Bangalore District Court
M/S. Micro Hitech Industries vs M/S. Uttam Gautam Appliances on 31 January, 2017
IN THE COURT OF XVIII ADDL.CITY CIVIL JUDGE,
AT BENGALURU CITY [CCH.NO.10]
Dated this day the 31st January 2017
PRESENT
SRI MUSTAFA HUSSAIN.S.A., B.A., LL.M.
XVIII Addl.City Civil Judge.
O.S.No.2835/2015
Plaintiff M/s. Micro Hitech Industries,
A sole proprietary concern by and
through its proprietor
Goutam Kumar Babulal,
Adult, Hindu by Religion,
Occupation Business, Karta of
Goutam Kumar Babulal (HUF)
Having address at No.155/8,
1st Floor. S.P.Road,
B A N G A L O R E - 02.
[By Sri.S.S.,Advocate]
/VS/
Defendant: M/s. Uttam Gautam Appliances,
A sole proprietory concern,
Having address at No.4/1, Cellar,
GR Mill Compound,
Madhugiri Road,
2 O.S.No.2835/2015
Anthrasnahalli Industrial Area,
Shed No.5,
T U M K U R - 572 106.
[By Sri.K.N.R., Advocate]
Date of institution of 25.03.2015
suit
Nature of the suit Permanent and Mandatory
(Suit on pronote, suit Injunctions and damages
for declaration and
possession suit for
injunction, etc.
Date of the 02.11.2016
commencement of
recording of the
evidence.
Date on which the 31.01.2017
Judgment was
pronounced.
Year/s Month/s day/s
Total duration: 01 10 06
(MUSTAFA HUSSAIN.S.A.)
XVIII Addl.City Civil Judge, Bangalore.
JUDGMENT
The plaintiff has filed the suit against the defendant for the relief of permanent injunction to restrain the defendant from infringing its registered trade mark NANDI, from manufacturing and marketing and using the trade mark/label 3 O.S.No.2835/2015 NANDINI and passing off its goods as that of the plaintiff, from printing, publishing and using the art work of label mark containing and consisting of trade mark NANDINI and from reproduction of the plaintiff's artistic work and label /box and to pay damages with interest at the rate of 18% per annum and to handover all the goods consisting the trade mark NANDINI, any other mark which is identical and deceptively similar with the plaintiff's trade mark and cost.
2. The brief and relevant facts as alleged in the plaint are as follows:
The plaintiff has alleged that it is the sole proprietary concern and manufacturer and marketer of pressure cookers, stainless steel utensils and allied goods which are being sold openly, extensively, and uninterruptedly throughout India under the trade name NANDI and the said trade mark has acquired good name and reputation and goodwill in the market. It is further alleged that the defendant is also manufacturer and marketer of pressure cookers and selling its product within the city of Bangalore without issuing bills and under the mark NANDINI which is identical and deceptively similar with the plaintiff trademark NANDI. It is further alleged that defendant is also selling its products under the identical 4 O.S.No.2835/2015 and deceptively similar label of NANDINI with substantial material reproduction of art work and colour scheme of the plaintiff's label with NANDI.
3. It is further alleged that the plaintiff's predecessor started the business long back and adopted the trade mark NANDI in the year 1993 which was being used for its goods. It is further alleged that plaintiff's predecessor also adopted the distinctive and attractive art work, script and get up in the year 1993 which catches the eyes of public at large. It is further alleged that plaintiff's predecessor has been converted in to partnership firm in the year 1998 and subsequently plaintiff purchased entire business along with goodwill in 2006 and thereby plaintiff has became the owner of the mark NANDI since 1993.
4. It is further alleged that plaintiff has adopted the unique art work, colour scheme, get up and arrangement for its label so that the buyers, consumers, traders and general public can easily recognize plaintiff's goods. It is further alleged that plaintiff got artistic work of the label done by an artists and hence it is also the absolute owner of the label NANDI which is distinctive art work under the provisions of Copy Right Act 1957. It is further alleged that the art work of 5 O.S.No.2835/2015 the plaintiff label is originally and got the said label first published and printed, used in India in respect of its goods.
5. It is further alleged that plaintiff' is carrying on said business for gain with an annual turn over of crores of rupees and the turn over of the plaintiff has increased from time to time. It is further alleged that plaintiff has acquired good reputation amongst the traders, customers and general public.
6. It is further alleged that plaintiff in order to distinguish its goods from the goods of other companies has adopted distinctive trade mark NANDI with honest and bonafide intention and the said trade mark NANDI was coined and invented by and the plaintiff is the first adopter and user of the same since 1993. It is further alleged that due to long and concurrent use and also because of the quality, it has acquired tremendous reputation and goodwill and the demand for the plaintiff's goods have increased from time to time. It is further alleged that the plaintiff's trademark Nandi was also registered in Class 21 by the trade mark registry as such plaintiff is the registered proprietor of the mark / label NANDI vide Nos.602003, 1062376 and 1834259 under the provisions of Trade Marks Act, 1999. It is further alleged that the adoption of the mark NANDINI by the defendant is deceptively similar and amounts to infringement of its registered trade 6 O.S.No.2835/2015 mark and label under the Trademark Act and Copyright Act. It is further alleged that plaintiff on 18.3.2015 came to know that the defendant is selling pressure cookers in Bangalore without bill under the trade name NANDINI by representing as its the marker of the plaintiff. It is further alleged that defendant wrongly representing that it is the joint venture with the plaintiff and has also grabbed the orders from the dealers and therefore the defendant has adopted the mark and label NANDINI with malafide intention which is identical and deceptively similar with its registered trade mark NANDI. It is further alleged that defendant has also filed its application for registration of the mark NANDINI claiming its use from 17.3.2014 which is subsequent to the adoption, use and registration of plaintiff's mark/label NANDI. It is further alleged that due to illegal activity of the defendant, the sale of the plaintiff has affected and hence defendant is required to be restrained from using its registered trade mark /label and passing off goods. It is further alleged that the adoption of impugned mark / label by the defendant on its generic brand to cause confusion among the general public. It is further alleged that defendant is well aware of the plaintiff's registered trade mark Nandi / Label as well its prior use by the plaintiff. It is further alleged that defendant is also aware of plaintiff is 7 O.S.No.2835/2015 the first adopter and purchaser of the art work of label NANDI has adopted similar and deceptive trade mark and art work by substantial material and reproduction of the art work NANDINI as that of the plaintiff's art work NANDI and hence defendant has infringed the copy right of the plaintiff's mark and hence the defendant has to be restrained. Hence the suit.
