Delhi District Court
Sh. Swaranjit Singh vs M/S Neelkant Threads India on 26 May, 2015
IN THE COURT OF SH. CHANDRA GUPTA: ADDL.
DISTRICT JUDGE, (WEST)-02, TIS HAZARI COURTS:DELHI.
CS No. 72/14
Unique ID Case No. -02401C0201312014
Sh. Swaranjit Singh,
S/o Late Sh. Kalyan Singh,
Proprietor of Hardwyn Industrial Trading Corporation
B-136, Hardwyn House,
Mayapuri Industrial Area, Phase-I,
New Delhi-110064. ....Plaintiff
Vs.
M/s Neelkant Threads India
#192, Belaguda Chamber,
2nd Floor, Kumbarpet Main Road,
Bangalore-560002. ....Defendant
Date of institution of the case-01.05.2014
Date on which, judgment have been reserved-05.05.2015
Date of pronouncement of judgment- 26.05.2015
JUDGMENT:
1. The present suit has been filed on behalf of the plaintiff- Sh. Swaranjit Singh against the defendant for permanent injunction restraining the defendant from infringement of trademark, copyright, delivery up and rendition of accounts etc.
2. In the present suit, it has been stated by the plaintiff that the plaintiff is sole proprietor of M/s Hardwyn Industrial Trading Corporation. It is further stated that M/s Hardwyn Industrial Trading Corporation was earlier a CS No. 72/14 Page 1 of 12 partnership firm of which the plaintiff was one of the partners and the said partnership firm has been dissolved vide deed of dissolution dated 31.08.1990 and the retiring partner (Sh. Kalyan Singh) released and relinquished his share in the firm, in its assets, licenses etc. in favour of sole continuing partner (plaintiff herein) and thus the plaintiff has become sole proprietor of the firm M/s Hardwyn Industrial Trading Corporation. It is also stated that the plaintiff is carrying on old and established business of manufacture and sale of inter-alia Hydraulic closing devices for doors (hereinafter referred to as 'said goods'). It is stated that the plaintiff has honestly and bonafidely adopted the trade mark HARDWYN in a special style and in particular manner in respect of the said goods and since the year 1965, the plaintiff has been using it continuously, extensively and openly without any hindrance from any corner. It is stated that the plaintiff is the registered proprietor of the trade mark HARDWYN by virtue of registration thereof under No. 253120 dated 29.11.1968 in respect of the said goods included in class 7 before the Registrar of Trade Marks. It is further stated that the plaintiff has filed an application i.e. Form TM-12 before the Registrar of Trade Marks for renewal of the said trade mark and the same is liable to be allowed in due course. It is also stated that the plaintiff's trademark HARDWYN is represented in a special style, get up, design, font, writing style etc. and the same is an original art work and the copyright vests in such art work of label HARDWYN. It is also stated that the plaintiff is the owner of the copyright of art CS No. 72/14 Page 2 of 12 work of label HARDWYN. It is also stated that the word HARDWYN is the most imminent features of the trading style of the plaintiff's firm i.e. HARDWYN INDUSTRIAL TRADING CORPORATION and as such imitation of any identical or deceptively similar mark as the plaintiff's said trademark HARDWYN shall always associate the impugned mark with the plaintiff only. It is also stated that the plaintiff has made extensive sale of the said goods under the trade mark HARDWYN since the year 1965 and the plaintiff has spent enormous amount of money, time and labour in building up the trade mark HARDWYN. The plaintiff's trademark HARDWYN has been vastly advertised through various medias including advertisement in newspapers, trade magazines etc. As a result of extensive sale of the said goods under the trade mark HARDWYN coupled with publicity in the past years, the trade mark 'HARDWYN' of the plaintiff has acquired enviable reputation and goodwill and is synonymous exclusively with the plaintiff. It is also stated that the trade mark HARDWYN is vital and important identity of the plaintiff as it is an integral part of the trading style and the same is being used by the plaintiff since the year 1965. That the trademark HARDWYN has come to identify the plaintiff exclusively due to long and continuous user and distinguish the goods manufactured and marketed by the plaintiff. It is stated that the plaintiff's trade mark HARDWYN is a well known trademark and it needs to be protected under well known category. It is stated that any abridgement or accretion to the word HARDWYN by any third CS No. 72/14 Page 3 of 12 party will create an impression in the minds of the innocent purchasers that the goods