Bangalore District Court
; M/S Sri.Venkateshwara Sweet Meat ... vs ; M/S Sri.Venkateshwara Sweets & Bakery on 11 September, 2015
IN THE COURT OF XVIII ADDL. CITY CIVIL JUDGE
AT BENGALURU CITY [CCH NO.10]
Dated this day the 11th September, 2015
PRESENT
SRI K.AMARANARAYANA., B.Com., LL.M.
XVIII Addl. City Civil Judge.
O.S.No.1370/2015
Plaintiff ; M/s Sri.Venkateshwara Sweet Meat Stall,
No.181, Balepet,
B A N G A L O R E - 560053.
Represented by its Managing
Partner V.Nagaraj,
S/o Late Venkatachalapathy Setty,
Aged about 62 years,
[By.Sri.H.S.H. Advocate for Plaintiff]
--V/S--
Defendant ; M/s Sri.Venkateshwara Sweets & Bakery,
No.3398/A, 2667,
Paramanna Layout,
B.H.Road, Opp: Bus Stand &
Opp: J.P.Nursing Home,
Nelamangala,
Bangalore - 562 123.
Retd.p.by its Proprietor
Subramani
[By Sri.K.N.G.Advocate for defendant]
Date of institution of suit ; 10.02.2015.
2 O.S.No.1370/2015
Nature of the suit [Pronote, ; Permanent Injunction,
Suit for declaration and ; Render accounts and
Possession, suit for Injunction Damages.
etc]
Date of the commencement ; 07.09.2015.
of recording of the evidence
Date on which the judgment ; 11.09.2015.
was pronounced.
Total Duration ; Year/s Month/s Day/s
00 07 01
(K.AMARANARAYANA)
XVIII Addl. City Civil Judge, Bengaluru.
JUDGMENT
The plaintiff filed this suit against the defendant prays to pass judgment and decree of permanent injunction restraining the defendant, their servants, agents or any one claiming through them in any manner infringing of the plaintiffs well established registered copyright SVSMS by using offending copyright SVSB or any other similar get-up, design and colourable imitation or plaintiffs registered copyright for manufacturing and marketing of sweets and savories, further restraining the defendant, their servants or agents or any one claiming through them in any manner infringing and passing off the plaintiffs well established 3 O.S.No.1370/2015 registered trademark 'SRI VENKATESHWARA SWEET MEAT STALL by using offending Trademark SRI VENKATESHWARA SWEETS & BAKERY or any other trademark which is deceptively similar to plaintiff's trademark for manufacturing and marketing of sweets and savories and direct the defendants to surrender to the plaintiff the entire stock of unused offending trademark bills, negatives, positives, transpencies, blocks for destruction, to direct the defendants to render honestly and faithfully true account of the profit that the defendants have derived by promoting their company by using offending trademark and directing payment of such profits to the plaintiff by way of damages for infringing the trade mark of plaintiff, and to direct the defendants to pay a sum of Rs.25,000/- per month from the date of filing of the suit towards damages and infringing the plaintiffs trademark SRI VENKATESHWARA SWEET MEAT STALL and for costs.
2. Case of the plaintiff in brief is as follows;
That one Venkatachalapathy Setty who is the father of plaintiff V.Nagaraj commenced business under the trading style 'SRI VENKATESHWARA SWEET MEAT STALL' at No.G.46, Rangaswamy Temple Street, Balepet, Bangalore - 560053 in the year1954 as a proprietary concern. The trading style has become popular and it became household name very soon in Bangalore and other neighbouring districts. The said Venkatachalapathy Setty 4 O.S.No.1370/2015 moved his business from old premises to present premises at No.181, Balepet, Bangalore - 560053 in the year 1972. That on 1.8.1974 he changed the proprietary concern into a partnership concern by taking his only son V.Nagaraj as a partner. The trading style of SRI VENKATESHWARA SWEET MEAT STALL is distinctive with plaintiff on account of continuous user since 1954. In order to secure title in respect of SRI VENKATESHWARA SWEET MEAT STALL, plaintiff got registered the trademark in trademark No.1501855 in Class-29, 1501852 in Class-30, 1501854 in Class-29. The plaintiff have adopted trademark SRI VENKATESHWARA SWEET MEAT STALL with a particular artistic work, design and get-up the same in distinctive with the plaintiff. They have protected under the Copyright Act 1947 under No.A83434 and copyright in respect of SVSMS under No.A-83435/2008 and the said registrations are valid and subsisting. They came to know that the defendant adopted the trademark/copyright/trading style SRI VENKATESHWARA SWEETS & BAKERY for manufacturing and marketing sweets and savories which is deceptively similar to their trademark within the territorial jurisdiction of this court. It amounts to infringement of their trademark and copyright. The defendant is deliberately adopted their trademark and is liable for action of passing off. The defendant is selling the sweets at cheaper rate by using sub-standard materials and thereby the reputation of plaintiff in respect of SRI VENKATESHWARA SWEET MEAT STALL is being diluted. The trademark and copy 5 O.S.No.1370/2015 right adopted by the defendant is phonetically, visually and structurally similar to their well-established trademark style SRI VENKATESHWARA SWEET MEAT STALL and SVSMS. The colour schedule and design adopted by the defendant in respect of SRI VEKATESHWARA SWEET & BAKERY is also exactly similar to their trademark/copyright SRI VENKATESHWARA SWEETS MEAT STALL and SVSMS. The defendant has no authority to use the trademark SRI VENKATESHWARA SWEETS & BAKERY since the plaintiff is a prior user of trading style SRI VENKATESHWARA SWEET MEAT STALL. Hence the suit is filed for the above relief's.
