Madras High Court
Unknown vs M/S.J.K. Cosmetics on 7 November, 2019
Author: N.Sathish Kumar
Bench: N.Sathish Kumar
C.S.No.267 of 2008
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 07.11.2019
CORAM
The Honourable Mr.Justice N.SATHISH KUMAR
C.S.No.267 of 2008
M/s. Power Soaps Ltd.,
rep. by its Managing Director,
Mr.K.Dhanapal,
S/o.R.Krishna Nadar,
R.S.No.94/1, Sembiapalayam,
Korkadu Post,
Pondicherry-605 110
Having Branch Office at
Sri Jayalakshmi Apartments,
62-B, North Boag Road,
T.Nagar,
Chennai-600 017.
(Amendment carried out as per
order dated 13.06.2011 in
Appl.No.2697 of 2011) ...Plaintiff
Versus
1.M/s.J.K. Cosmetics,
Munshi Compound,
Dargah Road, Bhandup(W),
Mumbai-400 078
2.M/s.City Capital Foundation Ltd.,
D1 No.24, Srishti Crescendo,
Desika Road,
Mylapore,
Chennai-600 004 ...Defendants
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C.S.No.267 of 2008
This Civil Suit is filed under Order VII Rule 1 of Code of Civil
Procedure 1908 and Order IV Rule I of Original Side Rules r/w
Sections 27, 28, 29, 134, 135 of Trademarks Act, 1999 praying to
(a) to grant a perpetual injunction restraining the defendants, by
themselves, their men, servants, agents, distributors, stockists,
franchises, successors in interest, representatives or any of them
from in any manner infringing the plaintiff's registered Trademarks
viz., '''TRIPLE POWER''/MULTI POWER MAX'' and other marks by
use of Trademark ''POWER PAX'' or any mark deceptively similar
to plaintiff's registered trademarks or in any other manner
whatsoever:
(b)to grant a perpetual injunction restraining the defendants,
by themselves, their men, servants, agents, distributors, stockists,
franchises, successors in interest, representatives or any of them
from in any manner passing off and enabling others to pass off the
defendants' aforesaid products as and for the plaintiff's aforesaid
products by use of the trademarks ''POWER PAX'' or any mark
deceptively similar to plaintiff's registered trademarks or in any
other manner whatsoever:
(c) to grant a perpetual injunction restraining the
defendants, by themselves, their men, servants, agents,
distributors, stockists, franchises, successors in interest,
representatives or any of them from in any manner committing
acts of copyright infringement by printing stocking and using
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C.S.No.267 of 2008
''POWER PAX'' which is a substantial reproduction of plaintiff's
trademarks ''POWER'' per se and with prefix/suffix in get up,
layout, presentation, artistic work, lettering style, placement of
expressions or in any other manner whatsoever:
(d)the defendants be ordered to surrender to the plaintiff for
destruction of all labels, dyes, blocks moulds, plates, screen prints,
packing materials, visiting cards, letterheads, printer bills, cartons,
sachets and other material bearing the infringing ''POWER PAX'' or
any mark deceptively similar to plaintiff's artistic work and
trademarks ''POWER'' and with prefix/suffix with the word POWER
labels:
(e)for the costs of the suit.
For Plaintiff : Mr.K.Rajasekaran
For Defendants : Set ex-parte
JUDGMENT
The suit has been filed for the following reliefs:
(a) to grant a perpetual injunction restraining the defendants, by themselves, their men, servants, agents, distributors, stockists, franchises, successors in interest, representatives or any of them from in any manner infringing the plaintiff's registered Trademarks 3/17 http://www.judis.nic.in C.S.No.267 of 2008 viz., '''TRIPLE POWER''/MULTI POWER MAX'' and other marks by use of Trademark ''POWER PAX'' or any mark deceptively similar to plaintiff's registered trademarks or in any other manner whatsoever:
(b)to grant a perpetual injunction restraining the defendants, by themselves, their men, servants, agents, distributors, stockists, franchises, successors in interest, representatives or any of them from in any manner passing off and enabling others to pass off the defendants' aforesaid products as and for the plaintiff's aforesaid products by use of the trademarks ''POWER PAX'' or any mark deceptively similar to plaintiff's registered trademarks or in any other manner whatsoever:
(c)to grant a perpetual injunction restraining the defendants, by themselves, their men, servants, agents, distributors, stockists, franchises, successors in interest, representatives or any of them from in any manner committing acts of copyright infringement by printing stocking and using ''POWER PAX'' which is a substantial reproduction of plaintiff's trademarks ''POWER'' per se and with prefix/suffix in get up, layout, presentation, artistic work, lettering 4/17 http://www.judis.nic.in C.S.No.267 of 2008 style, placement of expressions or in any other manner whatsoever:
(d)the defendants be ordered to surrender to the plaintiff for destruction of all labels, dyes, blocks moulds, plates, screen prints, packing materials, visiting cards, letterheads, printer bills, cartons, sachets and other material bearing the infringing ''POWER PAX'' or any mark deceptively similar to plaintiff's artistic work and trademarks ''POWER'' and with prefix/suffix with the word POWER labels:
(e)for the costs of the suit.
