Bangalore District Court
; 1. M/S. Construction Care Chemicals vs ; 1. Rathnam on 29 April, 2015
IN THE COURT OF XVIII ADDL. CITY CIVIL JUDGE
AT BENGALURU CITY [CCH NO.10]
Dated this day the 29th April, 2015
PRESENT
SRI K.AMARANARAYANA., B.Com., LL.M.
XVIII Addl. City Civil & Sessions Judge.
O.S.No.5693/2008
Plaintiffs ; 1. M/s. Construction Care Chemicals,
No.2190/A, Subramanya Nagar Main Road,
2nd Stage, Rajajinagar,
B A N G A L O R E.
Represented by its Proprietrix
Smt.Kavitha Shankar,
Aged about 40 years,
2. M/s. Shastha Associates,
No.2214, 12th Main, A-Block,
2nd Stage, Rajajinagar,
B A N G A L O R E.
Represented by its proprietor
Shankar,
Aged about 45 years,
3. M/s. Seepege Stoppers,
A Partnership Concern,
Represented by its Partner,
Smt.Kavitha Shankar,
Aged about 40 years,
[By.Sri.S.K.S/H.R.A Adv for plaintiff]
--2-- O.S.No.5693/2008
--V/S--
Defendants ; 1. Rathnam,
Major in age,
Proprietor,
C/o M/s. Rathnam Enterprises,
6-1-70, G.I.Sripuram Colony,
Tirupathi - 517501,
Chittor District (A.P.).
2. M/s. Rathnam Enterprises,
A Proprietory Concern,
Represented by its proprietor,
Mr.Rathnam,
Major in age,
6-1-70, G.I.Sripuram Colony,
Tirupathi - 517501,
Chittor District (A.P).
3. Fair Mate Chemicals Private Limited,
'Ankar Nilaya', 1st Cross,
Vinayaka Layout,
B A N G A L O R E - 560024.
Represented by its Managing Director.
[By.Sri.J.P.A. Adv for D-1 & D-2]
[Defendant No.3 placed exparte]
Date of institution of suit ; 23.08.2008.
Nature of the suit [Pronote, Declaration, Permanent
Suit for declaration and ; Injunction & Damages.
Possession, suit for Injunction
etc]
--3-- O.S.No.5693/2008
Date of the commencement ; 23.06.2011.
of recording of the evidence
Date on which the judgment ; 29.04.2015.
was pronounced.
Total Duration ; Year/s Month/s Day/s
06 08 06
(K.AMARANARAYANA)
XVIII Addl. City Civil Judge, Bengaluru.
JUDGMENT
The plaintiffs filed this suit against the defendants 1 to 3 prays to pass judgment and decree of declaration declaring that the plaintiffs are the sole holders of Trade Mark CCC Isoproof, for Permanent Injunction restraining the defendants, their servants, agents or assigns or any other person acting or claiming on their behalf from using the technology CCC Isoproof and for recovery of damages of Rs.10,000/- with interest at the rate of 12% per annum and for costs.
2. Case of the plaintiffs in brief is as follows;
(a). The plaintiffs 1 and 2 are the proprietary concern and
--4-- O.S.No.5693/2008 plaintiff No.3 is a firm duly registered under Indian Partnership Act. The plaintiffs are expertise in waterproofing in the State of Karnataka and other states. They are carrying on business for over many decades and gained lot of reputation in the field of waterproofing by using their own technology, built up a reputation, and known for its CCC work and commitment. They are dealing with waterproof with ISO P R O O F sealer and protector manufactured for the first time in India and European Technical know-how. The waterproofing is done and some of the highlighting features are highest premium quality, exceptionally durable, economical protection, fills pores, stops leaks, IT Breathes, Lets vapor escape, ready to use and easy to apply and C C C ISO P R O O F easy to clean up. The plaintiffs are using consisting of strong water based acrylic polymers. They have proofing C C C IS O P R O O F membrane, liquid water proofing membrane has high premium quality, high built, acrylic elastomeric coating. The plaintiffs have done the projects Turbo Limited, Ganapathi Sachidananda Ashram, Mysore, Kirloskar Electric Company, Bangalore, Indian Institute of Bangalore, Giltec International, Mangalore, Cochin International Airport, Karnataka Power Corporation Limited, Central Power Research Institute, NPCL, Kaiga, PWD, Brigade Group, HAL, BSNL and other various
--5-- O.S.No.5693/2008 organisations in Karnataka and other places. The plaintiffs have applied for rights and marks for registration of CCC ISOPRROOF under Class-I of Trade Marks Act - 1999.
