Bangalore District Court
M/S. Hitek Fine Chemicals Private vs M/S. Clasek Fine Chemicals Private on 31 October, 2022
1
KABC170182502020
IN THE COURT OF LXXXVII ADDL.CITY CIVIL &
SESSIONS JUDGE, (EXCLUSIVE DEDICATED
COMMERCIAL COURT)
AT BENGALURU (CCH.88)
THIS THE 31st DAY OF OCTOBER 2022
PRESENT:
SRI. VIRUPAKSHAIAH H. M., B.Com., LL.M.,
LXXXVII ADDL.CITY CIVIL & SESSIONS JUDGE,
BENGALURU.
Com.O.S.No.424/2020
PLAINTIFF : M/s. Hitek Fine Chemicals Private
Limited,
No.10, First Floor, Bannerghatta
Main Road, Adugodi, Near Mico
Factory, Bangalore,
Karnataka, Pin-560 030
(By Advocate GJK)
AND
DEFENDANTS: 1. M/s. Clasek Fine Chemicals Private
Limited,
29/68, 16th Cross, Gopalappa Layout,
Near Chowdeshwari Temple,
Lakkasandra, Bengaluru,
Karnataka, PIN-560 030
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2. Mohammad Quaisar Reja
29/68, 16th Cross, Gopalappa Layout,
Near Chowdeshwari Temple,
Lakkasandra, Bengaluru,
Karnataka, PIN-560 030
(D-1 and D-2 by I BIK)
3. Mohammed Noor
S/o Hamza Ali, No.5 1st Cross,
Lakkasandra, Adugodi,
Bengaluru, Karnataka, PIN-560 030
(D-3 Exparte)
Date of Institution of the 21.12.2020
suit
Nature of the suit (suit on
pronote, suit for declaration
& Possession, Suit for Suit for recovery of money
injunction etc.)
Date of commencement of 20.10.2022
recording of evidence
Date on which judgment
was pronounced 31.10.2022
Total Duration Year/s Month/s Day/s
01 10 10
(VIRUPAKSHAIAH H M),
LXXXVII Addl.City Civil & Sessions Judge,
(Exclusive Commercial Court)
Bengaluru.
3
JUDGMENT
The plaintiff has filed the suit against the defendants for permanent injunction restraining the defendants jointly and severally, their successors, their partners, proprietor as the case may be, principal officers, agents, franchisees, assignees, licensees, employees, servants, legal representatives, affiliates, subsidiaries, heirs and any other person acting on its behalf, from using the trade marks and for recovery of a sum of Rs.5,50,000/- on account of loss of sales, reputation and goodwill of the plaintiff's trademark and trade dress caused by the activities of the defendants and decree for the said amount be passed in favour of the plaintiff from the date of suit till the date of its realization and for the cost of the suit.
2. It is the case of the plaintiff that the plaintiff has been engaged in following activities of industrial chemicals; sealants for sealing surfaces; chemicals for preventing stains; chemical preparations for sealing; Hardening 4 preparations; chemicals for cleaning stones; chemical brighteners for industrial use; adhesive compositions for use in industry; adhesive fillers for filling surface blemishes, chemical used in structural hardening, stain proofing of natural and synthetic stones it advances reflecting and finishing, structural impregnating sealer cum chemical. The plaintiffs trademarks, trade dress, label marks, the defendants are making profit by deceiving the customers and public as they are being misled that the goods are originating from the plaintiff.
3. The plaintiff's trademarks have acquired instantaneous recognition, and secondary meaning in the minds of the public with regard to the plaintiff's product which has also resulted in large sales and revenue to the plaintiff company for its products and that the plaintiff is recognised in the market for MARBLEWONDER. The plaintiff is the registered trademark owner for the trademark "MARBLEWONDER" vide registration number 1869837 which has been extensively used in the market since 1995. 5 Due to extensive use of the trademark "MARBLEWONDER" and other products to the plaintiff company solely.