7. The defendant has resisted the suit by filing its written statement interalia denying the allegations made in the plaint and contending as under:
It is contended that defendant is carrying on its legal business under the brand name NANDINI DIAMOND with a diamond symbol and this trade mark is neither similar nor identical to the trade mark of the plaintiff NANDI. It is further contended that the word contains 5 letters and the word NANDINI DIAMOND contains 14 letters and there is no substantial and material reproduction of the art work and color scheme of the plaintiff label. It is further contended that the cursory look of the label of the plaintiff and defendant reveals glaring dissimilarities. The color combination is entirely different and the symbol diamond is prominently visible in the color combination of the defendant. It is further contended that plaintiff is the manufacturer and selling goods 8 O.S.No.2835/2015 in the name of NANDI with the symbol of sitting bull and the defendant's trade mark NANDINI DIAMOND with a diamond symbol in sky blue colour with different colour combination and the diamond symbol is placed in the first which is visible prominently and common man having ordinary prudence also can easily distinguish these two trade marks. It is further contended that mark NANDI and NANDINI DIAMOND are phonetically different. The design, images are also totally different and hence there is no deception or similarity of the plaintiff's trade mark. It is further contended that the trademark NANDINI DIAMOND is exclusive trade mark belongs to the defendant and it is using the same since 21.3.2014 after getting a number to its application from the trade mark registry vide application No.2701449 and now the defendant also submitted the application for amendment of his word mark and label mark and the defendant is using this label mark as trade mark on its products which is evident from the photographs produced by them. It is further contended that the art work, colour scheme, get up and arrangement of its label NANDINI DIAMOND is entirely different from that of the plaintiff and the art work of NANDINI Diamond with a diamond logo is also prepared in a distinctive colour scheme, get up, arrangement, script, art work which is 9 O.S.No.2835/2015 different from the plaintiff's label Nandi. It is further contended that the product of the defendant itself is itself unique and different from the product of the plaintiff and its cooker is advertised and marketed only in the brand name of NANDINI DIAMOND. It is further contended that the font used in plaintiff's trade mark and defendant's trade mark are entirely different and distinct and plaintiff has no copyright over the colour scheme, get up and layout as well as on any instruction manual and same is given free of cost to the purchaser of cookers which contains information on the proper usage of the product and these instructions are drawn from common source. It is further contended that plaintiff has not claimed any copy right in its instruction manual and that the Trade mark Act only protects the brand name and plaintiff cannot claim any exclusive right to market cooker as against every other manufacturer. It is further contended that there is no confusion among the general public about the brands. It is further contended that the defendant got artistic work of its label NANDINI DIAMOND and therefore has become exclusive owner and proprietor of distinctive art work of label NANDINI DIAMOND under the provisions of Copyright Act and same being used by him openly, extensively, continuously and uninterruptedly in the market. It is further contended that 10 O.S.No.2835/2015 the traders, consumers, and purchasing public are identifying, recognizing and purchasing the goods of the defendant by the said distinctive label NANDINI DIAMOND and not in the name of NANDI. It is further contended that defendant's product cooker is sold in the name of NANDINI DIAMOND and it has unique feature. The alleged misrepresentation is denied and it is contended that the plaintiff is trying to avoid competitors and want monopoly over the trade. It is further contended that defendant is not passing off the products of the plaintiff as alleged and no attempt is made to grab the orders from the dealers in the market. It is further contended that plaintiff's suit is of misconceived and the plaintiff is trying to eliminate competitors from the market.
8. It is further contended that there are more than various cookers 50 - 100 varieties manufactured of cookers and the get up are nearly similar and the mechanism is also similar with few differences. It is further contended that the cookers are not like other products which are purchased on day to day basis and if the consumer purchases a cooker, he will use the same atleast for 5 to 10 years and before purchasing a cooker the customers make up their mind as to which brand they must purchase. It is further contended that the public is not carried away by mere get up and they know 11 O.S.No.2835/2015 the manufacturers' credentials and performance of each product. It is further contended that the passing off a material like that of another person's product is almost negligible in costly product like cookers and hence no action can lie on passing off. It is further contended that even if several manufacturers' products of the same apparatus are kept side by side, the buyer knows which company's product he must buy. It is further contended that there is no need for the defendant to passing off its products which is comparatively superior and bears consumer friendly price tag. It is further contended that the defendant has invested huge money to set up the plant and machinery to manufacture its brand cooker and spending lot of money on the same and running its concern in a rented premises. It is further contended that NANDI is worshipped as a god and NANDINI is worshipped as goddess and hence NANDI and NANDINI are generic words and there cannot be any restrictions to use these trade marks. According to the defendant, they are innumerable products in the name of NANDI and NANDINI in the market. Therefore defendant contended that there is no infringement of plaintiff's trade mark or passing off and his trade mark is unique and there is no deceptive similar. Therefore on all these grounds defendant sought for dismissal of the suit.
12 O.S.No.2835/20159. On the basis of the rival pleadings and contentions, this court has framed the following issues and additional issues:
(1)Whether the plaintiff proves that it is the registered owner of Trademark NANDI?
(recasted on 7.12.2016) (2)Whether plaintiff proves that the defendant infringed the plaintiff's well established trademark NANDI by using offending trade marks NANDINI?
(3) Whether the plaintiff proves that the defendant has passed off their trade mark NANDI?
(4) Whether the plaintiff is entitled for the decree of permanent & mandatory injunctions as sought for?
(5) Whether the plaintiff is entitled for the damages as sought for?
(6) What order or decree?
Addl.Issue No.1:
(1) Whether the plaintiff further proves that the defendant has infringed its copy right over the artistic label NANDI as alleged?13 O.S.No.2835/2015
10. Plaintiff got examined its proprietor as PW1 and got marked documents at Ex.P1 to 18, MOs.1 to 3 and closed its side. Defendant got examined himself as DW1 and during the cross examination of PW1, Ex.D1 to D8 and Ex.C1 to C5 were marked on their behalf. During the course of cross examination of DW1, plaintiff got marked M.O.4.
