Calcutta High Court
Unique Enterprenuers And Finance ... vs Really Agritech Pvt Ltd And Anr on 3 October, 2024
OCD-15 ORDER SHEET
IN THE HIGH COURT AT CALCUTTA
COMMERCIAL DIVISION
ORIGINAL SIDE
IA NO. GA-COM/1/2024
IN
IP-COM/31/2024
UNIQUE ENTERPRENUERS AND FINANCE LIMITED
VS.
REALLY AGRITECH PVT LTD AND ANR.
BEFORE:
The Hon'ble JUSTICE KRISHNA RAO
Date: 3rd October, 2024.
Appearance:
Mr. RanjanBachawat, Sr. Adv
Mr. SuvashisSengupta, Adv
Mr. SagnikBasu, Adv
Mr. S. S. Roy, Adv
Mr. BhaveshGarodia, Adv.
...for the Plaintiffs.
The Court : Mr. RanjanBachawat, Learned Senior Advocate is
appearing for the plaintiffs.
The plaintiffs have filed the present application praying for ad interim
injunction.
The predecessor-in-interest of the plaintiff No. 2 namely Ralli Engine
Limited was a licensee under the plaintiff No. 1 and accordingly, the plaintiff
No. 1 permitted the predecessor-in-interest of the plaintiff No. 2 and the
plaintiff No. 2 used the trade mark "RALLI" (Device and word), "RALLI
ENGINE" (Device and word) and "RALLI SPRAYER" (Device and word) and
"RALLI AGRICULTURAL MACHINES". After the change of name, the plaintiff
No. 1 also permitted the plaintiff No. 2 to use the said marks under the
separate licence agreement dated 20th May, 2002, 1st June, 2009 and 20th
March, 2015. The mark "RALLI" was coined and adopted in the year 1965 by
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one "Rallis India Limited". The said mark "RALLI" was being used
continuously and uninterruptedly since 1965.
By a Deed of Assignment dated 3rd December, 1992, the said Rallis
India Limited assigned and/or transferred the mark "RALLI ENGINE" to one,
"HMP Engineers Limited". The plaintiff No. 1 became the owner of the RALLI
along with the other trade marks i.e. "RALLI ENGINE", "RALLI SPRAYER"
and "RALLI AGRICULTURAL MACHINES"for the goods and/or products
falling under Class 7, 8 and 11.
The plaintiff No. 1 being the registered proprietor of the marks
"RALLI", "RALLI ENGI2450NE, "RALLI SPRAYER" and "RALLI
AGRICULTURAL MACHINES" (word as well as Device) has the exclusive
right to use the mark "RALLI". The plaintiff No. 1 also obtained the
registration of the domain name comprising of the mark "RALLI". The
turnover of the plaintiff No. 1 for the year 2023-2024 is Rs.2762.61/- lakhs.
The plaintiffs have also incurred expenditures for the promotion and
advertisement of Rs.6.54 lakhs for the year 2023-2024.
Learned counsel for the plaintiffs submits that in the month of May,
2024, the plaintiffs have been informed by the industry sources particularly,
the manufacturers, dealers and traders that the defendant No. 1 has
adopted the mark "REALLY" as part of its trade name and is carrying on
identical business of manufacturing, trading and selling of agricultural
machine tools and sprayers and/or its allied products by wrongfully and
illegally using the registered mark of the plaintiffs' "RALLI".
Learned counsel for the plaintiff submits that on further enquiry, the
plaintiffs came to know that the defendant No. 1 has deliberately and
dishonestly adopted the corporate name as "Really Agritech Private Limited"
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and purportedly adopted a deceptively similar mark of the plaintiffs' "RALLI".
Counsel for the plaintiff submits that one of the products of the plaintiff i.e.
the "RALLI SPRAYER-MONO", the defendant No. 1 has purportedly installed
the engine of the plaintiffs in the sprayer and is selling entire kit under the
mark "REALLY". The product of the plaintiff and the product of the
defendant are as follows :
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Counsel for the plaintiff submits that the defendants have adopted the
identical and deceptively similar artwork, layout, patter, getups, epical font,
design, placement, colour combination and colour scheme of the plaintiffs'
label and the products. Counsel for the plaintiff further submits that the
defendants have adopted and used the label, packet and domain name and
corporate name which are identical and deceptively similar to the plaintiffs'
registered trade mark "RALLI" and the plaintiffs' label and/or trade dress of
the products bearing the same combination of the colour, get up, colour
scheme, colour combination and layout.
