Delhi High Court
Havells India Limited vs Mr. Allauddin A Shaikh on 13 November, 2019
Author: Mukta Gupta
Bench: Mukta Gupta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Decided on: 13th November, 2019
+ CS(COMM) 198/2019
HAVELLS INDIA LIMITED ..... Plaintiff
Represented by: Ms. Ridhie Bajaj, Advocate.
versus
ALLAUDDIN A SHAIKH ..... Defendant
Represented by: None.
CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA
MUKTA GUPTA, J. (ORAL)
1. Summons in the present suit were issued vide order dated 16 th April 2019. For the last three dates none has been appearing on behalf of the defendant. The right of the defendant to file written statement has also been closed vide order dated 24th October 2019. Defendant is thus proceeded ex- parte.
2. By the present suit the plaintiff, inter alia, prays for a decree of permanent injunction restraining the defendant, its partners, proprietors, officers, servants, agents, distributors, dealers, retailers or any other person acting for on their behalf from manufacturing, selling, offering for sale, advertising directly or indirectly in any manner with regard to products and services including but not limited to consumer durable products and accessories etc. bearing the trademarks/logos ,domain name http://lloydbathingco.com, CS(COMM) 198/2019 Page 1 of 13 tradename by themselves or with other variants, which trademark/ trade name/ domain name are deceptively similar to the plaintiff‟s trademark and the artistic style, lay out, get up, colour scheme, trade dress, etc. amounting to infringement of the plaintiff‟s trademarks, as also passing off the defendant‟s goods and/or business as that of the plaintiff‟s, diluting or tarnishing the plaintiff‟s trademark, get up, colour combination, trade dress, etc. as also infringing the plaintiff‟s copyright therein, besides delivery up of impugned material including products, containers, dyes, labels, packaging materials, destruction thereof, surrender/transfer the domain name http://lloydbathingco.com, declaration of the plaintiff‟s trademark/logo/ device LLOYD, and as a well-known trademark, damages, rendition of accounts and costs.
3. It is the case of the plaintiff that in the year 1958, Mr. Qimat Rai Gupta, founded the plaintiff company who commenced trading and operations in electric wholesale market in Old Delhi. Presently, plaintiff is a billion dollar plus Fast Moving Electrical Goods and consumer durable goods company which is extensively manufacturing and distributing with its network across India and internationally. It also enjoys a privileged market dominance in number of products including Industrial & Domestic Circuit Protection Devices, Cables & Wires, Motors, Fans, Modular Switches, Home Appliances, Air Conditioners, Televisions, Electric Water Heaters, Power Capacitors, CFL Lamps, Luminaires for Domestic, Bathroom Hardware Products, Water Pumps, Commercial and Industrial Applications etc. under multiple prestigious global brands such as HAVELLS, CRABTREE, STANDARD, PROMPTEC, QRG and LLOYD.
CS(COMM) 198/2019 Page 2 of 134. Plaintiff has an extensive network of more than 4000 professionals, over 7575 dealers, 40 branches across India and around 10 manufacturing units in India, besides availability of its product worldwide in more than 40 countries. Plaintiff was the first company to get ISI Certification for complete range of CFLs.
5. Plaintiff, keeping in with its objective to delve deeper into homes of consumers, has strengthened its brand and channel connect by new product innovations and by enhancement of existing product portfolio. The plaintiff has acquired the consumer Durables Business of LLOYD Electric and Engineering Limited in 2017, thereby entering into the field of consumer durables including Air-Conditioners, LED TV‟s, washing machines and other household appliances. The plaintiff has further started using the Internet of Things (IoT) technology to develop intelligent products ranging from home lighting to air conditioners, fans and water heaters which gives consumer the ability to control their devices from anywhere in the world.
6. The plaintiff has further acquired number of international certifications, like BASEC, KEMA, TUV Rheinland and CB, for its various products to expand research in the international arena.