(b). The plaintiffs have been using the said mark for over 10 years. The defendant has been passing off his goods and services as the goods and services of plaintiffs. The defendant has been applying C C C ISO P R O O F for tenders claiming that it has material which is .
CCC The defendant infringed the right of the plaintiffs by using ISO P R O O F material at Tirupathi Tirumala Devasthanams, Tirupathi.
CCC The defendants have no manner of right or interest over the ISO P R O O F . The plaintiffs are loosing their clients because of the defendants. They have sustained loss or more than Rs.10,00,0000/-. Hence this suit.
3. The defendants 1 and 2 filed written statement denying all the averments of plaint besides contending that the suit is vexatious, frivolous and filed with malafide intention to harass them and the plaintiffs are liable to pay compensatory cost of Rs.25,000/- under section 35-A of CPC. They are not necessary parties to the suit.
--6-- O.S.No.5693/2008 The first defendant is the proprietor and second defendant is the authorised dealer of third defendant, which is one of the leading manufacturers of total solution of building construction chemicals, which is extensively used in the construction as liquid water proofing membrane. The first defendant is the resident of Tirupathi, Andhra Pradesh and no cause of action arisen within the jurisdiction of this court and there is no any previty of any contract bet-ween plaintiff and the defendants or any tripartite contract or agreement bet-ween them and manufacturers/supplier. Three independent firms have jointly filed the suit wherein there is no joinder of cause of action. The second defendant is the authorised dealer of third defendant as ISO 9002 company, which is manufacturing total solution of building construction chemicals in technical collaboration with M/s R.B.P. Limited, United Kingdom. The second defendant was awarded leadership in the year 1997 and the plaintiff's trademark was registered during the year 2004-2005. Neither the defendants nor third defendant has any symbol similar to the symbol claimed by the first defendant. The third defendant which is a reflection of letter 'F' and there is neither similarity nor deceptively similar to that of being claimed by the plaintiff. They are maintaining their individual identity. The plaintiffs have become jealous and prejudiced since they able to secure the contract with TTD and filed this suit. The plaintiffs
--7-- O.S.No.5693/2008 cannot claim monopoly over the logo CCC within the triangle and it is universal. The Trademark Certificate authorizes to use the logo and not the manufacturing process. The plaintiffs have not sustained any damages as claimed by them and not entitled for any declaratory relief. On the above grounds prays to dismiss the suit with compensatory costs.
4. The plaintiffs filed rejoinder to the written statement filed by the defendants 1 and 2 stating that the defendants 1 and 2 got the tenders approved with TTD by misrepresenting that they provide ISO P R O O F waterproofing treatment with .
5. Based on the above pleadings the predecessor in office has framed the following issues.
1. Whether the plaintiffs prove that the first 'CCC plaintiff is the registered proprietor of ISO P R O O F ' [Sealers and Protectors] with logo on triangle with letters CCC inside the triangle in respect of Acrylic Co-Polymer Liquid water proofing membrane?
2. Whether the plaintiffs prove that the defendants have infringed their trademark 'CCC ISOPROOF
--8-- O.S.No.5693/2008 [Sealers and Protectors] with logo on triangle having letters CCC inside the same by adopting similar or deceptively similar mark?
3. Whether the plaintiffs prove that the defendants have indulged in passing off their goods and services by adopting mark which is deceptively ' C C C ISO P R O O F ' similar to their trademark [Sealers and Protectors] including logo on triangle with letters CCC inside the triangle?
4. Whether the plaintiffs are entitled for the reliefs claimed?
5. What order or decree the parties are entitled to?
Addl. Issue Framed on 19.12.2013;
1. Whether the defendants 1 and 2 prove that this court has no jurisdiction to try the suit?
6. The plaintiffs to prove their case got examined the proprietor of second plaintiff as PW1, got marked Ex.P1 to Ex.P6 and closed their side. The first defendant got examined himself as DW1, got marked Ex.D1 to Ex.D26 and closed their side.
7. Arguments were heard on both sides. The learned counsel appearing for the plaintiff has relied upon the decision
--9-- O.S.No.5693/2008 reported in 2011 AIR SCW 1742 (T.V.Venugopal -V/s- Ushodaya Enterprises Ltd and Another).
8. My findings on the above issues are as follows;
Issue No.1 ; Affirmative.
Issue No.2 ; Negative.
Issue No.3 ; Negative.
Issue No.4 ; Partly Affirmative.
Issue No.5 ; As per final order.
