Madras High Court
Durga Dairy Limited vs Ishwarya Food Products on 12 August, 2014
Author: Aruna Jagadeesan
Bench: Aruna Jagadeesan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 12.08.2014
CORAM:
THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESAN
CS.No.460/2011
Durga Dairy Limited
Vijayawada 521212 Plaintiff
Vs
1. Ishwarya Food Products, C/o.Garlapatti Jagadeesh
Opp.ITI College, Railupeta, Duggirala, Guntur
Andhra Pradesh
2. Patra and Sons, C/o.Jaysen Patra @ Babul Patra
Nuasaiakhandalmani, Mandir Chaka, Ponayapally
Bhubaneswar, Orissa Defendants
Prayer:- This Civil Suit is filed under Order VII Rule 1 of CPC and Order IV Rule 1 of OS Rules read with Sections 27, 28, 29, 105, 106 of the Trade Marks Act, 1999 and Sections 52, 55 and 62 of the Copy Rights Act, 1957.
For Plaintiff : Mr.G.Ramji
For Defendants : Set Exparte
JUDGEMENT
This Civil Suit is filed under Order VII Rule 1 of CPC and Order IV Rule 1 of OS Rules read with Sections 27, 28, 29, 105, 106 of the Trade Marks Act, 1999 and Sections 52, 55 and 62 of the Copy Rights Act, 1957, to pass a Judgement and Decree against the defendants;-
a. granting permanent injunction restraining the defendants, by itself, its partners, men, servants, agents, distributors, stockist, representatives or any one claiming through them from in any manner infringing the Plaintiff's registered trademark under No.470076 in Class 29 and other registered trademarks by using the trademark DURGA or MAA DURGA or any other mark deceptively similar to the plaintiff's trademarks DURGA or in any other manner whatsoever;
b. granting permanent injunction restraining the defendants, by itself, its partners, men, servants, agents, distributors, stockist, representatives or any one claiming through them from in any manner passing off and/or enabling others to pass off the defendants' products as and for plaintiff's products by manufacturing, selling or offering to sell, distributing, displaying, printing, stocking, using, advertising products bearing identical trademark DURGA or any other mark deceptively similar to the plaintiff's trademark DURGA or MAA DURGA with identical stylized script or writing or in any other manner whatsoever;
c. granting permanent injunction restraining the defendants, by itself, its partners, men, servants, agents, distributors, stockist, representatives or any one claiming through them from in any manner committing acts of copy right infringement by publishing DURGA or MAA DURGA in a stylized script which is a substantial reproduction of plaintiff's DURGA label in identical colour scheme, get up and layout or in any other manner whatsoever;
d. directing the defendants to surrender to the Plaintiff for destruction of all products, labels, dyes, blocks, moulds, screen prints, packing materials and other materials bearing the trademark DURGA or MAA DURGA any mark deceptively similar to the plaintiff's trademark and artistic work DURGA;
e. granting a preliminary decree in favour of the Plaintiff directing the defendants to render account of profits made by use of trademark and copyright in the artistic work DURGA or MAA DURGA and a final decree in favour of the Plaintiff for the amount of profits thus found to have been made by the defendants after the latter have rendered accounts;
f. directing the defendants to pay to the Plaintiff a sum of Rs.1,00,000/- as damages for acts of infringement of trademarks, passing off and infringement of copyright committed by the defendants by manufacture and sale of products bearing the trademark and artistic work DURGA and MAA DURGA;
g. for costs of the suit.
2.The case of the Plaintiff is as follows:-
a. The Plaintiff is in the business of manufacturing and marketing GHEE under the trademark DURGA since 1981. In order to obtain statutory rights for the said trademark, the Plaintiff applied for registration of the said trademark on 31st March 1987 and got allotment bearing No.470076. The said registration has been renewed and is valid and subsisting till the year 2018. The Plaintiff is the Proprietor of the following trademarks:
S.No. Trademark Number and Class Trademark 1 857971 in Class 29 Durga Ghee (pouch) 2 860185 in Class 29 Durga Ghee label 3 933138 in Class 29 Durga Dairy/ Bhavani Ghee The trademark DURGA for GHEE consists of a device comprising of a picture of a lady dressed in rural costume carrying a pot and the word DURGA prominently. The Plaintiff has been using the said device ever since its inception in the year 1981 continuously. The above said label, which is also used by them as their packaging, qualifies as a copyright in the artistic work. The word DURGA is written by them in a stylized script projected from a thick background qualifies as a distinctive script and has copyright vested in the manner of writing. This distinctive style of writing with the words DURGA GHEE has been used since 1981 by the Plaintiff and has acquired distinctiveness by such long, continuous and uninterrupted use for the last 30 years.
