Bangalore District Court
M/S. Suraj Metal Industries vs M/S. Mahaveer Manufacturing on 7 January, 2022
IN THE COURT OF XVIII ADDL.CITY CIVIL JUDGE, AT
BANGALORE CITY. [CCH.NO.10]
Dated this the 7th day of January 2022
PRESENT
Sri.NAGARAJAPPA. A.K., B.Com., LL.M.
XVIII Addl.City Civil Judge.
O.S.No.3050/2017
Plaintiff M/s. Suraj Metal Industries,
A partnership firm
Having its registered office at
Plot No.99, 8th Main, 3rd Phase,
Peenya Industries Area,
Bangalore - 560 058.
Reptd. By its one of its partner and
Authorized signatory,
Mr.Kiran S Chawla,
S/o Suresh R.Chawla,
Aged about 32 years.
(By Sri.R.R.K., Advocate)
/VS/
Defendants: M/s. Mahaveer Manufacturing,
No.1, First Floor, Indian Market Lane,
Khairani Road Sakinaka,
Andheri(E), Mumbai - 400 072.
Reptd.by its Proprietor,
Mr.Chetan Shah.
(By Sri.H.S.H., Advocate)
2 O.S.No.3050/2017
Date of institution of 26.04.2017
suit
Nature of the (suit or Permanent injunction, render
pronote, suit for accounts and surrender
declaration and infringing materials.
possession suit for
injunction,) etc.
Date of the 05.04.2021
commencement of
recording of the
evidence.
Date on which the 07.01.2022
Judgment was
pronounced.
Year/s Month/s day/s
Total duration: 04 08 11
(NAGARAJAPPA. A.K.)
XVIII Addl.City Civil Judge,
Bangalore.
JUDGMENT
The plaintiff has filed this suit against the defendant for grant of perpetual injunction restraining the defendant, its servants, employees, workers, representatives, dealers, distributors and agents from using, advertising, directly or indirectly, dealing in the trademark "KAVIRAJ" which is an exclusive trademark owned by the plaintiff;
Further directing the defendant to pay to the plaintiff an amount of Rs.25,000/- as interim damages 3 O.S.No.3050/2017 and to render a true and faithful accounts of profits illegally earned by the defendant by selling wet grinder and mixer grinder by using the plaintiff's trade mark KAVIRAJ which also contains artistic work which is identical or similar to that of the KAVIRAJ and for a decree for the sums so ascertained in favour of the plaintiff and against the defendant.
Further seeking an order for delivery for purposes of destruction of all infringing, materials, labels, and any other infringing copies used by defendant for counterfeiting the mark of the plaintiff with costs.
2. The brief facts of the case of the plaintiff that the Plaintiff is a partnership firm and a leading manufacturer and distributor of pressure cookers, nonstick cookware and other kitchen utensils and appliances under the trade mark KAVIRAJ since the last 40 years and it is the pioneer in the manufacture and marketing of high quality pressure cookers. They have expended enormous time and effort in coining, creating, adopting and using the unique trademark and brand name KAVIRAJ in order to distinguish their products and also create goodwill in the minds of the public, traders and investors. The use of the said brand name KAVIRAJ has garnered significant reputation and 4 O.S.No.3050/2017 goodwill in the course of trade amongst traders, retailers and consumers alike both in industry as well as the consuming public. It is further contended that the plaintiff being the creator, prior and continuous user since 1973 of the trademark KAVIRAJ and said mark has become sufficiently distinctive in the market for the wet grinders and mixer grinders and plaintiff applied for registration of the trade mark before trade mark registry in the year 2010. It is further contended that plaintiff have registered their trade mark KAVIRAJ vide No.1980802 under class 7 in respect of Mixer Grinder and Wet Grinder and become lawful owner and registered proprietor of the label and trade Mark KAVIRAJ. KAVIRAJ which is combination of two words namely KAVI taken from the name of Kavita who is the first grand daughter and RAJ taken from the name of Rajesh who is the first grand son of their family. They have spent huge amount towards creation of the label and artistic work of KAVIRAJ. It is further contended that they are supplying the products to leading distributors, including Spar, Metro Cash & Cary, Max Hypermarkets and other reputed large scale distributors. The plaintiff mark / label is widely advertised through different media and the said advertisements also appears in the news paper.
5 O.S.No.3050/20173. It is further contended that the defendant is a proprietary concern, indulging in manufacture of mixer grinders and wet under the plaintiff's registered trade name 'KAVIRAJ'. The defendant has absolutely no interest in maintaining a quality and consumer friendly products. The photographs show that the defendant has infringed the plaintiff's registered trademark in whole and has made their products unhygienic and with low quality materials thereby endangering public health.
4. It is further contended that the Defendant can be categorized as fly-by-nigh operator, established to encash the reputation and brand name of the plaintiff. On comparison of trademarks and design show that the defendant wants to rely on plaintiff's reputation and marketability to sell its counterfeit, low quality and unhygienic products mixer grinder and wet grinders.
5. It is further contended that plaintiff got issued legal notice on 23.2.2017 to the defendant stating that the action of the defendant amounts to infringement and passing off of their trademark KAVIRAJ and called up on to cease and desist from using the mark KAVIRAJ. It is further contended that the application of the defendant 6 O.S.No.3050/2017 for registration of the trademark KAVIRAJ which is opposed before trademark registry. The defendant has been duplicating plaintiff's KAVIRAJ in order to pass off their inferior quality goods as the plaintiff's high standard goods by merely making some cosmetic changes on their label. The label of the defendant is nothing but replica of the plaintiff's label. The defendant has counterfeited the label of the plaintiff in its entirety, the design, pattern, and the colour combination, placement of various descriptive features at identical position and also the logo of a crown above K has been projected in the same way as that of KAVIRAJ as well as the bend in the letter V and the exact font of R. When the customers who have been using plaintiff's KAVIRAJ mixer grinders and wet grinders suffered by using the defendant's infringed trademark KAVIRAJ. Hence, the plaintiff prayed to decree the suit.
6. Defendant appeared through its counsel and filed written statement denying the plaint averments and further contended that the plaintiff is not the owner of the trademark KAVIRAJ. The plaintiff has appropriated the trademark of another person. The plaintiff has not produced any documents to show that they are using the trade mark since 1973. The bills, invoices and other 7 O.S.No.3050/2017 documents produced only subsequent to the year 2005 that too in respect of pressure cookers and pans which fall under class 21 of Trademarks Act and not in respect of mixer grinders which was under class 7 of the Trademarks Act, 1999. In the application No.1980803 in class plaintiff claims KAVIRAJ as proposed to be used. However the same has been refused by trademark registry for registration. It is further contended that the plaintiff claims to be registered proprietor of trademark KAVIRAJ used for mixer grinder etc., the application No.1990802 in class 7, plaintiff claims user since 25.8.2000. It is further contended that plaintiff has claimed that he conceived and adopted the trademark KAVIRAJ in the year 1973 and it is seen that as on 1973 the partners of plaintiff firm were not even married.
