IN THE HIGH COURT OF DELHI
Decided On: 07.01.2015
Appellants: RSPL
Health Pvt. Ltd.
Vs.
Respondent: Rajesh M. Nahta and Ors.
Judges/Coram:
Counsels:
For Appellant/Petitioner/Plaintiff: S.K. Bansal , Ajay
Amitabh Suman , Kamal Naresh and Santosh
Kumar , Advs.
JUDGMENT
1. Arguments have
been heard in this suit. As noted in Order dated 24.09.2014, Defendants no.1
and 2 have been served on 13.05.2014 and defendant no.3 has been served on
09.05.2014. The right of the defendants to file written statement was also
closed vide order dated 24.09.2014. As none appeared on behalf of the
defendants even today, they are proceeded ex-parte.
2. The plaintiff has filed
the present suit seeking a decree for permanent and mandatory injunction for
infringement of their registered Trade Mark 'XPERT' by the Defendants and for
claiming all rights in their registered Trade Marks.
3. It is the contention of
the plaintiff that it is a company registered under the Companies Act, 1956
engaged in manufacturing, marketing and selling all kinds of washing soaps,
washing powder, detergent cakes, toiletries and substances for laundry use,
cleaning etc. It is contended that the plaintiff through its predecessors
originally conceived, coined and adopted the trade mark/label/trade dress
'XPERT' in the year 1993 in respect of washing soaps, washing powder, detergent
cakes, bleaching preparations, etc.
4. It is contended that the
plaintiff acquired the said trade mark with goodwill from its predecessors. It
is stated that M/s. Nasreena Cottage Industries, Hyderabad honestly and
bonafidely adopted the said trademark XPERT in the year 1993 in respect of all
kinds of detergent for laundry use and cleaning powder under no.1270731 in
class 3 and assigned the said trade mark XPERT to the present plaintiff under
the Assignment Deed dated 15.07.2013. The plaintiff thus contends to be the
owner and proprietor of the trade mark and copyright of XPERT and/or XPERT
LABEL.
5. It is the contention of
the plaintiff that the said trademark/label is used by the plaintiff since the
year of its adoption up to present time continuously, uninterruptedly as an
exclusive owner. It is contended that the plaintiff conceived and adopted the
trademark XPERT with different prefixes and/or suffixes as well as in artistic
label form. The XPERT trademark/label has been registered by the plaintiff
under no. 1077473 in class 3, 1205486 in class 3, 1270731 in class 3 and under
no.1390217 in class 3.
6. The plaintiff contends
that it represents its said trademark/label in an artistic manner including its
getup, lettering style, colour scheme, placement of words, etc. and thus the
art work involved in the plaintiff's said trademark/label is original within
the meaning of the Copyright Act, 1957. It is further contended that the
copyrights in the said trademark/label are also duly registered in the name of
the plaintiff under no. A-67662/2004.
7. It is contended by the
plaintiff that the plaintiff maintains highest standard of manufacture and sale
and their products are highly demanded in the markets across the globe. The
plaintiff contends that they have continuously advertised and promoted their
trademark/label through electronic and print media. It is further contended
that the consumers associate, identify and distinguish the said trademark XPERT
of the plaintiff originating from the plaintiff alone. It is also contended
that the plaintiff maintains highest standards of manufacture and invests
enormous amount of money and effort in Research and Development activities as
well. It is contended that the stated trademark has become synonymous and
distinctive indicium of the plaintiff in relation to aforementioned goods and
businesses and nobody should be thus permitted to use or deal with the
same/similar trademarks/labels and copyrights therein wither as a trademark or
in any other manner in relation to any of their goods and businesses.
8. It is the contention of
the plaintiff that the defendants are engaged in the trade of salt and allied
goods. It is contended that the defendants are commercially and in the course
of trade using the trade mark/label XPERT in relation to their goods and
businesses. The impugned trademark/label/ trade dress/ colour scheme etc. is
deceptively same/similar to the plaintiff's said trademark/label. It is
contended that the defendants have copied the trademark of the plaintiff with
all its features and artistic work, layout design, lettering style, get up,
etc. the imitation is in exactitude of copying in such a manner that the
ordinary purchaser and also big retailers/dealers/distributors are bound to be
confused/deceived. It is further contended that the impugned goods and business
of the defendants are of similar nature to that of the plaintiff and that the
goods of the plaintiff are sold at the same shop where the impugned goods of
the defendants are sold, thus, the same class of purchasers are involved in
purchasing the above mentioned goods.
9. It is contended by the
plaintiff that in December, 2013 the plaintiff came across the impugned trade
mark application of the defendants for the trademark XPERT under no. 1911023 in
class 30 and XPERT Label under no.1911024 in class 30 in relation to salt. It
is contended that the plaintiff filed notice of oppositions dated 02.01.2014 to
both the trademark applications of the defendants and thereafter the plaintiff
came across the impugned goods of the defendants in the market.
10. It is the contention of
the plaintiff that the defendants have started using the impugned trademark
recently and that the defendants are not issuing any formal bills with respect
to their sales of the impugned goods under the said trademark/label. It is
contended that the defendants have adopted the said trademark fraudulently and
with sinister motives. The impugned trademark is bound to create confusion and
deception on the course of business. It is further contended by the plaintiff
that their goodwill is affected by the passing off of the defendant's goods
under the trademark which is related to the goods of the plaintiff.
11. Reference may be had to
the judgments of this Court in the case The Indian Performing Right Society
Ltd. vs. Gauhati Town Club and Anr., MANU/DE/0582/2013 : 2013 (134) DRJ 732 and
in United Coffee House vs. Raghav Kalra & Anr. MANU/DE/2626/2013 : 2013
(55) PTC 414 (Del) where it was held that when the defendant is ex parte, the
plaintiff need not file evidence keeping in mind that the averments made in the
plaint have been supported by an affidavit. In the present case the plaint is
supported by the affidavit of Mr. Manoj Singh, Legal Manager of the plaintiff.
12. In view of the
averments made in the plaint and the documents placed on record the plaintiff has
established that the said trademark/label XPERT is exclusively associated to
the plaintiff and its products. The trademark/label XPERT is registered in
their favour since the year 1993 in class 3. The copyrights are also duly
registered in favour of the plaintiff. It is further established that the
defendants have malafidely copied the well known trademark of the plaintiff
with all its features and artistic work in relation to their impugned goods
which they are trying to pass-off as originating from the plaintiff.
13. In view of the above a
decree is passed in favour of the plaintiff and against the defendants
restraining the defendants and also their agents, representatives,
distributors, etc from manufacturing, selling, using, displaying, advertising,
importing/exporting or by any other mode or manner dealing with the impugned
trademark/label/trade dress/colour combination XPERT or any other trademark
which is deceptively similar to the plaintiff's trademark XPERT in relation to
the impugned goods.
14. The suit also seeks
relief of damages of Rs. 20,01,000/- from the defendants. A perusal of the
report of the Local Commissioner dated 16.4.2014 shows that he visited the
premises of the defendant and reached there on 22.3.2014. However, no stock of
goods was found with the impugned trademark XPERT. Accordingly, in my opinion
it is not a fit case to award damages to the plaintiff. In view of the above,
suit is disposed of.
