Madras High Court
Aqua Pump Industries vs Roshan Kumar on 10 July, 2019
Author: Krishnan Ramasamy
Bench: Krishnan Ramasamy
C.S.No. 728 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 10.07.2019
CORAM:
The Hon'ble Mr.Justice KRISHNAN RAMASAMY
C.S.No. 728 of 2017
1.Aqua Pump Industries
rep by its Managing Partner,
Mr.Ramaswamy Kumaravelu
Tudiyalur Post, Coimbatore 641 034.
Having their branch office at
New No.10, Old No.26,
Errabalu Chetty Street, Parrys Corner,
Chennai – 600 001.
2.Aqua Sub Engineering
rep by its Managing Partner,
Mr.Ramaswamy Kumaravelu
Tudiyalur Post, Coimbatore 641 034.
Having their branch office at
New No. 10, Old No. 26,
Errabalu Chetty Street, Parrys Corner,
Chennai – 600 001.
..Plaintiffs
Vs
Roshan Kumar
Trading as G.R.Electricals,
B.M.Road, K.G.F.Kolar,
Karnataka State – 563 122. ..Defendant
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C.S.No. 728 of 2017
Prayer : Plaint filed under Order IV, Rule 1 of the Original Side Rules
and Order VII Rule 1 of the C.P.C r/w 27, 134 & 135 of the Trade Marks
Act, 1999 prays as follows:-
a) granting a permanent injunction, restraining the Defendant, by
itself, their servants, agents, distributors, or anyone claiming through
them from manufacturing, selling, advertising and offering for sale using
the Trade Mark TEXMEN/TEXMEN along with inverted triangle as such or
prefix or suffix in V-4, V-5, V-6, V-7 and V-8, Submersible Pump set,
Monosets and parts thereof Electrical Motors, Motor Pumps, Machines and
Machine toold or in any related goods manufactured and sold by the
Defendant or its trading style or in any media and use the same in
invoices, letter heads and visiting cards or by using any other trade mark
which is in any way visually, or phonetically similar to the Plaintiff's
registered Trade Mark TEXMO/TEXMO along with inverted triangle or in
any manner infringing the Plaintiffs Registered Trade Mark
Nos.315049(SP-II), (SP-II) & 315050 (SP-I), (SP-II) renumbered as 2702778,
2702779, 2702780 & 2702781 respectively.
b) granting a permanent injunction, restraining the Defendant, by
itself, their servants, agents, distributors, or anyone claiming through
them from manufacturing, selling, advertising and offering for sale using
the Trade Mark TEXMEN/TEXMEN along with inverted triangle as such or
prefix or suffix in V-4, V-5, V-6, V-7 and V-8, Submersible Pump set,
Monosets and parts thereof Electrical Motors, Motor Pumps, Machines and
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C.S.No. 728 of 2017
Machine toold or in any related goods manufactured and sold by the
Defendant or its trading style or in any media and use the same in
invoices, letter heads and visiting cards or by using any other trade mark
which is in any way visually, or phonetically similar to the Plaintiff's
registered Trade Mark TEXMO/TEXMO along with inverted triangle or in
any manner pass off the Plaintiff's goods.
c) directing the Defendant to surrender to the Plaintiffs all the
goods, packing materials, cartons, advertisement materials and
hoardings, letter-heads, visiting cards, office stationery and all other
materials containing/bearing the Trade Mark TEXMEN along with inverted
triangle or other deceptively similar to the Plaintiff's trade mark
TEXMO/TEXMO along with inverted triangle.
d) directing the Defendant to render an account of profits made by
them by the use of the impugned trademark TEXMEN along with inverted
triangle on the goods referred and decree the suit for the profits found
to have been made by the Defendant, after the Defendant has rendered
accounts.
e) directing the Defendant to pay to the Plaintiffs the costs of the
suit.
For Plaintiffs : M/s. C.Daniel & Gladys Daniel
For Defendant : set exparte
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C.S.No. 728 of 2017
JUDGMENT
This suit has been filed against the defendant for infringement of plaintiff's trademark “Texmen” along with the inverted triangle against the defendant.
2. The plaintiffs are the two different proprietorship concerns. However, the proprietor of these two plaintiffs is Mr.Ramaswamy Kumaravelan.
3. The Plaintiffs are manufacturers of different types of electrical motors and pumps. Mr.Ramaswamy Kumaravelu the Managing Partner of the Plaintiffs 1 & 2 and his brother Late Ramachandran (deceased on 06/09/1986), trading as “TEXMO” Industries secured registration of the Trade Mark “TEXMO” with effect from 21st May 1976 as Joint proprietors in respect of electrical motors (nor for land vehicles) pumps included in Class-07, including Centrifugal pumps, mono-block pumps, domestic pumps, submersible pumps and reciprocating piston pumps, sugar cane crushers (machines). The details of the two Trademark Registrations are 4 http://www.judis.nic.in C.S.No. 728 of 2017 as follows:
(i) The expression "TEXMO" impressed on an inverted triangle.