11. Both sides have filed their written arguments. Plaintiff has also filed its reply argument. Plaintiff in its written argument has reiterated that suit is filed for infringement of plaintiff's registered trade mark / label Nandi. It is further stated that plaintiff's mark is registered under Ex.P6 and the plaintiff using the same since 1993 without any interruption. Reliance is placed on Ex.P9(1) to P9(87) and Ex.P10(1) to (9) and it is stated that these documents also establishes that the plaintiff is prior user of its registered trade mark. It is further stated that apart from Ex.P6, plaintiff also obtained the registration for label mark NANDI in Ex.P5 and has also lead oral evidence which establishes that the plaintiff's registered owner of the trade mark / label NANDI. It is further stated that plaintiff also got registered under Class 21 (LPG Stove) with mark NANDI under Ex.P15 and this document also supports the case of the plaintiff. In this connection the learned counsel for the plaintiff has relied on 14 O.S.No.2835/2015 the decision of Cinni Foundation Vs. Raj Kumar Sah in 2009(41) PTC 320 (Del). It is further stated that Defendant has deliberately adopted the mark NANDI and label which are deceptively similar and identical with plaintiff's mark NANDI but has claimed its registered trade mark NANDINI DIAMOND with a diamond symbol on its usage from 21.3.2014. Reliance is also placed on the evidence of DW1 about the admissions of manufacturing and selling of pressure cookers and other home appliances. It is further stated that the defense taken by the defendant in his written statement and his evidence is contrary to the nature and according to the plaintiff bare reading of evidence of DW1 reveals so many inconsistencies. It is further stated that defendant has mislead the court stating that he is carrying on business since March 2014 but the document establishes that he is in the business since 2013. It is further stated that the mark NANDINI adopted by the defendant with suffix Diamond are not original work of the defendant and the same has been copied by him from the existing two well established marks. Much reliance is also placed on the cross examination directed to DW1 about his evidence at page 4 para 4 wherein DW1 has admitted about the change of logo as appearing in MO.2 to M.O.3 as per the advice of his advocate. Therefore according to the plaintiff 15 O.S.No.2835/2015 there is a clear infringement of its registered trade mark / label NANDI on the part of the defendant. In support of his argument about the deceptive use of the trade mark plaintiff has relied on the decision of Hon'ble Supreme Court in Parle products (p) Ltd. Vs. J.P.& CO., Mysore in AIR 1972 SC 1359 wherein at para 8 the Hon'ble Supreme Court was pleased to held as under:
8. According to Karly's Law of Trade Marks and Trade (9th edition paragraph 838);
"Two marks, when placed side by side, may exhibit many and various differences vet the main idea left on the mind by both may be the same. A person acquainted with one mark, and not having the two side by side for comparison, might well be deceived, if the goods were allowed to be impressed with the second mark, in to a belief that he was dealing with goods which, bore tile same mark as that with which he was acquainted. Thus, for example, a mark may represent a game of football; another mark may show players in a different dress, and in very different positions, and yet the idea conveyed by each might be simply a game of football. It would be too much to expect that persons dealing with trade marked goods, and relying, as they frequently do, upon marks, should be able to remember the exact details of the marks upon the goods with which they are in the habit of dealing. Marks are remembered rat her by general impressions or by some significant detail 16 O.S.No.2835/2015 than by any photographic recollection of the whole. Moreover, variations in detail might well be supposed by customers to have been made by the owners of the trade mark they are already acquainted with for reasons of their own."
Plaintiff has also relied on the decision of Bihar Tubes Ltd., Vs. Garg Ispat Ltd., in 2009 (41) PTC 741 (Del) wherein at para 14(2) Hon'ble Supreme Court has pleased to held as under:
14(2). Therefore, in order to discern whether the mark is confusingly or deceptively similar with respect to which rights are claimed by the registered owner; the apposite test is that, in which, the broad essential features are to be construed- when one compares the infringing mark with the registered mark. In doing so, the stress ought to be on the "overall similarity" and not on the differences in the marks. The "overall similarity" test ought to be one, which should lead to a conclusion that it would mislead a person usually dealing with the goods in issue, to accept the goods of the infringer, as those manufactured by the proprietor of the registered mark. The "ordinary purchaser is not expected to be gifted with the powers of observations of Sherlock Homes".
Therefore according to the plaintiff, the various admissions of DW1 clinchingly establishes that the infringement of its registered trade mark / Label Nandi on the part of the defendant. Therefore, there is sufficient material placed on 17 O.S.No.2835/2015 record which clinchingly establishes that the plaintiff is the registered owner of the trade mark / label Nandi and so also prior user as well as its infringement by the defendant and hence plaintiff is entitled for the reliefs claimed.
12. The defendant in its written argument has also denied the case put forth by the plaintiff. In the argument to issue No.1 defendant admits that the plaintiff is the registered owner of the trade mark/label NANDI but according to the defendant, Ex.P5 reveals that the label mark for the design was granted subject to conditions that registration of trade mark shall give no right to the exclusive use of descriptive matters in the label, which itself speaks that any body can use a similar description of its product. It is further stated that plaintiff has not received any trade mark registration for the NANDI Logo along with color combination and the plaintiff himself has filed application before trade mark registry on 14.3.2013 and according to the said application, plaintiff is using the logo since 1.3.2013 and the said application has been objected by the trade mark registry and same is pending for consideration. It is further stated that despite objection raised, plaintiff falsely claiming his right under the mark Nandi as also reflected in Ex.C2. It is further stated that Ex.P6 18 O.S.No.2835/2015 is only a registration certificate for cookers and Ex.P5 pertains to the label mark with a limitation on its usage and Ex.P15 is pertaining to the gas stoves and the trade mark application of the plaintiff for the composite mark NANDI and Bull is so far not registered, therefore according to him, plaintiff is only the owner of the registered trade mark NANDI and nothing more than that.
13. In the argument of Issue No.2 & 3, defendant has also highlighted that there is no infringement of trade mark NANDI or passing off on his part and he is running his business under the trade mark NANDINI DIAMOND and not NANDI or NANDINI as alleged by the plaintiff. It is further stated that the mark NANDI and NANDINI are totally different and there is no scope for creating any confusion among the traders or general public. It is further stated that defendant modified the design of carton box M.O.2 as soon as he came to know the design adopted as per M.O.3 resembling plaintiff.
