Madras High Court
Aqua Pump Industries vs Rajeev Dubey on 12 July, 2019
Author: Krishnan Ramasamy
Bench: Krishnan Ramasamy
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IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 12.07.2019
Coram
The Honourable Mr.Justice KRISHNAN RAMASAMY
C.S.No.729 of 2017
and O.A.Nos.912 & 913 of 2017
1.Aqua Pump Industries
rep. by its Managing Partner
Mr.Ramaswamy Kumaravelu
Thudiyalur Post
Coimbatore – 641 034
Having their branch office at
New No.10, Old No.26,
Errabalu Chetty Street, Parrys Corner
Chennai – 600 001.
2.Aqua Sub Engineering
rep. by its Managing Partner
Mr.Ramaswamy Kumaravelu
Thudiyalur Post
Coimbatore – 641 034
Having their branch office at
New No.10, Old No.26,
Errabalu Chetty Street, Parrys Corner
Chennai – 600 001.
...Plaintiffs
Versus
Rajeev Dubey
No.132 – B,
Veena Nagar,
Sukhliya,
Indore – 452 010,
Madhya Pradesh.
...Defendant
This suit is filed under Order IV Rule 1 O.S.Rules and Order VII Rule
1 of the C.P.C r/w. Sections 27, 134 & 135 of the Trade Marks Act, 1999
for the
http://www.judis.nic.in following reliefs:
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(a) granting a permanent injunction, restraining the defendant, by
itself, their servants, agents, distributors, or anyone claiming through
them from manufacturing, selling, advertising and offering for sale using
the plaintiff's registered trademark TEXMO/DEKMO as such or prefix or
suffix in any Machine and Machine tools, Motors, and Engines (except for
land vehicles), Agricultures implements and other hand operated pumps
(Machines) pumps and motors or in any goods manufactured and sold by
the defendant or its trading style or in any media and use the same in
invoices, letter heads and visiting cards or by using any other trademark
which is in any way visually, or phonetically similar to the plaintiffs'
registered Trademark TEXMO/DEKMO or in any manner infringing the
plaintiffs' registered Trademark Nos.315049 (SP-I), (SP-II) & 315050 (SP-
I) renumbered as 2702778, 2702779, 2702780 & 2702781 respectively.
(b) granting a permanent injunction, restraining the defendant, by
itself, their servants, agents, distributors, or anyone claiming through
them from manufacturing, selling, advertising and offering for sale using
the Trademark TEXMO/DEKMO as such or with prefix or suffix in Machine
and Machine tools, Motors and Engines (except for land vehicles),
Agricultures implements and other hand operated pumps (Machine)
pumps and motors or in any goods manufactured and sold by the
defendant and its trading style or in any media and use the same in
invoices, letter heads and visiting cards or by using any other trademark
which is any way visually, or phonetically similar to the plaintiffs
Trademark TEXMO/DEKMO or in any manner pass off the plaintiffs' goods.
(c) directing the defendant to surrender to the plaintiffs all the
goods, packing materials, cartons, advertisement materials and
hoardings, letter-heads, visiting cards, office stationery and all other
materials containing/bearing the Trademark DEKMO or other deceptively
similar to the plaintiffs' trade mark TEXMO.
(d) directing the defendant to render an account of profits made by
http://www.judis.nic.in
them by the use of the impugned trademark DEKMO on the goods
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referred and decree the suit for the profits found to have been made by
the defendant, after the defendant has rendered accounts,
(e) directing the defendant to pay to the plaintiffs the costs of the
suit.
For Plaintiffs : Ms.Gladys Daniel
For Defendant : Set ex parte
JUDGMENT
The present suit has been admitted on 15.02.2019, and the suit summon was served on the sole defendant but when the matter was called on 20.08.2018, none appeared on behalf of the defendant. Therefore, the sole defendant was set ex parte by this Court, thereafter, when the matter was listed before the learned Additional Master-I on 27.08.2018, the plaintiffs filed the Proof Affidavit and on the side of the plaintiffs, only one witness was examined viz., P.W.1, Mr.T.Narendran, Vice President of the plaintiff firm and 11 documents were marked viz., Ex.P1 to Ex.P11.
2. Today, when the matter is taken up for final disposal, the learned counsel for plaintiffs is present.
3. The case of the plaintiffs is that they are the manufacturers of different types of electrical motors and pumps. One Mr.Ramaswamy Kumaravelu, the Managing Partner of the plaintiffs and his brother http://www.judis.nic.in 4 Ramachandran(died) started trading as TEXMO Industries secured registered of the Trademark TEXMO with effect from 21.05.1976 as joint proprietors in respect of electrical motors (not for land vehicles) pumps included in Class-7, including Centrifugal pumps, mono-block pumps, domestic pumps, submersible pumps and reciprocating piston pumps, sugar cane crushers (machines). As licensed users of the trademark “TEXMO”, the plaintiffs 1 & 2 had commenced their business on 01.04.1974 and 12.11.1982 respectively. Based on the agreement between the parties, the Registrar of Trademarks passed an order on 20.04.1998. By virtue of the said order, the plaintiffs became the registered proprietors of the trademark TEXMO and their registered Trademark Nos.315049 (SP-I), 315049(SP-II) & 315050 (SP-I), 315050(SP-II) which were later renumbered as 2702778, 2702779, 2702780 & 2702781 respectively.
