$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
1.
+
|
CS (COMM) 400/2016 & IA 11731/2013
| |
SHREE RAJMOTI INDUSTRIES
|
..... Plaintiff
| |
Through: Mr. Ajay Amitabh Suman & Mr. S.K.
| ||
Bansal, Advocates.
| ||
versus
| ||
DINESH KANTILAL SHINGAVI
|
..... Defendants
| |
Through: None.
| ||
CORAM: JUSTICE S. MURALIDHAR
| ||
O R D E R
| ||
%
|
21.09.2016
| |
1. The prayer in this suit by M/s Shree Rajmoti Industries (the Plaintiff) isinter alia for a decree of permanent injunction to restrain Mr. Dinesh Kantilal Shingavi (the Defendant) from infringing the Plaintiff’s registered trademark/copyright, and for passing off, delivery up etc.
2. Summons in the suit and notice in the applications were issued on 29th
July, 2013. Thereafter, fresh summons and notice to the Defendant were again issued on 26th November, 2013. Subsequently, on 18th February, 2014, when despite service the Defendant did not appear he was proceeded ex parte.
3. The Plaintiff filed an affidavit of ex parte evidence of Mr. Samir Ishwar Lal Gandhi on 4th July, 2015. The uncontroverted facts emerging from the said affidavit are as under:
(i) The Plaintiff is a partnership firm duly registered under the Indian Partnership Act, 1932. The Plaintiff is engaged in the business of
CS (COMM) 400/2016
|
Page 1 of 7
|
manufacture and sale of edible oils including groundnut oil and cotton seed oil. By passage of time, the Plaintiff extended its business activities in relation to business of manufacture and marketing of beers, minerals and aerated waters and other non-alcoholic drinks, fruit drinks and fruit juices, syrups and other preparations for making beverages.
(ii)In the year 1962, the Plaintiff, in the course of trade coined and adopted the word/mark RAJMOTI, the artistic label bearing the work/mark RAJMOTI and the firm name M/s SHREE RAJMOTI INDUSTRIES of which the word RAJMOTI bears an essential, key material and distinguishing part.
(iii)In the year 1995, the Plaintiff created, conceived and adopted an artistic label comprising of the said trademark RAJMOTI, the device of open seed/nut containing a container of the Plaintiff bearing thereon the said trademark, distinctive artistic features, get up, lettering style, colour scheme and placement and the Plaintiff’s said trade name in an artistic manner.
(iv)The copyright involved in the said trademark as well in the said label are original artistic works within the meaning of Indian Copyright Act, 1957 and the Plaintiff is the owner and proprietor thereof. The copyright in the said label is duly registered in favour of the Plaintiff under the Copyright Act under Copyright Registration No. A-61228/2002. The said trademark RAJMOTI forms a part of this label viz. copyright registration. The Plaintiff has been dealing with its Copyright in the course of trade in relation to its goods and business inter alia within the meaning of Section 14 of the Copyright Act. The said trademark/label RAJMOTI of the Plaintiff is enforceable within the ambit of the Copyright Act 1957 as well as by virtue of India's membership to the Berne Convention, the Universal Copyright Convention and the International Copyright Order, 1991.
CS (COMM) 400/2016
|
Page 2 of 7
|
(v) The plaintiff firm also displays its products under the said trademark/label/copyright RAJMOTI on the internet through its web site, namely, www.rajmoti.com. The domain name of the Plaintiff contains extensive information about the goods and business provided by the plaintiff under its said trademark/label/copyright RAJMOTI.
4. The case of the Plaintiff, which has not been countered by the Defendant, is that:
(a)That the copyright involved in the said trademark/label RAJMOTI is the original artistic works within the meaning of Indian Copyright Act, 1957 and the Plaintiff is the owner and proprietor thereof. The copyright in the said label is duly registered in favour of the Plaintiff under the Copyright Act under Copyright Registration No. A-61228/2002. The trademark RAJMOTI forms a part of this label viz. copyright registration. The Plaintiff has been dealing with its said copyright in the course of trade in relation to its goods and business inter alia within the meaning of Section 14 of the Copyright Act. The said trademark/label RAJMOTI of the Plaintiff is enforceable within the ambit of the Copyright Act, 1957 as well as by virtue of India's membership to the Berne Convention, the Universal Copyright Convention and the International Copyright Order 1991.
(b)That the Plaintiff firm also displays its said product under the said trademark/label/copyright RAJMOTI on the internet through its website, namely, www.rajmoti.com. The said domain name of the Plaintiff contains extensive information about the goods and business provided by the Plaintiff under its said trademark/label/copyright RAJMOTI.
(c)That the plaintiff is the proprietor, prior, senior, honest and bonafide
CS (COMM) 400/2016
|
Page 3 of 7
|
adopter and prior, continuous, extensive user of said trademark/label/trade name/domain name. The said goods and business being carried on by the Plaintiff under the said trademark/label/trade name/domain name is a very extensive one and the said goods and business thereunder have been practically distributed in major parts of the country. The said goods and business under the said trademark/label/trade name/domain name are identified as exclusively originating from the Plaintiff source and are identified with the Plaintiff. The said trademark/label/trade name/domain name have already become distinctive and associated with the Plaintiff and the Plaintiff’s goods and business on account of its long, continuous, extensive and exclusive user thereof since 1962 and 1995 respectively till date.