According to the defendant, the said artistic work of M.O.2 was changed in the year 2014 itself which is also admitted by the plaintiff. It is further stated that the very fact of adopting different artistic work upon the instructions of his trade mark counsel much prior to the institution of the suit itself shows 19 O.S.No.2835/2015 bonafide intention of the defendant. Defendant has also placed reliance on the cross examination of PW1 to the effect that plaintiff has admitted that defendant was not known to him. According to the defendant, the mark NANDI and NANDINI DIAMOND are two different names and merely because NANDI is common, plaintiff cannot claim monopoly over the people using the name with a word Nandi. It is further stated that the trade mark of the defendant NANDINI DIAMOND has to be taken as a whole and there is no similarity either phonetically or visually nor is deceptively similar. In support of his argument learned counsel for the defendant has relied on the decision of Hon'ble Supreme Court between Roche & Co., Vs.G.Manners & Co in AIR 1970 SC 2062 wherein it was held that the trade mark DROPOVIT and PROTOVIT were held to be phonetically dissimilar. Defendant has also relied on the decision in between Himalaya Drug Co., Vs. Sbi Limited in 2013 (53) PTC 1 (Del) . Further defendant has also relied on the decision of Hon'ble High Court of Madras in Rhizome Distillerries Pvt. Ltd., Vs. Union of India & Others in 2012 (50) PTC 1 (Mad)(DB) wherein it is held that where the trade mark includes a generic component, the manufacturers are not precluded from using as part of their marks, the said generic component. The generic component will obviously not be the 20 O.S.No.2835/2015 distinctive portion and the deviant portion would be dissimilar or non generic portion when the comparison of the marks are taken up as a whole, the distinctive portion of the trade mark ie., the non-generic component would have to be compared and not the generic component. Further the defendant has also relied on the decision of Hon'ble High Court of Delhi between J.R.Kapoor Vs. M/s.Micronix India wherein it is held that the trade name MICRO TELEMATIX and the trade name MICRONIX INDIA are not a similar. It is further stated that plaintiff has tried to mislead the court by filing application Ex.P18 and wrongly claiming its right under the said document and the said document is not accompanied by the certificate issued by the registrar of copyright as per Sec.45 of the Copy Right Act. Therefore no value should be attached to Ex.P18. It is further stated that defendant has never infringed the plaintiff's trade mark / label Nandi nor has passed off the goods. Therefore there was no violation on the part of the defendant. Hence plaintiff is not entitled for the relief claimed. Therefore has sought for dismissal of the suit.
14. Having regards to the materials placed on record and arguments heard, my findings on the above issues are as under:
21 O.S.No.2835/2015 Issue No.1 : In the affirmative
Issue No.2 : In the negative
Issue No.3 : In the negative
Issue No.4 : In the negative
Issue No.5 : In the negative
Issue No.6 : As per final order,
Addl.Issue No.1 : In the negative
for the following:
REASONS
15. Issue No.1: Plaintiff asserts that it is the registered owner of the trademark Nandi. According to the plaintiff it is carrying on business in manufacturing and marketing of pressure cookers, stainless steel utensils and allied goods under the trade mark NANDI and it is the definite case of the plaintiff that it has adopted and unique art work colour schedule, get up and arrangement for label NANDI and hence plaintiff is also exclusive owner and proprietor of the label NANDI under Copy Right Act. Plaintiff has also asserted that even it is the prior user of the trade mark and label NANDI. Per contra, the defendant has denied the alleged right of the plaintiff and has come up with a defense that he is carrying on his business under the name NANDINI DIAMOND and even has adopted a unique art work for its label. With these rival pleadings and contentions the parties have lead oral as well as documentary evidence on their behalf.
22 O.S.No.2835/201516. The proprietor of the plaintiff has got examined himself as PW1 and this PW1 has sworn to affidavit by way of his examination in chief which is on par with the allegations made in the plaint about his alleged right over the mark and label NANDI. It is the evidence of PW1 that his mark NANDI is also registered and he is using the same for manufacturing and selling of his goods. It is further evidence of PW1 that his predecessor actually adopted the mark NANDI in the year 1993 and later he took over the business thereby the mark and label NANDI is being used since 1993 which is much prior to the defendant. In support of his evidence PW1 has also got marked various documents at Ex.P1 to P18. Ex.P1 to 4 are the VAT certificate, confirmation of transfer of VAT registration, registration certificate of the establishment along with their copies, Exs.P5 & 6 are the trade mark registration certificates, Ex.P7 & 8 are two letters received from trade mark registry, Ex.P9 & 9(1) to 9(87) are 88 invoices relating plaintiff business, Ex.P10, 10(1) & 10(9) are the invoices raised on the plaintiff. Ex.P11 Auditors statement about the turn over of the plaintiff. Ex.P12 is the investigation report, Ex.P13,13(1) & 13(15) are the photographs of defendant's brand, Ex.P14 is the C.D. Ex.P15 & 16 are the trade mark applications, Ex.P17 is the invoice and Ex.P18 is the application for copy right and 23 O.S.No.2835/2015 M.O.1 to 3. M.O.1 is the Nandi cooker manufactured by plaintiff along with box, M.O.2 is the packing box with cooker manufactured by defendant and M.O.3 is the empty packing box of defendant.
17. In the cross examination directed to him, it is brought on record that at page 2 of Ex.P6 trade mark No.602003 is shown on the trading in the name of BMS Home Appliances and he also admits similar entries in Ex.P9 and P9(1) to P9(87). It is further brought on record that BMS Home Appliances is partnership firm and copy of the affidavit produced by him in the suit which was filed by him before trade mark registry was confronted and marked as Ex.C1. He admits that as per para 11(2) of Ex.C1 he has waived off his right in respect of registered trade mark NANDI by retiring as partner of the said firm. He admits that even after his retirement, BMS Home Appliances has continued its business and using the Trademark/ Label NANDI. He further admits that as per Ex.P6, trade mark NANDI is renewed in favour of BMS Home Appliances for 10 years. At para 13 of the cross examination, it is brought on record that he got filed Ex.P8 on 25.11.2015 for copy right clearance which is till date not registered in the name of plaintiff.
24 O.S.No.2835/201518. The defendant got examined its proprietor as DW1 and this DW1 has sworn affidavit by way of examination in chief which is on par with the contentions taken up in the written statement. At page 11 of the cross examination he admits that plaintiff was dealing with Nandi cookers much prior to him and the relevant portion reads as under:
It is true that the plaintiff was dealing with Nandi cookers much earlier to me At para 7 of the cross examination he admits that as per the contents of Ex.D8, except the plaintiff, no other company is shown as using the mark NANDI. This is all the oral and documentary evidence placed on record.
