Madras High Court
Having Branch Office At vs M/S Sachin Chemicals Private Limited on 21 August, 2019
Author: Krishnan Ramasamy
Bench: Krishnan Ramasamy
C.S.No.603 of 2011
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 21.08.2019
CORAM
THE HONOURABLE MR.JUSTICE KRISHNAN RAMASAMY
C.S. No.603 of 2011
M/s.Power Soaps Ltd.,
Rep. by its Managing Director
Mr.K.Dhanapal
S/o.R.Krishna Nadar,
R.S.No.94/1, Sembiapalayam,
Embalam Main Road,
Korkadu Post, Villianur [via]
Pondicherry-605 110.
Having Branch Office at
Sri Jayalakshmi Apartments,
62-B, North Boag Road,
T.Nagar,
Chennai-600 017. ... Plaintiff
..Vs..
1.M/s Sachin Chemicals Private Limited
rep. by its Managing Director,
Industrial Area
A.B.Road, Maksi,
Shajapur District
Madhya Pradesh
2.M/s.Vasuraj Enterprises
233, Lahoti Compound
R S N Building
Kalyan Road
Bhiwandi, Thane District
Maharashtra-421 302 ... Defendants
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C.S.No.603 of 2011
Plaint filed under Order IV, Rule 1 O.S.Rules and under Order
VII Rule 1 CPC Read with VII Rule 1 of C.P.C. Read with Sections
27, 28, 29, 134, 135 of Trademarks Act, 1999 Read with Sections
51, 55 and 62 of The Copy Right Act, 1957 1111praying for:
(A) A perpetual injunction restraining the
defendants, by themselves, their men, directors,
servants, agents, distributors, stockists, franchisees,
successors in interest, representatives or any of them
from in any manner infrining the Plaintiff's various
registered Trademarks including the Trade Mark "SUPER
POWER" and other marks by use of Trademark
"SUPER POWER" or any mark deceptively similar to
Plaintiff's registered trademarks or in any other manner
whatsoever;
(B) A perpetual injunction restraining the
defendants, by themselves, their men, directors,
servants, agents, distributors, stockists, franchisees,
successors in interest, representatives or any of them
from in manner passing off and enabling others to pass
off the first defendant's aforesaid products as and for the
Plaintiff's aforesaid products by use of the trademarks
"Supreme POWER" or any mark deceptively similar to
Plaintiff's registered trademarks or in any other manner
whatsoever;
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(C) A perpetual injunction restraining the
defendants, by themselves, their men, directors
servants, agents, distributors, stockists, franchisees,
successors in interest, representatives or any of them
from in any manner committing acts of copyright
infringement by printing, stocking and using "Supreme
POWER" which is a substantial reproduction of Plaintiff's
trademarks "SUPER POWER" per se and with
prefix/suffix in get up, layout, presentation, artistic
work, lettering style, placement of expressions or in any
other manner whatsoever;
(D) Preliminary decree be passed favouring the
Plaintiff and directing the defendants to render true
account of profits made by the use of trademark
"Supreme POWER" and final decree be passed in
favour of the Plaintiff for the amount of profits said to
have been made by the defendants after they have
rendered accounts;
(E) The defendants be ordered to surrender to the
Plaintiff for destruction all labels,dyes, blocks, moulds,
plates, screen prints, packing materials, visiting cards,
letterheads, printer bills, cartons, sachets and other
material bearing the infringing mark "supreme
POWER" or any mark deceptively similar to Plaintiff's
artistic work and trademarks "SUPER POWER" and with
prefix/suffix with the work POWER labels;
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C.S.No.603 of 2011
(F) For costs of the suit;
For Plaintiff : Mr.K.Rajasekaran
Defendants : Defendants set exparte
JUDGMENT
This suit has been filed by the Plaintiff against the defendants seeking perpetual injunction restraining the defendants and his men from infringing the Plaintiff's registered Trade Marks including Trade Mark "Super Power" by use of Trade Mark "Supreme Power" , a perpetual injunction against Plaintiff's Copy Right, redemption of accounts and surrender of all materials used for and bearing infringing mark of "Supreme Power" and also cost of the suit.