Addl.Issue No.1 ; This issue is held in the
Negative as per orders
dated; 18.3.2014.
For the following reasons.
REASONS
9. Issue No.1;- The plaintiffs contended that they are the C C C ISOPROOF registered proprietors of the trademark with logo on CCC triangle with letters inside the triangle in respect of Acrylic Co-
Polymer Liquid Water proofing membrane. The defendants 1 to 3 have no right to manufacture and sell liquid water proofing membrane, which is extensively used in the building construction ' C C C ISO P R O O F ' under the trademark . It is to be noted that the
--10-- O.S.No.5693/2008 defendants 1 and 2 denied the assertion of the plaintiffs. To prove the fact that the plaintiffs are the registered proprietors of the trademark ' C C C IS O P R O O F ' with logo on triangle with letters CCC inside the triangle has relied upon Ex.P3. Ex.P3 is the Trademark Certificate issued by the Trade Mark Registry, Mumbai. On going through the cross examination of PW1 the defendants 1 and 2 did not deny the ' C C C ISO P R O O F ' registration of trademark obtained by the plaintiff and doing business of manufacturing and selling Acrylic Co-Polymer Liquid Water Proofing Membrane. Ex.P3 evident that the plaintiff is authorised to do the trade of goods and services classified under Class-I of Trade Marks Act. The goods that are classified under Class-I are; "Chemical used in industry, science, photography, agriculture, horticulture and forestry; unprocessed artificial resins, unprocessed plastics; manure; free extinguishing compositions; tempering and soldering preparations; chemical substances for preserving foodstuffs; tanning substances; adhesive used in industry." A perusal of the goods, which the plaintiff is trading is covered by Class-I of Trade Marks Act.
10. Admittedly, the defendants 1 to 3 have no trademark registered under the provisions of Trade Marks Act. Therefore the
--11-- O.S.No.5693/2008 ' C C C ISO P R O O F ' registration of trademark by the plaintiff is valid.
Section 28 of Trade Marks Act-1999 give the plaintiff exclusive right to use the trademark in relation to the goods and services described under Class-I and obtain relief in respect of infringement of the trademark. Looking to the overall circumstances it is clear that the plaintiffs proved the fact that first plaintiff is the registered proprietor ' C C C IS O P R O O F ' of trademark [Sealers and Protectors] with logo on triangle with letters CCC inside the triangle in respect of Acrylic Co- Polymer Liquid Water Proofing Membrane. Hence, I answered Issue No.1 in the 'Affirmative'.
11. Issue No.2 to 5; To avoid repetition these issues taken together for my consideration. The plaintiff is a registered trademark 'CCC ISOPROOF' holder of the mark in the trade of manufacturing and selling Acrylic Co-Polymer Liquid Water Proofing Membrane. Section 29 of the Act prohibits a person from using the registered trademark in the course of trade, which is identical with, or deceptively similar to, the trademark in relation to goods or services in respect of which the trademark is registered. The plaintiffs gets right to take action for infringement against the defendants if they able to show that the defendants are adopting the trademark which is
--12-- O.S.No.5693/2008 identical or deceptively similar to their mark and there is likely to cause confusion in the minds of public. The defendants 1 and 2 contended that first defendant is the proprietor and second defendant is the authorized dealer of third defendant. It is to be noted that the third defendant did not appear and contested the suit. It is seen from the contention taken in the written statement of defendant No.1 and 2 that defendant No.3 is one of the leading manufacturers of total solution of building construction chemicals which is extensively used in the construction as liquid water proofing membrane. Let me go through the evidence both oral and documentary placed by the plaintiffs and the defendants.
12. Ex.P4 is the Brochure of plaintiffs. Ex.P4 is not seriously challenged by the defendants which is seen from the cross- examination of PW1. Ex.P4 evident that the first plaintiff is a manufacturer of water roofing chemicals under the trademark 'CCC ISOPROOF' [SEALER & PROTECTOR], ACRYLIC CO- POLYMER LIQUID WATER PROOFING MEMBRANE. Ex.P6 is the TTD's Chief Engineers Book. A perusal of Page No.86 and 87 of Ex.P6, it is seen that the Tirupathi Tirumala Devasthanam fixed rates for different works and for providing water proofing 'CCC ISOPROOF'. Ex.P6 evident that TTD prescribe CCC ISOPROOF
--13-- O.S.No.5693/2008 water proofing. It is seen from the oral evidence of PW1 and DW1 the defendants 1 and 2 are not the authorized dealers of Plaintiffs Company. It has been elicited in the cross-examination of DW1 that he has used ISO proof to carry out the work. DW1 clarifies in the cross-examination that he is no way connected to CCC ISO proof. It is seen from the cross-examination of DW1 that he has not been permitted by the plaintiffs to use CCC ISO Proof. As per cross- examination of DW1 the third defendant is using ISO Proof and not CCC ISO Proof. It is clear from the cross-examination of DW1 the first and second defendants are doing contract work of construction at TTD, Tirumala-Tirupathi AP. It is clear from the cross-examination of DW1 the defendants 1 and 2 neither they are manufacturing the water proofing chemicals for the use of construction nor they are doing trade in respect of the said product.
