Calcutta High Court
Super Smelters Ltd vs Smc Power Generation Limited on 19 March, 2019
Author: Arijit Banerjee
Bench: Arijit Banerjee
ORDER SHEET
GA No.671 of 2019
With
CS No.48 of 2019
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
ORIGINAL SIDE
SUPER SMELTERS LTD.
Versus
SMC POWER GENERATION LIMITED
BEFORE:
The Hon'ble JUSTICE ARIJIT BANERJEE
Date : 19th March, 2019.
Appearance:
Mr. Rudraman Bhattacharya, Adv.
Mr. Victor Dutta, Adv.
Mr. S. Dasgupta, Adv.
The Court : In a suit for infringement of trademark and passing off, the plaintiff has filed this interlocutory application for an order of injunction restraining the defendant from infringing the trademark of the plaintiff or from selling or offering for sale TMT Bars of any description containing shape, getup/trade dress of the distinctive trademark of the plaintiff deceptively and/or confusingly similar to the plaintiff's trademark or which are a colourable imitation thereof.
The plaintiff is the holder of registered trademark as shown at page 23 of the petition. This design/trade pattern is to be found on the TMT Bars manufactured by the plaintiff. This is commonly described as "YY Ribs". The plaintiff has produced in Court TMT Bars manufactured by the defendant which also has "YY Ribs" on it and look very similar to the TMT Bars of the plaintiff. On a visual inspection, I am of the opinion that 2 the intending purchasers are likely to be misled that the defendant's TMT Bars are that of the plaintiff. The TMT Bars of the parties are deceptively similar.
In a decision of the Delhi High Court delivered on 17th August, 2017 [CS(OS) 2802/2015, Apollo Tyres Ltd. vs. Pioneer Trading Corporation & Anr.] it was held by the learned Judge with which I respectfully agree that shape of goods is statutorily recognized as being a constituent element of a trademark. Copying of the unique shape of goods could lead to confusion amongst the consumers with regard to the source from which the goods originate. The surface pattern of a particular product may well be a distinctive feature of that product and by such surface pattern the manufacturer may be identified. If such surface pattern is copied or imitated, the consumers are very likely to be misled as regards the origin of such product. In my opinion, the unique pattern of a product, if it its registered, can be protected against exploitation by passing an appropriate order of injunction.
In the present case, I am, prima facie, of the view that the defendant is infringing the registered trademark of the plaintiff and is passing off its products as those of the plaintiff.
Accordingly, there will be an order in terms of prayer (a) of the Notice of Motion. Mr. Ratul Biswas, Advocate, Bar Association, Room No.17 (Phone: 9874168762) is appointed as Special Officer to visit the factory of the defendant at Village - Hirma, District - Jharsuguda, Orissa - 768201 and prepare an inventory of the TMT Bars that may be found in the said factory. The Special Officer shall file his report in Court on the returnable date. The Special Officer shall not interfere with the business of the defendant in any manner. However, if the Special Officer is resisted in any manner in carrying out this order, he will be entitled to approach the jurisdictional police station 3 and if so approached, the Officer-in-Charge of the jurisdictional police station shall extend all cooperation and help to the Special Officer to implement this order.
The Special Officer shall be entitled to an initial remuneration of 2500 Gms. All arrangements for the Special Officer's travel, accommodation etc. shall be made by the petitioner.
This order is being passed to preserve the infringing goods which are related to the subject matter of the suit as contemplated by Section 135(2) of the Trade Marks Act, 1999.
Service will be duly effected on the defendant. The defendant would be at liberty to apply for vacating of this order upon notice to the plaintiff.
List the matter under the same heading on 8th April, 2019.
(ARIJIT BANERJEE, J.) B.Pal