4. The plaintiff is the registered trademark owner for the trademark "WHITE WONDER" vide registration number 3343877 and 3343875 which has been extensively issued in the market since 2015. Due to extensive use of the trademark "WHITE WONDER", all the customers/ clients relate the trademark "WHITE WONDER" and other products to the plaintiff company only. The plaintiff is the registered trademark owner for the trademark "WONDER ENHANCER"
vid registration number 3343881 and 3343880 which has been extensively used in the market since 2015. Due to extensive use of the trademark "WONDER ENHANCER", all the customers/ clients relate the trademark "WONDER ENHANCER" and other products to the plaintiff company only.
5. The plaintiff is the registered trademark holder of HITEK vid registration number 3343866 and 3343867 that has been used since the date of incorporation i.e., 1987 and 6 HiTEK that has been used since 2015 continuously and extensively. The plaintiff is the registered trademark owner for the trademark "MAXSHINE" vid registration number 3343869 and 3343868 which has been extensively used in the market since 2015. The plaintiff is the registered trademark owner for the trademark "NUTRACLEAN SEVEN"
vid registration number 3343870 and 3343871 which has been extensively used in the market since 2015. Due to extensive use of the trademark "NUTRACLEAN SEVEN". The plaintiff is the registered trademark owner for the trademark "HARDFIL" vide registration number 3343873 which has been extensively used in the market since 2015. Due to extensive use of the trademark "HARDFIL".
6. The defendants have adopted a deceptively similar name, trade dress and distinctive feature of the plaintiff's products, trademarks and trade names. The defendant is also manufacturing and marketing its products under deceptively similar trademark "HITECH", "CLASEK"
"CLASEK FINE CHEMICALS" "ITALIAN WONDER", ULTIMA 7 WONDER", "SATVARIO WONDER", "NUTRCLEANO", "MMIXSHINE", "WONDR", "WONDER", "STONE FILLER". To name a few. The stkyle and manner in which the defendant has been using his business name CLASEK FINE CHEMICALS with the representation of CLASEK and the use of the deceptively identical style of EK in the inimitable style of the plaintiff's trademarks and the style of EK is a blatant copy and clear violation of the rights of the plaintiff. The use of the plaintiff's above registered trademarks by the defendants shall cause incalculable harm to the goodwill and reputation of the plaintiff, which thereby leads to the dilution of the business and the trademarks belonging to that of the plaintiff. Furthermore, the defendant has been carrying out the infringing activities and illegal business within a distance of 500 metres from the place of business of the plaintiff in the address mentioned in the cause title, this intensely affects the business and reputation of the plaintiff.8
7. The impugned activities of the defendants, if not restrained immediately and if further allowed to continue, is also bound to cause tremendous confusion amongst the customers, public, industry and will induce them to falsely believe that the defendants has a direct nexus or affiliation with the plaintiff, that the defendants has been granted a license by the plaintiff to use the impugned trademark/ goods and business related activities, that the business of the defendants has been endorsed by the plaintiff, that the standard of quality has been maintained by the defendants in accordance to the high standard and quality of the plaintiff's business and goods. Accordingly, plaintiff has prayed for Judgment and decree.
8. Inspite of service of summons to the defendant No.1 and 2, the defendants have appeared through their counsel. Thereafter the defendant No.1 and 2 and their counsel remained absent, their written statement taken as not filed on 17.03.2021. Inspite of paper publication against defendant No.3, he remained absent and he is placed 9 exparte. The Director of the plaintiff company got examined himself as PW1 and got marked 28 documents as Ex.P1 to P28. The defendant No.1 and 2 and their counsel remained absent through out the proceedings and they failed to cross-examine the P.W.1 and also lead their evidence.
9. Heard, learned counsel for the plaintiff.
10. The points that arise for my consideration are:-
1. Whether the plaintiff proves that the defendants have used the registered trade marks and any other mark identical of the plaintiff as alleged ?
2. Whether the plaintiff proves that on account of illegal activities and mala fide attempt of the defendant, the plaintiff suffered damages to its reputation and goodwill trademarks ?