13. Ex.D1 evident that the third defendant is doing business of manufacturing and selling of construction chemicals in the name and style FAIR MATE CHEMICALS PRIVATE LIMITED. Ex.D2 evident that the second defendant which is a proprietor ship concern became authorized dealer of third defendant. Ex.D4 evident that the third defendant obtained registration under Indian Standard Organization-ISO 9002; 1994 in the year 1997. Ex.D4 evident that the
--14-- O.S.No.5693/2008 third defendant was authorized to manufacture specialty chemicals for construction by K.P.M.G of USA. Ex.D6 is the tender acceptance form evident that the second defendant is accepted as lowest tenderer. The approximate value work to be done under the agreement was Rs.3,30,963-75. The name of the work specified in Ex.D6 is providing waterproofing treatment with ISO Proof for Mahathi Auditorium at Tirupati. As per Ex.D6 the defendants 1 and 2 being the contractors are not suppose to provide CCC ISO-PROOF water proofing to the auditorium. Ex.D7 to Ex.D9 are the Articles of Agreement dated 1.03.2008 entered into bet-ween Tirumala Tirupathi Devasthanams and defendants 1 and 2 would indicate that the T.T.Devasthanams are desirous "Providing water proofing treatment with ISO Proof for Mahathi Auditorium at Tirupati and Sreedevi Hostel Building at Tirupathi".
14. Ex.D10 to Ex.D12 the purchaser order would indicate that the defendants 1 and 2 purchased the water proofing products to carry out the contract work in the year 2008. Ex.D13 to Ex.D26 is the retail invoices and challans for the months from February 2008 to August 2008. Ex.D13 to Ex.D26 evident that the defendants 1 and 2 purchased the water proofing chemicals from third defendant. Ex.D13 to Ex.D26 does not bear the mark CCC ISO PROOF. A perusal of
--15-- O.S.No.5693/2008 Ex.D13 to Ex.D26 does not disclose having purchased the products of C C C ISO P R O O F the mark . Absolutely there is no evidence placed by the plaintiff to rebut the documentary evidence placed by the defendants 1 and 2.
15. The defendant No.3 is trading the construction speciality chemicals with certification ISO-9002 and ISO Proof. The evidence on record placed by the plaintiff does not disclose that the defendants C C C ISO P R O O F adopted the trademark . The use of ISO Proof by the defendants 1 and 2 cannot held to be identical and deceptively similar as that of plaintiffs mark. Of course the plaintiffs are using the logo of triangle having letters CCC inside. There is no evidence on record to indicate that the defendants used the said logo in their trade. Ex.P5 is the legal notice issued to the defendants 1 and 2 on 6.02.2008. It has come up in the cross-examination of DW1 that they have received legal notice. There is nothing on record to indicate that the defendants gave reply to the notice Ex.P5. When the plaintiffs have failed to prove the fact that the defendants adopted the mark in the similar business, issue of legal notice would be of no consequence on the case of plaintiffs. Thus, the non-reply of notice by the defendants will be of no consequence and the plaintiffs cannot take advantage of it. The
--16-- O.S.No.5693/2008 defendants 1 and 2 are the contractors, and the plaintiffs cannot claim any infringing right over them. Therefore looking to the overall circumstances the plaintiffs have failed to prove that the defendants have infringed their trademark CCC ISOPROOF [Sealers and Protectors] with logo on triangle having letters CCC inside.
16. The evidence on record would indicate that the third defendant is a manufacturer of Solution of Building Construction Chemicals. Law does not prohibit any person from doing business of his choice. The provisions of trademark act prevent a person from using the trademark of others, which is identical and deceptively similar. The plaintiffs has failed to prove the fact that the defendant No.3 used their registered trademark CCC ISOPROOF or any other which is identical and deceptively similar. As per contract agreement with TTD the defendants to use ISO Proof and not CCC ISOPROOF. The defendants 1 and 2 carried out the contract work by providing waterproofing treatment with ISO Proof for Mahathi Auditorium and Sreedevi Hotel Building in SPW Degree College at Tirupathi. Absolutely, there is nothing on record to uphold the contention of the plaintiffs that the defendants indulged in passing off their goods and services by adopting mark which deceptively similar.
