THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on: 26.10.2010
Judgment Pronounced on: 29.10.2010
+ CS(OS) 1108/2006
ROHTAS GOEL AND ANR. ..... Plaintiffs
- versus -
SOMAY NAYAK AND ORS. ..... Defendants
Advocates who appeared in this case:
For the Plaintiff : Ms Bitika Sharma
For the Defendant : None.
CORAM:-
HON'BLE MR JUSTICE V.K. JAIN
1. Whether Reporters of local papers may
be allowed to see the judgment? Yes
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported Yes
in Digest?
V.K. JAIN, J
1. This is a suit for permanent injunction and
damages. Plaintiff No.1 Rohtas Goel is the Chairman and
Managing Director of plaintiff No.2 M/s Omaxe
Construction Ltd., which is a company engaged in real
CS(OS)NO. 1108/2006 Page 1 of 25
estate development and construction of buildings, roads,
bridges, malls, shops, etc. It has been alleged that the
plaintiffs adopted "Omaxe" as a part of their corporate name
and their services in the year 1989 and have been
conducting their business activities, using that trade name.
The plaintiffs have developed a number of projects,
consisting of apartments and villas, including Omaxe Plaza
Wedding Mall, Omaxe Green Valley, Omaxe NRI City,
Omaxe Arcade, Omaxe Heights and Omaxe City. Omaxe has
thus become a well-recognized name in the field of real
estate, is a coveted property of the plaintiffs and is entitled
to highest degree of protection. The plaintiffs claim to be
proprietor of mark "Omaxe" in several classes including
class 19, and class 37 (which pertains to building
construction; repair and installation services). The
registration under class 37 had been applied for when the
suit was filed but, is stated to have been granted during
pendency of the suit. According to the plaintiffs they have
turnover of about Rs. 450 Crore and have invested huge
amount in advertising and promoting the brand "Omaxe".
2. It has been further alleged that the plaintiffs came
to know that a company by the name "Omaxe Real Estate
CS(OS)NO. 1108/2006 Page 2 of 25
Pvt. Ltd."(defendant No.3) had been registered with Registrar
of Companies in January 2006. Defendants No. 1 and 2
were shown as the subscribers to the Memorandum of
Association of defendant No.3 in the record. The use of the
word "Omaxe", according to the plaintiff, is in clear violation
of their statutory and common law rights and use of this
word as a prominent and essential part of the corporate
name of defendant No.3 is completely mala fide and
dishonest, as this word has no obvious meaning. It has also
been alleged that use of the word "Omaxe" as part of the
corporate name of the defendant would also result in
enormous confusion and deception in the market since the
defendants, as their name suggest, also are in the field of
real estate and the real estate venture that may be started
by the defendants may be connected or associated with the
plaintiff, resulting in injury to their reputation and
misrepresentation to the public, which may think that the
defendants are someway connected with the plaintiffs and
that is why they are using this word "Omaxe".
3. During pendency of the suit, defendants No. 4 and
5 were impleaded as additional defendants when the
plaintiffs came to know about incorporation of these
CS(OS)NO. 1108/2006 Page 3 of 25
companies. The name "Omex" has been used in the
corporate name of defendants No. 4 and 5 and these
companies are also stated to have incorporated in January
2006. On enquiry with the Registrar of Companies, the
plaintiffs came to know that the authorized share capital of
defendants No. 3 to 5 is Rs. 1 Lac each.
4. The plaintiffs have sought an injunction
restraining the defendants from using the impugned
corporate name or any other name or mark, which contains
plaintiffs‟ trademark "Omaxe" or any word deceptively
similar to that mark. The plaintiffs have also claimed
damages amounting to Rs. 25 Lac from the defendants.
5. The defendants were proceeded ex parte, since they
did not appear despite service upon them. The plaintiffs
have filed affidavits of plaintiff No. 1 Sh. Rohtash Goel and
Mr Venkat Rao, Company Secretary of plaintiff No. 2.
