THE HONOURABLE MR.JUSTICE C.V.KARTHIKEYAN CS.No.1060 of 2009 M/s.N.Ranga Rao and Sons Private Limited by its Director Vishnu Das Ranga Plaintiff Vs M/s.Pooja Trading Co. Defendant Prayer:- This Civil Suit is filed under Order IV Rule 1 of the Original Side Rules read with Order VII Rule 1 of CPC and read with Sections 134 and 135 of the Trade Marks Act, 1999 and Sections 55, 58 and 62 of the Copyright Act, 1957, for the reliefs as stated therein.
For Plaintiff : M/s.TMT Law Practice For Defendant : Set Exparte JUDGEMENT This civil suit has been filed, to pass a judgement and decree, against the Defendant:-
a) granting permanent injunction, restraining the Defendant from in any manner infringing the Plaintiff's registered trade mark CYCLE BRAND together with the device of a cycle by using the offending trade mark “CYCLE BRAND together with the device of a cycle or any other mark or marks which are identical and similar to or a colourable imitation of the Plaintiff's registered trade mark CYCLE BRAND together with the device of a cycle”.
b) granting permanent injunction, restraining the Defendant from in any manner infringing the Plaintiff's copyrighted artistic work CYCLE BRAND together with the device of a cycle by using the offending artistic work CYCLE BRAND together with the device of a cycle or any other work or works which are identical and similar to or a colourable imitation of the Plaintiff's well established copyrighted artistic work CYCLE BRAND together with the device of a cycle.
c) granting permanent injunction restraining the Defendant from in any manner passing off of their products bearing the offending artistic work and the trade mark CYCLE BRAND together with the device of a cycle as and for the celebrated produces of the Plaintiff bearing the copyrighted artistic work and well established trade mark CYCLE BRAND together with the device of a cycle either by manufacturing or selling or offering for sale or in any manner advertising the same.
d) directing the Defendant to surrender the entire stock of unused offending trade mark wrappers, containers, bill books, etc. bearing the offending trade mark CYCLE BRAND together with the device of a cycle together with blocks and dyes for destruction.
e) directing the Defendant to render true and faithful accounts of profits earned by the Defendant through the sale of their product sold under the offending trade mark CYCLE BRAND together with the device of a cycle and directing payment of such profits to the Plaintiff for the passing off committed by the Defendant.
f) directing the Defendant to pay the costs of the suit to the Plaintiff.
2. The case of the Plaintiff is that the Plaintiff is carrying on the business of selling agarbathies for several years. The Plaintiff had adopted the trade mark CYCLE BRAND together with the device of a Cycle since 1.4.1954 and ever since the said date, the Plaintiff has been using the said trade mark along with the device of a cycle. The sales turnover has been gradually increasing every year. The Plaintiff had applied for registration of the trade mark CYCLE BRAND together with the device of a cycle under No.163539 in Class 3 and obtained registration of the same. The Plaintiff had also applied for registration of the trade mark label CYCLE BRAND together with the device of a cycle under the Copyright Act and obtained registration under No.A-62417/ 2002. The Plaintiff had also applied for registration of their trade mark CYCLE BRAND in all the 34 classes of the Trade Marks Act, 1999. The said trade mark of the Plaintiff has become a world famous trade mark. The Plaintiff has also spent huge amounts towards advertisement expenses in all types of media. The sales turnover has also been gradually increasing every year.
3. It had been further stated in the plaint that the Plaintiff had also obtained an order of injunction against the third parties from infringing their trade mark. The Plaintiff came to know in October 2009 that the Defendant is manufacturing and selling camphor bearing the identical trade mark and the artistic work CYCLE BRAND together with the device of a cycle. The Defendant has copied the trade mark of the Plaintiff with a view to enrich themselves unjustly on the reputation and goodwill built up by the Plaintiff and his predecessor in title. The Defendant is selling camphor copying the Plaintiff's registered trade mark and the copyrighted artistic work CYCLE BRAND together with the device of a cycle. The Defendant has wilfully adopted the trade mark and the copyrighted artistic work, which are identically, deceptively and phonetically similar to that of the Plaintiff's registered trade mark to enable them to gain unlawful profit under the reputation earned by the Plaintiff. The Defendant has no manner of right, title or interest to use the trade mark CYCLE BRAND together with the device of a cycle for the camphor or any other goods which are similar to the products sold by the Plaintiff bearing the registered trade mark and the copyrighted artistic work CYCLE BRAND together with the device of a cycle. It had been further stated that use of the same is bound to create confusion and deception in the market. The trade and general public will assume that there is a business relationship between the Plaintiff and the Defendant. By use of the offending trade mark by the Defendant, the Plaintiff would be put to irreparable loss, hardship and injury, which cannot be compensated in terms of money. Hence, this civil suit has been filed for the reliefs as stated above.