b. The annual sales turnover details and their advertisement expenses run into several crores of rupees. The Plaintiff has network and several distributors through the India. The Plaintiff has spent several lakhs of rupees in advertisements and sales promotion. The Plaintiff has also obtained their statutory protection for their trademark apart from the common law rights that had been acquired over the last 30 years of existence. The trademark DURGA for GHEE has become synonymous with the Plaintiff and no one else has the right to use the same. While so, they became aware that the defendants are manufacturing and marketing GHEE under the identical trademark MAA DURGA wherein the prefix MAA is written in small letters on the top of the word DURGA. The use of the identical trademark MAA DURGA by the defendants is mala fide. The use by the defendants of the trademark DURGA/MAA DURGA for GHEE is bound to create two sources for the same trademark, which is against the basic principle of trademark law.
c. Since the trademark DURGA is being used by both the parties which is identical and the products viz. GHEE also being identical, the chances of confusion in the market are inevitable. By virtue of their registration, the Plaintiff is entitled to prevent all others including the defendants from using the trademark DURGA/MAA DURGA in respect of GHEE. The defendants are using an identical trademark DURGA with an identical label for identical product viz. GHEE. The Plaintiff being a registered Proprietor of the trademark DURGA label under No.470076 in Class 29 and other registered trademarks has a statutorily vested right and the defendants are infringing the said rights of the Plaintiff by using the trademark which is identical to that of the Plaintiff for identical product. The Plaintiff is the Proprietor of the Copyright in the artistic work over the manner of writing the trademark DURGA used in packaging of the DURGA GHEE. The defendants have made and reproduced the said stylized script in an identical manner by making insignificant and minor modifications in details to escape the liability. However, since the defendants have retained all the essential features, viz. the identical script in which the word DURGA brand is written, the intention of the defendants in trying to sail as close as possible to the defendants is crystal clear. Therefore, the defendants are guilty of infringement of copyright in the artistic work of the Plaintiff.
d. The defendants have no manner of right to continue to use the trademark DURGA/MAA DURGA label for GHEE. The defendants are also using the same coloured wrappers which are identical to the Plaintiff's size, shape and method of packing. The defendants further use identical containers of identical sizes of the Plaintiff which is a white container and a red cap. The Plaintiff is passing off his product as and for the products of the Plaintiff and is also enabling others to do so. The Plaintiff suffered and continue to suffer, by the defendants' use of imitative DURGA/MAA DURGA pouches and labels, irreparable loss and damages to their reputation and goodwill, which cannot be compensated in pecuniary terms. The sales of the Plaintiff have been affected by the wrongful activities of the defendants. The Plaintiff has suffered substantial loss in their sales, in view of the illegal activities of the defendants. On accounts being taken, the defendants would be liable to pay damages to the tune of several lakhs of rupees. In such circumstances, the Plaintiff has filed this civil suit for the reliefs as stated above.
3. Though the defendants 1 and 2 were served on 25.3.2013 and 12.9.201 respectively, no written statement has been filed by the defendants and hence, the matter was ordered to be listed under the caption of "Undefended Board". For non filing of the Written Statement, the defendants were set exparte and Exparte Evidence was ordered by the order of this court dated 06.02.2014. One P.V.Srikrishna, Authorised Signatory of the Plaintiff Company, has filed the proof affidavit for his chief examination and receipt of 9 documents as documentary evidence to prove the suit claim. In the Exparte Evidence, P.V.Srikrishna, Authorised Signatory of the Plaintiff Company, examined himself as PW.1 and marked Exs.P1 to P9 as documentary evidence in order to prove the suit claim.
4. Considering the oral and documentary evidence, viz. Ex.P1 to Ex.P9 adduced by PW.1, this Court is of the view that the plaintiff has proved the suit claim and hence, the Plaintiff is entitled for the reliefs, as asked for. Accordingly, this civil suit is decreed as prayed for. No costs.
12.08.2014 Index:Yes/No Web:Yes/No Srcm
1. List of Witnesses Examined on the side of the Plaintiff:-
1. P.W.1 P.V.Srikrishna
2. List of Exhibits Marked on the side of the Plaintiff:-
1.Ex.P1 is the xerox copy of the authorisation letter.
2.Ex.P2 is the certified copy of the trademark registration under No.470076 in class 29.
3.Ex.P3 is the certified copy of the trademark registration under No.857871 in class 29.
4.Ex.P4 is the certified copy of the trademark registration under No.860185 in class 29.
5.Ex.P5 is the certified copy of the trademark registration under No.933138 in class 29.
6.Ex.P6 is the xerox copy of plaintiff's sale turnover attested by Notary.
7.Ex.P7 is the xerox copy of the plaintiff's advertisement attested by Notary.
8.Ex.P8 is the plaintiff's Durga Ghee pouch.
9.Ex.P9 is the defendants' Maa Durga Ghee pouch.
3. List of Witnesses Examined on the side of the defendants:-
Nil
4. List of Exhibits Marked on the side of the defendants:-
Nil 12.08.2014 Srcm ARUNA JAGADEESAN, J.
Srcm CS.No.460/2011 12.08.2014