2. The case of the Plaintiff is that he is the proprietor of several trademarks, the significant part of which is the expression "POWER" adopted by them in the marketing of their goods viz., Detergent Cakes, Detergent Powder, Beauty Soaps, Herbal soaps, Shampoo, Washing Power, Hair care products manufactured and sold by them even since 1991. The Plaintiff is responsible for drawing nexus between the mark "POWER" with or without 4/16 http://www.judis.nic.in C.S.No.603 of 2011 prefix/suffix and relative goods viz., Detergents Soaps, Detergent Powder, Bath Soaps, Shampoo etc.
3. It is stated that the distinctive features of Plaintiff trade mark labels and copyright in the artistic work are all the original work of the Plaintiff. The Plaintiff describes herein one such Power Label which comprises of the following:
A] The expression "POWER" lettered peculiarity in a strong and bold manner.
B] The prefix/suffix written in small sized letters at the top left hand side of the trade expression "POWER" which is represented in the center of the label.
C] The expression "DETERGENT CAKE" written at the bottom of the expression "POWER".
D] A bold tag in a distinct colour on the side of the label on which is inscribed certain words relevant to the label.
4. It is stated that the Plaintiff is the honest, legal and the prior owner of the following trademarks registered in respect of Detergent Cakes, bath Soap, Detergent Powder etc., under Class 3; brand name and application numbers of which are enumerated below: The Plaintiff is the owner of several other trade marks with the trade expression "POWER" in respect of shampoos, beauty 5/16 http://www.judis.nic.in C.S.No.603 of 2011 soaps, herbal soaps, Detergent powder, washing powder of different aromas under Class 3 which are also under various stages of registration with the Trade Marks Registry.
S.NO. Trade Mark Application Status
No.
1 NEW POWER GOLD DETERGENT 1122140 Registered
CAKE
2 POWER MACRO 1260800 Registered
3 NATURE POWER SHAMPOO 130046 Registered
[JASMINE]
4 NATURE POWER 1330047 Registered
SHAMPOO[BLACK]
5 TRIPLE POWER 886152 Registered
6 ACTIVE POWER 1380849 Registered
7 NATURE POWER BEAUTY SOAP 1389116 Registered
8 NATURE POWER HERBAL SOAP 1389118 Registered
9 ACTIVE POWER DETERGENT 1389119 Registered
CAKE
10 TRIPLE POWER DETERGENT CAKE 578906 Registered
11 POWER GOLD 1122136 Registered
12 TRIPLE POWER 1122137 Registered
13 NATURE POWER 1122138 Registered
14 TRIPLE POWER 1122139 Registered
15 SUPER POWER 1122141 Registered
16 NATURE POWER 1122145 Registered
17 TRIPLE POWER 1122146 Registered
18 NATURE POWER 1122147 Registered
19 MULTI POWER MAX 1265250 Registered
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S.NO. Trade Mak Application Status
No.
1 POWER DETERGENT WITH LOGO 1122143 Under Registration
2 NATURE POWER SOAP LOGO 1122144 Under Registration
3 POWER GOLD LOGO 1122342 Under Registration
4 DR POWER 1411958 Under Registration
5 HI POWER DETERGENT 1514120 Under Registration
5. The Plaintiff also deal in several other products such as Bleaching preparations, Hair Lotions, Cosmetics, Perfumery, Essential Oils, Hair Lotions in Class 3 under the trade expressions POWER GOLD and POWER LOGO.
6. The Plaintiff is the registered owner of the artistic expression contained in their registered trademarks TRIPLE POWER under the Copyright Act, 1957. The Plaintiff is also the registered owner of the trademark "MULTI POWER MAX" under Application No.63302 in U.A.E. copy of the said registration certificate was already filed.