6. In his affidavit, plaintiff No. 1 Rohtas Goel has
supported the case setup in the case and has stated that
the word "Omaxe" was coined and adopted by him in the
year 1989 and is a coveted property owned by him, which
enjoys immense goodwill in the market. He further stated
that the word "Omaxe" has no obvious meaning and that
CS(OS)NO. 1108/2006 Page 4 of 25
the right to use trademark "Omaxe" was transferred by him
to plaintiff No.2 vide agreement dated 1st October 2005,
which is Ex.PW 2/1 and was extended till 31st March 2011
vide subsequent agreement Ex.PW 2/2. He also stated that
the trademark "Omaxe" is registered under various classes
including Class No. 19 for which it is registered vide
registration No. 1164507 and Class No. 37 where it is
registered vide registration No. 1366775.
7. Sh. Venkat Rao in his affidavit stated that the
plaintiffs are in the business of construction and real estate
since the year 1989 and a number projects mentioned in
para 4 of his affidavit were handled by the plaintiffs. He
further stated that plaintiff No.2 developed various
apartments, commercial spaces etc. including Omaxe Plaza
Wedding Mall, Omaxe NRI City, Omaxe Arcade, Omaxe
Heights and Omaxe City. The brochures in respect of some
of these projects are Ex.PW 1/4 to PW 1/10. He also stated
that the plaintiffs today have a turnover of about Rs. 757
Crore and have invested huge amount for advertising and
promoting the brand "Omaxe". The expenses incurred on
advertisement and sales promotions in the year 2006-07,
2007-08 and 2008-09 amounted to Rs. 37.20 Crore,
CS(OS)NO. 1108/2006 Page 5 of 25
Rs.30.52 Crore and Rs. 26.54 Crore, respectively.
8. Ex. PW 2/3 is the certificate of registration of the
trademark "Omaxe" in the name of plaintiff No.1 Rohtas
Goel in Class No. 37 vide trademark No. 1366775 on 27th
June 2005, in respect of building construction, repair,
installation service, included in Class 37. A perusal of the
trademark agreement Ex. PW 2/1 would show that plaintiff
No.1 granted a license to plaintiff No.2 to use the trademark
"Omaxe" registered under Class 19. Ex. PW2/2 is the
agreement dated 1st May 2009 whereby use of the
trademark "Omaxe" was licensed by plaintiff No.1 to plaintiff
No.2 of payment of license fee specified in the agreement.
9. Ex. PW 1/14 is the search report obtained from the
website of Ministry of Company Affairs, which shows that
defendant No.3 has been registered under the name Omaxe
Real Estate Pvt. Ltd., with authorized and paid up share
capital of Rs. 1Lac, each, on 23rd January 2006, at the
address of E-6, Sector-I, Gautam Budha Nagar, Noida and
defendants 1 & 2 Somay Nayak and Surjit Nayak were the
subscribers to the Memorandum of Association and Articles
of Association of this company.
