Madras High Court
Aqua Pump Industries vs Rakeshkumar on 27 November, 2019
Author: N.Sathish Kumar
Bench: N.Sathish Kumar
C.S.No.144 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 27.11.2019
Coram
The Honourable Mr.Justice N.SATHISH KUMAR
C.S.No.144 of 2019
1. Aqua Pump Industries,
rep. by its Managing Partner,
Mr.Ramaswamy Kumaravelu
Thudiyalur 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
Thudiyalur 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
Rakeshkumar .. Defendant
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C.S.No.144 of 2019
Prayer : Plaint under Order VII, Rule 1 & 2 of C.P.C., and Order IV Rule 1 of
O.S.Rules, read with Sections 27, 134 and 135 of the Trademarks Act, 1999
praying for a judgment and decree
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 plaintiff's
registered trademark TEXMO/TEQMO as such or prefix or suffix in any
mobile and mobile accessories, scientific, nautical, surveying, photographic,
cinematographic, optical, weighing, measuring, signalling, checking
(supervision) life saving and teaching apparatus and instruments, apparatus and
instruments for conducting, switching, transforming, accumulating, regulating
or controlling electricity, apparatus for recording, transmission or reproduction
of sound or images; magnetic data carriers, recording discs, compact discs,
dvds and other digital recording media; mechanisms for coin-operated
apparatus; cash registers; calculating machines, data processing equipment,
computers, computer software; fire-extinguishing apparatus or in any other
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 trademark, which is in any way visually, or phonetically similar to
the plaintiff's registered trademark, TEXMO/TEQMO or in any manner,
infringing the plaintiff's registered trademark Nos.315049 (SP-1), (SP-II) and
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C.S.No.144 of 2019
315050 (SP-1) (SP-II) renumbered as 2702778, 2702779, 2702780 and
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 plaintiff's
registered trademark TEXMO/TEQMO as such or prefix or suffix in any
mobile and mobile accessories, scientific, nautical, surveying, photographic,
cinematographic, optical, weighing, measuring, signalling, checking
(supervision) life saving and teaching apparatus and instruments, apparatus and
instruments for conducting, switching, transforming, accumulating, regulating
or controlling electricity, apparatus for recording, transmission or reproduction
of sound or images; magnetic data carriers, recording discs, compact discs,
dvds and other digital recording media; mechanisms for coin-operated
apparatus; cash registers; calculating machines, data processing equipment,
computers, computer software; fire-extinguishing apparatus or in any other
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 trademark, which is in any way visually, or phonetically similar to
the plaintiff's registered trademark, TEXMO/TEQMO or in any manner,
passing off the plaintiff's goods.
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C.S.No.144 of 2019
c) Directing the defendant to surrender to the plaintiffs all the goods,
packing materials, cartoons, advertisement materials, and hoardings, letter-
heads, visiting cards, office stationery and all other materials
containing/bearing the Trademark TEQMO or other deceptively similar to the
plaintiff's Trademark TEXMO.
d) Directing the defendant to render an account of profits made by them
by the use of the impugned trademark TEQMO on the goods referred in prayer
(a) and (b) and decree the suit for the profits found to have been made by the
defendant, after the defendant had rendered accounts.
e) Directing the defendant to pay to the plaintiffs the costs of the suit.
For Plaintiffs : Mr.Gladys Daniel
For Defendant : Set exparte
JUDGMENT
The suit has been filed for the relief as stated in the prayer portion of this Judgment.
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2. It is the case of the plaintiffs that, that they are the manufacturers of different types of electrical motors and pumps. Originally, the Managing Partner of the plaintiffs 1 and 2, (i.e. Mr.Ramaswamy Kumaravelu) and his brother (Late Ramachandran) were trading as TEXMO Industries and secured registration of the trademark TEXMO w.e.f. 21.05.1976 as Joint Proprietors in respect of electrical motors, pumps included in class-7.
2.1 The first plaintiff commenced its business on 01.04.1974 as a licensed user of the above trademark TEXMO and they started manufacturing and selling motors, deep-well jet pumps, jet monoblocks, multistage jet pumps and monoblocks, centrifugal pumps and monoblocks, lateral channel pumps and lateral channel monoblocks, submersible monoblocks, reciprocating pumps .
2.2 Similarly, the second plaintiff commenced its business on 12.11.1982 as a licensed user of the trademark TEXMO and started manufacturing and selling the submersible motors, submersible pumps and submersible pump sets (excluding submersible mono block presently 5 http://www.judis.nic.in C.S.No.144 of 2019 manufactured by TEXMO Industries), components and spares for the above products.
2.3 The Registrar of Trademark passed an order dated 20.04.1998, making the plaintiffs as the registered Proprietors of the trademark TEXMO for the aforementioned goods. By virtue of the said order, the plaintiffs became registered Proprietors of the trademark TEXMO in respect of the specific goods mentioned above and they have been extensively using the trademark all over India continuously and substantially in respect of the goods allotted to them from the respective dates of the formation of the Firms. The plaintiffs have received prestigious awards on account of the superior quality of their goods and export business and the turnover also increased every year right from its inception, i.e. from 1979 to 2018.