3. The defendant though appeared through his counsel despite granting sufficient opportunity has not chosen to file the written statement. Hence, case is posted for plaintiff's evidence.
4. The plaintiff in order to prove its case has examined its Managing Partner as PW1, got marked Ex.P1 to Ex.P19 and closed its side.
5. Heard the arguments of learned counsel Sri.S.S. for Sri.H.S.H advocate appearing for plaintiff. The learned counsel Sri.H.S.H., appearing for the plaintiff has relied upon the decisions reported in (1) 2004(3) SCC 90 (MIDAS HYGIENE INDUSTRIES (P) LTD & ANOTHER -VS- SUDHIR BHATIA 6 O.S.No.1370/2015 AND OTHERS), & copy of judgment passed by this court in OS.No.7060/2014 dated 21.1.2015
6. The points that arise for my consideration is as follows;
1. Whether the plaintiff proves that the defendant has infringed the trademark 'SRI VENKATESHWARA SWEET MEAT STALL'?
2. Whether the plaintiff proves that the defendant has infringed its Copy Right by using the Logo SVSMS?
3. Whether the plaintiff is entitled for the relief as sought?
4. To what order or decree?
7. My answer to the above points is as follows;
Point No.1 ; Affirmative.
Point No.2 ; Affirmative.
Point No.3 ; Affirmative.
Point No.4 ; As per final order.
For the following reasons.
REASONS
8. Point No.1 to 4;- To avoid repetition all the points taken together for consideration. The oral evidence of PW1 and the 7 O.S.No.1370/2015 documentary evidence Ex.P1 to Ex.P19 are relevant for consideration. PW1 has re-iterated the averments of plaint. It is to be noted that the oral evidence of PW1 and the documentary evidence Ex.P1 to Ex.P19 has not been challenged by the defendant. Therefore no reason to reason to disbelieve the oral evidence of PW1 and documentary evidence Ex.P1 to Ex.P19. It is seen from the oral evidence of PW1 that the plaintiff is a partnership firm carrying on business of manufacturing and trading sweets and savouries in the name and style SRI VENKATESHWARA SWEET AND MEAT STALL. One Mr.V.Nagaraj representing the suit as a Managing Partner of plaintiffs firm. Late Venkatachalapathy Setty who is no other than the father of Mr.V.Nagaraj commenced business of sweets and savouries in the year 1954 in the name and style Sri Venkateshwara Sweet and Meat Stall and built up very vast goodwill and reputation under proprietorship is well founded from plaint averments and the evidence of PW1. The oral evidence of PW1 makes it clear that late Venkatachalapathy Setty changed the proprietorship concern into a partnership concern by taking his son V.Nagaraj as a partner on 1.8.1974. Ex.P1to P5 evident that the plaintiffs firm is registered under the partnership Act-1932 and also reconstituted.