4. The plaintiffs 1 and 2 are the registered proprietors of the trademark TEXMO in respect of the following goods viz., (i) to (viii) and
(ix) & (x) respectively:
(i) Motors which run on single phase current with capacities ranging between ¼ H.P. (one fourth Horse Power) and 1 H.P. (One Horse Power).
(ii) Deep-well Jet Pumps, Jet Monoblocks, Multistage Jet Pumps and Monoblocks of any capacity which run on single phase current.
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(iii) Centrifugal Pumps and Monoblocks upto and including 1 H.P. (One Horse Power) which run on single phase current.
(iv) Lateral channel pumps and Lateral channel monoblocks of any capacity which run on single phase current.
(v) Submersible monoblocks of any capacity which run on single phase current.
(vi) Reciprocating pumps for domestic use which runs on single phase current.
(vii) Any other type of pump or monoblock including self priming centrifugal pumps and monoblocks, which run on single phase current used for domestic purposes.
(viii) Components and spares for the above products.
(ix) Submersible Motors, Submersible Pumps and Submersible Pump sets (Excluding Submersible Mono Block presently manufactured by TEXMO Industries)
(x) Components and spares for the above products.
5. The plaintiffs have been extensively and substantially using the registered trademark “TEXMO” in respect of the aforesaid goods since 1974 throughout India and thereby, they have acquired enormous goodwill and reputation. By manufacturing the said goods under the trademark “TEXMO”, the plaintiffs earning a huge turnover every year. http://www.judis.nic.in 6
6. While so, in the month of December 2016, the plaintiffs came to know that the defendant's trademark application for registration of their trademark DEKMO under A.No.3194186 is advertised in the Trademark Journal and the defendant is manufacturing, selling and distributing Machine and Machine tools, Motors and Engines (Except for Land Vehicles), Agricultures implements and other hand operated pumps (Machine) under the offending trademark DEKMO. The defendant has adopted the trademark DEKMO which amounts to deception and confusion in the market and an infringement of the plaintiffs' Intellectual Property Rights. The defendant has been wrongfully, and unlawfully carrying on the infringement activities by dealing in manufacturing and/or selling and/or storing and/or distributing goods under trademark DEKMO.
7.1. The learned counsel for the plaintiffs submitted that the defendant is infringing the plaintiffs' trademark only with the mala fide intention to pass off their goods as that originated from the plaintiffs Firm. He also submitted that the above mala fide act of the defendant will tarnish the image of plaintiffs' Company. He further submitted that the aforesaid acts of the defendant are calculated attempts to trade in on the tremendous reputation and goodwill attained by the plaintiffs for the trademark "TEXMO".
http://www.judis.nic.in 7 7.2. The learned counsel would argue that manufacturing of identical products under a deceptively similar mark to that of the plaintiffs' well known mark "TEXMO" shows the dishonest intentions and fraudulent activity of the defendant. He also argued that the defendant has no right to adopt and use the plaintiffs' registered trademark “TEXMO”. He therefore prayed that the defendant may be restrained from using the offending identical trademark, "DEKMO" otherwise, the plaintiffs would be put to great loss and hardship.
8. Heard the learned counsel for plaintiffs and perused the materials available on record.
9.1. In view of the submission made by the plaintiff's counsel, this Court finds that the plaintiffs are the registered proprietors of the trademark TEXMO, which is clearly evident from Ex.P2, Legal Use Certificates of the Trademark Nos.2702778, 2702779, 2702780, 2702781. As per Ex.P2, the plaintiffs are the exclusive registered proprietors of the trademark TEXMO in respect of the goods stated in paragraph No.4 of this judgment. It is also seen that the plaintiffs' registration over the trademark TEXMO is valid and subsisting. http://www.judis.nic.in 8 KRISHNAN RAMASAMY, J., mrr 9.2. It is crystal clear that the defendant is manufacturing, selling and distributing Machine and Machine tools, Motors and Engines (Except for Land Vehicles), Agricultures implements and other hand operated pumps (Machine) under the offending trademark DEKMO which is deceptively and phonetically similar to the plaintiffs' Trademark “TEXMO”. So the above such act of the defendant would absolutely amounts to infringement of the plaintiffs' registered trademark, “TEXMO”. Therefore, the plaintiffs proved the suit claim beyond doubts.
9.3. Taking note of the facts and circumstances of the case, this Court is inclined to decree the suit as prayed for by the plaintiffs and also considering the mala fide act of the defendant, this Court feels that it would be necessary to put some costs on the defendant.
10. Accordingly, this Civil Suit is decreed as prayed for and the defendant is directed to pay the cost of Rs.50,000/- (Rupees Fifty Thousand only) to the plaintiffs. Consequently, connected Applications are closed.
12.07.2019 mrr Index : Yes/No C.S.No.729 of 2017 http://www.judis.nic.in