2.4 While that being so, the plaintiffs came to know that, in and around July, 2018,the defendant has made application for registration of the trademark TEQMO under A.No.3849168 and is proposing to manufacture, sell and 6 http://www.judis.nic.in C.S.No.144 of 2019 distribute mobile, mobile accessories, scientific, nautical, surveying, photographic, cinematographic, optical, weighing, measuring, signalling, checking (supervision) life saving and teaching apparatus and instruments, apparatus and instruments for conducting, switching, transforming, accumulating, regulating or controlling electricity, apparatus for recording, transmission or reproduction of sound or images; magnetic data carriers, recording discs, compact discs, dvds and other digital recording media; mechanisms for coin-operated apparatus; cash registers; calculating machines, data processing equipment, computers, computer software; fire-extinguishing apparatus under this impugned trademark.
2.5. Despite the plaintiffs initiation of opposition proceedings before the Trademark Registry, Delhi, vide No.955367, the defendant has adopted the impugned trademark, and continued to sell their products. Hence, the present suit.
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3. On the side of the plaintiffs, one Mr. T.Narendran, who is the Vice President of the plaintiffs' Company has been examined as P.W.1 and marked twelve documents as Exs.P.1 to P.12. So far as the defendant is concerned, despite service of notice on them and paper publication effected, there is no representation. Hence, he was set ex parte by order, dated 07.11.2019.
4. On a perusal of Exs.P3 & 4, it is seen that the Trademarks Registry has issued certificates of registration of Trade Mark 'TEXMO' in favour of Mr.R.Kumaravelu and Mrs.Homai Kumaravelu trading as M/s.Aqua Pump Industries (first plaintiff) and M/s Aqua Sub Engineering (second plaintiff) at Thudiyalur Post, Coimbatore – 641 034. Further, the plaintiffs have also marked the defendant's trademark application for the mark 'TEQMO' as Ex.P.11 and the objection proceedings initiated by them as Ex.P.12. Thus, as per Exs.P.3 and P.4, it is clear that the plaintiffs are the registered proprietors of the trademark 'TEXMO' vide trademarks registration Nos.2702778, 2702780, 2702779 and 2702781, dated 22.04.2014, and they have the exclusive right to use the trade mark in respect of their product (viz., 8 http://www.judis.nic.in C.S.No.144 of 2019 submersible motors, pumps etc.). In view of the exclusive right to use the word, ''TEXMO' by the plaintiffs, the adoption of the mark, ''TEQMO', with respect to the products, like mobile and mobile accessories, scientific, nautical, surveying, photographic, cinematographic, optical, weighing, measuring, signalling, by the defendant would clearly amounts to infringement of trademark of the plaintiffs. Despite the fact that the plaintiffs have raised objection for such usage, the defendant is selling their products by using the plaintiffs' trademark, and the attempt is nothing but to infringe the plaintiffs trademark and to pass off their products and thereby, exploiting the commercial goodwill earned by the plaintiffs for all these years.
5. Further, this Court for the sake of effective disposal of the suit, has compared the logos of the plaintiffs' trademark with that of the defendant's mark, and, it is seen that the defendant has merely changed the consonant sound from TE'X'MO into TE'Q'MO which would obviously make no difference in the minds of the public. In this connection, it would be beneficial to depict the logos of both the parties. The plaintiffs trademark logo is shown 9 http://www.judis.nic.in C.S.No.144 of 2019 under the caption 'A' and the defendant's mark is shown under the caption 'B' as follows:-
'A' 'B' 10 http://www.judis.nic.in C.S.No.144 of 2019
6. Therefore, it is clear that the defendant has malafide intention to infringe the registered trademark of the plaintiffs firm and by merely changing the consonant sound from TE'X'MO into TE'Q'MO would make no difference in the minds of the public. The defendant is knowingly exploiting this commercial goodwill attached to the plaintiffs' trademark TEXMO. Thus, it is a calculated attempt to infringe the registered trademark of the plaintiffs' and deceive the public into buying the defendant's goods believing them to be that of the plaintiffs'. The defendant is not entitled to do so under law as the same amount to infringement in terms of Section 29 of the Trademarks Act, 1999.
7. Thus, in the absence of any evidence and documents on the side of the defendant to controvert the evidence/documents of the plaintiffs, this Court has no hesitation to hold that the plaintiffs have proved their case. Accordingly, the suit is drecreed with respect to prayer a) and b). Further, this Court directs the defendant to destroy all the goods, packing materials, cartoons, advertisement materials, and hoardings, letter-heads, visiting cards, office stationery and all other materials containing/bearing the Trademark 11 http://www.judis.nic.in C.S.No.144 of 2019 TEQMO or other deceptively similar to the plaintiff's Trademark TEXMO within two months. No costs.
27.11.2019 sd Index : yes/no 12 http://www.judis.nic.in C.S.No.144 of 2019 N.SATHISH KUMAR, J., sd C.S.No.144 of 2019 27.11.2019 13 http://www.judis.nic.in