or products under the trademark HARDWYN or any deceptively similar mark of the third party are manufactured, distributed or dealt with by the plaintiff. It is also stated that use in any manner of any mark identical or deceptively similar to the plaintiff's trademark HARDWYN will seriously affect the reputation and goodwill gained by the plaintiff over the years through investments of huge money, sales promotion and labour and it will certainly cause confusion amongst the public or members of trade and will cause difficulty to them in discerning the source of the product. The plaintiff has vast consumer base of its products under the trademark HARDWYN which reflect confidence and credit amongst the public and members of trade of the plaintiff's products under the trademark HARDWYN. It is stated that the plaintiff is the first bonafide adopter and lawful proprietor of the said trademark "HARDWYN" in respect of the said goods manufactured and marketed by them. It is stated that in the third week of April, 2014, the plaintiff came to know that the defendant is selling Hydraulic door closer under deceptively similar mark/label EURO HARDWIN. It is alleged that the defendant with malafide intention to make illegal profit has adopted and used identical/deceptively similar mark/label EURO HARDWIN (hereinafter referred to as "impugned mark/label"). It is stated that the defendant has represented the impugned mark/label in similar manner as being represented by the plaintiff's trademark/label HARDWYN. It is stated that CS No. 72/14 Page 4 of 12 the defendant either themselves or in name of any other firm/company or in association with any other firm/company, has no right to use the impugned mark/label EURO HARDWIN or any other mark deceptively similar to the plaintiff's trade mark/label HARDWYN. It is also stated that the plaintiff is prior user and registered proprietor of its well known trade mark HARDWYN and as such use of the impugned mark/label EURO HARDWIN by the defendant would cause eventual erosion of the distinctive character of the plaintiff's trademark HARDWYN and would also cause heavy financial loss to the plaintiff's business under the trademark HARDWYN and irreparable loss and injury to the goodwill and reputation of the plaintiff's trademark and his business under the trademark/trading style containing word HARDWYN. It is stated that the defendant has adopted and used the impugned mark EURO HARDWIN which is structurally, phonetically and visually similar to the plaintiff's registered trademark HARDWYN, in respect of identical/allied/cognate goods and therefore, the defendant is guilty of infringement of the plaintiff's registered trademark HARDWYN. That the defendant's impugned label EURO HARDWIN is slavish imitation of the plaintiff's label HARDWYN. It is further stated that the impugned label has been prepared by keeping the plaintiff's label HARDWYN as a model or guide. That the defendant has reproduced the deceptively similar mark/label EURO HARDWIN on its packaging and selling inferior quality products under the impugned mark/label and thus the CS No. 72/14 Page 5 of 12 defendant has infringed the plaintiff's copyright in artwork of label HARDWYN.
It is further stated that defendant has no right or justification whatsoever for the adoption and use of the impugned mark/label EURO HARDWIN and adoption and use of the impugned mark/label by the defendant is malafide, unscrupulous and fraudulent and made with an evil intention to make illegal profit by passing off its inferior products as that of the plaintiff. The profits earned by the defendant by selling the goods under the impugned mark/label EURO HARDWIN is virtually loss caused to the plaintiff and as such the defendant is liable to render its accounts of profit and payment of the same to the plaintiff. It is further stated that presently, the plaintiff has no source to know the quantum of profits earned by the defendant by selling the goods under the impugned mark/label EURO HARDWIN which can only be ascertained after rendition of accounts of the defendant. However, at the final disposal of the present suit, this Hon'ble Court may award damages of such amount which this Hon'ble Court shall find fit and proper under facts and circumstances of the present case instead of rendition of accounts of the defendant. That the plaintiff undertakes to pay additional court fees in aforesaid situation. It is further stated that huge financial loss has been caused to the plaintiff due to the defendant's unlawful and unjust trade activities. Hence, the present suit.