19. As could be seen form the materials placed on record, plaintiff has based its case on the basis of the oral evidence of PW1 and various documents. So far as the oral evidence is concerned, PW1 throughout maintained that plaintiff is the registered owner of the mark NANDI and that same was under use by his predecessor since 1993. Plaintiff has also reiterated that it has adopted a unique art work, colour scheme, get up and arrangement for its label. No doubt plaintiff has filed application for rectification of label and same is pending under registration as per Ex.P18. But the plaintiff 25 O.S.No.2835/2015 has produced document at Ex.P6 which is registration certificate issued by the trade mark registry wherein the mark NANDI is shown as registered and renewed for a period of 10 years with effect from 19.7.2007. Ex.P6 also reveals that the mark NANDI was registered under Class 21 for manufacturing and selling of pressure cookers and other allied items. Admittedly the dispute between the parties is only with regard to the manufacturing and selling of pressure cookers and the plaintiff claims that by virtue of Ex.P6, he is the absolute owner of registered mark NANDI and this fact is also evident from Ex.P6. Interestingly in the cross examination directed to PW1, the contents of Ex.P6 relating to the ownership of the mark NANDI is not disputed on behalf of the defendant. Even in the entire written statement defendant though has denied the use of mark NANDI by the plaintiff, bur has also admitted that the mark of the plaintiff NANDI is different from his trade mark NANDINI DIAMOND. Therefore by contending so, defendant has also admitted that the plaintiff is the registered owner of the trademark NANDI. Even in the written argument filed on behalf of the defendant, this fact is also clearly admitted. Therefore the defendant has no serious dispute about the registration of the mark NANDI and its usage by the plaintiff. Even otherwise entire material placed on record 26 O.S.No.2835/2015 establishes that the mark NANDI was being used by the predecessor of the plaintiff since 1993 and all the documents under Ex.P9(1) to P9(87) and Ex.P10(1) to P10(9) also supports the case of the plaintiff. These documents clinchingly establish that the plaintiff was prior user of the mark NANDI and Ex.P6 also establishes subsequent registration of the mark NANDI in favour of the plaintiff. Though some stray admissions are elicited from the mouth of PW1 to establish that plaintiff got retired from BMS Home Appliances and Ex.C1 was also confronted and got marked to establish that plaintiff has waived off his right over the mark NANDI, but the fact that plaintiff has subsequently taken over entire business, goodwill of NANDI trade mark in 2006 and now it is a proprietary concern is concerned same is not dispute on behalf of the defendant. Therefore the entire material placed on record clinchingly establishes that plaintiff is the registered owner of the mark NANDI and in the absence of any serious denial, I have no hesitation to record my finding on this issue in the affirmative.
20.Issue No.2, 3 and Addl.Issue No.1: As these issues are interlinked hence they are taken up for discussion together.
27 O.S.No.2835/201521. Plaintiff asserts that defendant has infringed his well established trade mark NANDI by adopting the trade mark NANDINI and so also his copy right over the artistic label Nandi and passing off his goods. Defendant has disputed the very use of the registered trade mark NANDI in his written statement and came up with a specific defense that he is in the field of manufacturing and selling cookers from March 2014 under the trade mark NANDINI DIAMOND. Therefore according to him, the plaintiff mark has got a logo of nandi and where as his trade mark NANDINI DIAMOND has got logo of Diamond and according to him there are no similarities either in the trademark or label of himself and plaintiff.
22. PW1 in his chief examination reiterated the plaint averments alleging the infringement of the registered trade mark and label by the defendant by using offending mark NANDINI with identical features of the label so as to look deceptively similar with that of his goods. It is also evidence of PW1 that the mark NANDINI being used by the defendant is capable of creating confusion in the minds of the traders and customers which affects his business, goodwill and reputation. PW1 has also deposed that the defendant is representing his products as that of the plaintiff in the market and trying to 28 O.S.No.2835/2015 take advantage of its reputation and passing off its goods. In support of his evidence PW1 has got marked various documents. It is the evidence of PW1 that he is manufacturer of NANDI cookers which he has got marked along with the packing box at M.O.1. According to PW1, M.O.2 is the packing box with cooker manufactured by the defendant and M.O.3 is the empty packing box of the defendant. He has also got marked the investigation report about manufacturing of the cooker by the defendant at Ex.P12 and various photographs at Ex.P13. The cross examination directed to PW1 is worth appreciating because amongst other things it is elicited from his mouth that he is not aware that the trade mark NANDINI was first registered much prior to the registration of mark NANDI in his name. He pleads ignorance that one Veerchand Chhajed has applied for registration of mark NANDI stating that he is using the same since 1970. He also pleads ignorance that one Manganlal Purohit also applied for registration of the trademark NANDI on 1.4.2000 and subsequently registration of the same. At para 4 of the cross examination, it is brought on record that the defendant is using NANDINI DIAMOND mark since 2015. A photograph containing box used by defendant was confronted and marked as Ex.D1. But he has volunteered that the defendant is also 29 O.S.No.2835/2015 using another box which he has no impediment to produce. Another photograph produced by the plaintiff himself in this suit in proof of the print on the box on his own product was confronted and marked as Ex.C2. He admits that the colour, back ground, layout background under Ex.D1 & C2 are different. And even has volunteered that there is slight change in both photographs. He admits that under Ex.D1 there is a diamond in silver colour and the label NANDI in red colour with yellow back ground. He further admits that below the label NANDINI in blue background and white colour font, the word Diamond is mentioned. He also admits that there is a kitchen drawing in the back ground of Ex.D1 which is in green and white colour. He further admits that the mark NANDI in Ex.C2 is in white colour and font with red back ground. He further admits that the words, gasket, release system, wrought aluminum pressure cooker, twin screw, five years warrant has reflected in Ex.C2 are not found in Ex.D1. He further admits that under Ex.D1 immediately after the word NANDINI DIAMOND, words wrought aluminum pressure cooker is shown in different style. The other three photographs produced by him are confronted and marked as Ex.C3 to C5 and similarly other six photographs produced by the defendant were confronted and marked as Ex.D2 to D7. He 30 O.S.No.2835/2015 pleads ignorance that whenever a label mark is issued, it will be subject to limitation. He admits that as per the conditions laid down in page 2 of Ex.P7, he do not have exclusive right to use the descriptive matter up on the box. At para 6 of the cross examination it is brought on record that he has no impediment to produce the design registration certificate before the court. In the same para at page 9, he admits that the pressure cookers manufactured by him and the defendant are different and the relevant portion reads as under:
The pressure cookers manufactured by us and the pressure cookers manufactured by the defendant may be different.
A specific question is put to him to explain the difference in the pressure cookers manufactured by him and defendant and according to him, he cannot say about the pressure cooker of the defendant. A document containing the pictures of different pressure cookers was confronted and marked as Ex.D8 which includes the pressure cooker manufactured by the plaintiff and defendant. At para 9 of the cross examination it is brought on record that he has no problem in producing all the turn over details as shown in Ex.P11. Interestingly he admits that his product NANDI Pressure cookers never went in loss 31 O.S.No.2835/2015 since form the date of its commencement and the relevant portion reads as under :
It is true that our product Nandi pressure cooker never went in loss eversince from the date of its commencement.