7. Further the defendant has taken contention that the Defendant using the KAVIRAJ since 2002 continuously for mixer grinders and other home appliances. It has extensively sold their products within the city of Bangalore. Plaintiff is aware of use of trademark KAVIRAJ by the defendant since a long time and filed the suit after lapse of nearly 15 years. Plaintiff cannot claim that they were not aware of the trademark KAVIRAJ used by the defendant since 2002 in Bangalore 8 O.S.No.3050/2017 market. It is further contended that the plaintiff is carrying on business of manufacture of pressure cookers which falls under class 21 of Trademarks Act, 1999. Defendant is engaged in manufacture of mixer grinder which falls under class 7 of Trademarks Act, 1999 at Mumbai. Plaintiff has not produced any bills to show that the defendant has been selling pressure cookers within the jurisdiction of this court. The above suit for infringement of trade mark is liable to be dismissed for want of jurisdiction. Plaintiff is not registered proprietor of the trade mark KAVIRAJ in respect of mixer grinders. Both the goods of plaintiff and defendant are not identical. Defendant has been using the trademark Kaviraj within the knowledge of plaintiff, the user of trade mark Kaviraj by the defendant amounts to honest and concurrent use and hence the defendant is protected under Sec.12 of the Trademarks Act, 1999. Defendant has been continuously using the trademark Kaviraj relating to Mixer grinders since last 2002, the defendant would be great loss and irreparable injury. There is delay in filing the suit. It is further contended that the defendant had made application seeking registration of the trademark KAVIRAJ for mixer grinder claiming user since the year 2002. The same was opposed on behalf of the plaintiff. However the Registrar 9 O.S.No.3050/2017 of Trademark by its order dtd. 26.9.2017 has rejected the opposition filed by the plaintiff and has ordered for registration of trade mark KAVIRAJ. The order passed in opposition No.BOM 207090 to registration of trademark No.184970 in class 7 has been duly rejected. There is no cause of action for the suit. Plaintiff has copied the artistic work, design, and getup of one Mr.Kiran Shah in respect of KAVIRAJ used for mixer grinder. It cannot be said the plaintiff is the prior user of the trademark/copyright in respect of KAVIRAJ. Hence, prayed to dismiss the suit.
8. On the basis of the above pleadings my predecessor has framed the following issues:
1. Whether the plaintiff proves that it is the registered owner of Trademark KAVIRAJ?
2. Whether plaintiff proves that the defendant has infringed its trademark?
3. Whether the plaintiff is entitled for the relief of permanent injunction as prayed?
4. What order or decree?
9. The Plaintiff in order to substantiate their contention got examined its partner as PW1, got marked the documents at Ex.P1 to 57. On the other hand the 10 O.S.No.3050/2017 defendant examined its GPA holder as DW1, got marked the documents at Ex.D1 to D21 and closed their side.
11. I have heard the learned counsel for the Plaintiff and Defendants. The learned counsel for the plaintiff has relied on the following decisions:
1. (2004)3 SCC 90 - Midas Hygiene Industries (P) Ltd Vs. Sudhir Bhatia
2. (2005) 3 SCC 63 - Dhariwal Industries Ltd.
& Anr. Vs. M.S.S.Food Products.
3. (2006) 8 SCC 726 - Ramdev Food Products(P) Ltd. Vs. Arvind Bhai Rambhai Patel & others
4. ILR 2017 KAR 4699 - Micro Hitech Industries Vs. Uttam Gautam Appliances.
The counsel for the defendant has relied on the following decisions:
1. (2018)9 SCC 183 - Nandhini Deluxe Vs Karnataka Co-operative Milk Producers Federations Ltd.
2. ILR 2007 1 Delhi 811 - M/s. Alkem Laboratories Vs, Mega International (P) Ltd.
I have also considered the oral arguments of both counsels and the rulings with utmost reverence.
11 O.S.No.3050/201712. I answer the above issues are as follows:
Issue No.1: In partly affirmative
Issue No.2: In the negative
Issue No.3: In the negative
Issue No.4: As per final order,
for the following:
R EAS O N S
13. Issue No.1 & 2: Since these issues are
interlinked with each other, they are taken up together for consideration to avoid repetition.
14. Admittedly, plaintiff has filed this suit against the defendant seeking permanent injunction and directing the defendant to pay an amount of Rs.25,000/- as interim damages and also order to delivery for purposes of destruction of all infringing materials, labels and any other infringing copies used by the defendant for counterfeiting the mark of the plaintiff along with exemplary costs.
15. It is well settled that, in a suit for permanent injunction, normally plaintiff has to prove exclusive possession and in this case plaintiff has to prove exclusive right of use of the registered trademark as a proprietor, secondly infringement of the said trademark by the defendant by using the trademark of the plaintiff 12 O.S.No.3050/2017 ie., by way of interference and lastly whether he is entitled for the relief of permanent injunction as prayed in the suit. Now without replica of pleadings what are the admitted and disputed facts of the parties is to be looked into.
16. In this case, it is an undisputed fact that plaintiff is a registered partnership firm under Partnership Act, 1932 and reconstituted deed of partnership is on 1.4.2014. It is further an undisputed fact that plaintiff has applied for registration of trademark as KAVIRAJ under class 21 in application No.367417 dtd.10.10.1980 for the aluminum kitchenware claiming user date 20.6.1973 and obtained registration on 30.7.1983. It is also undisputed fact that the plaintiff has applied for the trademark KAVIRAJ under class 21 in application No.914969 dtd.31.3.2000 for pressure cookers and pans claiming user date from 30.4.1998 and obtained registration on 31.3.2008. Plaintiff has applied for registration of the trademark KAVIRAJ PLUS under class 21 in application No.914970 for the pressure cookers and pans claiming user date 1.11.1999 and obtained registration on 20.2.2009. Similarly plaintiff has applied for registration of trademark KAVIRAJ FRIENDLY Label under class 21 13 O.S.No.3050/2017 for household or kitchen utensils and containers etc., claiming user date as proposed to be used and obtained registration on 11.8.2016.