4. Though the Defendant was served long back, no written statement had been filed and hence, the matter was posted under the caption of 'Undefended Board'. For non filing of the Written Statement, the Defendant was set exparte and Exparte Evidence was ordered to be recorded by the order of this court dated 19.01.2017. One V.Ramamoorthy, Associate Regional Manger of the Plaintiff Company had filed the proof affidavit for his chief examination and receipt of 5 documents. In the Exparte Evidence, the said Associate Regional Manager had examined himself as PW.1 and marked Exs.P1 to P5 as documentary evidence.
5. In this civil suit, the Plaintiff had sought for the reliefs (a), (b), (c),
(d) and (e) relating to infringement of the trademark, infringement of the copyrighted artistic work and passing off the trade mark of the Plaintiff by the Defendant and to surrender of the materials by the Defendant for destruction and render of accounts of profits by the Defendant, respectively.
6. In respect of the reliefs (a) to (d), apart from the fact that the Defendant did not let in evidence whatsoever and remained exparte, this court finds that there are valid evidence, both oral and documentary, adduced by the Plaintiff. Therefore, taking into consideration the materials on record and there was also payment of court fee by the Plaintiff, this Court is of the view that the reliefs (a) to (d) as prayed for by the Plaintiff can be granted along with costs.
7. In so far as the relief (e), namely, to pass a judgement and decree, directing the Defendant to render accounts of profits made by the Defendant on account of the usage of the trademark and copyright of the Plaintiff by the Defendant is concerned, though for non filing of the written statement, the Defendant had been set exparte, which resulted in recording of the exparte evidence, in order to sustain such a claim for rendering of accounts of profits, there should be valid evidence on the side of the Plaintiff, but, on a perusal of the oral and documentary adduced by the Plaintiff, this court finds no valid evidence both oral and documentary to show that the Plaintiff had sustained loss of profit because of the use of the trademark and copyright of the Plaintiff by the Defendant. The Plaintiff also did not produce any evidence to show that the Defendant had unlawfully gained against the Plaintiff. Therefore, in the absence of any evidence, showing that the Plaintiff had directly suffered and incurred business loss owing to the usage of the trademark and copyright of the Plaintiff by the Defendant, this court holds that the relief (e) sought for by the Plaintiff for a direction to render accounts of profits would not lie and accordingly, the same cannot be granted.
8. In the result, considering the oral and documentary evidence, viz.
Ex.P1 to Ex.P5 adduced by PW.1, this Court is of the view that the Plaintiff has proved the suit claim only in respect of the reliefs (a) to (d) and that the Plaintiff has failed to prove the relief (e) by letting in legally acceptable oral and documentary evidence. Accordingly, this civil suit is decreed only in respect of the reliefs (a) to (d) as prayed for with costs. In so far as the relief (e) is concerned, this civil suit is dismissed.
17.02.2017 Index:Yes/No Web:Yes/No Srcm
1. List of Witnesses Examined on the side of the Plaintiff:-
1. P.W.1 – V.Ramamoorthy
2. List of Exhibits Marked on the side of the Plaintiff:-
3. List of Witnesses Examined on the side of the Defendant:- Nil
4. List of Exhibits Marked on the side of the Defendant:-
Nil 17.02.2017 C.V.KARTHIKEYAN, J.
Srcm Pre-Delivery Judgement in CS.No.1060 of 2009 17.02.2017 http://www.judis.nic.in