7. It is further stated that Trademarks of the Plaintiff have attained great popularity and trust worthiness and are held in high esteem owing to the credit of consistent advertisements vide 7/16 http://www.judis.nic.in C.S.No.603 of 2011 newspapers, magazines, televisions, radio, posters, sponsorships, pamphlets, handouts, books, journals, wall painting etc., and promotional activities undertaken by them from time to time since its inception.
8. The Sales turnover of "POWER" products of the Plaintiff:
Financial Year Turnover in Rs.
01.04.1995 to 31.03.1998 9,23,89,297.00
01.04.1999 to 31.03.2008 48,55,091,760.00
01.04.2008 to 31.03.2009 123,35,02,948.76
01.04.2009 to 31.03.2010 156,45,87,885.68
9. The gross advertisement and Sales promotion expenses incurred by the Plaintiff in respect of trade marks with the stress/catchy/prominent word "POWER" interalia, in respect of our products are furnished hereunder:
Year Amount in Rupees
01.04.1995 to 31.03.1998 17,10,665.00
01.04.1999 to 31.03.1998 28,07,29,441.00
01.04.2008 to 31.03.2009 9,20,38,872.00
01.04.2009 to 31.03.2010 5,52,17,388.92
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10. The Plaintiff being the first person to adopt, use and register the trademark "SUPER POWER" with different prefix/suffix as aforesaid in respect of Detergent Powder, Detergent Soaps, Bath Soap, Shampoo, Toiletry goods, etc., and therefore they are the true owners of the aftermentioned Trademarks.
11. The Plaintiff being the first person to adopt, use and register the trademark "SUPER POWER" with different prefix/suffix as aforesaid in respect of Detergent Powder, Detergent Soaps, Bath Soap, Shampoo, Toiletry goods, etc., are therefore the true owners of the aforementioned Trademarks.
13. The trademark "TRIPLE POWER" inter-alia of the Plaintiff, essential future of which is the expression "POWER" was registered under Trade Mark No.578906 in Class 3 as on date 10.08.1998 and was renewed subsequently from time to time and is subsisting till date. The Registered Trade Mark TRIPLE POWER under No.886152 in Class 3 as on date 11.11.1999 was also renewed subsequently and is subsisting till date. The mark "POWER" was registered under Trademark No.1122141 in Class 3 9/16 http://www.judis.nic.in C.S.No.603 of 2011 as on 2002.
13. While So, it came to the knowledge of the Plaintiff that the First Defendant is engaged in the manufacturing and selling of Detergent cakes and powders in the name of "supreme POWER"
while the second Defendant deals in the said goods of the First Defendant. There is deception in the appearance of the Defendant's product besides phonetic resemblance. By virtue of very long association with the word "POWER" and the reputation they have built over the years, people identify the mark "SUPER POWER"
with that of the Plaintiff. There are many marks with the word "POWER" which belong to the Plaintiff. "POWER" being the catchy word, the prefix and suffix are innocuous. In the detergent industry, the word "SUPER POWER" is identified with that of them it also being their corporate identity and in fact, the Plaintiff claims that their mark is a well known mark.
14. After coming to know that the First Defendant is using the mark "Supreme POWER", the Plaintiff had caused a cease and desist notice to the first defendant on 20.02.2011. On 03.03.2011, the first defendant had issued a reply legal notice, refusing the 10/16 http://www.judis.nic.in C.S.No.603 of 2011 Plaintiff's claim and insisting that the word "SUPER POWER"
cannot be monopolized and it is only a dictionary word.
15. The mark "supreme POWER" of the Defendants, as pointed out in the sachet of their product is deceptively similar to that of the Plaintiff in font and Trade Dress apart from being visually similar and phonetically. The word "SUPER POWER" is predominant whereas the word "supreme" is in a very small font and less predominant. Likewise, the Trade Dress is also deceptively similar to that of the Plaintiff. Hence, the end consumers will undoubtedly be convinced that the product of the First Defendant emanates from the Plaintiff Company.