10. The search report in respect of Omex Properties
CS(OS)NO. 1108/2006 Page 6 of 25
Pvt. Ltd(defendant No.4) shows that this company was
registered on 27th January 2006 at the same address at
which defendant No.3 was registered and it also has
authorized and paid up share capital of `1Lac each and
Somay Nayak and Surjit Nayak were also subscribers to the
Memorandum of Association and Articles of Association of
this company. The search report with respect to Omex
Realters Pvt. Ltd.(defendant No. 5) shows that this company
was also registered at the same address at which
defendants No.3 & 4 were registered and it also has
authorized and paid up share capital of Rs. 1Lac each and
the same persons were the subscribers to the Memorandum
of Association and Articles of Association of this company
11. The case of the plaintiff against the defendants is
based upon infringement of their registered trade mark as
well as on passing off. Section 28 of Trade Marks Act, 1999
gives to the registered proprietor of the trade mark the
exclusive right to the use of the trade mark in relation to the
goods or services in respect of which the trade mark is
registered and to obtain relief in respect of infringement of
the trade mark in the manner provided by this Act. The
action for infringement is, thus, a remedy provided by Trade
CS(OS)NO. 1108/2006 Page 7 of 25
Marks Act to the registered proprietor of a registered trade
mark in case there is an invasion of the statutory right
provided to him for use of that trade mark in relation to the
goods for which the trade mark has been registered in his
name. In a case based on infringement of this statutory
right it is necessary for the plaintiff to prove that his
registered trade mark has been used by the defendant,
though no such use is required to be established in an
action for passing off. It is also a settled proposition of law
that if the defendant resorts to colourable use of a registered
trade mark such an act of the defendant would give rise to
an action for passing of as well as for infringement. In an
action based upon infringement of a registered trade mark if
the mark used by the defendant is visually, phonetically or
otherwise so close to the registered trade mark of the
plaintiff that it is found to be an imitation of the registered
trade mark, the statutory right of the owner of the registered
trade mark is taken as infringed. In such a case if it is
found that the defendant has adopted the essential features
of the registered trade mark of the plaintiff, he would be
liable even if he is able to establish that on account of
packaging, get up and other writings on his goods or on the
CS(OS)NO. 1108/2006 Page 8 of 25
container in which the goods are sold by him, it is possible
to clearly distinguish his goods from the goods of the
plaintiff. On the other hand in a case of passing off if it is
shown that on account of these factors it is very much
possible for the purchaser to identify the origin of the goods
and thereby distinguish the goods of the defendant from the
goods of the plaintiff, the defendant may not be held liable.
12. Section 29(5) of the Trade Marks Act provided that
a registered trade mark is infringed by a person if he uses
such registered trade mark, as his trade name or part of his
trade name, or name of his business concern or part of the
name of his business concern dealing in goods or services in
respect o which the trade mark is registered.
13. Therefore, by using the word „Omaxe‟ which is the
registered trade mark of the plaintiff and an essential
feature of its corporate name, defendant No. 3 has clearly
infringed the registered trade mark of the plaintiffs. The
trade mark „Omaxe‟ has also been registered, in the name of
plaintiff No. 1, under category 37 of the Fourth Schedule to
Trade Marks Act, 1999 in respect of building construction,
repairs and installation services. Plaintiff No. 2 is actually
engaged in the business of construction and real estate
CS(OS)NO. 1108/2006 Page 9 of 25
development which are covered in clause 37 of the Fourth
Schedule. Plaintiff No. 2 is a large company having turn
over of more than Rs.700 crores during a year. This
company has been incurring huge expenditure on
promotion and building of the trade mark „Omaxe‟ licenced
to it by plaintiff No. 1. Plaintiff No. 2 has incurred
expenditure of more than Rs.94 cores in advertising and
promotion during the last three years. A number of real
estate projects development by plaintiff No.2 used the trade
mark „Omaxe‟ as a prefix. Defendant No. 3 to 5 appear to
have been incorporated for engaging in the business of
construction and real estate development as is suggested by
their corporate names. All the three companies have been
registered on the same address in Noida. Plaintiff No. 2 has
already developed a large number of projects in Noida.
Considering the extensive use of the trade mark „Omaxe‟ by
the plaintiffs over the last more than 20 years and the huge
expenses incurred by them in advertising and promoting the
brand „Omaxe‟ in the filed of real estate development, there
is a strong possibility of the persons considering buying of
space in the projects developed by plaintiff No. 2 getting
confused on account of similarity of names and going in for
CS(OS)NO. 1108/2006 Page 10 of 25
buying space in the projects that may be developed by
defendants No. 3 to 5, under a bonafide impression that
since the word „Omaxe‟/‟Omex‟ has been used as an
essential part of their corporate name, they are some how
associated with the plaintiffs or are their group companies
and they may end up purchasing space in the projects that
may be developed by the defendants No. 3 to 5. If the
quality of the projects that may be developed by defendants
3 to 5 is not as good as the quality of the projects developed
by the plaintiffs or defendants 3 to 5 are not able to
complete the construction and deliver possession of the
space to the buyers within the time promised by them, that
may affect not only the reputation but also the business
interest of the plaintiffs, since the buyers may, in such a
case, form an impression that the projects developed by the
plaintiffs are not of the desired quality and/or that they are
not delivering on the time promised by them.
