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(vi) While so, the plaintiffs came to know of the use of the trademark AACHI CARGO CHANNELS PVT.LTD., in February 2010 by the defendant and therefore, the plaintiffs came forward with the above suit in March 2010. The plaintiffs contended that they are aggrieved that the defendant is using the Trademark AACHI as part of its company name. The defendant is not entitled to use the registered trademark of the plaintiffs as part of their company name under both the Companies Act as well as the Trademarks Act, hence, the suit.

http://www.judis.nic.in

(iv) The use of the word mark 'Aachi' by the defendant would not amount to fraud under the Trademarks Act, in as much as the registration of the mark 'Aachi' is void ab initio. The allegation that the conduct of the defendant amounts to fabrication of Trademark and it is an offence punishable under the Trademarks Act is baseless, motivated and not correct.

(b) The plaintiffs are the prior users and registered proprietors of the trademark AACHI from 1995. The defendant is the subsequent user of the identical mark from 03.07.2008. Therefore, the defendant cannot seek any injunction against the plaintiffs which is not maintainable under Sections 27, 28, 29 and 34 of the Trademarks Act, 1999.

(c) As stated above the plaintiffs are the prior users and registered proprietor of the Trademark AACHI. The defendant is the subsequent user who has slavishly imitated the plaintiff's trademark. Under Section 29(4) of the Trademarks Act the use of http://www.judis.nic.in the identical mark with respect to goods that are not similar to the plaintiffs goods also amounts to infringement of registered trademark. Hence, the suit filed is maintainable under Section 134 of the Trademarks Act, 1999.

10. The mark being established by the plaintiffs company has won a great reputation and an exclusive identity with the plaintiffs, it is dishonestly being grabbed by the defendant. The adoption of the mark is being malafide and dishonest having known the reputation of the plaintiffs. The trade name adopted by the defendant tends to mislead the public and members in trade. The defendant has adopted the mark which is deceptively and phonetically similar to that of the plaintiffs mark with the malafide intention to ride on the reputation and goodwill of the plaintiffs. Under Section 29(4) even though the plaintiffs and defendant are not carrying on same line of business, the use of identical mark infringes the trade name under the Act. The defendant has adopted http://www.judis.nic.in the plaintiffs registered trademark “AACHI” which amounts to fraud and falsification of Trademark under Section 102 and it is an offence punishable under Section 103 of Trademarks Act, 1999. The plaintiffs over a period of two decades have achieved the turnover of 1300 crores as on 31.03.2015. In this regard, the plaintiffs also marked Ex.P3. The plaintiffs also invested a sum of Rs.21 crores for the advertisement for the year ending 31.03.2015 and in this regard the plaintiffs also filed the documents marked as Ex.P3. By virtue of spending huge amount, the plaintiffs achieved the turnover of more than 1000 (One Thousand) Crores for the year ending 31.03.2015. Therefore, he contended that the plaintiffs product along with the trademark “AACHI” reached the public enormously and the plaintiffs also spent huge amount by way of advertisement only for this purpose and thereby created reputation and goodwill among the public. Now, the defendant simply by copying the registered trademark of the plaintiffs as a part of its trade name has been riding on the goodwill of the plaintiffs and thereby taking unfair advantage. Therefore, the learned Senior counsel submits that the defendant's identical trademark with respect to the Cargo services will inevitably dilute and bring disrepute to the distinctive http://www.judis.nic.in character of the plaintiffs trademark. The plaintiffs have diversified their activities in the past 25 years into Hotels, Clothing, Cleaning, Medicines, Education, etc., if the defendant uses the same trademark as its part of the trade name with respect to the Cargo Services it will lead to dilution and disrepute to the business of the plaintiffs. Hence he submits that the plaintiff had satisfied all the requirements of Section 29(4) which reads as follows:-