CS No. 72/14 Page 6 of 123. Upon filing of the present suit, the summons of the suit were issued to the defendant, however none appeared on behalf of the defendant despite service and accordingly, the defendant was proceeded exparte vide order dated 19.05.2014.
4. In support of his case, plaintiff has examined himself as PW-1 and thereafter PE was closed on behalf of the plaintiff.
5. I have heard the arguments put forward by Ld. Counsel for the plaintiff and have carefully gone through the record of the case. I have also carefully considered the evidence adduced on behalf of the plaintiff.
6. In order to prove his case on record, plaintiff- Sh. Swaranjit Singh examined himself as PW-1 and tendered his evidence by of affidavit Ex. PW-1/A. He has also relied upon the documents i.e. the copy of Registration Certificate of Trade Mark Hardwyn under No. 253120 as Ex. PW-1/1, the legal proceedings certificate of Trade Mark Hardwyn under No. 253120 as Ex. PW-1/1A, Copies of the plaintiff's advertisement materials and bills as Ex. PW-1/2(Colly), copies of the sales bills of the plaintiff's firm as Ex. PW-1/3(Colly.), copies of sales bills of plaintiff's associate firm/company as Ex. PW-1/4(Colly.), plaintiff's label as Ex. PW-1/5, defendant's label as Ex. PW-1/6 and copy of defendant's original sale invoice dated 17.04.2014 as Ex. PW-1/7.
CS No. 72/14 Page 7 of 127. In his affidavit by way of evidence Ex. PW-1/A, the plaintiff has reiterated the contents of his plaint, as abovesaid. The important fact is that the aforesaid witness (PW-1) has not been cross examined on behalf of the defendant, who had chosen not to appear before the court despite due service and was accordingly proceeded exparte vide order dated 19.05.2014. In these circumstances, the evidence of the plaintiff/PW-1 in his ex-parte P.E has gone uncontroverted, unrebutted and unchallenged and there is no reason to disbelieve the uncontroverted, unrebutted and unchallenged testimony of the plaintiff/ PW-1 in his ex-parte PE, as abovesaid, especially in view of the fact that the evidence of the plaintiff/PW-1 has been corroborated to a large extent by the various documents placed, on record, on his behalf and proved in his exparte PE as Ex. PW-1/1 to Ex. PW-1/7, as abovesaid, on record.
8. It is seen from the record that in addition to the reliefs of decrees of perpetual injunction against the defendant, restraining the defendant, its agents, servants, dealers, representatives and all other persons acting on its behalf from manufacturing, selling, offering for sale, advertising and/or dealing in any manner of Hydraulic door closure or allied/cognate goods or any other goods under the impugned mark/label EURO HARDWIN or any other mark/label deceptively similar to the plaintiff's trade mark HARDWYN amounting to infringement of the plaintiff's trade mark CS No. 72/14 Page 8 of 12 HARDWYN ; restraining the defendant, its agents, servants, dealers, representatives and all other persons acting on its behalf from reproducing, publishing and/or visual representation in any manner of the label/packaging EURO HARDWIN or any other label/packaging which is substantial reproduction of the plaintiff's artwork in label/packaging HARDWYN amounting to infringement of the plaintiff's copyright in art work of the label HARDWYN ; an order of delivery up of the packagings, brochures, pamphlets, letter pads, signboards, blocks, dies, stamps, printing materials, advertisement materials etc. under the impugned mark/label EURO HARDWIN by the defendant unto the plaintiff for the purpose of destruction/erasure, the plaintiff has also claimed relief of a decree of rendition of accounts of the defendant for ascertaining profits earned by the defendant by selling goods under the impugned mark/label EURO HARDWIN and further order for payment of such profit to the plaintiff.