3. Whether the plaintiff proves that the defendants are liable to pay Rs 5,50,000/- towards loss of sale, reputation and goodwill of the plaintiff's trademark ?
4. Whether the plaintiff is entitled for permanent injunction as prayed for ?
5. Whether the plaintiff is entitled for decree as sought for ?10
6. What Order or decree ?
11. My findings on the above points are as under:
Point No.1 :- In the Affirmative.
Point No.2 :- In the Affirmative.
Point No.3 :- In the Affirmative.
Point No.4 :- In the Affirmative.
Point No.5 :- In the Affirmative.
Point No.6 :- As per the final Order for the following reasons.
REASONS
12. Point No.1 to 5 :- These points are taken up together for discussion in order to avoid repetition of facts and for convenience.
13. In order to prove the case, the plaintiff mainly relies upon the oral evidence of PW-1 and documents of Ex.P1 to P28. Learned counsel for the plaintiff would argue that the defendants with mala fide intention to obtain unfair and illegal advantage and monetary benefits by creating false impressions, its goods and services are emanating from the plaintiff and illegal activities and its business are bound to cause incalculable harm and injury 11 to the business, goodwill and reputation of the plaintiff by using the plaintiff's trademarks, Clasek fine chemicals, Mixshine, Italian Wonder, Marbelo Wonder, White Wonder, Wonder Enture, Ultima Wonder etc., and caused damage to the plaintiff to a sum of Rs 5,50,000/- on account of loss of sales, reputation and goodwill of plaintiff's trademark and trade dresses and grant permanent injunction and damages in favour of plaintiff and the oral and documentary evidence are supported the claim of the plaintiff bank, which are unchallenged and prays to decree the suit.
14. PW-1 specifically deposed by way of filing affidavit in lieu of chief-examination and reiterated the facts as averred in the plaint once again on oath and has produced the documents at Ex.P1 to P28. Ex.P.1 is the Board resolution, Ex.P.2 is the sales turnover certificate of the plaintiff, Ex.P.3 is the certificate of promotional expenditure incurred by plaintiff, Ex.P.4 is the colour printout of advertisement of defendants in various website, Ex.P.5 is the Tax invoice of defendant, Ex.P.6 to 8 are 3 downloaded 12 system generated orders of abandonment dated 05.03.2020, Ex.P.9 is the colour print of google map, Ex.P.10 is the colour printout of advertisements of defendants, Ex.P.11 is the office copy of legal notice, Ex.P.12 is the postal receipt, Ex.P.13 is the postal acknowledgment, Ex.P.14 to 19 are certificate of registered trademark for the world, Ex.P. 20 to 24 are photographs of plaintiff products, Ex.P.25 to P.27 are photographs of defendant products and Ex.P.28 is the CD containing photographs with certificate under Section 65 (b) of Indian Evidence Act. They are all clearly goes to show that the plaintiff company has authorised to one Karan Kishore Gowani who is P.W.1 to conduct the case, the plaintiff company's sales turnover total Rs 16,60,43,850=00 for 10 financial years, exhibition expenses of plaintiff company for financial year 2015-16 to 2019-20 for Rs 48,91,053=00, colour print out of advertisement of defendants in various websites, tax invoices of defendant, downloaded system generated orders of abandonment, colour print of google 13 map, advertisements of defendants, photograph of defendant and plaintiffs and registered trade mark for the world, which are all supported to the case of the plaintiff and they can be easily assessed that the defendants are using the registered trademarks of the plaintiff as alleged against the defendants and gain profit and caused harm and injury to the business, goodwill and reputation of the plaintiff and caused damages to the plaintiff. Hence it is necessary to grant amount to the plaintiff towards damages and to pass order of restraining against the defendants, otherwise the plaintiff will be put to great and irreparable loss, if granted there is no hardship would be caused to the defendants.
