Bangalore District Court
Khodays Breweries Private vs House Of Khodays Private on 3 November, 2022
KABC010115412022
Form
No.9
(Civil)
Title
Sheet
for PRESENT: SRI PADMA PRASAD
Judgmen
t in B.A.(Law) LL.B.,
XVIII Additional City Civil Judge.
Dated this the 4 th day of November 2022
PLAINTIFF: Khodays Breweries Private
Limited
A Company incorporated under
the Companies Act, 1956
Having its Registered Office at
'Brewery House', 7th Mile,
Kanakapura Road,
Bengaluru-560 062.
Represented by its
Director
Mr. K.L.Swamy
Ph: 08022956569
Email: [email protected]
[By Sri Karan Joseph, Advocate]
/v e r s u s/
DEFENDANT: House of Khodays Private
Limited
A company incorporated under
The Companies Act, 2013.
Having its Registered Office at
No.15, 4th Main Road,
Vyalikaval, Represented by its
2 O.S._2869_2022_Judgment_.doc
Director.
Ph: Not known to the plaintiff
Email: [email protected]
[Exparte]
Date of institution of the : 21/04/2022
suit
Nature of the suit : For Permanent Injunction
(IPR)
Date of commencement of : 29/08/2022
recording of the evidence
Date on which the : 04/11/2022
Judgment was
pronounced.
: Year/s Month/s Day/s
Total duration
- 6 14
(PADMA PRASAD)
XVIII ACCJ: B'LURU.
This is a suit for permanent injunction.
2. The plaint case in nutshell is that, plaintiff
owns and has been operating a well established
Brewery engaged in the manufacture of various
brands of beer including the well known "Hercules
Super Strong" beer for more than 5 decades,
employing a large number of people. Over a period of
time, apart from manufacturing its own brands of
3 O.S._2869_2022_Judgment_.doc
beer, the plaintiff has also utilized the spare capacity
at its Brewery to undertake contract manufacturing of
multi national brands of beer of worldwide repute
such as 'Cobra Super Strong' of Molson Coors,
"Australian MAZ" super strong beer of Interbrand
Beverages and "KnockOut" brand of beer of AB Inbev
(formerly SAB Miller). As a part of its business
operations and in order to protect itself, the plaintiff
had obtained trademark - Royal House of Khoday's
in Class no.33 bearing Trademark No.801164 with
effect from 6/5/1998, and the said trade mark has
been renewed from time to time and is still in force as
on date. The plaintiff's mark has been continuously in
use in India ever since 1998. The Royal House of
Khoday's indicates an association with the plaintiff
and its business. Royal House of Khoday's and its
name and style has been coined by the plaintiff and is
an invented word/phrase.
Recently plaintiff came to know that the
defendant company was incorporated with the name
'House of Khodays Private Limited'. The main
4 O.S._2869_2022_Judgment_.doc
object of the defendant company are purportedly to
carry "on the business of manufacture, selling,
purchasing, processing, storage, import and export of
alcoholic drinks or otherwise, including beverages
produced for such products or otherwise". The
defendant company was incorporated vide certificate
of incorporation dated 15/11/221 with Corporate
Identity Number U15209KA2021PTC154340.
The defendant has illegally, surreptitiously and
with malafide intention been incorporated with a
deceptively similar name without the knowledge of the
plaintiff and without consent of the plaintiff which is
clear from the Memorandum of Association of the
defendant.
The incorporation of the defendant with the trade
mark of the plaintiff amounts to a willful and
intentional attempt to damage the plaintiff's
reputation and damage its name and trade mark.
Therefore, the misuse of the name 'House of
Khodays' by the defendant is unfair and deceptive,
apart from amounting to blatant infringement and
5 O.S._2869_2022_Judgment_.doc
passing off of the trade mark and name Royal House
of Khoday's. The plaintiff's trade mark has been
copied slavishly and dishonestly by the defendant and
it amounts to infringement and passing off in law.
The defendant and the plaintiff operate in the
same industry, and as such there is a grave likelihood
of deception and confusion in the minds of customers,
business partners, employees and the general public.
The plaintiff is admittedly prior user and adopte of the
trade mark.
The usage of the trade mark Royal House of
Khoday's by the defendant is clearly in bad faith,
malafide and amounts to infringement of trade mark.
The sole intention of the defendant is to deceive and /
or mislead customers, beneficiaries, partners,
vendors, ad the pubic, who are familiar with the
quality products and services offered by the plaintiff,
to cause them to believe that the services offered by
the defendant are that of the plaintiff's or in some way
connected to the plaintiff. Accordingly, prayed to
decree the suit.
6 O.S._2869_2022_Judgment_.doc
3. Inspite of service of summons, defendant
has not chosen to appear before the court to contest
the case. Therefore, he is placed exparte.
4. On the basis of above, point for
consideration is that - Whether the plaintiff is entitled
for the relief claimed in the suit?
5. Plaintiff in order to prove its case, examined
its Company Secretary and CEO as PW.1 and got
marked documents as per Ex.P1 to Ex.P10.
6. Heard the arguments of the plaintiff and
perused entire records of the case.
