THE HONOURABLE MR.JUSTICE C.V.KARTHIKEYAN CS.No.883 of 2009 S.Gopi, Proprietor M/s.Bangalore Prasanna Perfumes Chennai-33 Plaintiff Vs
1. M/s.Amutha Cottage Industries Mela Anupanadi, Madurai-9
2. M/s.Anand Krishna Sai Traders Rajahmundry 533103 Defendants 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, 56 and 62 of the Copyright Act, 1957, for the reliefs as stated therein.
For Plaintiff : Mr.Rajesh Ramanathan For Defendants : Set Exparte JUDGEMENT This civil suit has been filed, to pass a judgement and decree, against the Defendants:-
a) granting permanent injunction, restraining the Defendants from in any manner infringing the Plaintiff's registered trade mark GAYATHRI together with the device of “Goddess GAYATHRI” by using the offending trade mark “ACI GAYATHRI together the device of 'Goddess GAYATHRI' or any other mark or marks which are identical and similar to or a colourable imitation of the Plaintiff's registered trade mark GAYATHRI together with the device of “Goddess GAYATHRI”.
b) granting permanent injunction, restraining the Defendants from in any manner infringing the Plaintiff's copyrighted artistic work GAYATHRI together with the device of “Goddess GAYATHRI” by using the offending artistic work ACI GAYATHRI together the device of 'Goddess GAYATHRI' 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 GAYATHRI together with the device of “Goddess GAYATHRI”.
c) granting permanent injunction restraining the Defendants from in any manner passing off of their sambrani sticks and other products bearing the offending artistic work and trade mark ACI GAYATHRI together with the device of Goddess GAYATHRI as and for the celebrated dhoop/ sambrani sticks and other products of the Plaintiff bearing the copyrighted artistic work and well established trade mark GAYATHRI together with the device of Goddess GAYATHRI either by manufacturing or selling or offering for sale or in any manner advertising the same.
d) directing the Defendants to surrender the entire stock of unused offending trade mark labels, bill books, etc. bearing the offending trade mark ACI GAYATHRI together with the device of Goddess GAYATHRI together with blocks and dyes for destruction.
e) directing the Defendants to render true and faithful accounts of profits earned by the Defendants through the sale of sambrani sticks and other products sold under the offending trade mark ACI GAYATHRI together with the device of Goddess GAYATHRI and directing payment of such profits to the Plaintiff for the passing off committed by the Defendants.
f) directing the Defendants 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 of agarbathies, dhopp sticks, sambrani sticks, dasangam powder, dasangam sticks, sambrani bathies, etc. for several years. The Plaintiff had adopted the trade mark GAYATHRI together with the device of Goddess GAYATHRI on 21.6.1993 and ever since the said date, the Plaintiff has been using the said trade mark along with the device of Goddess GAYATHRI. The sales turnover has been gradually increasing every year. The Plaintiff had applied for registration of the trade mark GAYATHRI together with the device of Goddess GAYATHRI under No.1317962 in Class 3 and obtained registration of the same. The Plaintiff had also applied for registration of the trade mark label GAYATHRI together with the device of Goddess GAYATHRI under the Copyright Act and obtained registration under No.A-73467/2005.
3. It had been further stated in the plaint that the Plaintiff came to know in September 2009 that the 1st Defendant has started manufacturing and selling sambrani sticks through the 2nd Defendant, bearing the offending identical trade mark ACI GAYATHRI together with the device of Goddess GAYATHRI. The Defendants have 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 Defendants have now started selling sambrani sticks copying the Plaintiff's registered trade mark and the copyrighted artistic work GAYATHRI together with the device of Goddess GAYATHRI by using the offending trade mark label ACI GAYATHRI together with the device of Goddess GAYATHRI. The Defendants have wilfully adopted the trade mark, the copyrighted artistic work and trade mark label, 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 Defendants have no manner of right, title or interest to use the trade mark ACI GAYATHRI together with the device of Goddess GAYATHRI for the sambrani sticks or any other goods which are similar to the products sold by the Plaintiff bearing the registered trade mark and the copyrighted artistic work GAYATHRI together with the device of Goddess GAYATHRI. 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 Defendants. By use of the offending trade mark by the Defendants, 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 Defendants were served on 27.01.2010 and 23.01.2010 respectively, no written statement had been filed by them and hence, the matter was posted under the caption of 'Undefended Board'. For non filing of the Written Statement, the Defendants were set exparte and Exparte Evidence was ordered to be recorded by the order of this court dated 02.01.2017. One S.Gopi, Proprietor of the Plaintiff Company had filed the proof affidavit for his chief examination and receipt of 4 documents. In the Exparte Evidence, the said Proprietor had examined himself as PW.1 and marked Exs.P1 to P4 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 Defendants and to surrender of the materials by the Defendants for destruction and render of accounts of profits by the Defendants, respectively.
6. In respect of the reliefs (a) to (d), apart from the fact that the Defendants 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 Defendants to render accounts of profits made by the Defendants on account of the usage of the trademark and copyright of the Plaintiff by the Defendants is concerned, though for non filing of the written statement, the Defendants 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 Defendants. The Plaintiff also did not produce any evidence to show that the Defendants 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 Defendants, 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.P4 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.
Index:Yes/No Web:Yes/No Srcm
1. List of Witnesses Examined on the side of the Plaintiff:-
1. P.W.1 – S.Gopi
2. List of Exhibits Marked on the side of the Plaintiff:-
3. List of Witnesses Examined on the side of the defendants:- Nil
4. List of Exhibits Marked on the side of the defendants:- Nil 10.02.2017 10.02.2017 C.V.KARTHIKEYAN, J.
Srcm Pre-Delivery Judgement in CS.No.883 of 2009 10.02.2017 http://www.judis.nic.in