17. It is also undisputed fact that plaintiff has filed application No.1983484 dtd.22.6.2010 under class 21 and obtained registration of the mark KAVIRAJ for Household or kitchenware utensils on 23.9.2015. Plaintiff has also obtained trademark registration on 26.11.2015 for the mark KAVIRAJ label under class 21 for pressure cookers and plans including claiming user date as 30.4.1998. He has also filed application No.1980802 on 16.6.2010 for registration of trademark KAVIRAJ FRIENDLY Label under class 7 for grinder, mixer, washing machine, etc. , claiming user date 25.8.2000 and obtained registration on 13.10.2016. Plaintiff has filed application No.2845266 dtd.18.11.2014 for registration of trademark KAVIRAJ word under class 7 for grinder, mixer, washing machine etc., claiming user date 25.8.2000 and obtained registration on 6.12.2018.
18. It is further an undisputed fact that defendant has filed an application for registration of trademark under name KAVIRAJ in respect of class 7 for mixer 14 O.S.No.3050/2017 grinder claiming user date 21.2.2002 and date of application is on 5.3.2002. It is further undisputed fact that as per the documents produced by the defendant shows that plaintiff filed an opposition vide application No.DOM2070901 to the defendant's registered trademark No.1084970 in class 7 mixer grinder. But the said opposition came to be rejected and said defendant's trademark KAVIRAJ came to be registered as per orders passed by the trademark registry dtd.26.9.2017 vide Ex.D21. It is also an undisputed fact that as per document the trademark KAVIRAJ of the defendant came to be registered under No.1084917 in class 7 .
19. Now the specific and foremost contention of the plaintiff is that they have obtained trademark as KAVIRAJ since last 40 years and he is leading manufacturer and distributor of pressure cookers. Plaintiff company is pioneer in the manufacture and marketing of high quality pressure cookers. Plaintiff company is having significant reputation and goodwill in the course of trade amongst traders, retailers and consumer alike, both in the industry as well as consuming public. But the defendant is a proprietary concern, indulging in manufacturing of mixer grinders and wet under the plaintiff's registered trade name of 15 O.S.No.3050/2017 KAVIRAJ and the defendant has absolutely no interest in maintaining quality and consumer friendly products. But the photographs shows the defendant has infringed the plaintiff's trademark in whole and has made their products unhygienic and with low quality materials thereby endangering public health. It is also specific contention of the plaintiff that after coming to know about the clandestine and hazardous business of the defendant, plaintiff issued notice through its counsel 23.2.2017 about the action of the defendant amounts to infringement and passing off the plaintiff's registered trademark KAVIRAJ apart from amounting to fraud and deceit. Though the said notice was duly served on the defendant, it has sent reply denying the contention of the plaintiff.
20. Interalia, the defendant had denied the case of the plaintiff and has taken specific contention that plaintiff is not the owner of the trademark KAVIRAJ. Plaintiff claim to be using the trademark KAVIRAJ since 1973, however, plaintiff has not produced any documents to prove the same and what ever bills, invoices and other documents produced by the plaintiff are relating to class 21 of Trademarks Act, and not in respect of mixer grinders which fall under class 7 of Trademarks Act, 16 O.S.No.3050/2017 1999. Though the plaintiff has filed application No.1990802 in class 7, claiming user since 25.2.2000, but plaintiff is claiming that they are using the trademark for Mixer Grinder since the year 1973 is falsified. It is also contention of the defendant that defendant has been using mark KAVIRAJ since 2002 continuously for mixer grinder and other home appliances. The defendant has extensively sold their products within the city of Bangalore and plaintiff is aware of the use of the trademark KAVIRAJ by the defendant since a long time. Plaintiff is having knowledge but has filed this suit in the year 2017 after lapse of 15 years and plaintiff cannot seek for injunction against the defendant from using the trademark KAVIRAJ for mixer grinders without any basis. Defendant has made application seeking registration of trademark KAVIRAJ for mixer grinder claiming user since the year 2002 in class 7 and the same was opposed by the plaintiff. However, the said Registrar of Trademarks by order dtd.26.9.2017 has rejected the opposition filed by the plaintiff. When the registrar of trademark has dismissed the opposition, now the plaintiff cannot seek for injunction against the defendant and this court does not have jurisdiction for passing off action, since the plaintiff is not the owner of the trademark KAVIRAJ for mixer 17 O.S.No.3050/2017 grinder. Plaintiff has slept over for morethan 15 years and it cannot be said that plaintiff is the prior user of the trademark / copyright in respect of KAVIRAJ etc.
21. It is true that the provision under Sec.2(ii) of Trademarks Act, 1999 speaks about the definition of trademark which reads 2(2) In this Act, unless the context otherwise requires, any reference--
(a) to "trade mark" shall include reference to "collective mark" or "certification trade mark";
(b) to the use of a mark shall be construed as a reference to the use of printed or other visual representation of the mark;
(c) to the use of a mark,--
(i) in relation to goods, shall be construed as a reference to the use of the mark upon, or in any physical or in any other relation whatsoever, to such goods;
(ii) in relation to services, shall be construed as a reference to the use of the mark as or as part of any statement about the availability, provision or performance of such services;
(d) to the Registrar shall be construed as including a reference to any officer when discharging the functions of the Registrar in pursuance of sub-section (2) of section 3;
(e) to the Trade Marks Registry shall be construed as including a reference to any office of the Trade Marks Registry.18 O.S.No.3050/2017
22. In view of the admitted and disputed facts, now court has to look into whether the plaintiff is the registered proprietor of the trademark KAVIRAJ or defendant is the registered trademark owner of KAVIRAJ in respect of mixer grinder fallen under class 7 and who is the prior registered user of the said trademark are all important points for consideration.