He further admits that the contents of Ex.P11 are inclusive of all products including NANDI Pressure cookers and according to him, there is no impediment to produce the exclusive turn over details of NANDI pressure cookers before court. At page 12 of the cross examination he pleads ignorance about the manufactured and sale of pressure cookers by the defendant under the name Siddaganga Pressure Cookers and admits that under Ex.P12 there is reference that defendant is carrying on business in Tumkur District and so also sale of product by defendant in Tumkur. At para 12 of the cross examination he admits that he is aware of the defendant using the trade name NANDINI DIAMOND and not NANDINI. The relevant portion reads as under:
It is true that I have knowledge that the defendant is using the trade name Nandini Diamond and not Nandini.
It is further brought on record that there is no difficulty in producing the proof to establish that defendant is marketing 32 O.S.No.2835/2015 its products in the name of NANDINI. He also admits that the material objects produced by him, before court also bears the name NANDINI DIAMOND. He further admits that he filed Ex.P18 application on 25.11.2015 which is subsequent to the filing of the suit. He further admits that the copy right was not registered in the name of plaintiff as on the date of filing of the suit. Even till date copy right is not registered. The relevant portion reads as under:
It is true that as on the filing of the suit the copyright was not registered in the name of the plaintiff. It is further true that even till date the copyright is not registered in plaintiff's name.
At para 14 of the cross examination he admits that the words in letter and warranty contents are commonly used by all manufacturers and he further admits that even a manufacturer who manufactures the cooker with twin screw double safety will display upon the boxes. Rest of the cross examination directed is by way of suggestions which he denied.
23. DW1 in his affidavit by way of chief examination has also corroborated the contentions taken by him in his written statement. In particular it is the evidence of DW1 that he is manufacturing and marketing NANDINI DIAMOND 33 O.S.No.2835/2015 pressure cookers and not NANDINI as alleged by the plaintiff. It is further evidence of DW1 that the mark NANDI of the plaintiff and mark NANDINI DIAMOND belongs to him are totally different marks and there is no scope for creating any confusion in the minds of the general public. According to him, he also applied for registration of mark NANDINI DIAMOND under Class 21 on 19.3.2014 and subsequently got converted the application for the mark NANDINI DIAMOND in to label mark in order to protect the logo of DIAMOND along with the name NANDINI DIAMOND. It is further evidence of DW1 that there is no similarity between two marks and there is no attempt on his part to use deceptive similar mark of the plaintiff to encash goodwill and reputation of the plaintiff and to pass off goods. In the cross examination directed to him, he reiterates that he started cooker manufacturing in March 2014 and at para 3 of the cross examination it is elicited from his mouth that he did not check similar name before filing application for registration of trade mark. It is further brought on record that he got the designing of the packing box in the year 2013 along with one logo which was later changed by him in his application. It is elicited from his mouth that the cow as reflected in the logo was already in use by other persons and hence he opted for different logo and according to him the cow 34 O.S.No.2835/2015 and NANDI are one and the same. He admits that the plaintiff is using NANDI in its logo and admits that he filed his application for registration of trademark and to protect his label mark. He further admits that the box as reflected in Ex.D8 looks alike and reiterates that he is using the mark with logo as reflected in M.O.2 and later changed his logo as per advice of his advocate. He categorically admits that NANDINI logo as appearing in MO.3 is changed in MO.2. He further admits that M.O.1 contains NANDI logo belongs to plaintiff. At para 5 of the cross examination it is brought on record that he is left with some stock of Nandi cookers even after communication of interim injunction order and according to him, that stock consists of about 7000 - 8000 cookers and relevant portion reads as under:
I am left with some stock of Nandini cooker even after communication of interim injunction order. I may have stock of 7000 - 8000 cookers at present.
At para 6 of the cross examination it is brought on record that approximate turn over of NANDINI pressure cooker from the date of commencement of business till date is around Rs.30 Lakhs. It is elicited from his mouth that he had manufactured around 1000 pieces of NANDINI pressure cookers as per M.O.3 out of which he has sold around 500 pieces from December 35 O.S.No.2835/2015 2013 to March 2014. He deposed that he has not sold any other NANDINI cookers through any other packing boxes and reiterates that he is using the mark NANDINI DIAMOND with DIAMOND logo on the boxes. According to him, his label colour is combination of yellow and blue and admits that earlier he was using orange with blue colour in the label and boxes and later changed to green and blue colour. The photograph at Ex.P13 was confronted and he admits that it belongs to his company and according to him the letter R over mark is not visible in Ex.P13. He admits that the plaintiff is also using the alphabet R over the mark NANDI as appearing in M.O.1 which signifies the registration of the brand. He reiterates that he stopped using the mark NANDINI with NANDI logo after March 2014 and admits that under Ex.D8 except the plaintiff no other company is shown as using the mark NANDI with NANDI logo. A specific question is put to him as to why he is using the NANDI logo in MO.3 and according to him his designer has put the logo without his knowledge and thereafter he stopped using the same. At para 10 of the cross examination he admits that in all the invoices produced by him, there is no reference about the selling of NANDINI pressure cookers. He admits that VAT certificate was issued to him on 5.5.2014 and the certificate of enrolment was 36 O.S.No.2835/2015 issued on 9.4.2014. He further admits that without VAT certificate it was not possible to run the business in 2013.
The empty packing box of NANDINI DIAMOND pressure cooker was confronted to him and marked as M.O.4 and according to him, M.O.4 belongs to his company. He admits that there is a mark R on M.O.4 with ISI Number. An attempt is made to establish that he has brought only formal change while changing the box from MO.3 to M.O.2 but nothing worth is elicited from his mouth. It is further brought on record that there is no other manufacturer of NANDINI pressure cookers in the market except him in M.O.2. According to him, it took around 3 months for changing the pattern from M.O.3 to M.O.2 and he admits that he might have sold around 8000 - 10000 cookers under MO.2 till date. An attempt is made to establish that he copied the plaintiff's trade mark with dishonest intention to encash the goodwill and reputation of the plaintiff which he has denied. This is all the oral and documentary evidence placed on record.