Counsel for the plaintiff submits that the plaintiff came to know that
the defendant No. 2 has obtained a registration mark "REALLY" (Device)
under Class 7 for agricultural Knapsack sprayers, HTP sprayers, brush
cutter, chainshawand electric motor engine, claiming as proposed to be
used, being registered Trade Mark No. 3552649 and the plaintiffs had
already filed the ratification application for removal of the registered trade
mark of the defendant No. 2. Counsel for the plaintiff further submits that
the defendant No. 1 has applied for the registration of the trade mark
"REALLY" (Device) on 8th September, 2021 being the Trade Application No.
5122527 claiming user since 15th May, 2017 under Class 7 for agricultural
portable crop harvestor, agricultural trolley type harvestor, agricultural
portable power sprayer, earth auger, rotary hoe, mini rotary hoe,
agricultural power sprayer set, rice mill, agricultural knapsack sprayer etc.
being application No. 5122527.
Counsel for the plaintiffs submits that the plaintiffs have already filed
opposition to the said trade mark application before the concerned authority
and the same is pending for adjudication. Counsel for the plaintiffs submits
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that the defendants haveunauthorizedly used the identical mark "REALLY"
as part of its trade name in respect of the same product or goods in violation
of the statutory common law rights of the plaintiffs. Counsel for the plaintiff
prays for ad interim order restraining the defendants to use the similar
deceptively mark of the plaintiffs' "RALLI" to that of "REALLY".
Heard the learned counsel for the plaintiff. Perused the application
and the documents available on record.
At the time of hearing, enlarged photographs of the product of the
plaintiff and the product of the defendant is handed over to this Court
wherein it is found that in the agricultural spray motors, in the tank
produced by the defendant it is mentioned as "REALLY" but in the motor
parts it is mentioned as "RALLI" which is registered mark of the plaintiff.
This Court also finds that the plaintiff has applied for the trade mark
"RALLI" (Device) under Class 99 vide application No. 1973538 on 1 st of
June, 2010 with the user detail of 1st January, 1965 and is valid uptill
01/06/2030.The plaintiff has also applied for registration which was duly
registered is valid up to till 1st of July, 2030. Similarly, the plaintiff has
applied several registered mark which has been duly registered. This Court
finds that with regard to the registration mark of the defendants, the
plaintiff has already filed ratification application for removal of the registered
mark of the defendants and the same is pending for adjudication. This
Court finds that the defendants are using the mark "REALLY" which is
identical and deceptively similar to the registered mark of the plaintiff
"RALLI", "RALLI ENGINE", "RALLI SPRAYER", "RALLI AGRICULTURAL
MACHINES". This court also finds that the respondents have adopted the
mark "REALLY" which is identical and deceptively similar to the mark of the 6 plaintiff's registered mark, "RALLI", "RALLI ENGINE", "RALLI SPRAYER", "RALLI AGRICULTURAL MACHINES".
Considering the above, this Court finds that the plaintiff has made out a prima facie case, balance of convenience and inconvenience in favour of the plaintiff. This Court also finds that at this stage, an ad interim order is not granted, the plaintiff may suffer irreparable loss and injury.
In view of the above, the defendants, their men, agents, servants, assignees, distributor, any of them from using, selling, manufacturing, distributing, advertising a production of any goods under the mark "REALLY" or from using the registered mark of the plaintiff's "RALLI" or any trade mark which is identical and deceptively similar to the plaintiff's registered mark "RALLI" in any manner whatsoever till 26th of November, 2024. The plaintiff is directed to serve the copy of the application, plaint and the document to the defendants and to file their affidavit of service on the returnable date.
List the matter 26th of November, 2024.
At this stage, this Court only considered the prayer (a) of the plaintiff and the plaintiff is at liberty to move the other prayers at the appropriate stage.
(KRISHNA RAO, J.) KB