23. It is true in order to substantiate the contention of the plaintiff, the Plaintiff company has produced number of documents. Out of them Ex.P1 is the letter of authorization given to PW1 to give evidence on behalf of the plaintiff company. Ex.P2 is the Reconstitution Deed dtd.1.4.2014 of the partner by name Suresh R Chawla and others, the said document speaks bout the business of the firm manufacture and trading of pressure cookers of all kinds, pressure pans, kitchen accessories or any other business as the parties may decide from time to time. Ex.P3 is the KEB receipt. Ex.P4 & 5 are the KEB bills, but those documents are not disclosing whether those are belongs to the plaintiff company or more particularly for manufacturing of mixer grinder under the name and style KAVIRAJ. Ex.P6 is the Deed of Assignment dtd. 25.1.1998. the Name and style of Kaviraj Industries represented by one partner Ashok 19 O.S.No.3050/2017 Kumar R. Chawla S/o Ratanchand L Chawla who was carrying on the said business under the trademark KAVIRAJ registered under Trade and Merchandise Marks Act, 1958 in class 21 in respect of Aluminium kitchenware. Ex.P7 is the telephone bill in the name of Ashok Kumar R, Kaviraj Industries. But it is not disclosed whether it is pertaining to the manufacturing of mixer grinder under the name KAVIRAJ. Ex.P8 is the telephone receipt. Ex.P9 is the Partnership Deed dtd.1.4.2002 entered between Suresh R Chawla, Smt. Shaku A Chawla for running the business under the name and style M/s. Suraj Metal Industries who is none other than plaintiff company. In Ex.P9, clause 3 discloses nature of business of the partnership firm is for manufacture of pressure cookers and or any other business as th parties may decide from time to time . Ex.P10 is the letter issued by the plaintiff showing the list of distributors across South India. Ex.P11 is the turn over for the previous 5 years of the plaintiff company. Ex.P12 is the copy of the legal notice issued to the defendant on 23.2.2017 wherein plaintiff has alleged that though plaintiff company is having registration of trademark KAVIRAJ, but the defendant without the consent or without any right, illegally using the trademark of the plaintiff amounts to infringement of the 20 O.S.No.3050/2017 trademark of the plaintiff and requested the defendants to stop manufacturing. Ex.P13 is the reply notice issued by the defendant to the plaintiff denying the allegation of the plaintiff by taking contention that defendant is carrying on the business of manufacture and dealer in mixers, grinders, juicers, hand blenders and other allied goods, since 1999 and defendant is having his own rights has honestly, independently adopted and put to use the trademark KAVIRAJ and he has also filed an application for registration etc and hence he is prior user of the said trademark and plaintiff has passed off of the trademark of the defendant etc. Further plaintiff has produced Ex.P14 to 31 are all brochures of the trademark KAVIRAJ, KAVIRAJ FRIENDLY, Kaviraj Grinder Machine, Kavirj Mixer Grinder, Kaviraj Friendly -Grinding Machine, Kaviraj Friendly - Pressure Cooker and warranty card issued in the month of September 2016. Ex.P32 is the CD. Ex.P33 is the legal use certificate No.1084970 in class 7 belongs to the defendants. The said document discloses that firm name is M/s. Mahaveer Manufacturers ie., defendant, the date of registration is on 5.3.2002 and renewal dtd.5.3.2012 and it is valid upto 5.3.2022 and used since 21.2.2002 and the trademark is device, word mark KAVIRAJ ie., relating to the goods and description Class 7 & amp;quot; mixer 21 O.S.No.3050/2017 grinder & amp;quot;. Ex.P34 is the legal use registration certificate No.367417 belongs to the plaintiff in the name of Ashok Ratanchand Chawla relating to the goods and description class 21 Aluminium Kitchenware registered on 10.10.1980. Ex.P35 is the trademark registration legal use certificate No.914969 in class 21 belongs to the plaintiff Suraj Metal Industries relating to the goods and description under class 21, pressure cookers and pans for device mark KAVIRAJ registered on 31.3.2000. Ex.P36 is the trademark registration certificate No.1980802 in class 7 stands in the name of Suresh R Chawla of plaintiff company registered on 16.6.2010 relating to the goods and description under class 7, Grinder, mixer, washing machine, steam product machine, cutting machine and all other machines related to home appliances which is included for device mark KAVIRAJ FRIENDLY . Ex.P37 is the trademark registration legal use certificate No.1980804 in class 11 stands in the name of Suresh R Chawla of plaintiff company registered on 16.6.2010 relating to the goods and description under class 11, Apparatus for lighting, heating, steam generating, cooking, refrigerating, drying ventilating water supply and sanitary purpose included for device mark KAVIRAJ FRIENDLY. Ex.P38 is the trademark registration legal use certificate 22 O.S.No.3050/2017 No.1980805 in class 11 stands in the name of Suresh R Chawla of plaintiff company registered on 16.6.2010 relating to the goods and description under class 11, apparatus for lighting, heating, steam generating, cooking, refrigerating, drying ventilating, water supply and sanitary purposes including but not limited to electric cooking utensils, induction cookers, hair dryers, air dryers, air conditioning apparatus, LPG Stoves, and refrigerators for device mark KAVIRAJ. Ex.P39 is the trademark registration legal use certificate No.1983493 in class 21stands in the name of Suresh R Chawla of plaintiff company registered on 22.6.2010 relating to the goods and description under class 21, Household or kitchen utensils and containers, flasks, articles for cleaning purposes, combs and sponges, brushes and gloves for household purposes, etc., for device mark KAVIRAJ FRIENDLY. Ex.P40 is the trademark registration legal use certificate No.1983494 in class 21 stands in the name of Suresh R Chawla of plaintiff company registered on 22.6.2010 relating to the goods and description under class 21, Household or kitchen utensils and containers, flasks, articles for cleaning purposes, combs and sponges, brushes and gloves for household purposes, etc., for device mark KAVIRAJ. Ex.P41 is the trademark registration legal use certificate 23 O.S.No.3050/2017 No.2010042 in class 21 stands in the name of Suresh R Chawla of plaintiff company registered on 24.6.2010 relating to the goods and description under class 21, Pressure cookers and pans included for device mark KAVIRAJ(label). Ex.P42 is the trademark registration legal use certificate No.2246504 in class 17 stands in the name of plaintiff company registered on 8.12.2011 relating to the goods and description under class 17, rubber gaskets included in for device mark KAVIRAJ FRIENDLY. Ex.P43 is the trademark registration legal use certificate No.2845266 in class 7 stands in the name of plaintiff company registered on 18.11.2014 relating to the goods and description under class 7, Grinder, mixer , washing machine, steam producing machine, cutting machine, and all other machines relating to home appliances included for word mark KAVIRAJ . Ex.P44 is the trademark registration legal use certificate No.2845268 in class 17 stands in the name of plaintiff company registered on 18.11.2014 relating to the goods and description under class 17, rubber gaskets for word mark KAVIRAJ. Ex.P45 is the trademark registration legal use certificate No.2845269 in class 11 stands in the name of Shaku A Chawla of plaintiff company registered on 18.11.2014 relating to the goods and description under class 11 Apparatus for lighting, 24 O.S.No.3050/2017 heating, steam generating, cooking, refrigerating, drying ventilating, water supply and sanitary purposes including etc., for word mark KAVIRAJ. Ex.P46 is the trademark registration legal use certificate No.2845270 in class 9 stands in the name of Suresh R Chawla of plaintiff company registered on 18.11.2014 relating to the goods and description under class 9, Scientific, nautical, surveying, photographic, cinematographic, optical, weighing, measuring signaling, etc., for word mark KAVIRAJ. Ex.P47 is the trademark registration legal use certificate No.2845271 in class 21stands in the name of Suresh R Chawla of plaintiff company registered on 18.11.2014 relating to the goods and description under class 21, Household or kitchen utensils and containers, flasks, articles for cleaning purposes, combs and sponges, brushes and gloves for household purposes, etc., for word mark KAVIRAJ. Ex.P48 to 56 are the photographs and Ex.P57 is the CD.