--17-- O.S.No.5693/2008
17. Therefore in view foregoing reasons and under the circumstances, it is held that the plaintiffs have failed to prove the fact ISO Proof that the defendants used the trademark which is identical C C C ISO P R O O F and deceptively similar to that of their trademark .
The plaintiffs are able to prove that they are the absolute holders of ' C C C ISO P R O O F ' the trademark . The law does not permit two competitors of same business to use the similar brand name or trademark. The trademarks used by the plaintiffs and third defendant are entirely different and there will not be any confusion in the minds of people. If the third defendant is allowed to continue with the ISO P ro o f certified name no hardship or loss will be caused to the plaintiffs. There is no evidence on record to the effect that the plaintiffs sustained loss because of use of trademark by the defendants. Therefore, ordering for enquire into the loss and damages suffered by the plaintiffs does not arise at all. Thus, the plaintiff is entitled for the decree of declaration as prayed and not entitled for the decree of permanent injunction and damages against the defendants 1 to 3 from using the offending trademark. Hence, I answered Issue No.2 to 4 accordingly and proceed to pass the following;
--18-- O.S.No.5693/2008
ORDER
The suit is partly decreed. It is declared that the plaintiffs are the sole holders of the ' C C C ISO P R O O F ' trademark . The prayer of plaintiffs for a judgment and decree of permanent injunction and damages against the defendants 1 to 3 is hereby dismissed.
Under the circumstances no order as to costs.
Draw decree accordingly.
[Prepared by me on the Laptop, Print out by the judgment writer, corrected and then pronounced by me in the open court dated this day the 29th April, 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 ; Shankar.
2. No. of documents marked on behalf of plaintiff;
Ex.P1 & P2 ; Resolution of Plaintiffs 1 to 3.
Ex.P3 ; Trade Mark Certificate.
Ex.P4 ; Brochure.
Ex.P5 ; Copy of legal notice and postal notice.
Ex.P6 ; TTD's Chief Engineers Book.
--19-- O.S.No.5693/2008
3. No. of witnesses examined on behalf of defendants 1 & 2;
DW1 ; A.R.Rathnam.
4. No. of documents marked on behalf of defendants 1 & 2;
Ex.D1 ; Brochure of D3.
Ex.D2 ; Dealership Certificate of D1 and D2 issued
by D3.
Ex.D3 ; Certificate of Registration of Central Sales
Tax.
Ex.D4 ; Certificate of Registration of ISO - 9002.
Ex.D5 ; Letter issued by D3 to D1 and D2.
Ex.D6 ; Tender Form of TTD.
Ex.D7 ; Agreement entered into bet-ween TTD and
D1 & D2.
Ex.D8 ; Tender From of TTD for the years 2008-09.
Ex.D9 ; Agreement entered bet-ween TTD and
D1 & D2.
Ex.D10 ; Purchase order dated; 5.1.2008.
Ex.D11 ; Purchase order dated; 24.1.2008.
Ex.D12 ; Purchase order dated; 21.1.2008.
Ex.D13 ; Retail Invoice dated; 13.2.2008.
Ex.D14 ; Delivery Challan dated; 13.2.2008.
Ex.D15 ; Retail Invoice dated; 23.2.2008.
Ex.D16 ; Delivery Challan dated; 23.2.2008.
Ex.D17 ; Retail Invoice dated; 12.3.2008.
Ex.D18 ; Delivery Challan dated; 12.3.2008.
Ex.D19 ; Retail Invoice dated; 21.4.2008.
Ex.D20 ; Delivery Challan dated; 21.4.2008.
Ex.D21 ; Retail invoice dated; 24.4.2008.
Ex.D22 ; Delivery Challan dated; 24.4.2008.
Ex.D23 ; Retail Invoice dated; 27.8.2008.
Ex.D24 ; Delivery Challan dated; 27.8.2008.
--20-- O.S.No.5693/2008
Ex.D25 ; Retail Invoice dated; 26.8.2008.
Ex.D26 ; Delivery Challan dated; 26.8.2008.
[K.AMARANARAYANA] XVIII Addl. City Civil and Sessions Judge, Bengaluru.