7. Plaintiff is also actively involved in a lot of CSR activities and was also adjudged as the best CSR activity company in Neemrana Region by Times Group. Plaintiff has time and again contributed to various CSR programme. Plaintiff started a special initiative called "SPREADING HAPPINESS" by which it gave 501 Air Conditioners to hospital and institutions. Further in order to contribute towards India‟s Green Energy Revolution and empowered nation, the LLOYD group set-up a Wind Turbine Power Plant, Heavy Fabrication and Machine Facility. Plaintiff is one of the companies of ORG CS(COMM) 198/2019 Page 3 of 13 Group, which has also ventured into healthcare business and has two hospitals namely QRG Central Hospital and Research Center, Faridabad and QRG Health City, Faridabad. Plaintiff has further received numerous awards and accolades. Plaintiff has also placed on record documents to show that it is a recipient of numerous awards and accolades for its trademark LLOYD brand value and has been associated with various events.
8. In the year 2002, Plaintiff entered into a tie-up with the Italian Bath Fitting Company, Fratelli Frattinni under the trademark CRABTREE, by which it launched its range of bath fittings in India including focus on luxury Italian designer faucets as well as a range of styles within bathroom hardware products.
9. The trademark LLOYD was adopted in the year 1956 by the plaintiff‟s predecessor in title Fedders Lloyd Corporation Limited (FLCL) now known as Fedders Electric & Engineering Limited and is one of the plaintiff‟s flagship trademark. In the year 2017, the plaintiff acquired the absolute, exclusive ownership and right to all intellectual properties of the brand LLOYD. The plaintiff also incorporated a new company in the same year in the name and style of „LLOYD CONSUMER PRIVATE LIMITED‟. The trademark LLOYD has been extensively used for 60 years resulting in acquiring distinctiveness and goodwill associated with the trademark. The plaintiff has acquired Lloyd Electric and Engineering Limited‟s entire consumer durable business infrastructure, people, distribution network including but not limited to absolute, exclusive ownership and right to all intellectual property of brand Lloyd, logo, trademark, goodwill and attendant rights. Plaintiffs trademark LLOYD along with its labels are prima facie distinctive of goods and services identified through out the world.
CS(COMM) 198/2019 Page 4 of 1310. Plaintiffs products bearing the LLYOD trademark have received an overwhelming response from consuming public as well as members of the trade and same can be ascertained by the constant rise in its sales as gross sales turnover in the financial year 1997-98 was ₹57.30 crores which has arisen to ₹3022.42 crores in the financial year 2016-17. Further, after the acquisition of brand LLOYD by the Plaintiff, the Plaintiff has posted Net Revenue of approximately ₹ 1,414 crores for the period 8th May 2017 to 31st March 2018 and for the period 1st April 018 to 31st December 2018 approximately ₹ 1,323.2 crores.
11. The trademark LLOYD of the plaintiff has been widely promoted through various social and audio-visual medium including advertisement on print and social media, internet presence and widespread good will and reputation worldwide. The goods under brand LLYOD have been promoted significantly and the same can be ascertained by the expenditure incurred by LLYOD ELECTRIC AND ENGINEERING LTD. and FLCL over the years.
12. Further, the plaintiff has developed a mobile application named „MyLloyd‟ and has been using it under the as the earlier logo and also the logo . The app enables the consumers to access the wide range of plaintiff‟s LLOYD brand products and services such as tracking product registrations, asking for service, buying products and etc.
13. Commercial presence of the plaintiff is maintained online through its websites https://www/havells.com/ and https://www.mylloyd.com/. The website of the plaintiff https://www.mylloyd.com/. uses the LLYOD / / trademarks /logos as well as the HAVELLS CS(COMM) 198/2019 Page 5 of 13 trademark/logos with a tagline A HAVELLS Brand. The plaintiffs predeccosr in interest also owned various domain names containing the mark LLOYD including but not limited to www.lloydengg.com and www.fedderslloyd.com. The plaintiff has filed documents in support of his claim hereinabove along with necessary certificate under Section 65B of the Indian Evidence Act as also declaration on oath under Order XI Rule 6(3) of the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act 2015.
14. By way of assignment deed dated 8th May, 2017, plaintiff has been assigned the trademark by virtue of which the plaintiff has an absolute, exclusive ownership and right in all the intellectual properties of brand LLOYD, logo, trademark, goodwill, etc. The plaintiff has its registration of trademark LLOYD in over 30 jurisdictions outside India.
15. Further the plaintiff besides its trademark LLYOD , , and , used for its various products and services including hardware products and accessories such as bathroom pumps, pressure pumps, monoblock pumps, motors, heaters, water heaters etc. also uses the mark CARBTREE with respect to bathroom fittings.