2. The learned counsel for the defendants already reported no instructions for the defendants. The defendants set ex parte by this Court vide order dated 18.11.2010.
3. It is seen that the plaintiff Company commenced as early as on 1991 was thereafter, reconstituted into a Private Limited Company with the trading style, M/s. Narmadha Chemicals Private Limited. The plaintiff Company is the proprietor of several 5/17 http://www.judis.nic.in C.S.No.267 of 2008 trademarks. The significant part of which is the expression ''POWER'' adopted by them in the marketing of their goods viz., Detergent cakes, Detergent Power, Beauty Soaps, Herbal Soaps, Shampoo, Washing Power, Hair Care Products manufactured and sold by them ever since 1991. The Trademark ''POWER'' of the plaintiff has been used with prefix and suffix, constituting various trade expressions such as Active Mini Power Pink, Active Power, Super Power, Hi Power, Triple Power, Multi Power Max, Active Power Extra 25g, Multi Power etc, labels of which are unique in several colour combinations and varying styles with respect to detergent cakes. The plaintiff is also conducting trade in Shampoo under the trade expression ''Nature Power Shampoo'' labels of which are represented in contra distinct colour combinations such as blackshine and Jasmine. It has been in the sale of goods manufactured and sold by the plaintiff continuously and extensively have triggered to extend their product line and product category.
4. The plaintiff is the honest, legal and the pioneer of the following trademarks in respect of Detergent cakes under Clause 3. 6/17 http://www.judis.nic.in C.S.No.267 of 2008 The brand name and application numbers of which are enumerated below:
S.No. Trademark Application No. Status
1 NEW POWER GOLD 1122140 Registered
DETERGENT CAKE
2. POWER MACRO 1260800 Registered
3. NATURE POWER 1330047 Registered
SHAMPOO(BLACK)
4. NATURE POWER 1330046 Registered
SHAMPOO(JASMINE)
5. TRIPLE POWER 886152 Registered
6. ACTIVE POWER 1380849 Registered
7. NATURE POWER HERBAL 1389138 Registered
SOAP
8. ACTIVE POWER DETERGENT 1389119 Registered
CAKE
9. NATURE POWER BEAUTY 13899116 Registered
SOAP
10. TRIPLE POWER DETERGENT 578906 Registered
CAKE
5. The plaintiff is the owner of several other trade marks with the trade expression ''POWER'' in respect of several other products under Clause 3, which are also under various stages of registration, with the Trade marks Registry, which are enumerated below: 7/17
http://www.judis.nic.in C.S.No.267 of 2008 S.No. Trademark Application No. Status 1 3 POWER DETERGENT CAKE 1122139 Under Registration WITH LEMON
2. SUPER POWER DETERGENT 1122141 Under Registration CAKE
3. 3 POWER DETERGENT CAKE 1122146 Under Registration YELLOW
4. 3 POWER DETERGENT 1122137 Under Registration POWER WITH FABRIC ENERGISZERS
5. POWER GOLD DETERGENT 1122136 Under Registration POWDER
6. NATURE POWER SOAP 1122147 Under Registration SANDAL
7. NATURE POWER SOAP 1122138 Under Registration LEMON
8. NATURE POWER SOAP ROSE 1122145 Under Registration
9. NATURE POWER SOAP LOGO 1122144 Under Registration
10. POWER DETERGENT WITH 1122143 Under Registration LOGO
11. POWER GOLD LOGO 1122342 Under Registration
12. MULTI POWER MAX 1265250 SINCE Registered
13. LA 1283227 Under Registration
14. TYKO 1283228 Under Registration
15. DK 1291570 Under Registration
16. GIO 1292530 Under Registration
17. MULTI POWER MAX 53302 Under Registration
18. LA NATURAL BEAUTY SOAP 1389115 Under Registration
19. LA FAIR 1406163 Under Registration
20. LA DREAM FLOWER 1406164 Under Registration 8/17 http://www.judis.nic.in C.S.No.267 of 2008 S.No. Trademark Application No. Status 21 DR POWER 1411958 Under Registration
22. HI-POWER DETERGENT 1514120 Under Registration
6. The plaintiff also deal in several other products such as Bleaching Preparations, Hair Lotions, Cosmetics, Perfumery, Essential Oils, Hair Lotions in Clause 3 under the following trade expressions:
S.No. Application No. Trademark Status
1. 1122142 Power Gold Logo Under Registration
2. 1122143 Power with Logo Under Registration