24. As could be seen from the material placed on record plaintiff asserts that defendant has infringed his registered mark /label NANDI by deceptively using similar and identical trade mark NANDINI. Plaintiff has based his case on the basis 37 O.S.No.2835/2015 of his oral evidence as well as various documents and MO.1 to
4. So far as the oral evidence is concerned though PW1 throughout asserts that he is the registered proprietor of mark/label NANDI and manufacturer and marketing pressure cookers throughout India. It is also the evidence of PW1 that earlier his predecessor adopted the mark/label NANDI in the year 1993 therefore he is also prior user of the mark/label NANDI in the field of manufacturing pressure cookers. Plaintiff has produced various documents including invoices at Ex.P9, P9(1) to P9(87) and bills at Ex.P10, P10(1) to 10(9) and admittedly all the invoices under Ex.P9 stands in the name of BMS Home appliances which according to the plaintiff is his predecessor. Even PW1 in his cross examination has admitted that these invoices under Ex.P9 & 10 are in the name of BMS Home Appliances, but on perusal of these invoices, it is noticed that the invoices at Ex.P9(69) to P9(87) stands in the name of Micro Hitech Industries which is the plaintiff in the present suit and these invoices reveals the sale of pressure cookers of different sizes under the mark NANDI pressure cookers. Interestingly Ex.P9(69) to P9(87) are not seriously disputed on behalf of the defendant in the cross examination directed to PW1. This apart it is further pertinent to note that defendant in his evidence has also admitted that the plaintiff 38 O.S.No.2835/2015 is carrying on business in manufacturing and sale of NANDI Pressure cookers under mark/label NANDI. Therefore the oral evidence of PW1 coupled with the admissions on the part of defendant as well as undisputed documents supports the case of the plaintiff about his carrying on business under mark/label NANDI. The plaintiff has also got marked M.O.1 which is packing box of his brand which bears the registered trade mark NANDI along with bull. And this M.O.1 of the plaintiff is also not disputed by the defendant. Therefore from the material placed on record it can safely held that the plaintiff is the manufacturer and selling cookers under the trade mark / label NANDI. This is one aspect of the case.
25. But now according to the plaintiff the defendant is also a manufacturer and marketer of pressure cooker under the name NANDINI which is identical and as well as deceptively similar with that of registered trade mark / label NANDI. Even in the written argument filed on behalf of the plaintiff it is very much canvassed that defendant has been using the mark NANDINI and manufacturing similar product with ulterior motive by taking advantage of the goodwill and reputation of the plaintiff so also passing of his goods as that of the plaintiff. Learned counsel has also relied on the 39 O.S.No.2835/2015 evidence of defendant on this aspects and so also M.O.2 to 4 belongs to the defendant. At this juncture it is necessary to mention that defendant in his written statement has denied the user of the trademark NANDINI by him and has come up with a specific defense that he is manufacturing and selling pressure cookers under the mark NANDINI DIAMOND. It is also the evidence of DW1 that he started his business in March 2014. But interestingly in his cross examination he also admits that M.O.2 to 4 belongs to him. On perusal of the M.O.3 & 4 it is noticed that they carry the trade mark NANDINI DIAMOND with logo of DIAMOND with bull. But however M.O.2 has DIAMOND logo along with trade mark NANDINI DIAMOND. Therefore relying on MO.3 & 4 learned counsel for the plaintiff vehemently canvassed that these M.O.3 & 4 are identical for the reason that the mark NANDI in M.O.1 along with bull is appearing under M.O.3 mark NANDINI DIAMOND along with Bull as logo. Therefore according to him, these two marks of the plaintiff and defendant are identical in nature. But interestingly it is the evidence of DW1 that he stopped marketing and manufacturing the product in M.O.3 & 4 immediately after he was advised by his advocate that similar logo is being used by other persons in the market. But the fact remains that 40 O.S.No.2835/2015 defendant was manufacturing pressure cookers under the trade mark/label NANDINI DIAMOND with bull logo under M.O.3 & 4. It is also the evidence of DW1 that immediately after advice from his advocate he applied for change of logo from bull to diamond and therefore according to him he has stopped using the logo bull for his products. This fact is also evidence from M.O.2 where diamond logo is appearing instead of bull. At this stage, if Ex.P16 is perused, this document is produced by the plaintiff himself which reveals that defendant has applied for registration of trade mark NANDINI DIAMOND and thereafter submitted his application for amendment of logo from bull to diamond and this application submitted by the defendant on 18.3.2014 followed by rectification application on 17.4.2015. Therefore relying on these documents it was also canvassed on behalf of the plaintiff that these documents establish the malafide on the part of the defendant in using similar trade mark. As stated supra, defendant has not disputed his business in the M.O.3 & 4. Admittedly PW1 is using mark/label NANDI for marketing and manufacturing of pressure cookers and as per the admitted evidence of defendant, he is selling and marketing NANDINI DIAMOND pressure cookers and his application for registration is pending. On careful perusal of both the marks, 41 O.S.No.2835/2015 it is noticed that plaintiff's mark NANDI consisting of 5 letters and defendant's mark NANDINI DIAMOND is consisting of 14 letters. The font size used by then both marks is not identical in nature. Even on the pressure cookers also as reflected in M.O.1 & 2 mark being used by the parties to the suit which from bare perusal establish that they are different in their appearance. It is the admitted evidence of PW1 that the word NANDI and NANDINI are being used by other players in the field. But however plaintiff has alleged that the deception on the part of the defendant in using the mark NANDINI for similar goods. The mark NANDI and NANDINI are phonetically, aurally, visually are not similar in nature. Therefore the evidence of PW1 that the mark/label NANDINI DIAMOND has tendency of confusing common people also does not inspire the confidence of this court. Plaintiff is only using the registered trademark with bull as his logo and admittedly defendant is using the trade mark NANDINI DIAMOND with a diamond logo. Though M.O.3 & 4 establish that the previously defendant was using the logo as diamond with bull along with its mark NANDINI DIAMOND, but DW1 has categorically spoken that immediately after he was informed about the use of the similar logo he applied for change of label mark. Plaintiff's own document at Ex.P16 supports the case of the 42 O.S.No.2835/2015 defendant about his attempt to get amendment of label mark by introducing diamond instead of diamond with bull. It is not the evidence of plaintiff that even now the defendant is marketing and manufacturing products under M.O.3 & 4 which contains diamond with bull as label mark. No such evidence is placed on record by the plaintiff. On the other hand, Ex.P16 itself establishes that defendant has already sought for amendment of the label mark and now presently manufacturing his product under M.O.2. Therefore if M.O.1 & 2 are considered, there are so many dissimilarities between these two except the mark NANDI is also a part of NANDINI there are no other similarities in MO.1 & 2. The mark NANDI is altogether different when compared to the mark NANDINI DIAMOND being used by the defendant. This apart it is further pertinent to note that the art work, colour scheme, get up and arrangement as appearing in MO.1 & 2 are also not identical in nature. M.O.1 belonging to the plaintiff also reflects vegetables which are also found in MO.2 belong to the defendant with a kitchen back ground in white and green colour. Plaintiff's trade mark NANDI and label is in the back ground along with a blue strip with a thin white strip in between which is nowhere similar to the colour combination used in M.O.2. Even on the top of M.O.1 & 2 plaintiff has used 43 O.S.No.2835/2015 a golden strip with no other words. But M.O.2 has green strip with light blue and the words wrought aluminium pressure cooker on it. Both M.O.1 & 2 carries ISI mark and numbers and M.O.2 also carries a sticker which contains the word 5 years warranty in blue back ground and similar tag of plaintiff contains word 7 years warranty in a white and grey back ground. Even the word 3 liter on M.O.2 are in light sky blue back ground in Yellow colour and the word 5 liter on MO.1, is in blue back ground with white colour. Therefore all these dissimilarities are found on M.O.1 & 2 except the fact that M.O.1 & 2 reflects vegetable and according to PW1 all the manufacturers of cooker commonly uses vegetable on their packing boxes. Therefore just because there are some vegetable shown on the packing boxes, it cannot be held that there is similarity in between two marks. Even PW1 has gone to the extent of admitting that the pressure cookers manufactured by the him and the defendant are different. Therefore when plaintiff himself admits that the goods manufactured by the defendant are different then how he is aggrieved by manufacturing of the pressure cookers by the defendant is not made clear.
