, agents, distributors, stockists,
representatives or any one claiming through them from in any
manner infringing the Plaintiff's registered trademark "Scott" word
by use of the trademark "Scott" word or any mark similar to
http://www.judis.nic.in
plaintiff's said registered trademark;
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b) a permanent injunction restraining the Defendant, by
itself, its men, servants, agents, distributors, stockists,
representatives or any one claiming through them from in any
manner passing off and / or enabling others to pass off the
Defendant's textile garments made with lycra and cotton range of
vest and briefs fro men women and children as and for the
plaintiff's textile garments made with lycra and cotton range of vest
and briefs for men women and children by use of the trademark
"Scott" word or any other mark deceptively similar to the plaintiff's
trademark "Scott" word with identical colour scheme, get up and
layout or in any other manner whatsoever;
c) a permanent injunction restraining the Defendant, by
itself, its men, servants, agents, distributors, stockists,
representatives or any one claiming through them from in any
manner committing acts of copyright infringement by printing
stocking and using "Scott" word which is a substantial reproduction
of Plaintiff's "Scott" word in colour scheme, get up and layout or in
any other manner whatsoever;
d) the Defendant be ordered to surrender to Plaintiff for
destruction of all textile garments made with lycra and cotton
range of vest and briefs for men women and children, words, dyes,
blocks, moulds, screen prints, packing materials and other
materials bearing the trademark "Scott" word or any mark
deceptively similar to plaintiff's trademark and artistic work "Scott"
word.
e) a preliminary decree be passed in favour of the Plaintiff
directing the Defendant to render account of profits made by the
defendant by infringing the use of trademark and copyright "Scott"
word and a final decree be passed in favour of the Plaintiff for the
amount of profits thus found to have been made by the Defendant
http://www.judis.nic.in
after the latter have rendered accounts;
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f) The Defendant be ordered and decreed to pay to the
Plaintiff a sum of Rs.25,00,000/- as damages for acts of
infringement of trademark, passing off and infringement of
Copyright committed by the Defendant by manufacture and sale of
textile garments made with lycra and cotton range of knitwear's,
vests and briefs, lingerie, casual wear and night wear, for all men
and women, boys and girls vest bearing the trademark and artistic
works "Scott" word;
g) for costs of the suit.
For Plaintiff : Mr.M.G.Pranava Cheran
for M/s.J.Sivanandraaj
Sole Defendant set ex-parte on 11.07.2019
****
JUDGMENT
The suit has been filed for the following reliefs :
a) for a permanent injunction restraining the Defendant, by itself, its men, servants, agents, distributors, stockists, representatives or any one claiming through them from in any manner infringing the Plaintiff's registered trademark "Scott" word by use of the trademark "Scott" word or any mark similar to plaintiff's said registered trademark;
b) for a permanent injunction restraining the Defendant, by itself, its men, servants, agents, distributors, stockists, representatives or any one claiming through them from in any manner passing off and / or enabling others to pass off the Defendant's textile garments made with lycra and cotton range of http://www.judis.nic.in 4 vest and briefs fro men women and children as and for the plaintiff's textile garments made with lycra and cotton range of vest and briefs for men women and children by use of the trademark "Scott" word or any other mark deceptively similar to the plaintiff's trademark "Scott" word with identical colour scheme, get up and layout or in any other manner whatsoever;
c) for a permanent injunction restraining the Defendant, by itself, its men, servants, agents, distributors, stockists, representatives or any one claiming through them from in any manner committing acts of copyright infringement by printing stocking and using "Scott" word which is a substantial reproduction of Plaintiff's "Scott" word in colour scheme, get up and layout or in any other manner whatsoever;
d) the Defendant be ordered to surrender to Plaintiff for destruction of all textile garments made with lycra and cotton range of vest and briefs for men women and children, words, dyes, blocks, moulds, screen prints, packing materials and other materials bearing the trademark "Scott" word or any mark deceptively similar to plaintiff's trademark and artistic work "Scott"
word.
e) for a preliminary decree be passed in favour of the Plaintiff directing the Defendant to render account of profits made by the defendant by infringing the use of trademark and copyright http://www.judis.nic.in"Scott" word and a final decree be passed in favour of the Plaintiff 5 for the amount of profits thus found to have been made by the Defendant after the latter have rendered accounts;
f) The Defendant be ordered and decreed to pay to the Plaintiff a sum of Rs.25,00,000/- as damages for acts of infringement of trademark, passing off and infringement of Copyright committed by the Defendant by manufacture and sale of textile garments made with lycra and cotton range of knitwear's, vests and briefs, lingerie, casual wear and night wear, for all men and women, boys and girls vest bearing the trademark and artistic works "Scott" word;
g) for costs of the suit.
2. Despite service of suit summons on the sole defendant, they have not chosen to enter appearance3 and therefore they were set exparte by order dated 11.07.2019.