7. The plaintiff is the registered owner of the artistic expression contained in the aforesaid Trademarks under the Copyright Act, 1957 and also the registered owner of the trademark ''MULTI POWER MAX'' under Application no.63302 in U.A.E. The trademarks of the plaintiff have attained great popularity and trust worthiness and are held in high esteem owing to the credit of consistent advertisements vide newspapers, magazines, televisions, radio, posters, sponsorships, etc., 9/17 http://www.judis.nic.in C.S.No.267 of 2008
8.While so, the plaintiff noticed that the defendants have been using such similar expression ''POWER PAX'' in respect of DISHWASH BAR with the identical colour scheme and Trade Dress, with the slightest change in the manner in which it is spelt. The defendants are quite aware of the user and reputation of the plaintiff's renowned Trademarks containing the expression ''POWER'' with several prefix and suffix, which have been popularized vide extensive advertisements. The comparative table of the marks of plaintiff and defendants is given below S.No. PLAINTIFF DEFENDANTS
1. Mark ACTIVE POWER : Mark POWER PAX
2. Packing Sachet : Packing Sachet
3. Prominent Colour YELLOW, : Prominent Colour YELLOW, RED, RED, GREEN GREEN
4. Lemons depicted around the mark : Lemons depicted around the mark
5. The word power written boldly in : The word POWER written boldly in RED colour RED colour 6 The expression ACTIVE : The expression POWER MAX POWER written in Hindi on the written in Hindi on the sides of the sides of the sachet sachet 10/17 http://www.judis.nic.in C.S.No.267 of 2008
9. In addition to this, the mark of the defendants is deceptively similar phonetically with the registered Trademark of the plaintiff ''Multi Power Max''. Hence, the suit.
10. On the side of the plaintiff, PW1 has examined. Exs.P1 to P62 were marked on his behalf. Ex.P1 is the photocopy of Trademark Registration Certificate of Plaintiff's trademark ''Triple Power'' Detergent Cake dated 10.08.1992, Ex.P2 & Ex.P3 are the photocopies of Copyright Registration Certificates dated 25.08.1995 & 09.07.1999, Ex.P4 is the photocopy of Certificate of Incorporation of plaintiff's Company dated 25.04.1997, Ex.P5 is the photocopy of Trademark Registration Renewal Certificate of ''Triple Power'' dated 10.09.2001, Ex.P6 is the photocopy of Copyright Registration Certificate of plaintiff's trademark dated 19.02.2001, Ex.P7 is the photocopy of application for Registration of plaintiff's trademark ''Triple Power'' dated 29.07.2002, Ex.P8 is the photocopy of application for Registration of plaintiff's trademark ''Triple Power'' detergent cake dated 29.07.2002, Ex.P9 is the photocopy of application for Registration of plaintiff's trademark 11/17 http://www.judis.nic.in C.S.No.267 of 2008 ''Nature Power'' soap dated 29.07.2002, Ex.P10 is the photocopy of application for Registration of plaintiff's trademark ''Nature Power '' soap dated 29.07.2002, Ex.P11 is the photocopy of application for Registration of plaintiff's trademark ''Power Gold'' Logo dated 29.07.2002, Ex.P12 is the photocopy of application for Registration of plaintiff's trademark 'Triple Power'' dated 29.07.2002, Ex.P13 is the photocopy of application for Registration of plaintiff's trademark 'Power Gold'' dated 29.07.2002, Ex.P14 is the photocopy of application for Registration of plaintiff's trademark 'Super Power'' detergent cake dated 29.07.2002, Ex.P15 is the photocopy of Trademark Registration Certificate of plaintiff's trademark ''NEW POWER GOLD'' detergent cake dated 29.07.2002, Ex.P16 is the photocopy of application for Registration of plaintiff's trademark ''Nature Power'' soap dated 29.07.2002, Ex.P17 is the photocopy of application for Registration of plaintiff's trademark ''Nature Power'' (Sandal) soap dated 29.07.2002, Ex.P18 is the photocopy of application for Registration of plaintiff's trademark ''Multi Power Max'' dated 05.02.2004, Ex.P19 is the photocopy of Deed of Assignment dated 25.01.2005, Ex.P20 is the photocopy of 12/17 http://www.judis.nic.in C.S.No.267 of 2008 application for trademark Registration of plaintiff's trademark ''Nature Power'' shampoo (Jasmine) dated 04.01.2005, Ex.P21 is the photocopy of application for trademark Registration of plaintiff's trademark ''Nature Power'' shampoo (Black) dated 04.01.2005, Ex.P22 is the photocopy of Form TM No.24 submitted by the plaintiff before the trademark registry dated 07.02.2005, Ex.P23 to P34 are the photocopies of the TM No.16 dated 07.02.2005, Ex.P35 is the photocopy of Advertisement in trademark journal