9. Ex.P7, to P13 are the trademark certificates. PW1 has stated in his evidence that the trade name SRI VENKATESHWARA SWEET MEAT STALL has been registered 8 O.S.No.1370/2015 before trademark registry, Chennai under different Classes. There is nothing to indicate that the defendant is the trademark owner to do the trade under the name and style SRI VENKATESHWARA SWEETS & BAKERY. Ex.P7 to 13 evident that the plaintiff registered the trademark with trademark No's.1501855 in Class- 29, 1501852 in Class-30, 1501854 in Class-29, 1350710, 1159428, 1149858 in classes-30. Ex.P7 to 13 evident that the trademark SRI VENKATESHWARA SWEET MEAT STALL is in usage of plaintiff since 1.1.2005. As per Ex.P7 to 13 the plaintiff became the registered owner of trademark SRI VENKATESHWARA SWEET MEAT STALL to do the business of goods described under Class-29 and 30. The doing of business of sweets and savouries is covered by Class-29 and 30. Ex.P14 and Ex.P15 evident that the plaintiff is the copyright holder of the label SVSMS Balepet since 1954. There is nothing on record to indicate that the defendant is in usage of the mark SRI VENKATESHWARA SWEETS & BAKERY and the label (logo) SVSB prior to the use of plaintiff. The prior use of trademark and label by the plaintiff is well established. Therefore, the defendant cannot claim any exclusive right over the trademark SRI VENKATESHWARA SWEETS & BAKERY and the label SVSB which is identical and deceptively similar as that of plaintiffs trademark and label.
10. Ex.P18 is the hand bill and Ex.P19 is the cartoon box said to be of defendant would indicate that the defendant is doing 9 O.S.No.1370/2015 business of sweets in the trade name SRI VENKATESHWARA SWEETS & BAKERY with label SVSB at the address shown in the cause title of defendant The oral evidence of PW1 would go to show that the business establishment at Nelamangala is subsequent to the business establishment of plaintiff. The plaintiff has established the fact that it is a registered proprietor of trademark 'SRI VENKATESHWARA SWEET MEAT STALL. It is borne out from record that the plaintiff has not permitted the defendant to establish the business under the name and style SRI VENKATESHWARA SWEETS & BAKERY with log SVSB in Bangalore or anywhere in India. Therefore, the defendant has no right to establish and precede with the similar business in the name and style SRI VENKATESHWARA SWEETS & BAKERY which is subsequent to the establishment of business by the plaintiff at Bangalore. Thus the establishment of business by the defendant under the trademark SRI VENKATESHWARA SWEETS & BAKERY and label SVSB which is identical and phonetically similar to the trademark of SRI VEKATESHWARA SWEET MEAT STALL and logo SVSMS amounts to infringement within the meaning of section 29 of the Act. Thus the defendant has infringed the plaintiffs trademark SRI VENKATESHWARA SWEET MEAT STALL and the copyright by copying the logo SVSB which is the artistic work of the plaintiff.
11. The plaintiff claimed damages of Rs.25,000/- per month from the defendant from the date of filing of this suit for 10 O.S.No.1370/2015 infringing its registered trademark and copyright. The evidence on record would indicate that the defendant commenced business at Nelamangala, Bangalore without plaintiff's permission or assignment. There is an infringement of plaintiff's trademark and copyright by the defendant. The defendant did not contest the suit. The evidence of PW1 would indicate that the use of plaintiff's trademark and copyright by the defendant is nothing but to encash upon the goodwill and reputation of plaintiffs business. There is nothing on record placed by the plaintiff to show that their income had gone down due to the establishment of business by the defendant in the similar name at Nelamangala. Therefore, the plaintiff is not justified in claiming damages of Rs.25,000/- per month from the defendant. Looking to the infringement of plaintiffs trademark the defendants are liable to render true account of the profit and surrender entire stock of un sued offending trademark bills, negatives, positives, transpencies, blocks for destruction.
12. Therefore in view of foregoing reasons and under the circumstances it is crystal clear that the plaintiff proved the fact that it is a registered owner of trademark 'SRI VENKATESHWARA SWEET MEAT STALL', Copyright holder of logo SVSMS and carrying on business of sweets and savouries. The defendant have no right to use the trademark SRI VENKATESHWARA SWEETS & BAKERY and logo SVSB to the establishment at B.H.Raod, Nelamangala, Bangalore which is identical and deceptively similar to the plaintiffs trademark and 11 O.S.No.1370/2015 copyright. Thus, the plaintiff is entitled for a decree of permanent injunction, direction to render accounts of profits and to surrender entire stock of unused offending trademark bills, negatives, positives, transpencies, and blocks for destruction as prayed. Hence I answered Point No's.1 to 4 accordingly and proceed to pass the following.