16. It is further stated that the First Defendant is quite aware of the user and reputation of the Plaintiff's renowed Trade Marks containing the expression "SUPER POWER" with several prefix and suffix which have been popularized vide extensive advertisements. It is pertinent to note that the Plaintiff is the owner of trademark "SUPER POWER" for DETERGENT/SOAP CAKES and that the Defendant has malafidely adopted the distinctively similar Trade Mark "Supreme POWER" with deliberate and dishonest intention 11/16 http://www.judis.nic.in C.S.No.603 of 2011 of infringing/passing off their trade mark as and for the well known trade mark of the Plaintiff.
17. The comparative table of the marks of the Plaintiff and the defendant is given in the following table:
S.No. PLAINTIFF DEFENDANT
01 POWER Supreme POWER
02 Detergent and Soap Cakes Detergent and Soap Cakes
03 The word "POWER" The word "POWER"
written very boldly written very boldly
04 The word "super" written The word "supreme"
in small font written in small font
18. The wrappers of the Detergent cakes of the First Defendant are with colours GREEN, YELLOW AND READ which are being used by the Plaintiff products. Therefore, the use of alleged Trademark "supreme POWER" by the Defendants amounts to infringement of the Plaintiff registered Trademark and infringement of the copyright of the Plaintiff. Therefore the Plaintiff states that they are entitled to delivery up and destruction of all labels, dyes, blocks, plates, moulds, screen prints, packing materials, cartons, sachets, name boards, visiting cards, letter pads, printed bills and other materials bearing the infringing "supreme POWER" in India which is substantial reproduction by Plaintiff's registered trademark 12/16 http://www.judis.nic.in C.S.No.603 of 2011 and copyright.
19. Despite the summons being served on the defendants and his name printed in the causelist there was no representation on behalf of the defendants when the matter was called on 10.07.2019. Hence, the defendants were set exparte. Thereafter, the matter was listed before the Additional Master II for recording exparte evidence.
20. In order to substantiate their claim one Mr.Sanjay Madan (P.W.1) was examined on the side of the Plaintiff and Exhibits P1 to P30 were marked on their side.
21. I have heard the learned counsel for the Plaintiff and also gone through the Proof Affidavit as well as the documents filed on the side of the Plaintiff.
22. The plaintiff has achieved a turnover of Rs.156,45,87,885.68 during the year ending 31.03.2010 and spent about Rs.5,52,17,388.92 towards advertisement expenses to popularize the brand name in order to promote sales of their 13/16 http://www.judis.nic.in C.S.No.603 of 2011 product. Further, the plaintiff has been using the trademark ''Power'' since 1991 and obtained various trademarks under different clauses with the word “power''. In view of the above fact, certainly, the plaintiff is entitled to use the word 'power' exclusively in relation to their business. Further, this Court finds that the plaintiff has obtained distinctiveness for the use of the word “Power” in respect of its products.
23. Further, on a perusal of Exs.P1 to P21-Copies of the various Registered Trade Mark certificates, this Court finds that the Plaintiff got the mark ''Power'' registered under the Trade Marks Act. Further, on a perusal of Ex.P24 attested photocopy of the infringing soap wrapper of the first defendant and Ex.25- Attested photocopy of the invoice dated 12.02.2011 of the second defendant and Ex.P29- original sample wrapper of the Plaintiff and Ex.P30- Original sample wrapper of the Defendant, this Court is of the view that the defendants are clearly infringing the registered Trademark of the Plaintiffs and hence they are entitled to the relief as prayed for.
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24. Resultantly, the suit is decreed as prayed for with costs.
21.08.2019 arr 15/16 http://www.judis.nic.in C.S.No.603 of 2011 KRISHNAN RAMASAMY,J., arr C.S. No.603 of 2011 09.09.2019 16/16 http://www.judis.nic.in