16. The essential features of the LLOYD and HAVELLS trademarks of the plaintiff are:
1. The use of cursive font to write LLOYD with a unique emphasis to the capital representation of the letters „LL‟ and extended „Y‟ cursive letter with a half opened D letter.
2. Further, the blue colored logo of the LLOYD trademark CS(COMM) 198/2019 Page 6 of 13 incorporates the following features.
3. Use of cursive font to write LLOYD with a unique emphasis to Y and half opened D letter;
4. The use of royal blue, black and white coloured combination in the logo
5. The use of white font to inscribe LLOYD agaisnt the royal blue background."
6. The use of red and white color combination is also prominently used by the Plaintiff‟s for its HAVELLS Trademark written in capitals being
17. It is also claimed by the plaintiff that the red and white color as well as the royal blue, black and white color combination mentioned hereinabove, also constitute artistic work under the ambit of Section 2 (c) of the Copyright Act.
18. Grievance of the plaintiff against the defendant is that defendant is proprietor of a firm trading under the name and style of „LLOYD Bathing Co.‟ associated in business of selling bathroom hardware products and accessories including pressure pumps, motors, water heating equipment, bathroom fittings, pumps, bath tubs etc. in India under the mark LLOYD and logos .
CS(COMM) 198/2019 Page 7 of 1319. In the third week of October, 2017 while conducting a routine internet surveillance on the website of the Trademark Registry the plaintiff came across defendant‟s trademark application under no. 2316933 for the mark in class 07 which was published in Trade Marks Journal No. 1813 dated 4th September 2017. The plaintiff upon further search also came across the Defendants website http://lloydbathingco.com which displays various bathroom hardware products and accessories such as water heaters , pressure pumps , booster pumps, digital steam generators etc. under different variants of impugned LLOYD trademark. The premises of the defendant is a multistorey building in a residential cum commercial area with a signage of displayed at the premises. The brochure and the business card of the defendant was also taken. On further enquiry it was revealed that the that the products of the defendant are also available on e- commerce website www.amazon.in. Further in order to ascertain this fact, the plaintiff-initiated communication with the defendant over his e-mail "[email protected]" between 7th November 2017 and 8th November 2017, in furtherance to which, the defendant agreed to sell products to the plaintiff which were to be delivered in New Delhi. Vide email dated 13th November 2017, the defendant supplied the quotation of the products namely " 1 HP LLYOD Pressure Pump with Auto kit". The amount was transferred by the plaintiffs and the products were delivered to them at the New Delhi address on 24th November 2017.
20. Plaintiff further filed a petition before the Trade Mark registry on 28th November 2017 to file a suitable complaint before the concerned authority CS(COMM) 198/2019 Page 8 of 13 under Section 115 of the Trademarks Act, 1999 regarding the offences committed by the defendants punishable under Section 107 of the Trademarks Act read with Section 420 of the Indian Penal Code, 1860 by falsely misrepresenting the logos "LLOYD" , "LLOYD Pressure Pump" and " LLOYD Bathing Co." as his registered trademarks at multiple places and has represented the same with symbol "®". The complaint is pending adjudication.
21. The plaintiff, in order to safeguard his interest, also filed an opposition No. 915156 dated 4th January 2018 against the defendant‟s trademark application no. 2316933 for "LLYOD BATHING CO." which is also pending adjudication.
22. On 15th February 2019, a consumer complaint by one Mr. Asrar Qureshi pertaining to defendant‟s pressure pump was registered with consumer service of the Plaintiff under the Job No. 150219410030, who had purchased a pressure pump from the defendant believing it to be a product of the plaintiff. Upon inspection, the plaintiffs‟ representative saw that the pressure pump that was installed was that of defendants‟ LLYOD Bathing Co. and not of the plaintiff.
23. In March 2019, it came to the notice of the plaintiff that the defendant had filed yet another application for registration of its trademark LLYOD BATHING CO. vide application No. 3947112 on 17th September 2018 in Class 35 on a proposed to be used basis which had been published vide Journal No. 1878 dated 3rd December 2018. The plaintiff filed an opposition to the same bearing No, 979474 on 2nd April 2019.
