Madras High Court
Aqua Pump Industries vs Techno Flex (P) Ltd on 27 January, 2016
Author: M.Sathyanarayanan
Bench: M.Sathyanarayanan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 27-1-2016 CORAM THE HONOURABLE MR.JUSTICE M.SATHYANARAYANAN CIVIL SUIT No.706 of 2005 1.Aqua Pump Industries rep. By its Managing Partner Ramaswamy Kumaravelu Thudiyalur Post Coimbatore 641 034 having their Branch Office at No.21, P.H. Road Koyambedu, Chennai 600 107 2.Aqua Sub Engineering rep. By its Managing Partner Ramaswamy Kumaravelu Thudiyalur Post Coimbatore 641 034 having their Branch Office at No.21, P.H. Road Koyambedu, Chennai 600 107 .. Plaintiffs vs Techno Flex (P) Ltd., B.P. - 49, Neelam Bata Road Faridabad .. Defendant Civil suit filed under Order IV Rule 1 of Original Side Rules, 1956 and Order VII Rule 1 of Code of Civil Procedure read with Sections 27, 134 and 135 of the Trade Marks Act, 1999, praying for a judgment and decree granting (i) permanent injunction restraining the defendant by itself, it's servants, agents, distributors, or anyone claiming through them, from manufacturing, selling, offering and advertising for sale using the Trade Mark TECHNO upon the goods or in any media and use the same in invoices, letterheads and visiting cards or any other trade literature or by using any other Trade Mark which is in any way visually, phonetically or deceptively similar to the plaintiffs' registered Trade Mark TEXMO or in any manner infringing the plaintiffs' registered Trade Mark Nos.315049 (SP-I), (SP-II) and 315050 (SP-I), (SP-II) and (ii) permanent injunction restraining the defendant, by themselves, their servants, agents men or anyone claiming through them from manufacturing, marketing, distributing, offering or advertising for sale Machine and Machine tools-packing equipments, packing machines and parts and fittings thereof and all related ranges of items included in Class-07 using the Trade Mark TECHNO or similar sounding names in the course of their business and pass off their goods using the Trade Mark TECHNO or with additions as and for the goods of the applicant or enable others to pass off and issuing a direction to the defendant to surrender to the plaintiffs all types of goods containing/bearing the Trade Mark TECHNO or other deceptively similar Trade Marks and for a preliminary decree in favour of the plaintiffs directing the defendant to render an account of profits made by them by the use of the Trade Mark TECHNO on the goods referred and for a final decree in favour of the plaintiffs for the amount of the profits found to have been made by the defendant, after the defendant has rendered accounts and for costs. For Plaintiffs : Ms.Gladys Daniel For Defendant : Set ex-parte JUDGMENT
The plaintiffs would aver in the plaint, as follows:-
(i) The plaintiffs are the manufacturers of different types of electrical motors and pumps ever since from 1.4.1974, and are also selling the following categories of pumps and motors:-
(a) Motors which run on single phase current with capacities ranging between < H.P. (one fourth Horse Power) and 1 H.P. (One Horse Power).
(b) Deep-well Jet Pumps, Jet Monoblocks, Multistage Jet Pumps and Monoblocks of any capacity which run on single phase current.
(c) Centrifugal Pumps and Monoblocks up to and including 1 H.P. (One Horse Power) which run on single phase current.
(d) Lateral channel pumps and Lateral channel monoblocks of any capacity which run on single phase current.
(e) Submersible monoblocks of any capacity which run on single phase current.
(f) Reciprocating pumps for domestic use which run on single phase current.
(g) Any other type of pump or monoblock including self priming centrifugal pumps and monoblocks, which run on single phase current used for domestic purposes.
(h) Components and spares for the above products.
(ii) Since 12.11.1982, the second plaintiff has been manufacturing and selling submersible motors, pumps and pumpset, components and spares for the above said products and they became registered Proprietors of the trademark TEXMO in respect of the specific goods mentioned above, by virtue of the order passed by the Registrar of Trademarks on 20.4.1998, and thereafter, became the exclusive Proprietors of the above said trademark in respect of the specific goods stated in paras 3 and 4. The registered trademark numbers with respect to the above said goods, are 315049 SP-I and SP-II and 315050 SP-I and SP-II.
(iii) The plaintiffs have been exclusively using the above said trademark as registered, all over India continuously and substantially in respect of the goods allotted to them, from the respective dates of formation of the firms and acquired enormous goodwill in respect of the goods, and if any person uses the same/similar mark in respect of those goods or other related goods, the public will be confused regarding the identity of the goods. The plaintiffs are spending substantial sums of money towards advertisements, in respect of the trademark, and are also receiving several prestigious awards on account of the superior quality of their goods and export business, and also furnished the turnover particulars in paragraph No.8 of the plaint.
(iv) The plaintiffs came to know that the defendant had filed a trademark application for the registration of the trademark TECHNO on 3.6.2003, claiming user of the mark TECHNO since 31.5.2002, in respect of machine and machine tools-packing equipments, packing machines and parts and fittings thereof and all related ranges of items included in Class-07. They became aware of the same through advertisement in the Trademark Journal No.1328 Supplement (2) dated 14.2.2005, and immediately, filed opposition to the said application and the same is yet to be disposed of.
(v) The defendant has adopted the deceptively similar trademark TECHNO solely for the purpose of exploiting the commercial goodwill. The defendant is deliberately doing so knowing pretty well that quality pumps and motors are being manufactured and marketed by the plaintiffs, and on account of the same, the plaintiffs are bound to suffer for the reason that the goods of the plaintiffs and the defendant are electrical goods. It is a calculated attempt made by the defendant to infringe the trademark of the plaintiffs and passing off the goods as that of the plaintiffs. Hence, they came forward to file the suit for the above said reliefs.