(ii) "TEXMO" word per se.
4. The 1st plaintiff commenced its business on 01/04/1974 as a licensed user of the above two Trade Marks with respect to the following categories of pumps and motors and started manufacturing and selling them:-
a. Motors which run on single phase current with capacities ranging between 1/4 H.P. (one fourth Horse Power) and 1 H.P.(One Horse Power).
b. Deep well jet pumps, jet mono-blocks, multistage jet pumps and mono-blocks of any capacity which run on single phase current.
c. Centrifugal Pumps and mono-blocks upto and including 1 H.P. (One Horse Power), which run on single phase current. d. Lateral channel pumps and Lateral channel monoblocks of any capacity which run on single phase current. 5 http://www.judis.nic.in C.S.No. 728 of 2017 e. Submersible monoblocks of any capacity which run on single phase current.
f. Reciprocating pumps for domestic use which runs on single phase current.
g. Any other type of pump or mono-block including self priming centrifugal pumps and mono-blocks, which run on single-phase current used for domestic purposes. h. Components and spares for the above products.
5.Similarly the 2nd plaintiff commenced its business on 12/11/1982 as a licensed user of the above two Trade Marks with respect to the following categories of pumps and motors and started manufacturing and selling them:-
i. Submersible Motors, Submersible Pumps and Submersible Pump sets (Excluding Submersible Mono Block presently manufactured by TEXMO Industries) ii. Components and spares for the above products. 6 http://www.judis.nic.in C.S.No. 728 of 2017
6. This Licensing arrangement ceased with effect from 01.04.1990 on account of reconstitution of the firms and on the basis of an agreement between the parties on 24/05/1990 to own and use the Trade Marks, exclusively with respect to the above items of manufacture. Based on this agreement between the parties, the Registrar of Trade Marks passed the order on 20/04/1998 making the Plaintiffs the registered proprietors of the Trade Mark "TEXMO" for the respective afore mentioned goods."
7. The first plaintiff achieved the turnover for the year 2013-2014 a sum of Rs.84,45.77 lakhs, for the year 2014-2015 a sum of Rs.94,01.58 lakhs and for the year 2015-2016 a sum of Rs.99,61.00 lakhs, where as the second plaintiff achieved the turnover for the year end 2013-2014 a sum of Rs.917,00.41 lakhs, for the year 2014-2015 a sum of Rs.953,21.96 lakhs and for the year 2015-2016 a sum of Rs.958,74.39 lakhs.
8. In or around September 2016, to the shock of the Plaintiffs, it was discovered that the Defendant is manufacturing, selling and distributing their goods V-4, V-5, V-6, V-7 and V-8, submersible pump set, Monosets and parts thereof Electrical Motors, Motor Pumps, Machines and 7 http://www.judis.nic.in C.S.No. 728 of 2017 Machine tools under the name/mark “TEXMEN” under no.2242658 in Class 7 Dated 01.12.2011. The mark applied for has been abandoned by order dated 26.04.2017. The Defendant has adopted the word TEXMEN along with the inverted triangle per se which amounts to deception and confusion in the market and an infringement of the Plaintiffs Intellectual Property Rights. The Defendant has adopted the impugned mark which amounts to deception and confusion in the market and an infringement of the Plaintiffs Intellectual Property Rights. Copy of the Defendant's Trade Mark Application No.2242658 in class 7 along with journal Advertisement and online status is makred as EXHIBIT P-10.
9.The Defendant has adopted the plaintiffs registered Trade Mark "TEXMO" along with inverted triangle, solely for the purpose of exploiting the commercial goodwill. The defendant knows very well the quality pumps and motors that are manufactured and marketed by the plaintiffs using the Trade Mark "TEXMO" along with inverted triangle. The defendant has also intentionally copied the inverted triangle which is a blatant infringement of plaintiffs registered Trade Mark. Both the 8 http://www.judis.nic.in C.S.No. 728 of 2017 Plaintiffs and the Defendant deal with the same class of goods. The defendant has malafide intention to pass off their goods as that originated from the plaintiffs Firm. The Defendant is knowingly exploiting this commercial goodwill attached to the plaintiffs Trade Mark "TEXMO" along with inverted triangle. The Plaintiffs and the defendant goods are cognate goods. It is a calculated attempt to infringe the Registered Trade Mark of the plaintiffs and pass off the defendant's business and goods as that of the plaintiffs. The defendant is not entitled to do so under law."