24. On 8th April 2019, to ascertain the malafide activities of the defendant, the plaintiff‟s representative placed a request for the purchase of CS(COMM) 198/2019 Page 9 of 13 a "1.0 HP Llyod Pressure Pump with Auto Kit" product with defendant for ₹29,139, which was delivered at New Delhi address on 13 th April 2019 vide invoice No. 08/2019/-20.
25. On perusal of the defendant‟s website http://lloydbathingco.com it was evident that it was similar to Plaintiffs website http://www.havells.com/en.html including the background red and white colour, structure, format, placement of tabs etc. Further, the defendant at various places on its website has used impugned LLOYD trademarks/logos which are similar to plaintiff‟s trade marks.
26. Further, it came to the notice of the plaintiff that defendant expanded its line of products and is now selling a range of „Electric Instant Water Heaters‟ on its website. Defendant on its website under the „Electric Instant Water Heaters‟ segment, categorically introduces said range as „LLOYD Instant electric water heaters...‟.
27. The similarity between the trademark and trade dress of the plaintiff vis-`a-vis the defendant is depicted as under :
S.No. PLAINTIFF'S TRADEMARK AND DEFENDANT'S COMPARISON TRADE DRESS TRADEMARK AND TRADE DRESS
1. 1. Identical royal blue, black and white color scheme having a royal blue/black background with LLOYD written in white font.
2. Identical running font adopted to write LLYOD with CS(COMM) 198/2019 Page 10 of 13 all letters in close proximity.
2. 1. Identical red and white colour combination as that of the Plaintiffs HAVELL logo/trademark.
3. 1. Identical placement of the mark LLOYD in the center of the logo.
2. Identical style of writing the letters 'LL' in capitals with a curved tail at the edge.
3. Similar style of writing the letter 'Y' with an elongated tail stemming in the end.
4. 1. The manner of writing LLOYD in red and white color vis-à-
vis Plaintiffs
trademark HAVELLS.
5. 1. Identical red
and white color of the
'MyLloyd' app vis-à-
vis Defendants' color
combination.
28. From the pleadings of the plaintiff in the plaint as also the documents enclosed with the plaint along with the necessary certificate, the plaintiffs have clearly made out a case for grant of injunction in terms of prayer (i), CS(COMM) 198/2019 Page 11 of 13
(ii), (iii) and (iv) as the defendant is violating the rights of the plaintiff in its trademark as well as copyright.
29. In the present suit vide prayer (ix) the plaintiff also prays for a decree of declaration that the trademark/logos/ devices LLOYD, and are well-known trademarks. Dealing with the "well-known trademark", this Court in the decision of Havells India Limited v. Rajeev Chawla CS(COMM) 176/2019 declared the trademarks and as well-known trademarks as under :
"19. Analyzing on the touchstone of the guidelines laid down for determining a well-known mark, the trademark LLOYD, and has been in use for more than 60 years now and has a trans-border reputation. The sales figures and the promotional figures also exhibit the high quality of goods and services under the trademark and the trademark is a commonly known trademark with the consumers which include and are not limited to the household consumers in number of its electrical goods. Hence, a decree in favour of the plaintiff and against the defendant in terms of prayer (ix) declaring that the trademark/logos/ devices CS(COMM) 198/2019 Page 12 of 13 LLOYD, and are well-known trademarks is also required to be passed in favour of the plaintiff."
30.Plaintiff does not press the prayers (v), (vi), (x) and (xi). Hence no decree in terms of prayer (v), (vi), (x) and (xi) is being passed.
31. As regards cost, the plaintiff has filed an affidavit indicating that the cost incurred by the plaintiff including Court fees, miscellaneous expenses and the fees of the lawyers amounts to a total sum of ₹5,88,574/-.
32. Suit is accordingly decreed in terms of prayer (i), (ii), (iii), (iv) and
(vii), (viii), (ix) of para 87 of the plaint in favour of the plaintiff and against the defendant. Cost of ₹5,88,574/- is awarded in favour of the plaintiff and against the defendant.
I.A. 5554/2019 (u/O XXXIX R 1&2 CPC by P & I.A. 5555/2019 (u/O XI R 1(4) CPC by P) Disposed of as infructuous.
(MUKTA GUPTA) JUDGE NOVEMBER 13, 2019 'sk' CS(COMM) 198/2019 Page 13 of 13