dated 01.05.2005, Ex.P36 is the photocopy of Advertisement in trademark journal dated 01.05.2005, Ex.P37 is the photocopy of trademark Registration Certificate of ''Triple Power'' dated 06.05.2004, Ex.P38 is the photocopy of Affidavit of K.Dhanapal in support of Deed of assignment submitted before the trademark Registry dated 16.05.2005, Ex.P39 is the photocopy of Registration Certificate for trademark ''MULTI POWER MAX'' (Label) issued by trademark registry Dubai, dated 05.07.2005, Ex.P40 is the photocopy of application for Registration of plaintiff's trademark ''Active Power'' dated 18.08.2005, Ex.P41 is the photocopy of application for Copy Right Registration of ''Triple Power'' detergent 13/17 http://www.judis.nic.in C.S.No.267 of 2008 powder dated 10.09.2005, Ex.P42 is the photocopy of application for Copy Right Registration of ''Triple Power'' detergent powder dated 10.09.2005, Ex.P43 is the photocopy of application for Copy Right Registration again for ''Nature Power(Sandal)'' soap dated 10.09.2005, Ex.P44 is the photocopy of application for registration of Copy right ''Active Power'' dated 10.09.2005, Ex.P45 is the photocopy of Trademark Registration Certificate of Plaintiff's trademark ''POWER MACRO'' dated 30.09.2005, Ex.P46 is the photocopy of application for Registration of trademark ''Triple Power'' detergent cake, Ex.P47 is the photocopy of Trademark Registration Certificate of plaintiff's trademark ''Active Power'' detergent cake dated 29.09.2005, Ex.P48(Series) are the photocopies of notice sent by the plaintiff dated 01.10.2005 and the reply notice sent by the defendant dated 25.10.2005, Ex.P49 (Series) are the photocopies of series of plaintiff's trademark, Ex.P50 is the photocopy of defendant's trademark, Ex.P51 is the photocopy of trademark Registration Certificate of plaintiff's trademark ''nature Power'' Herbal Soap, dated 23.03.2007, Ex.P52 is the photocopy of application for registration of trademark ''LA'' 14/17 http://www.judis.nic.in C.S.No.267 of 2008 dated 01.07.2007, Ex.P53 is the photocopy of trademark Registration Journal Advertisement, Ex.P54 is the photocopy of application for registration of trademark ''DK'' dated 16.09.2007, Ex.P55 is the photocopy of application for Registration of trademark ''GIO'' dated 16.06.2007, Ex.P56 is the photocopy of application for registration of trademark ''LA'' dated 01.01.2007, Ex.P57 is the photocopy of application for registration of trademark ''LA Fair'' dated 14.12.2005, Ex.P58 is the photocopy of application for registration of trademark ''La DREAM FLOWER'' dated 14.12.2005, Ex.P59 is the photocopy of application for registration of trademark ''Dr.Power'' dated 03.01.2006, Ex.P60 is the photocopy of application for Registration of trademark ''Hi POWER DETERGENT CAKE'' dated 18.12.2006, Ex.P61 is the photocopy of notice sent by the trademark Registry Certificate to the plaintiff's Attorney, Ex.P62 is the photocopy of Trademark Registration Certificate dated 03.12.2007, advertisement made in the Trade Mark Journal and photocopy of the Trade Mark application dated 02.05.2004.
11. PW1 in his evidence has categorically deposed regarding 15/17 http://www.judis.nic.in C.S.No.267 of 2008 the registered trademarks of the plaintiff and his evidence remains unchallenged and the documents marked are also not controverted and thereby, the plaintiff has proved its case that the plaintiff is the registered owner of the trade marks enunciated supra in tabular columns and therefore, the plaintiff is certainly entitled to the reliefs as sought for in the suit.
12. Accordingly, the suit is decreed in respect of prayers 'a', 'b' and 'c' and the defendants are directed to surrender to the plaintiff for destruction of all labels, dyes, blocks moulds, plates, screen prints, packing materials, visiting cards, letterheads, printer bills, cartons, sachets and other material bearing the infringing ''POWER PAX'' or any mark deceptively similar to plaintiff's artistic work and trademarks ''POWER'' and with prefix/suffix with the word POWER labels within period of one month.
13. In the result, the suit is decreed as indicated above with costs.
07.11.2019 Index : Yes/No dn 16/17 http://www.judis.nic.in C.S.No.267 of 2008 N.SATHISH KUMAR, J., dn C.S.No.267 of 2008 07.11.2019 17/17 http://www.judis.nic.in