(d)The Plaintiff’s trademark/label and trade name are well-known trademarks within the meaning of Section 2 (1) (zg) of the Trademarks Act, 1999. They have already become a distinctive indicium of the Plaintiff and the Plaintiff’s said goods and business thereunder. The purchasing public, trade and public at large associates, identifies and distinguishes the said trademark/label and trade name with the Plaintiff and the Plaintiff’s said goods and business alone.
(e)The Defendant, namely, Mr. Dinesh Kantilal Shingavi, Dalmandi,Ahmednagar-414001, Maharashtra is in the business of manufacture and trade of edible oils of all kinds and fats, meat, fish, poultry and game, meat extracts, preserved, dried and cooked fruits and vegetables, jellies, jams, fruit sauces, eggs, milk and milk product and has adopted and started using the same/deceptively similar trademark/label RAJMOTI. The impugned trademark/label RAJMOTI of the Defendant in relation to its impugned goods and business is identical with the Plaintiff’s trademarks in each and
CS (COMM) 400/2016
|
Page 4 of 7
|
every respect including phonetically, visually and structurally, in their basic idea. The competing goods of the parties are also same/similar. The Defendant is not the proprietor of the impugned trademark/label in relation to impugned goods and business. The Defendant was fully aware of the Plaintiff’s rights, goodwill, reputations, benefits and users etc. in the Plaintiff’s said Trademark at the time of its impugned adoption and use of the impugned Trademark. The resemblance between the rival Trademarks is so close that it can hardly occur except by deliberate imitation.
(f) The Defendant’s impugned trademark is a false trade description within the meaning of relevant Section of 2 (1) (i) read with Section 103 of the Trademark Act, 1999. The Defendant has misrepresented the impugned goods under the impugned trademark as that of the Plaintiff’s goods under the said trademark.
5.There is merit in the Plaintiff’s case that the use of the trademark RAJMOTI by the Defendant has ensued deception and confusion in the market. Any person not knowing clearly the relationship between the parties to this action is bound to be confused by the Defendant’s impugned adoption and use and might well do business with the Defendant thinking that they are dealing with the Plaintiff or that some strong, vital and subtle links exist between the Plaintiff and the Defendant. This also constitutes a dilution of the Plaintiff's trademark in addition to infringement of trademark, trade name and passing off of the goods of the Defendant as those of the Plaintiff.
6.In the result, the Court issues:
(i) a decree of permanent injunction restraining the Defendant by itself as also through its individual proprietors, partners, directors, agents, representatives, distributors, assigns, stockiest(s) and all others acting for
CS (COMM) 400/2016
|
Page 5 of 7
|
and on behalf of the Defendant from manufacturing, using, selling, soliciting, exporting, displaying, advertising or by any other mode or manner dealing with or carrying on their impugned goods and business of edible oils of all kinds and fats, meat, fish, poultry and game, meat extracts, preserved, dried and cooked fruits and vegetables, jellies, jams, fruit sauces, eggs, milk and milk product and allied/cognate goods or any specification of goods and business under the impugned trademark/label bearing the word/mark RAJMOTI or any other trademark/label identical with or deceptively similar to the Plaintiff’s aforesaid trademark/trade name consisting of the word RAJMOTI or from doing any other acts amounting to or likely to infringe the registered trademarks and copyrights of the Plaintiff, passing off, and violating the Plaintiff’s rights in the Plaintiff’s trademark/label RAJMOTI.
(ii) a decree restraining the Defendant from disposing off or dealing with its assets including its shops and premises at Mr. Dinesh Kantilal Shingavi, Dalmandi, Ahmednagar-414001, Maharashtra and its stocks-in-trade or any other assets as may be brought to the notice of this Court during the course of the proceedings and on the Defendant’s disclosure thereof and which the Defendant is called upon to disclose and/or on its ascertainment by the Plaintiff as the Plaintiff is not aware of the same as per Section 135 (2) (c) of the Trademarks Act, 1999 as it could adversely affect the Plaintiff’s ability to recover the costs and pecuniary relief thereon.
(iii) a decree in favour of the Plaintiff and against the Defendant for delivery up to the Plaintiff of all the impugned finished and unfinished materials bearing the impugned and violative trademark/trade Name or any other deceptively similar trademark/label including its blocks, labels, display boards, sign boards, trade literatures and goods etc. to the Plaintiff for the purposes of destruction and erasure.
CS (COMM) 400/2016
|
Page 6 of 7
|
7.The Defendant shall pay the Plaintiff Rs. 20,0000 towards costs of this suit. The decree sheet be drawn up in the above terms.
8.The suit and the pending application are disposed of.
S. MURALIDHAR, J
SEPTEMBER 21, 2016
