Delhi High Court
L.T. Overseas Ltd. vs Guruji Trading Co. And Anr. on 7 September, 2005
Equivalent citations: 123(2005)DLT503, 2005(31)PTC254(DEL)
Author: Sanjay Kishan Kaul
Bench: Sanjay Kishan Kaul
JUDGMENT Sanjay Kishan Kaul, J.
1. The plaintiff has filed a suit for decree of permanent injunction in respect of trademark 'DAAWAT' and for damages. The plaintiff is a limited company incorporated and registered under the Companies Act, 1956 engaged in the business of processing ad selling of rice.
2. The trademark 'DAAWAT' is stated to be adopted by the predecessor-in-interest of the plaintiff but by virtue of an agreement dated 26.03.1999 the rights were taken by the plaintiff for valuable consideration. The business is stated to be carried to under the said trademark for the last 14 years and the sale is not only in India but even in abroad.
3. In para 8 of the plaint the sales made for the period of financial years commencing from 1991-92 to 1998-99 have been given showing substantial sales running into crores of rupees. In the last financial year before filing of the suit a sum of Rs. 75 lahs is stated to have been spent on advertisement alone.
4. Defendant No. 1 is stated to be a distributor and selling agent of defendant No. 2 under the trademark 'DAVAT' carrying on the same business. The style of the writing of the word 'DAVAT' is stated to have been copied from the artistic work of thplaintiff bearing the trademark 'DAAWAT'. The defendant is alleged to have been a distributor/selling agent of the plaintiff and thus has full knowledge of goodwill and reputation of the trademark of the plaintiff. The product rice is also state do be such which is sold of the counter.
5. It is in view of the aforesaid circumstances, a decree of permanent injunction has been sought for restraining the defendants from using the trademark 'DAVAT' or any other trademark which may identical or deceptively similar to the trademark 'DAAAT' of the plaintiff. The plaintiff has also sought injunction against the defendants from infringing their copyright in the artistic work 'DAAWAT' and from passing off the product of the defendants as that of the plaintiff. The plaintiff has requested for an order of destruction of all the materials having the trademark 'DAVAT' and have sought rendition of accounts of the profits made by the defendants which have been estimated at Rs. 50 lakhs.
6. The defendants entered appearance and filed their written statement. Defendant No. 1 claims that it has been selling the products of defendant No. 2 under the trade name 'DAVAT'. Other than alleging this, there is only a mere denial in the written statement. Defendant No. 2, however, in its written statement have alleged that they have adopted the trademark 'DAVAT' in the year 1988 and the application for the registration of the trademark is pending before the Registrar of Trademarks, Mumbai. Defendant No. 2 claims prior user of trademark 'DAVAT'.
7. The defendants though appeared at the initial stage, subsequently stopped appearing and on 23.02.2004 defendants were proceeded ex parte as it is recorded by the learned Judge that after 28.05.2002 there is no representation on behalf of the defendants
8. The plaintiff has filed affidavit of evidence of Mr. Ashwini Arora, Director, who has proved the board resolution authorising the institution of suit and the same is exhibited P-1. It may be noticed that the plaintiff has been granted leave to lead secondary evidence in respect of certain documents in terms of the order dated 25.07.2005 including copies of the invoices from 1989-97 as also certain other communications since documents are stated to have been misplaced. The witness has confirmed the averments made in the plaint and has proved the various documents to show acquisition of rights by the plaintiff in the trademark 'DAAWAT' by proving the assignment deed dated 25.07.2003 which is exhibited as P-3. The sales have been proved through copies of invoices which are collectively exhibited as P-4 and the sample of the trademark 'DAAWAT' filed with the plaint has been proved as exhibit P-5.
9. The plaintiff was granted interim relief on 24.12.1999 at the stage of issuance of summons in the suit. A consideration of the aforesaid facts show that there is phonetic similarity between 'DAAWAT' and 'DAVAT' in respect of the product rice which is traded of the counter. This phonetic similarity is of such a kind that a normal customer is likely to be deceived into purchasing the product of defendant on the assumption that it is of the plaintiff. The plaintiff has a proprietary right in the trademark 'DAAWAT' and the fact that defendant No. 1 was the agent of the plaintiff shows it is an obvious attempt on the part of the defendants, who have full knowledge of the goodwill of the plaintiff to utilise the name of the plaintiff in an illegal manner. The plaintiff has filed details showing sale running into crores apart from substantial expenses on advertisement. I am thus of the considered view that the plaintiff is entitled to the decree of injunction against the defendants in this behalf.
10. In so far as the issue of damages is concerned, learned counsel for the plaintiff has drawn my attention to para 15 of the affidavit of evidence where it is stated that the defendants have deliberately stayed away from the proceedings with the object of not producing their books of accounts, so that damages could not be assessed against them. The plaintiff does not have access to the books of accounts of the defendants but the fact that the defendants have sold the goods under the trademark 'DAVAT' is itself sufficient to establish that loss has been caused to the plaintiff. The defendants themselves states that they have been trading under the trademark 'DAVAT'. The plaintiff claims a token damages and compensation of Rs. 5 lakhs as it isot possible to determine the exact nature of damages. Learned counsel in this behalf has referred to the judgment of the learned Single Judge of this Court in Relaxo Rubber Limited and Anr. v. Selection Footwear and Anr. 1999 PTC (19) 578, dealing with suca situation. That was a case with a similar position where the defendant did not file the written statement after taking time for the same and a decree was being passed under Order 8 Rule 10 of the Code of Civil Procedure, 1908. Tentative damages were claimed at Rs. 5 lakhs and Rs. 3 lakhs were awarded as damages.
11. Learned counsel also referred to another judgment of the same learned Single Judge of this Court in Hindustan Machines v. Royal Electrical Applies 1999 PTC (19) 685, where also a sum of Rs. 3 lakhs was awarded as damages.
12. In view of the aforesaid judgments and keeping in mind the fact that the defendants have deliberately kept away from this Court which in-turn has prevented this Court from assessing exact damages on account of non-disclosure of the books of accounts of the defendants, I consider it appropriate to grant damages to the tune of Rs. 3 lakhs.
13. A decree for permanent injunction is passed in favor of the plaintiff and against the defendants jointly/severally restraining defendants from themselves, their servants, agents, dealers, partners, proprietors, stockiest, representatives and all other persons acting on their behalf from using the trademark 'DAVAT' or any other trademark which may be identical or deceptively similar to the trademark 'DAAWAT' of the plaintiff or from infringing the copyright of the plaintiff in their artistic work 'DAAWAT'. The decree of permanent injunction is also passed in favor of the plaintiff and against the defendant jointly/severally from passing off their goods (rice) as that of the plaintiff.
14. The plaintiff is also entitled to decree for recovery of damages in the sum of Rs. 3 lakhs.
15. The plaintiff shall be entitled to costs.
16. The decree sheet be drawn up accordingly.
IA Nos. 12456/1999, 1500/2000 and 1501/2000No further directions are called for in these applications in view of the suit being decreed.
The applications stand disposed of.