Madras High Court
Aqua Pump Industries vs Sunita Devi Kumbhat on 28 January, 2016
Author: M.Sathyanarayanan
Bench: M.Sathyanarayanan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 28.01.2016 CORAM THE HONOURABLE MR.JUSTICE M.SATHYANARAYANAN C.S.No.316 of 2005 1.Aqua Pump Industries rep. by its Managing Partner Mr.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 Mr.Ramaswamy Kumaravelu Thudiyalur Post Coimbatore 641 034 Having their branch office at No.21 P.H.Road, Koyambedu Chennai 600 107. ... Plaintiffs Vs. Sunita Devi Kumbhat Trading as Dynamic Electricals 8/85 B, Sahdev Gali Vishwas Nagar Shahdara Delhi 110 032. ... Defendant Prayer: Plaint under Order IV Rule 1 of the O.S.Rules and Order VII Rule 1 of the Civil Procedure Code read with Sections 27, 134 and 135 of the Trade Marks Act, 1999 praying for a judgment and decree for:- (a)granting a permanent injunction, restraining the defendant, by itself, its 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 sue the same in invoices, letter heads 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 Marks TEXMO or in any manner infringing the Plaintiffs Registered Trade Mark Nos.315049 (SP-I), (SP-II) & 315050 (SP-I), (SP-II). (b)granting a permanent injunction, restraining the Defendant, by herself, her servants, agents, men or anyone claiming through her from manufacturing, marketing, distributing, offering or advertising for sale all types of Wires & Cables, using the mark TEXMO or similar sounding names in the course of their business and pass off her Wires and Cables using the Trade Mark TEXMO as and for the goods of the Applicant or enable others to pass off. (c)Directing the Defendant to surrender to the Plaintiffs all types of Wires & Cables containing/ bearing the Trade Mark TEXMO or other deceptively similar Trade Marks. (d)For a preliminary decree in favour of the Plaintiffs, directing the Defendant to render an account of profits made by her by the use of the Trade Mark TEXMO on the good referred and for a final decree in favour of the Plaintiffs for the amount of the profits found to have been made by the Defendants, after the Defendants have rendered accounts. (e)directing the Defendant to pay to the Plaintiffs the costs of the suit. For Plaintiffs : Mr.C.Daniel For Defendant : No Appearance JUDGMENT
The plaintiffs would aver that the plaintiffs are the manufacturers of different types of electrical motors and pumps since 01.04.1974. The first plaintiff is manufacturing and selling the following categories of pumps and motors since 01.04.1974:
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 upto 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.
2.It is further stated that the second plaintiff has been manufacturing and selling submersible motors, submersible pumps, submersible pumpset, components and spares for the above products since 12.11.1982 and the plaintiffs became the registered Proprietors of the Trade Mark TEXMO and in respect of the specific goods mentioned above by virtue of the order passed by the Registrar of Trade Marks on 20.04.1998 and thereafter, they became the exclusive proprietors of the Trade Mark TEXMO in respect of the specific goods stated in paragraphs 3 and 4 and the registered Trade Mark Numbers are 315049 SP-I and SP-II and 315050 SP-I and SP-II. The plaintiffs had acquired enormous goodwill in respect of the goods on which TEXMO Trade Marks are affixed and if any person uses the same mark/ similar mark in respect of those goods or other related goods, the public will be confused regarding the identity of the goods and its source. The plaintiffs also achieved a turnover of Rs.121,44,42,000.00, by selling and exporting the goods.
3.It is further averred that the plaintiffs came to know that the defendant had filed Trade Mark Application for registration of Trade Mark TEXMO on 09.04.2002 claiming user of the mark TEXMO since 05.03.2000 in Class 9 for PVC Wires and Cables and coming to know of the same, they immediately filed oppositions to the said application filed by the defendant and it is yet to be disposed of.
4.It is the case of the plaintiffs that the adoption of the Trade Mark TEXMO by the defendants in respect of the related goods namely Cables and Wires, is willful and wanton and malafide and it is calculated attempt to infringe the registered Trade Mark of the plaintiffs and pass off the defendant's goods as the goods of the plaintiffs. It is the case of the plaintiffs that the defendant is not entitled to do so before law and hence, came forward to file the suit.