ORDER The suit is partly decreed. The defendant, their servants, agents or any one claiming through them are hereby restrained from in any manner infringing and passing off the plaintiffs well established registered trademark SRI VENKATESHWARA SWEET MEAT STALL and logo SVSMS by using offending mark SRI VENKATESHWARA SWEETS & BAKERY and label SVSB or any other trademark which is deceptively similar to their trademark and copyright for manufacturing and marketing sweets and savouries at B.H.Road, Opp: Bus stand, Nelamangala, Bangalore by way of permanent injunction.
It is further decreed directing the defendant to surrender to the plaintiff the entire stock of unused offending trademark bills, negatives, positives, transparencies and blocks for destruction.
It is further decreed directing the defendant to render honest and true account of profit that defendant derived by promoting their business by using offending trademark and 12 O.S.No.1370/2015 pay such profits to the plaintiff's as damages.
The prayer sought for damages is dismissed.
Draw decree accordingly.
[Dictated to the Judgment Writer on computer, computerised, and print out taken by him, corrected and then pronounced by me in open court, this day the 11th September, 2015].
] [K.AMARANARAYANA] XVIII Addl. City Civil & Sessions Judge, Bengaluru.
A N N E X U R E S;
1. No. of witnesses examined on behalf of plaintiff;
PW1 ; V.Nagaraj.
2. No. of documents marked on behalf of plaintiff;
Ex.P1 ; Certified copy of Partnership Deed dtd.8.3.1977 Ex.P2 ; Certified copy of Deed of partnership dtd.1.4.1992 Ex.P3 : Certified copy of Deed of Reconstitution of Partnership Ex.P4 ; Certified copy of Deed of constitution of Partnership Dtd.27.6.2006.
Ex.P5 : Certified copy of Deed of partnership dtd.12.3.2010. Ex.P6 ; Certified copy of Form-C, Acknowledgement of Registration of firms dtd.15.3.2010.
Ex.P7 ; Certified copy Trade mark and legal proceedings Certificate of trade mark in Class- 42.
Ex.P8 : Certified copy Trade mark and legal proceedings Certificate of trade mark in Class- 29.
13 O.S.No.1370/2015Ex.P9 : Certified copy Trade mark and legal proceedings Certificate of trade mark in Class- 30.
Ex.P10 : Certified copy Trade mark and legal proceedings Certificate of trade mark in Class- 30.
Ex.P11 : Certified copy Trade mark and legal proceedings Certificate of trade mark in Class- 30.
Ex.P12 : Certified copy Trade mark and legal proceedings Certificate of trade mark in Class- 29.
Ex.P13 : Certified copy Trade mark and legal proceedings Certificate of trade mark in Class- 30.
Ex.P14 ; Certified copy of Copyright Certificate. Ex.P15 ; Certified copy of Copyright Certificate.
Ex.P16 ; Carry bag. Ex.P17 ; Original wrapper of Sweet Box. Ex.P18 ; Hand bill of defendant. Ex.P19 ; Original wrapper of sweet box of Defendants
3. No. of witnesses examined on behalf of the defendant;
--Nil--
4. No. of documents marked on behalf of the defendant;
--Nil--
[K.AMARANARAYANA] XVIII Addl. City Civil and Sessions Judge, Bengaluru.
14 O.S.No.1370/2015Judgment pronounced in the open court as per separate judgment. Operative portion of judgment is as follows:
ORDER The suit is partly decreed. The defendant, their servants, agents or any one claiming through them are hereby restrained from in any manner infringing and passing off the plaintiffs well established registered trademark SRI VENKATESHWARA SWEET MEAT STALL and logo SVSMS by using offending mark SRI VENKATESHWARA SWEETS & BAKERY 15 O.S.No.1370/2015 and label SVSB or any other trademark which is deceptively similar to their trademark and copyright for manufacturing and marketing sweets and savouries at B.H.Road, Opp: Bus stand, Nelamangala, Bangalore by way of permanent injunction.
It is further decreed directing the defendant to surrender to the plaintiff the entire stock of unused offending trademark bills, negatives, positives, transparencies and blocks for destruction.
It is further decreed directing the defendant to render honest and true account of profit that defendant derived by promoting their business by using offending trademark and pay such profits to the plaintiff's as damages.
The prayer sought for damages is dismissed.
Draw decree accordingly.
XVIII Addl.C.C. & S.J., Bangalore