15. Though the defendant No.1 and 2 appeared through their counsel and sufficient opportunity given to them to file their written statement and contest the suit, but they failed to do so. The defendant No.3 remained exparte. It presumes that they have admitted the case of the plaintiff. The proceedings being civil in nature, the 14 appreciation of evidence necessarily under the touch stone of preponderance of probabilities as against the proof beyond all reasonable doubt in a criminal case. The very fact that the defendants remained absent and not contested the case in any manner indicates that they are not disputing the claim of the plaintiff alleged against them in the plaint. When the defendants does not challenge the evidence of plaintiff, enter into the witness box and deny the case of the plaintiff and states their own case on oath and does not offer themselves to be cross-examined by the plaintiff, a presumption would arise that a case set up by the plaintiff is correct. It would give rise to an inference adverse against them and drew a presumption under Section 114 of Evidence Act against the defendants.
16. On scrutinizing the oral evidence of P.W.1 and the documents, there is no any reason to discard the same. There is no any reason placed by the defendants for non- appearing and contest the suit. The transaction involved in the suit is a commercial one. Viewed from any angle of the 15 plaintiff's case, no any reason to deny the claim. In view of the above facts and circumstances and the material on record, I am of the view that the suit of the plaintiff is decreed. Hence, answer point No.1 to 5 in the Affirmative.
17. Point No.6 :- For the aforesaid reasons in point No.1 to 5, I proceed to pass the following:
ORDER The suit of the Plaintiff is hereby decreed with costs.
The defendants are hereby directed to pay a sum of Rs 5,50,000/- to the plaintiff towards damages on account of loss of sales, reputation and goodwill.
The defendants are hereby permanently restrained jointly and severally and any other person on their behalf from using the trademarks HITECH, EK, CLASEK, CLASEK 16 FINE CHEMICALS, MIXSHINE, ITALIAN WONDER, MARBLEWONDER, WHITE WONDER, WONDER ENHANCER, ULTIMA WONDER, SATVARO WONDER, under respective registration number, NUTRCEANO, NUTRACLEANSEVEN, STONEFILLER, WHITEFIL AND HARDFIL or any other mark identical and deceptively similar to the plaintiff trade marks and/or trade dresses.
The Advocate for the plaintiff is directed to file Memorandum of Cost before the Office within 5 days from today.
Draw decree accordingly.
(Dictated to the Stenographer, typed by him, corrected and then pronounced by me in open Court on this the 31st day of October, 2022).
(VIRUPAKSHAIAH H M), LXXXVII Addl.City Civil & Sessions Judge, (Exclusive dedicated Commercial Court) Bengaluru.
17ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF THE PLAINTIFF PW-1 Mr. Karan Kishore Govani LIST OF DOCUMENTS EXHIBITED ON BEHALF OF THE PLAINTIFF Ex.P.1 Board resolution Ex.P.2 Sales turnover certificate of the plaintiff Ex.P.3 Certificate of Promotional expenditure incurred by plaintiff Ex.P.4 Color printout of advertisement of defendants in various website Ex.P.5 Tax invoice of defendant Ex.P.6 to 3 Download System generated orders of Ex.P.8 abandonment dated 05.03.2020 Ex.P.9 Color printout of google map Ex.P.10 Color printout of advertisements of defendants Ex.P.11 Office copy of legal notice Ex.P.12 Postal receipt Ex.P.13 Postal acknowledgment Ex.P.4 to Certificate of Registered trademark for the Ex.P.19 world 18 Ex.P.20 to Photograph of plaintiff products Ex.P.24 Ex.P.25 to Photograph of defendant products Ex.P.27 CD containing photographs with Ex.P.28 Certificate u/S.65(b) of Indian Evidence Act, LIST OF WITNESSES EXAMINED ON BEHALF OF THE DEFENDANTS NIL LIST OF DOCUMENTS EXHIBITED ON BEHALF OF THE DEFENDANTS NIL (VIRUPAKSHPAIAH H M), LXXXVII Addl.City Civil & Sessions Judge, Bengaluru.