9. It is further seen from the record that however, in lieu of a decree of rendition of accounts of the defendant, as abovesaid, the plaintiff has submitted that presently, the plaintiff has no source to know the quantum of profits earned by the defendant by selling the goods under the impugned mark/label EURO HARDWIN which can only be ascertained after rendition of accounts of the defendant. However, at the final disposal of the present suit, this Hon'ble Court may award damages of such amount which this Hon'ble Court shall find fit and proper under facts and circumstances of the present case CS No. 72/14 Page 9 of 12 instead of rendition of accounts of the defendant. That the plaintiff undertakes to pay additional court fees in aforesaid situation and accordingly, in view of the above and the facts and circumstances of the case as also the provisions of Section 135 (1) of the Trade Marks Act, 1999 (as amended upto date) as follows:-
135. Relief in suits for infringement or for passing off. -1). The relief which a court may grant in any suit for infringement or for passing off referred to in section 134 includes injunction (subject to such terms, if any, as the court thinks fit) and at the option of the plaintiff, either damages or an account of profits, together with or without any order for the delivery-up of the infringing labels and marks for destruction or erasure.
as also the provisions of citations Fritolay India & Ors. Plaintiffs vs. Radesh Foods & Anr. Defendants 2009 (40) PTC 37 (Del.) ; Adobe System, Inc & Anr. Plaintiffs vs. Mr. Mahindra Saxena & Anr. Defendants (CS (OS) No. 782/2002) Delhi High Court, decided on 07.07.2009 and Lachhman Das Behari Lal, Plaintiff vs. Ghanshyam Das Jetha Nand & Ors. Defendants 2007 (35) PTC 693 (Del), relied upon by the plaintiff, it is felt appropriate that a decree for a sum of Rs. 5,00,000/- as token consolidated damages to be paid by the defendant be passed in favour of the plaintiff and against the defendant in lieu of a decree of rendition of accounts of profit earned by the defendant, as prayed by the plaintiff, as abovesaid.
CS No. 72/14 Page 10 of 1210. Thus, in view of the above discussion, the plaintiff is held entitled to the following reliefs, as prayed:-
(a) A decree of perpetual injunction restraining the defendant, its agents, servants, dealers, representatives and all other persons acting on its behalf from manufacturing, selling, offering for sale, advertising and/or dealing in any manner of Hydraulic door closure or allied/cognate goods or any other goods under the impugned mark/label EURO HARDWIN or any other mark/label deceptively similar to the plaintiff's trade mark HARDWYN amounting to infringement of the plaintiff's trade mark HARDWYN.
(b) A decree of perpetual injunction restraining the defendant, its agents, servants, dealers, representatives and all other persons acting on its behalf from reproducing, publishing and/or visual representation in any manner of the label/packaging EURO HARDWIN or any other label/packaging which is substantial reproduction of the plaintiff's artwork in label/packaging HARDWYN amounting to infringement of the plaintiff's copyright in art work of the label HARDWYN.
(c) A decree for an order of delivery up of the packagings, brochures, pamphlets, letter pads, signboards, blocks, dies, stamps, printing materials, advertisement materials etc. under the impugned mark/label EURO HARDWIN by the defendant unto the plaintiff for the purpose of destruction/erasure.
(d) A decree for a sum of Rs. 5,00,000/- as token consolidated damages to be paid by the defendant to the CS No. 72/14 Page 11 of 12 plaintiff in lieu of the prayer of rendition of accounts of the defendant, as prayed by the plaintiff. The damages awarded shall carry interest @ 9 % per annum from the date of decree till the date of payment. Costs of the suit are also awarded in favour of the plaintiff and against the defendant.
The suit of the plaintiff is decreed, accordingly. Decree sheet be drawn up accordingly, subject to payment of the deficient court fees on account of damages awarded by this court.
File be consigned to the Record Room after due compliance.
(Announced in the open court
on 26.05.2015) (CHANDRA GUPTA)
ADJ-02 (West),
Tis Hazari Courts, Delhi.
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