5.Though the service of summons on the defendant has been completed in the form of the paper publication, they did not enter appearance and not filed their written statement. Hence, the defendant is called absent and set exparte.
6.On behalf of the plaintiffs in lieu of chief examination, the General Manager (Finance) has filed proof affidavit and marked exhibits Ex.P1 to Ex.P6.
7.The learned counsel appearing for the plaintiffs has drawn the attention of this Court to the pleadings and the evidence and would submit that under Ex.P2 series, the legal use certificate reflecting the registration of the Trade Mark TEXMO belonging to the plaintiffs' firm has been substantiated and on coming to know the defendant is also using the Trade Mark TEXMO Ex.P3 also filed application for registration of the Trade Mark, the plaintiffs filed notice of opposition Ex.P4 and it is yet to be disposed of.
8.The learned counsel appearing for the plaintiffs would further submit that the plaintiffs had issued various advertisements advertising their products wherein plaintiffs Trade Mark TEXMO has been reflected as evidence under Ex.P5 and by virtue of the quality of the products, the plaintiffs have also won awards and it is evident under Ex.P6. Thus, the plaintiffs through oral and documentary evidence has substantiated and probablised their case and thus prayed for decreeing of the suit with costs.
9.This Court considered the submissions made by the learned counsel appearing for the plaintiffs and also perused the pleadings, oral and documentary evidence.
10.The following issues arise for consideration:
1.Whether the plaintiffs are the holder of the Trade Mark TEXMO?
2.Whether the defendant has infringed the Trade Mark and passed off the goods?
3.Whether the plaintiffs are entitled to the judgment and decree as prayed for?
4.To what relief the plaintiffs are entitled to?
11.Issue No.1:
A perusal of the exhibit Ex.P2 would disclose that series of legal use certificate has been issued to reflect that the plaintiffs are the registered holder of the Trade Mark TEXMO bearing numbers 315049 SP-I and SP-II and 315050 SP-I and SP-II. Under Ex.P5, various advertisements had appeared in the newspapers indicating that the plaintiffs' Trade Mark is TEXMO. In the light of the same, this Court is of the view that issue no.1 is to be answered in favour of the plaintiffs and accordingly, it is answered in affirmative and in favour of the plaintiffs.
12.Issue No.2:
Under Ex.P3 is the journal advertisement of the defendant for impugned Trade Mark TEXMO and on becoming aware of the same, the plaintiffs raised opposition in the form of notice of opposition dated 09.04.2002 under Ex.P4 and it is yet to be disposed of. It is already pointed out that under Ex.P5, various advertisements would reflect the fact that the plaintiffs are the registered holder of the Trade Mark TEXMO and the defendant had infringed the Trade Mark TEXMO and passed off the goods. Therefore, issue no.2 is answered in affirmative and in favour of the plaintiffs.
13.Issue No.3:
The plaintiffs in proof affidavit in lieu of the chief examination coupled with Ex.P5 and Ex.P6 had probablised their case and therefore, they are entitled to the judgment and decree as prayed for.
14.In the result, there shall be a judgment and decree, as follows:
1.decree for permanent injunction, restraining the defendant, by itself, its 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 sue the same in invoices, letter heads 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 Marks TEXMO or in any manner infringing the Plaintiffs Registered Trade Mark Nos.315049 (SP-I), (SP-II) & 315050 (SP-I), (SP-II).
2.decree for permanent injunction, restraining the Defendant, by herself, her servants, agents, men or anyone claiming through her from manufacturing, marketing, distributing, offering or advertising for sale all types of Wires & Cables, using the mark TEXMO or similar sounding names in the course of their business and pass off her Wires and Cables using the Trade Mark TEXMO as and for the goods of the Applicant or enable others to pass off.
3.the Defendant is directed to surrender to the Plaintiffs all types of Wires & Cables containing/ bearing the Trade Mark TEXMO or other deceptively similar Trade Marks. And
4.there shall be a preliminary decree in favour of the Plaintiffs, directing the Defendant to render an account of profits made by her by the use of the Trade Mark TEXMO on the good 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.
5.the Plaintiffs are also entitled to the cost of the suit.
28.01.2016 pri Index: Yes / No Internet: Yes / No M.SATHYANARAYANAN,J.
pri C.S.No.316 of 2005 28.01.2016