24. On the other hand, defendant has also produced number of documents to prove its contention. Out of them, Ex.D1 is the affidavit filed by the plaintiff by mentioning approximately the sales and advertisement expenses on trading KAVIRAJ FRIENDY which is confronted during the course of cross examination of 25 O.S.No.3050/2017 PW1. Ex.D2 is the letter/opposition filed by the plaintiff to the trademark registry dtd.24.10.2010, to the defendant's trademark application and the same is confronted to PW1 during the cross examination. Ex.D3 is the general power of attorney executed by the defendant company to DW1 to give evidence on their behalf. Ex.D4 is the legal use certificate issued in the name of Dhanraj Jain ie., defendant. Ex.D4 & Ex.P33 are one and the same document wherein the date of registration is shown as 5.3.2002 , relating to goods and descriptions under class 7 mixer and grinder for word mark KAVIRAJ . Ex.D5 to 18 are the tax invoices in the name of defendant company particularly for mixer grinder under trademark KAVIRAJ from 11.12.2002 to 25.12.2006. Ex.D19 is the trade mark journal and Ex.D19(a)&(b) are the relevant page showing advertisement of defendant's Product. Ex.D20 is the affidavit under rule 51 filed before trademark registry by the defendant. Ex.D21 is the Online print out of the order dtd.26.9.2017 passed by the trademark registry wherein the Registrar of Trademarks passed an order rejecting the prayer of the plaintiff. Paragraph 26 & 27 of the reads as follows:
26. In view of the facts and circumstances discussed above, the evidence adduced and reasons given, I deem it fit to accept the instant 26 O.S.No.3050/2017 application for registration and reject the instant opposition proceedings.
27. The instant application for registration of the trademark label 'KAVIRAJ' in class 7 is hereby accepted for registration with date of user as '21.02.2002' and the specification of goods as 'Mixer Grinder'. The application shall proceed to registration as per law and subject to filing of a formal request by the applicant, within two weeks from the date of receipt of this order, in the prescribed manner for incorporating the amendments in the user date and specification of goods as aforesaid and for bringing their present agents/ advocates on record. The said request shall be allowed.
25. On careful perusal of the documents produced by both parties, it is crystal clear that although plaintiff is claiming that they are the exclusive proprietorship of the use of the trademark KAVIRAJ under Trademarks Act, 1999 and Copyright Act, 1957 and also it is claiming that using the said trademark since 1980. But the application for registration of trademark KAVIRAJ filed on 10.10.1980 for Aluminium kitchen which was falling under class 21 and the same was renewed upto 10.10.2028. Whereas in the present case on hand, plaintiff has sought for permanent injunction against the defendant restraining them from using the trademark KAVIRAJ with regard to the wet grinder or manufacturing mixer grinders. Although plaintiff has produced the partnership deed as per Ex.P9 it is 27 O.S.No.3050/2017 pertaining to the manufacturing of pressure cookers. But the legal use certificate issued by the trademark registry more particularly relied by the plaintiff at Ex.P34 to 47 out of them, except Ex.P36 & 43 rest of the legal use certificates are not at all concerned to the goods and services falling under class 7. Although, Ex.P36 relied and produced by the plaintiff claiming that plaintiff is the prior user of the word mark KAVIRAJ for mixer grinders, but the said document speaks that date of registration as on16.6.2010 claiming user date 25.8.2000 and word mark is mentioned as KAVIRAJ FRIENDLY but not exclusive word trade mark KAVIRAJ . Whereas Ex.P43 is also the legal use certificate as discussed supra stands in the name of plaintiff company and falls under goods and description in class 7 for grinder, mixer etc., but registered on 18.11.2014. Though it is mentioned used since 30.4.1998 but there is no piece of document produced by the plaintiff to show that he is using the said word Trade mark KAVIRAJ with regard to goods and description under class 7 particularly mixer grinders. On the contrary the very document produced by the plaintiff at Ex.P33 and the document produced by the defendant at Ex.D4, both are one and the same legal use certificate issued by trademark registry in the name of defendant company wherein it is mentioned the date of registration 28 O.S.No.3050/2017 as 5.3.2002 and used since 21.6.2002 ie., word trademark KAVIRAJ goods and services under class 7 particularly mixer and grinders. Further in support of Ex.P33 an D4, defendant has produced Ex.D5 to 18 those are tax invoices issued by the defendant company to shows that since 2002 they are manufacturing and selling the mixer grinder under the trademark KAVIRAJ. In addition to that the objection filed by the plaintiff against the defendant's relating to use of trademark KAVIRAJ under class 7 for mixer grinder before trademark registry on 26.9.2017, the said registry considering the objection filed by the plaintiff and considering the contentions of the defendant and considering the date of using the word mark KAVIRAJ, the opposition filed by the plaintiff was rejected by the trademark registry as per Ex.D21 paragraph 26 & 27 of the said order as discussed supra. When the trademark registry itself has rejected the contention of the plaintiff and accepted the contention of the defendant that defendant company is continuously using the said trademark KAVIRAJ since 2002. But plaintiff is claiming that its got registered the trademark KAVIRAJ only on 18.11.2014 as per Ex.P43. That itself shows that prior to registration of the trademark KAVIRJ in the name of plaintiff the defendant got registered the trademark in 29 O.S.No.3050/2017 the year 2002 and it is continuously using the said trademark since 2002.
26. It is true that plaintiff has obtained the word mark KAVIRAJ and registered on 10.10.1980 relating to aluminium kitchenware comes under class 21, but not under class 7 of the goods and description particularly mixer and grinder. Under these circumstances, whether the plaintiff is the prior user or obtained registration of proprietorship of the trademark KAVIRAJ prior to the defendant or whether defendant become a registered proprietor of the trademark KAVIRAJ pertaining to mixer grinder falling under class 7 is important point for consideration.
27. Now I would like to discuss the oral evidence of plaintiff and defendant. Admittedly PW1 is one of the partner of the plaintiff firm. Although he has reiterated the plaint averments in his examination in chief but during the course of cross examination he has categorically and specifically admitted that Ex.P34 legal use certificate is only with respect to the Aluminium kitchenware and not with respect to mixer grinder. He has also admitted that Ex.P35 legal use certificate is with respect to Class 21. Further he has 30 O.S.No.3050/2017 admitted in his cross examination at para 1 page 6 which reads thus On the date of application as per Ex.P39, as we had not yet started manufacturing mixer, we had applied for trademark as per Ex.P39.