26. This apart it is further pertinent to note that under Ex.P16, the defendant applied for amendment of label mark on 44 O.S.No.2835/2015 17.4.2015 before trade mark registry. Present suit is filed by the plaintiff on 25.3.2015 which is just 22 days prior to the filing of the application by the defendant for amendment of his label mark. There is no evidence placed on record by the plaintiff to establish that even after submission of the application for amendment under Ex.P16, defendant is carrying on business of manufacturing pressure cookers under M.O.3 & 4. Therefore the defendant immediately after coming to know about the label mark of the plaintiff submitted his amendment application and sought for rectification of the same. On the other hand, plaintiff has failed to convince this court that both these marks / labels of himself and defendant are even now deceptively similar in nature. At this juncture it is necessary to mention that the plaintiff in his plaint has alleged that defendant is using the trade mark NANDINI and nowhere he has pleaded that mark used by the defendant is NANDINI DIAMOND. The defendant in his written statement has come up with a specific defense that his brand is NANDINI DIAMOND and this fact is not seriously disputed by the plaintiff. The photographs produced by the plaintiff in Ex.C2 to C5 are pertaining to his brand and at this juncture if the photographs produced by the defendant are perused, these photographs were confronted to PW1 and marked through him 45 O.S.No.2835/2015 as Ex.D1 to D8. On perusal of Ex.D1 to D8, it is noticed that these photographs contains pressure cookers with packing material of defendant under mark/label NANDINI DIAMOND with a DIAMOND logo and these admitted photographs also clinchingly establish that pressure cookers manufactured by the plaintiff and defendant are totally different. Ex.D8 is the photograph contains 18 boxes of different manufacturers including the brand of the plaintiff and defendant. If all these boxes are considered together except some similarities in colour, all other features are totally different. Therefore M.O.2 cannot be held as identical and deceptively similar with that of the product of the plaintiff in M.O.1. Though the learned counsel for the plaintiff has relied on the above authoritiesinj support of his case and so far as the principles laid down therein are concerned, there is no dispute. Plaintiff himself has not produced any cogent evidence before this court. The plaintiff though has alleged that his business is under loss due to the user of the mark NANDINI by the defendant but P.W.1 in his evidence has admitted that his business has suffered any loss and even has gone to the extent of admitting that that there is a good progress in his turnover. His evidence falsifies his own case. Even otherwise, there is no evidence placed on record by the plaintiff to show that the mark used 46 O.S.No.2835/2015 by the defendant is confusingly and deceptively similar and over all considering of entire material placed on record, I am of the considered opinion that the registered mark/label of NANDI of Plaintiff and mark/label NANDINI DIAMOND of defendant are totally different. That being so, question of defendant infringing and passing of his goods as that of plaintiff does not arise. Hence I have no hesitation to disbelieve the evidence placed on record by the plaintiff. Hence I record my finding on these issues in the negative.
27. Issue Nos.4 & 5: Plaintiff has sought for the relief of permanent injunction and damages against the defendant. Plaintiff has failed to establish his case and hence question of granting any relief does not arise. Hence I record my finding on these issues in the negative.
28. Issue No.6: For the foregoing discussion and reasons stated therein, suit of the plaintiff fails and liable to dismissed. In the result I pass the following:
ORDER Suit of the plaintiff is hereby dismissed with costs.
Draw decree accordingly.47 O.S.No.2835/2015
[Dictated to the Judgment Writer, computerised, and print out taken by him, corrected and then pronounced by me in open court, this day the 31st January 2017].
(MUSTAFA HUSSAIN.S.A.) XVIII ADDL. CITY CIVIL AND SESSIONS JUDGE, BENGALURU ANNEXURE
1. No.of witnesses examined on behalf of plaintiff/s:
PW1 :Gowtham Kumar Babulal
2. No. of documents marked on behalf of plaintiff/s:
Ex.P1 to 4: VAT certificate, Confirmation of transfer of VAT registration, Registration certificate of the establishment along with their copies Ex.P5 & 6: Trade mark registration certificates Ex.P7 & 8:Two letters received from trade mark registry Ex.P9 & 9(1) to 9(87): 88 Invoices relating plaintiff business Ex.P10, 10(1) & 10(9): Invoices raised on the plaintiff. Ex.P11 : Auditors statement about the turn over of plaintiff.
Ex.P12 : Investigation report Ex.P13,13(1) & 13(15): Photographs of defendant's brand Ex.P14 : C.D. Ex.P15 & 16: Trade mark applications Ex.P17 : Invoice Ex.P18 : Application for copy right. M.O.1 : Nandi cooker manufactured by plf along with box M.O.2 : Packing box with cooker manufactured by deft.
M.O.3 : Empty packing box of defendant.
M.O.4 : packing box.
48 O.S.No.2835/2015
3. No. of witnesses examined on behalf of defendant/s:
DW1 : Utham Kumar
4. No. of documents marked on behalf of defendant/s:
Ex.D1 to 7: Photographs Ex.D8 : Boxes used by the plaintiff as well as defendant Ex.C1 : Affidavit filed before trade mark registry Ex.C2 : Photograph of plaintiff's product. Ex.C3 to 5: Photographs XVIII Addl. City Civil Judge Bangalore City.49 O.S.No.2835/2015
Judgment pronounced in the open court vide
separate judgment. The operative portion of
judgment reads thus:
ORDER
Suit of the plaintiff is hereby dismissed with costs.
Draw decree accordingly.
XVIII Addl.C.C. & S.J., Bangalore