2.Though the defendant was served, it did not enter appearance and hence, the suit was listed under the caption Undefended Board, and on 17.11.2015, the defendant was called absent and set ex-parte.
3.The General Manager (Finance) of the plaintiffs' firms, by virtue of the authorization under Ex.P1, has filed the proof affidavit in lieu of chief-examination, and marked Exs.P1 to P6.
4.The learned Counsel appearing for the plaintiffs, has drawn the attention of this Court to the pleadings as well as to the oral and documentary evidence and would submit that the defendant in a deliberate and calculative manner, has adopted the trademark viz. TECHNO, to cash in on the goodwill generated by the plaintiffs, and deceptively used the trademark and opposition is filed in respect of the defendant's application for registration of it's trademark TECHNO, and it is yet to be disposed of and taking advantage of the same, the defendant continues to indulge in such kind of illegal activities and prays for decreeing of the suit with costs.
5.The following issues arise for adjudication:-
(i) Whether the trademark of the plaintiffs TEXMO has been infringed by the defendant?
(ii) Whether the trademark of the defendant is deceptively similar to that of the plaintiffs' trademark?
(iii) Whether the plaintiffs are entitled to the reliefs claimed in the suit?
(iv) To what other relief, the plaintiffs are entitled to?
6.ISSUE No.(i):- A perusal of Ex.P2 series would disclose that the plaintiffs had obtained the User Certificate in respect of the registration of the trademark TEXMO issued by the Trademark Registry, Mumbai. It is the specific case of the plaintiffs that they came to know that the defendant has filed a trademark application for registration of it's trademark TECHNO on 3.6.2003, which is evident from Ex.P3 journal advertisement, and thereafter, the plaintiffs filed a notice of opposition under Ex.P4 dated 23.5.2005, and the said application is yet to be disposed of. It is the submission of the learned Counsel appearing for the plaintiffs, that both the plaintiffs and the defendant are engaged in similar trade and by the usage of the trademark TECHNO by the defendant, the induced customers/consumers may develop confusion and in all probability, they will be purchasing the goods with the trademark TECHNO, as that of the plaintiffs. The plaintiffs had also issued various advertisements in news daily reflecting the trademark as evidenced by Ex.P5, and under Ex.P6 series, they won various awards in respect of their products and goods under the trademark. In the light of the discussion made above, issue No.(i) is answered in affirmative and in favour of the plaintiffs.
7.ISSUE No.(ii):- A comparison of the trademark of the defendant TECHNO would bound to create confusion in the minds of the customers/consumers. This Court is of the view that the submission made by the learned Counsel appearing for the plaintiffs in this regard, merits acceptance. As rightly pointed out by the learned Counsel for the plaintiffs, the goods and services rendered by the plaintiffs as well as by the defendant, are in similar type of trade and therefore, the consumers/customers may bound to develop confusion and purchase the goods of the defendant as that of the plaintiffs. Therefore, issue No.(ii) is answered in affirmative and in favour of the plaintiffs.
8.ISSUE No.(iii):- The plaintiffs through overwhelming documentary evidence, had substantiated their case beyond all probabilities and therefore, are entitled to the reliefs claimed in the suit.
9.ISSUE No.(iv):- In the light of the findings given above, the suit is to be decreed with costs.
10.In the result, the suit is decreed with costs and the defendant by itself, it's servants, agents, distributors, or anyone claiming through them, are restrained by way of permanent injunction, from manufacturing, selling, offering and advertising for sale using the Trade Mark TECHNO upon the goods or in any media and use the same in invoices, letterheads and visiting cards or any other trade literature or by using any other Trade Mark, which is in any way visually, phonetically or deceptively similar to the plaintiffs' registered Trade Mark TEXMO, or in any manner infringing the plaintiffs' registered Trade Mark Nos.315049 (SP-I), (SP-II) and 315050 (SP-I), (SP-II) and the defendant by themselves, their servants, agents men or anyone claiming through them, are also restrained by way of permanent injunction, from manufacturing, marketing, distributing, offering or advertising for sale Machine and Machine tools-packing equipments, packing machines and parts and fittings thereof and all related ranges of items included in Class-07 using the Trade Mark TECHNO or similar sounding names in the course of their business and pass off their goods using the Trade Mark TECHNO or with additions as and for the goods of the applicant or enable others to pass off and the defendant is directed to surrender to the plaintiffs all types of goods containing/bearing the Trade Mark TECHNO, or other deceptively similar Trade Marks and there shall be a preliminary decree in favour of the plaintiffs directing the defendant to render an account of profits made by them by the use of the Trade Mark TECHNO on the goods referred.
27-01-2016 Index: yes/no LIST OF WITNESSES P.W.1 T.Narendran LIST OF EXHIBITS Ex.P1 04.01.2016 Original authorization Ex.P2 Photocopy of the legal use certificate series reflecting the registration of the trademark TEXMO belonging to the plaintiffs' firms Ex.P3 Photocopy of the journal advertisement of the defendant for impugned trademark TECHNO Ex.P4 03.06.2003 Office copy of the notice of opposition filed by the plaintiffs to the defendant's application for registration of trademark TECHNO under No.1203542 dated in Class 7 Ex.P5 (26 nos) Collection of various advertisements that series have appeared in different dailies and newspapers reflecting the plaintiffs' trademark TECHNO Ex.P6 (3 nos.) Copy of the awards won by the plaintiffs series with respect to their products and goods under the trademark TEXMO 27-01-2016 nsv M.SATHYANARAYANAN, J.
nsv C.S.No.706 of 2005 Dt : 27-01-2016