Further he has deposed on the same day cross examination that he do not remember they have produced invoices before the trademark registry with respect to claim user date from 1998. It is also specific admission of PW1 that he came to know about the defendant's trademark in the year 2005. So in view of the said admissions of PW1, once it is crystal clear that what ever claim of the plaintiff that it is using the trademark KAVIRAJ FRIENDLY from 1998, or the word mark KAVIRAJ from 1998, there is no invoices or documents produced before court and also made it clear that they have not yet started manufacturing the mixer grinders. When the plaintiff came to know about the defendant's trademark in the year 2005, but why they have not filed the suit before court against the defendant itself not explained. But PW1 deposed that they have contested the defendant's trademark before the trademark registry. Admittedly as per Ex.D21, the opposition of the plaintiff against the trademark of the defendant is rejected.
31 O.S.No.3050/201728. Further, PW1 has deposed in his cross examination recorded on 24.11.2021 which reads as follows:
Witness volunteers that they have obtained the trademark in the year 2016. I do not know whether defendant is carrying on business at Bangalore.
Further PW1 has specifically admitted in his cross examination read as fallows "as per available records before court, defendant is prior user in respect of the goods falling under class 7 for mixer grinder" .
The said admission of PW1 makes it very clear that even as per available records defendant is the prior user in respect of goods falling under class 7 for mixer grinder than the plaintiff. It is further evidence of the PW1 that Though they were carrying on the business under the name of KAVIRAJ and they have stopped it in the year 2010 and he is using KAVIRAJ trademark for the last 5 years as per Ex.P36 and he had filed the trademark application No.1980802 on 16.6.2010. The said oral testimony of PW1 makes it clear that defendant is the prior user of the trademark KAVIRAJ for the goods falling under class 7 mixer grinder and not the plaintiff. If definitely the plaintiff company is the prior user of the goods falling under class 7 mixer grinder, what was the 32 O.S.No.3050/2017 impediment to produce the invoices or any other documents to prove the same itself not explained. But as admitted by PW1, defendant is the prior user of said trademark KAVIRAJ relating to goods fallen uner 7 ie.,Mixer Grinder. Even PW1 has specifically admitted that the invoices produced by him before court do not disclose the sale of any mixer grinder. If this is a line of oral evidence of PW1 and considering the documentary evidence itself sufficient to come to the conclusion that at this stage that the defendant is the prior registered user of the trademark KAVIRAJ or proprietor of the registered trademark KAVIRAJ relating to MIXER GRINDER but not the plaintiff.
29. It is true the learned Senior counsel for the plaintiff has vehemently argued and also emphasized in his written argument about the evidence of DW1. It is true that DW1 is the power of attorney holder of the defendant company deposed that he is minor in the year 2002 and he has deposed about the ignorance whether there are any one by name with Kavitha and Rajesh in their family, because plaintiff has taken a specific pleading in their plaint that with respect of adoption of the mark KAVIRAJ, explanation of the plaintiff that it is combination of two words 'Kavi' which was taken from 33 O.S.No.3050/2017 the name Kavitha first daughter and 'Raj' is taken from the name Rajesh who is the grand son of the plaintiff family. Merely plaintiff have chosen the name KAVIRAJ from selecting the name of grand children or family members, is it sufficient to accept the entire contention of the plaintiff merely DW1 do not know the family members itself is not explained. It is true that DW1 has deposed in his cross examination that trademark KAVIRAJ at Ex.P33 and Trademark at Ex.P36 may be identical to each other and also he has deposed that he has no idea whether Ex.D5 to D19 written by same person or not. Merely DW1 has deposed that he do not know whether same person has written Ex.D5 to D19 or different person written itself sufficient to come to the conclusion that Ex.D5 to D19 invoices are created or bogus, unless plaintiff has proved the said documents are created by cogent documentary evidence itself not explained. It is well settled principle of law that the person who come before court has to prove his case on merits and demerits of his case, but he cannot make use of the weakness of the defendant as a trump card. Whereas in the present case on hand also plaintiff has to prove his case on his own leg and he cannot make use the weakness of the defendant. Hence, the argument canvassed by the counsel for the plaintiff cannot be 34 O.S.No.3050/2017 accepted in the eye of law since PW1 being a partner of plaintiff company himself has admitted that defendant is the prior user of the trademark KAVIRAJ then the plaintiff on the basis of documents.
30. It is true during the course of argument learned counsel for the plaintiff cited number of decisions. Out of them the decision reported in (2004) 3 SCC 90 - Midas Hygiene Industries (P) Ltd and another Vs. Sudhir Bhatia & Another when I gone through the said decision wherein the appellant has filed the suit for passing off and for infringement of the copyright. In the above said decision their lordships observed that " while granting interim injunction mere delay in bringing action is not sufficient to defeat grant of injunction in such cases, if it is plaintiff appears that the adoption of the mark itself was dishonest."
Further their lordships have observed in the said decision that "Defendant admittedly worked with the plaintiff prior to launching his business. Secondly plaintiff is prior and prominent user of the phrase Laxman Rekha as a part of the description of crazy lines as shown by the document showing prominent user of the phrase Laxman Rekha since 1991, thirdly defendant's non-denial of the plaintiff's assertion in the notice dtd.28.2.1992 to the effect that the plaintiff used the phrase Laxman Rekha on its product etc."
35 O.S.No.3050/2017He has also relied on the decision reported in (2005) 3 SCC 63 - Dhariwal Industries Ltd & Another Vs. M.S.S.Food Products. In this decision suit was filed by the respondent for a declaration that the respondent has no right to sell pan masala, gutkha and supari and any other goods under the trademark Manikchand . I have gone through the said decision in detail. The facts of the case and present case are entirely different. In the present case on hand, the defendant is also registered user of the trademark KAVIRAJ, same is admitted by the PW1. It is also admitted by PW1 that he was well knowledge about the defendant's using the trademark since 2005, but he has filed the suit in the year 2017 itself makes out that the delay and latches on the part of the plaintiff to initiate the proceedings against the defendant. Though he has initially filed opposition before the trademark registry, but it was rejected. Hence plaintiff cannot take shelter under the said decision.
31. The counsel for the plaintiff has also cited the decision reported in (2006) 8 SCC 726- Ramdev Food Products (P) Ltd., and AR Vindbhai Rambhai Patel & others. In the above said decision their lordships have discussed the right conferred by the registrar of trademark, scope of exclusivity right of use of trademark 36 O.S.No.3050/2017 by the registered proprietor of trademark - rationale for registration of trademarks explained elaborately. It is further observed by the Hon'ble Supreme Court in the said decision that Intellectual property - Trade and Merchandise Marks Act, 1958 - S.30 - Onus of establishing defence - held, if an infringement of a trademark is established, onus would be on defendant to show that he is entitled to use the trademark as well- Trademarks Act, 1999 Sec.30. Whereas in the present case on hand, defendant has discharged his burden by producing registered trademark certificate issued by the trademark registry as per Ex.D4. But plaintiff has failed to prove that he has exclusive right to use the trademark KAVIRAJ as registered proprietor as discussed supra. Hence, plaintiff cannot take shelter under the said decision.