10. The learned counsel for the plaintiff submitted that they have not sent any notice to the defendant since they have made opposition before the Trade Mark Registrar for the registration of the defendant trademark “Texmen” along with the inverted triangle. Subsequent to the opposition made by plaintiff, the registration of the said trade mark “Texmen” along with the inverted triangle was abandoned by the Trademark Registrar, since no reply was filed by the defendant for the opposition raised by the plaintiff for the registration of the trademark “Texmen” along with the inverted triangle.
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11. It is the contention of the plaintiff that the defendant continued selling of the goods in the unregistered trade name “Texmen” along with the inverted triangle which are similar to the plaintiff's trademark “TEXMO” along with the inverted triangle. Therefore, without any other option, the plaintiff approached this Court restraining the defendant permanently against the infringement of plaintiff's trademark.
12. This Court admitted the present suit and issued summons to the defendant and suit summons was served through the paper publication as ordered by the Master of this Court vide order dated 28.03.2018 subsequent to the order of the learned Master, paper publication was effected on 03.03.2018 in Deccan Chronicle Newspaper. This Court vide order dated 01.07.2019 set the sole defendant ex-parte. Thereafter, this matter was posted before the Master for ex-parte evidence and PW-1 was examined and Ex.P-1 to Ex.P-10 marked.
13. Heard the counsel appearing for the plaintiff and perused the averments in the plaint, proof affidavit and also gone through Ex.P-1 to 10 http://www.judis.nic.in C.S.No. 728 of 2017 Ex.P-10. On perusal of the various certificates, it is clear that defendant has been using registered trademark TEXMO of plaintiff along with the inverted triangle with effect from 21.05.1996.
14. There is no dispute with regard to the registration of the trade mark “TEXMO” by the plaintiff. On the perusal of the documents, this Court found the defendant made an attempt to register the trade mark of the plaintiff namely “TEXMO” with the Registrar of trade mark. However, due to the objections made by the plaintiff to register with the trade mark “TEXMO” in the name of defendant, the Registrar of trade mark has taken the same on record and waited for the reply from the defendant. Since the defendant has not chosen to file any reply on trade mark, abandoned the application filed by the defendant. Therefore, it is crystal clear that the Proprietor of the trade mark “TEXMO” is only the plaintiff and the defendant is unauthorized user of the trade mark which will amounts to infringement in terms of Section 29 of the Trade Marks Act, 1999. Further this Court is of the view that the defendant has been continuing to infringe the trade mark, even after the approval of 11 http://www.judis.nic.in C.S.No. 728 of 2017 registration of trade mark, which is a serious act of infringement and therefore, the defendant shall be restrained from using the trade mark “TEXMEN” as prayed in the suit. Accordingly, this Court is inclined to decree the suit.
15. Further the intention of the defendant is to copy the trade mark and to pass off the goods as if that of the plaintiff. The plaintiff over a period of time, earned reputation and achieved a turnover of Rs.1,050 crores for the year end 31.03.2016. As the plaintiff earned enormous goodwill and reputation among the public and with the malafide intention to encash the goodwill, defendant has been infringing the trade mark of the plaintiff and therefore, the plaintiff entitled for the exemplary cost for the continuous infringement of the trade mark. Accordingly, this Court imposed a sum of Rs.2,00,000/- as exemplary cost to be paid by the defendant to the plaintiff.
16. Accordingly, the suit is decreed as prayed for with exemplary cost of Rs.2,00,000/- to be paid by the defendant to the plaintiffs. 12 http://www.judis.nic.in C.S.No. 728 of 2017 10.07.2019 Pns List of Witnesses and Exhibits on the side of the Plaintiffs:-
T.Narendran (P.W.1) Exhibits:-
1. Ex.P1 is the Original Authorization letter.
2. Ex.P2 series (4 Nos.) are photocopies of Legal Use Certificates of the Trademark Nos. 2702778, 2702779, 2702780, 2702781 (compared with original and returned)
3. Ex.P3 is the Plaintiff's common label.
4. Ex.P4 series (2 Nos.) are photocopies of the Plaintiff's Firm Registration certificates.
5. Ex.P5 series (18 Nos.) are photocopies of Awards obtained by the plaintiffs.
6. Ex.P6 is the photocopy of Publication in dated 26.02.2005 “Daily Thanthi” showing the plaintiff getting the best Exporter Award given by the Government for the 4th Consecutive year of India.
Krishnan Ramasamy, J., Pns 13 http://www.judis.nic.in C.S.No. 728 of 2017
7. Ex.P7 series (46 Nos.) are photocopies of the Sample Sales Invoices from 1977 to 2016.
8. Ex.P8 series (46 Nos.) are photocopies of the Advertisements from 1992-2016.
9. Ex.P9 series (4 Nos.) are certificates issued by the Plaintiff's Chartered Accountant.
10. Ex.P10 series (3 Nos.) are of defendant Trademark Application No.2242658 in Class 7 along with journal Advertisement and online status.
C.S.No.728 of 2017
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