7. My findings on the above point is in the
affirmative, for the following:
8. The plaintiff in support of its case examined
its Company Secretary and CEO
R. Venkatasumbranyam as PW.1 by filing evidence
affidavit, wherein it has been stated in consonance
with the plaint case. The plaintiff also relied on
documentary evidence to prove its case at Ex.P1 to
7 O.S._2869_2022_Judgment_.doc
Ex.P10. Ex.P1 is the letter of authorisation by the
plaintiff to PW.1 to prosecute the case. The said
document sufficiently shows that PW.1 has been
authorised by the plaintiff to prosecute this case.
9. The plaintiff has produced the online
printout of certificate of incorporation and
Memorandum of Association that disclose the
existence of plaintiff as claimed in the plaint.
10. The plaintiff claims that it has obtained the
trade name Royal House of Khoday's, in support of
the said fact, the plaintiff produced Legal Use
Certificate at Ex.P10. The said document sufficiently
shows that the plaintiff has obtained the word mark
Royal House of Khoday's in class 33 and the said
word mark has been registered as on 6/5/1998 that
has been renewed from time to time, and it is valid
upto 6/5/2028. Therefore, the plaintiff has
sufficiently proved that it is the registered trade mark
holder in the word mark Royal House of Khoday's
in class 33 since 1998 and it is valid till 2028.
8 O.S._2869_2022_Judgment_.doc
11. The claim of the plaintiff is that, the
defendant started the identical business / trade and
deceptively used the plaintiff's trade mark as House
of Khodays by removing the word Royal. The
material on record produced before the court
particularly the articles found in Ex.P5 business
standard, Ex.P6 Times of India, Ex.P7 disclose that
the plaintiff had worldwide name and its brands are
well recognised, as such it has earned good reputation
as well as good will.
12. The material on record also shows that the
defendant is deceptively using the word mark of
plaintiff as House of Khodays just by removing the
word Royal which is certainly similar and identical.
As such, certainly the act of the defendant amounts to
infringing and passing off of plaintiff's registered word
mark Royal House of Khoday's. If the defendant is
continued the use of said word mark House of
Khodays, certainly general public / customers may
believe that the House of Khodays is also the brand
of plaintiff. As such, deceptively use of trade mark or
9 O.S._2869_2022_Judgment_.doc
word mark of plaintiff by the defendant to be
restrained. In the case on hand, the defendant though
served with the suit summons not chosen to appear
before the court to resist the plaint case. In fact, there
is unchallenged testimony of PW.1 before the court.
Absolutely there is no material whatsoever on record,
so that the court can disbelieve the plaint case.
Accordingly, this court is of the humble opinion that
the plaintiff is entitled for the reliefs claimed in the
suit. Accordingly, the above point is answered in the
affirmative. In the result, following:
The suit of the plaintiff is hereby
decreed with costs in following terms:
The defendant or anybody claiming
under it is hereby permanently
restrained from infringing and
passing off of plaintiff's registered
word mark Royal House of
Khoday's as House of Khodays or
any other deceptively similar word
mark as claimed in the plaint.
10 O.S._2869_2022_Judgment_.doc
The defendant is further directed to
destroy all materials such as visiting
cards, letter heads, seals, brochures,
literature books and banners which
display the mark / name House of
Khodays immediately.
The defendant is further directed to
render the accounts for doing the
business in the name of House of
Khodays.
Draw decree accordingly.
***
[Dictated to the Judgment Writer directly on computer, Script corrected, signed and then pronounced by me, in the Open Court on this the 3 rd day of November 2022.] [PADMA PRASAD] XVIII Additional City Civil Judge.
BENGALURU.
1. List of witnesses examined on behalf of the Plaintiff/s:
PW.1 R. Venkat Subramanyam
2. List of witnesses examined on behalf of the Defendant/s:
NIL.
3. List of documents marked on behalf of the Plaintiff/s:
Ex.P.1 Letter of authorization. 11 O.S._2869_2022_Judgment_.doc Ex.P.2 Online printout of certificate of incorporation (5 sheets).
Ex.P.3 Online printout of memorandum of association.
Ex.P.4 Online printout of wikipedia.
Ex.P.5 Online printout of article in business standard.
Ex.P.6 Online printout of article in Times of India.
Ex.P.7 Online printout of defendants memorandum of association.
Ex.P.8 Online printout of certificate of incorporation of defendant.
Ex.P.9 Certificate U/s 65-B in respect of Ex.P2 to 8.
Ex.P.10 Legal use certificate.
4. List of the documents marked for the defendants:
NIL.
[PADMA PRASAD] XVIII Additional City Civil Judge.
BENGALURU.
...Judgment pronounced in the Open Court....
(Vide separate detailed judgment) The suit of the plaintiff is hereby decreed with costs in following terms:
O.S._2869_2022_Judgment_.doc The defendant or anybody claiming under it is hereby permanently restrained from infringing and passing off of plaintiff's registered word mark Royal House of Khoday's as House of Khodays or any other deceptively similar word mark as claimed in the plaint.
The defendant is further directed to destroy all materials such as visiting cards, letter heads, seals, brochures, literature books and banners which display the mark / name House of Khodays immediately.
The defendant is further directed to render the accounts for doing the business in the name of House of Khodays.
Draw decree accordingly.
Digitally signed [PADMA PRASAD] by PADMA PADMA PRASAD XVIII Additional City Civil Judge. PRASAD Date:
2022.11.03 BENGALURU.
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