32. The learned Senior Counsel for the plaintiff further vehemently argued and also highlighted in the written argument that defendant has infringed the trade mark of the plaintiff. In this aspect learned counsel for the defendant emphasized in his written synopsis that though plaintiff has relied upon Ex.P9 Partnership Deed it is with regard to pressure cooker, but the defendant has made application under class 7 for trademark 37 O.S.No.3050/2017 KAVIRAJ on 5.3.2002. Further he has argued that Ex.P6 is a deed of assignment with regard to class 21 for aluminium kitchenware and Ex.P36 claiming use from 10.10.1980 is only with regard to Class 21 and also he has highlighted the admission of PW1 relating to Ex.D1 &
2. Further he has highlighted with regard to the admission of PW1 during his cross examination that the facts admitted need not be proved. It is true that if the parties have admitted during the course of cross examination, the said admission can be make use against them under section 17 of Indian Evidence Act unless they have withdrawn their own admission with a satisfactory explanation.
33. It is true that the defendant's counsel further argued that though plaintiff is claiming partnership firm is from 1973, but no document has been placed before the court. The plaintiff has produced only reconstitution deed dtd.1.4.2014. When objection filed by the plaintiff against the registration of the trade mark of the defendant before the trademark registry, and same has been rejected by the trademark registry and registered the trade mark of the defendant, as a result the defendant becomes the proprietor and ownership rights of exclusive use of the trademark KAVIRAJ, and hence, 38 O.S.No.3050/2017 question of defendant is violating the proprietary and ownership right of exclusive use of the plaintiff's trademark KAVIRAJ both under the Trademarks Act 1999 and Copyright Act, 1957 does not arise. It is true in this aspect the learned counsel for the plaintiff has cited a decision reported in ILR 2017 KAR 4699 - Micro Hitech Industries Vs. Uttam Gautam Appliances wherein it is held that :
Sec.96 of CPC - Regular First Appeal - A case of infringement of the appellant's / plaintiff's registered trademark 'Nandi' and label mark "Nandi" by the defendant - dismissal of suit for permanent injunction filed by the appellant / plaintiff - Appealed against - Concept of passing off - Courts are expected to deal with "the deceptive similarity" between the two trademarks and not "differences" in the trademarks-
When I gone through the said decision in detail, the facts of the said decision and present case on hand is entirely different. It is true in this case, plaintiff is claiming trademark KAVIRAJ FRIENDLY relating to goods fall under class 7 grinder mixer as per Ex.P36 and he is also claiming trademark KAVIRAJ as per Ex.P43 relating to goods fall under class 7 grinder mixer. But defendant also claiming trademark KAVIRAJ relating to goods fall under class 7 grinder mixer as per Ex.P33 & Ex.D4. So both are registered as per the documents produced before court. In view of the documentary evidence the 39 O.S.No.3050/2017 defendant become the earlier registration of the trademark with regard to the particular goods fallen under class 7 than the plaintiff ie., mixer grinder. It is true in view of the documents produced by the plaintiff, although plaintiff got registration of trademark KAVIRAJ much earlier to the defendant relating to other then the goods fallen under class 7 particularly mixer grinder. Under such circumstances, merely plaintiff has obtained the trademark KAVIRAJ relating to other than the goods fallen under class 7, it does not amounts to plaintiff is the prior user or plaintiff is the sole proprietor of the trademark KAVIRAJ to the mixer grinder. Because, in this aspect the learned counsel for the defendant cited the decision of Hon'ble Apex Court reported in (2018) 9 SCC 183 - Nandhini Deluxe Vs. Karnataka Co- operative Milk Producers Federation Limited. In the said decision their lordships have observed that:
Intellectual property - Trademarks Act 1999- Ss.9, 11,& 18 - Registration of the phonetically similar mark ' NANDHINI to the earlier registration / in use mark 'NANDINI' - Test of deceptiveness /confusion - application of - permissibility of registration when such latter mark is used for different goods/nature of business and visual appearance of two marks is so different that average person of ordinary intelligence would not be deceived or confused between goods concerned.
- Registration of trademark qua certain goods falling under one class - reiterated, does not vest monopoly over the entire class of goods with the proprietor or registered mark.40 O.S.No.3050/2017
Further the lordships have observed that " though there was a phonetical similarity in the words NANDHINI and Nandini the trademark with logo adopted by two parties were altogether different and in that case not only visual appearance of two marks was different, they even related to different products and that it was difficult to imagine that an average man of ordinary intelligence would associate the goods of the appellant as that of the respondent. It is also referred in the said decision that in the case of Vishnudas Trading reported in (1997) 4 SCC 201, held that the proprietor of a trade mark could not enjoy monopoly over the entire class of goods and, particularly when he was not using the said trademark in respect of certain goods falling under the same class. Also held that all the ingredients laid down in S.11(2) had not been satisfied. Therefore the order of Deputy Registrar granting registration in favour of the appellant restored, subject to the modification that registration will not be given in respect of those milk and milk products for which the appellant had abandoned its claim." Whereas in the present case on hand, also plaintiff is using the trademark KAVIRAJ FRIENDLY and KAVIRAJ relating to some other goods, falling under some other classes as discussed supra, although he is claiming the trademark KAVIRAJ relating to class 7 of Mixer 41 O.S.No.3050/2017 Grinder, but he got registered the trademark for the said goods subsequent to the registration of the trademark by the defendant and hence, as observed by the Hon'ble Apex Court it cannot be said that the plaintiff does not vest monopoly over entire classes of goods with proprietor of registered mark, hence, in view of the observations of the Hon'ble Apex Court, and considering the admission of PW1 that defendant is the prior user of the trademark KAVIRAJ relating to the goods fallen under class 7 ie., mixer grinder and plaintiff has not produced any documents to show that he is using or manufacturing mixer grinder much prior to the defendant company, under such circumstances plaintiff cannot take shelter of case of Micro Hitech Industries Vs. Uttam Gautam Appliances. But the said decision of the Hon'ble Supreme Court cited by the defendant's counsel is aptly applicable to the case of the defendants in view of the foregoing reasons.