3. Heard the learned counsel for the plaintiff.
4. The case of the plaintiff is that the plaintiff is manufacturing knitwears, lycra vests and briefs, lingerie ranging and manufactured from the comfortable cotton to the alluring lycra, casual wear and night wear, apart from its range of cotton vests and briefs for all men and women, boys and girls. The http://www.judis.nic.inplaintiff is the proprietor of the trademark "SCOTT (Label)" 6
registered under Registration No.1786709 dated 18.02.2009 in Class 24 in respect of Textile and Textile Goods not included in other classes Bed and Covers, and also registered in Registration No.1854577 dated 25.08.2009 in Class 35 in respect of Advertising, Business Management, Business Administration, Office Function and in registration No.1854576 dated 25.08.2009 in Class 18 in respect of leather and imitations of leather and goods made out of animal skins, hides, trunks and travelling bags, umbrellas, parasols and walking stickes, whips, harness and saddler and in registration No.1786711 dated 18.02.2009 in Class 25 in respect of Clothing, Footwear, Headgear.
5.The plaintiff's textile goods bearing the trademark "Scott" word and the artistic work in the copyright "Scott" word is sold all over India and the plaintiff is actively engaged in overseas business and thereby exports textile garments and other hosiery to Singapore, Russia, Bahrain, Saudi Arabia, U.A.E., Kuwait and Parts of Northern Africa and thereby gained good reputation and goodwill and leadership position for garments based on the world wide customer satisfaction and has acquired wide global reputation and goodwill. The annual sales turn over of the plaintiff was increasing every year.
http://www.judis.nic.in 7
6.In January, 2013, the plaintiff came to know that the defendant is involved in business of manufacturing and procuring and exporting goods, namely all kinds of textile goods and garments, as well as accessories thereto of all description, bearing the infringed trademark "SCOTT". The defendant with malafide intention adopted the impugned mark "SCOTT". The respondent has deliberately adopted an identical Trademark/ Trade name. Hence, the suit.
7. On the side of the plaintiff, P.W.1, the Assistant General Manager cum Authorized signatory of the plaintiff company was examined and he has spoken about the manner of business run by them and also the trade mark obtained by them. He has also spoken about the annual turnover of the sales and reputation they gained all over the world and Exs. P1 to P9 were marked. S.No. Date Description of documents Exhibit
1. 26.07.2013 The Copy of the database for the P-1 domainswww.Dixcy.Co.In/www.Duz ctscitt.Com
2. 26.04.2013 The Copy of Screen Shots of the P-2 websites
3. 26.07.2013 The copy of certificate affirming the P-3 above sales turnover from the Chartered Accountant
4. Nil Copies of the Registration P-4 Certificates obtained from the Registrar of Trade Marks, Chennai.
5. Nil Copies of the Certificates for use in P-5 legal proceedings obtained from the http://www.judis.nic.in Registrar of Trade Marks, Chennai 8 S.No. Date Description of documents Exhibit with regard to the Trade Marks which are the subject matter of this suit
6. Nil Copies of advertisements, banners, P-6 hoardings in newspapers, magazines
7. Nil Copies of Samples, Poly bag P-7 bearing the trademark "SCOTT"
8. Nil Copies of the sample sold by the P-8 defendant bearing the impugned mark 9 Nil The Copies of legal notice by P-9 plaintiffs reply notice by defendant, rejoinder by plaintiff and reply to rejoinder by defendant
8. A perusal of Ex.P.4 and Ex.P.5 clearly indicate that the same is filed to prove that the plaintiff is the proprietor of the trade mark. Ex.P.8 is filed to show that the defendant is using the similar trade mark in the business. Ex.P.6, Ex.P.7 are the advertisements given by the plaintiff. Ex.P.8 is the advertisement given by the defendant. Legal notice was also issued to the defendants. However, the defendant did not chose to contest this suit by setting in any contra evidence.
9. On perusal of the advertisements filed on behalf of the plaintiff as Ex.P.1 to 7 and the advertisement of the defendant Ex.P.8, it is explicitly clear that the defendant has used identical colour scheme of the advertisements and he is also continuing his business using the very same trade name of "SCOTT". That apart, http://www.judis.nic.in 9 there is nothing on record to show that the defendant is the prior user of the said trade mark.
10. Considering the over all facts and circumstances of this case, this Court is of the opinion that if the defendant is permitted to continue the said trade mark it will cause huge loss of reputation, goodwill and finances of the plaintiff company and in such circumstances, this Court is of the firm view that the trade mark used by the defendant is an infringement of the trade mark used by the plaintiff. At this juncture, the learned counsel for the plaintiff submits that he will restrict the relief only to 'a' to 'c' that is with regard to the permanent injunction as prayed for in the suit. Therefore, the suit is decreed for permanent injunction restraining the defendant from using the trade mark "SCOTT" for his goods.
11. Accordingly, the suit is decreed as prayed for with costs with regard to prayers 'a' to 'c' and with regard to prayer 'f' the suit is dismissed. Consequently, the connected application is closed.
17.09.2019
Index : Yes/No
Internet : Yes/No
Speaking order / Non-Speaking order
pnn
http://www.judis.nic.in
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N.SATHISH KUMAR, J.
pnn
C.S.No.608 of 2013
17.09.2019
http://www.judis.nic.in