14. It has come in evidence that the work „Omaxe‟ has
no obvious meaning and was coined by plaintiff no. 1 to be
used as his trade name. the defendants have not come
forward to tell the Court as to why they chose to use the
word „Omaxe‟/‟Omexe‟ as a part of their corporate name,
CS(OS)NO. 1108/2006 Page 11 of 25
particularly when the name has no connection with real
estate development or construction of buildings.
15. Thus, as far as use of the word „Omaxe‟ is
concerned, there is a clear case of infringement made out
against defendants No. 3. Since the word „Omex‟ is
phonetically so close to the word „Omaxe‟ that it may not be
possible for an ordinary buyer to distinguish the projects
which have been developed or may be developed in future by
the plaintiffs, from the projects that may be launched by
defendants 4 & 5 this is also a case of an apparent imitation
of the trade mark of the plaintiffs by these defendants.
Since the defendants have chosen not to appear in the
Court to contest the claim of the plaintiffs, there is no
attempt even to make out a case for distinguishing the
projects that may be launched by defendant No.s. 3 to 5
from the projects that have already been launched by the
plaintiffs or may be launched by them in future, on account
of any distinguishing feature or factor.
16. In Ramdev Food Products Pvt. Ltd. vs.
Arvindbhai Rambhai Patel & Ors. AIR 2006 SC 3304, a
partnership firm consisting of father and his three sons was
doing business under the name and style of Ram Dev
CS(OS)NO. 1108/2006 Page 12 of 25
Masala Stores and was the owner of the trade mark Ram
Dev Masala. Later the firm was reconstituted and
incorporated as a private limited company and trade mark
Ram Dev Masala was assigned. The firm was dissolved but
the three brothers continued to be engaged in the business
of spices through firm‟s name Ram Dev Exports and Ram
Dev Masala. A user agreement was also executed
permitting these firms to use the trade mark till a particular
time and subject to certain conditions. The disputes arose
amongst the brothers and were settled through a
Memorandum of Understanding whereby the respondents
were permitted to sell products of the plaintiff through their retail outlets. The respondents had been writing the words „Ram Dev Masala‟ on their packaging. It was found that the packing, material and wrapper of both the parties was phonetically and visually similar to the registered trade mark and that the use of deceptively similar packaging material and lables could create deception as well as confusion in the mind of the customers who used to buy the products in retail market from small shops as well as big departmental stores. Noticing that the respondents had adopted a part of the appellant‟s registered trade mark as a CS(OS)NO. 1108/2006 Page 13 of 25 part of its corporate name though they had merely been permitted to trade from seven outlets it was held that they could not have started manufacturing of spices under the name and style of Ram Dev Masala.
17. In Montari Overseas Ltd. vs. Montari Industries Ltd. 1996 PTC (16), the plaintiff Montari Industries Ltd. was incorporated on January 17, 1980. The defendant/appellant Montari Overseas Ltd. was incorporated later on April 21, 1993. On coming to know of the existence of the appellant/defendant, the plaintiff/respondent filed a suit seeking injunction against the use of the name „Montari‟ in the corporate name of the defendant. It was contended on behalf of the appellant/defendant that there was no evidence to show that any confusion had been created in the mind of the customers or members of the public by the use of the word Montari in the corporate name of the appellant/defendant nor was there any evidence to show that the business of the plaintiff/respondent had been diverted by the appellant. Rejecting the contention of the appellant/defendant a Division Bench of this Court, inter alia, observed as under:- CS(OS)NO. 1108/2006 Page 14 of 25
"It is well settled that an individual can trade under his own name as he is doing no more than making a truthful statement of the fact which he has a legitimate interest in making. But while adopting his name as the trade name for his business he is required to act honestly and bonafidely and not with a view to cash upon the goodwill & reputation of another. An individual has the latitude of trading under his own name is in recognition of the fact that he does not have choice of name which is given to him. However in the case of a Corporation the position is different. Unlike an individual who has no say in the matter of his name, a company can give itself a name. Normally a company can not adopt a name which is being used by another previously established company, as such a name would be undesirable in view of the confusion which it may cause or is likely to cause in the minds of the public. Use of name by a company can be prohibited if it has adopted the name of another company. It is well settled that no company is entitled to carry on business in a manner so as to generate a belief that it is connected with the business of another company, firm or an individual. The same principle of law which applies to an action for passing off of a trade mark will apply more strongly to the passing off of a trade or corporate name of one for the other. Likelihood of deception of an unwary and ordinary person in the street is the real test and the matter must be considered from the point of view of that person. Copying of a trade name amounts to making a false representation to the public from which they have to be protected. Besides the name of the company acquires reputation and goodwill, and the company has a right too to protect the same. A competitor cannot usurp the goodwill and CS(OS)NO. 1108/2006 Page 15 of 25 reputation of another. One of the pernicious effects of adopting the corporate name of another is that it can injure the reputation and business of that person."