34. Further their lordships have observed in the decision reported in ILR 2017 KAR 4699 - Micro Hitech Industries Vs. Uttam Gautam Appliances observed that since the consumer protection is essential for the smooth functioning of the commercial world and for the society at large common law considered as a civil 42 O.S.No.3050/2017 wrong. Under the concept of passing off a person not permitted to pass off his products as products produced by another person. Hence, I am of the considered view that the said decision will not helpful to the case of the plaintiff as discussed supra.
35. Further the learned counsel for the defendant has relied one more decision reported in ILR (2007) I DELHI 811 - M/s. Alkem Laboratories Ltd. Vs. Mega International (P) Ltd. The said decision is relating to the suit for permanent injunction and action for passing off under section 34 of Trademarks Act. When I gone through the said decision in detail though the facts of the said decision is different from the case on hand, but the principle laid down in the said decision is applicable to the case of the defendant in view of the above reasons. When the defendant has proved that it is the registered owner of the trademark KAVIRAJ pertaining to the goods fallen under class 7 mixer grinder, and he is the prior user, same has been admitted by the PW1, and hence question of defendant has infringed the trademark KAVIRAJ does not arise as contemplated u/s.29 of Trademarks Act, 1999. On the contrary, defendant become the honest and concurrent user of the trademark KAVIRAJ as contemplated under Section 12 of the Trademarks Act, 1999. As a result, he is entitled for 43 O.S.No.3050/2017 protection under sec. 12 of Trademarks Act, 1999. In order to better understanding I would like to reproduce the said provision which reads as follows:
12. Registration in the case of honest concurrent use, etc.--In the case of honest concurrent use or of other special circumstances which in the opinion of the Registrar, make it proper so to do, he may permit the registration by more than one proprietor of the trade marks which are identical or similar (whether any such trade mark is already registered or not) in respect of the same or similar goods or services, subject to such conditions and limitations, if any, as the Registrar may think fit to impose.
When the defendant's right is protected under section 12 of the Trademarks Act, 1999 and he is the registered owner of the said trademark and as per the documents, registrar has registered the defendant's trademark as KAVIRAJ is valid as contemplated under section 31 of Trademarks Act, he cannot be restrained.
36. Suppose if the defendant is not a registered proprietor of the trademark of KAVIRAJ relating the mixer grinder the matter would have been different. As per Sec.28(2) of Trademarks Act, 1999, it cannot be said that there is infringement of the trademark of the plaintiff by the defendant. As per Sec.28(3) where two persons are registered owner of the trademark there is no exclusive right to use the said trademark against each other. That means both persons have right to use the 44 O.S.No.3050/2017 registered trademark in their firm and hence, plaintiff cannot claim or say that its registration of trademark is infringed when the defendant is also enjoying the registration of trademark and said registration given the defendant every right to use the same provided under class 28(1) of the Act. Hence, considering the facts and circumstances of the case and considering the oral and documentary evidence, though the plaintiff is registered owner of the trademark KAVIRAJ as per Ex.P43 relating to Class 7, mixer grinder, but he has no exclusive right to use the trademark given under sub class(1) and it cannot be said that defendant has infringed the trademark of the plaintiff. In the result I answer issue No.1 in partly affirmative and issue No.2 in the negative.
37. Issue No.3: In view of the finding on the above issues, though plaintiff is the registered owner of the trademark the goods fallen under class 7 mixer grinder as per Ex.P43. But prior to the registration of the plaintiff, the defendant has got registered the trademark relating to goods mixer grinder fallen under class 7, as per Ex.D4 as discussed supra. Further the defendant has proved that he is regularly using the said trademark for manufacturing and sale of products since 2002 ie, much prior to the plaintiff's registration of the trademark 45 O.S.No.3050/2017 KAVIRAJ. Hence, I am of the considered opinion that plaintiff is not entitled for the relief of permanent injunction or any other relief as prayed in the above suit. Hence, viewed from any angle considering the facts and circumstances of the case and considering the oral and documentary evidence, the plaintiff is not at all entitled for the reliefs as prayed in the above suit. In the result, I answer issue No.3 in the negative.
38. Issue No.4: For, the foregoing reasons and discussions and considering the facts and circumstances of the case, the suit of the plaintiff is liable to be dismissed without costs under the above circumstances. In the result, I proceed to pass the following:
O RDE R The suit of the plaintiff is hereby dismissed.
No order as to costs.
[Dictated to the Judgment Writer, computerised, and print out taken by him, corrected and then pronounced by me in open court, this the 7th January 2022].
(NAGARAJAPPA. A.K.) XVIII ADDL. CITY CIVIL AND SESSIONS JUDGE, BANGALORE 46 O.S.No.3050/2017 ANNEXURE List of witnesses examined on behalf of Plaintiff:
PW1 : Kiran S.Chawla List of documents marked on behalf of Plaintiff:
Ex.P1 : Letter of authorisation dtd.10.3.2017 Ex.P2: Notarised copy of re-constitution dtd.1.4.2018 Ex.P3 : Cash counter receipt dtd.8.4.1996 Ex.P4 & 5: KEB bills Ex.P6 : Original Deed of Assignment dtd.25.1.1998 Ex.P7 : Telephone bill dtd.1.2.1999 Ex.P8 : Telephone payment receipt dtd.19.2.1999 Ex.P9 : Original partnership deed dtd.1.4.2002 Ex.P10: Letter on list of distributors. Ex.P11 : Letter on turnover of the plaintiff Ex.P12 : True copy of legal notice dtd.23.2.2017 Ex.P13 : Reply notice dtd.16.3.2017 Ex.P14 to 31: Photographs Ex.P32: CD Ex.P33 to 47: Legal use certificates Ex.P48 to 56 & 57 Photographs alongwith CD & Sec.65B certificate List of witnesses examined on behalf of Defendant:
DW1 : Keshav Jain List of documents marked on behalf of Defendant:
Ex.D1 : Copy of the affidavit dtd.16.2.2012 filed before trademark registry Ex.D2 : Copy of opposition Ex.D3 : Notarised copy of GPA dtd.26.11.2021 47 O.S.No.3050/2017 Ex.D4 : Legal use certificate dtd.11.8.2021 Ex.D5 to 18: Invoices Ex.D19: Home appliances & kitchenware directory of India (2012-13 Ex.D19(a)&(b): Relevant pages Ex.D20 : Online printout of affidavit filed by defendant Ex.D21 : Online printout of order dtd.26.9.2017.
XVIII Addl. City Civil Judge Bangalore City.48 O.S.No.3050/2017
Judgment pronounced in the open court as per separate judgment. Operative portion of judgment is as follows:
ORDER The suit filed by the plaintiff is hereby dismissed.
No order as to costs.
XVIII Addl.C.C. & S.J., Bangalore