18. A person is well within his right to sell his goods or render services using any trade name for the purpose. With the passage of time the goods sold or the services rendered by him, as the case may be, may acquire certain reputation or goodwill in the market which becomes the property of that person and needs to be protected by the court. It is not permissible for any other person to start selling goods or rendering services either using the same name or imitating that name so as to cause injury to that person and enrich himself at the cost of the person who had already been using that name and had acquired a certain reputation with the passage of time and on account of the quality of the goods sold or services rendered by him. Any attempt on the part of a person to enrich upon the goodwill generated by any other person needs to be curbed by the court whenever approached by the aggrieved party in this regard.
19. Even if the person using or imitating the trade mark or goodwill of another person is yet to commence his business activities his dishonest intention to make use of CS(OS)NO. 1108/2006 Page 16 of 25 the mark and name of the other party will be obvious from the very use or imitation of the mark and goodwill of the other person and, therefore, it should not be a defence to say that there has so far been no use of the offending corporate name or mark.
20. In Mahendra & Mahendra Paper Mills Ltd. vs. Mahindra & Mahindra Ltd. 2002(24) PTC 121 (SC), the respondents before the Supreme Court was a company incorporated under the name „Mahindra & Mahindra Ltd.‟ The appellant/defendant was incorporated under the name „Mahendra & Mahendra Paper Mills Ltd‟. A suit was filed by the plaintiff/respondent „Mahindra & Mahindra Ltd.‟ against the appellant/defendant „Mahendra & Mahendra Papers Ltd.‟ seeking injunction against the use of the words „Mahindra & Mahindra‟ and words deceptively similar to „Mahindra & Mahindra‟. „Mahindra‟ was the registered trade mark of the plaintiff in respect of the goods in Class 12 of the Trade & Merchandise Marks Act, 1958. The case of the plaintiff was that the words Mahendra & Mahendra were phonetically, visually and structurally almost identical or deceptively similar to its corporate name and use of this name was intended to deceive the member of the public into CS(OS)NO. 1108/2006 Page 17 of 25 believing that the defendant was an officiate of the plaintiff or was in someway connected with it. The contention of the appellant/defendant was that it was not an action for infringement of trade mark but was an action for passing off and in the absence of any similarity of the goods manufactured or ;sold by the parties, test of deception or confusion amongst the consumers did not arise. Noticing that the name „Mahindra & Mahindra‟ had acquired a distinctiveness and a secondary meaning in the business and trade circles and people had come to associate the name „Mahindra‟ with a certain standard of goods and services, the Supreme Court was of the view that any attempt by another person to use the name in business and trade circles is likely to and in probability will create an impression of a connection with the plaintiffs‟ group of companies. During the course of the judgment, the Supreme Court, inter alia, observed as under:
"Without intending to be exhaustive some of the principles which are accepted as well settled may be stated thus; that whether there is a likelihood of deception or confusion arising is a matter for decision by the Court, and no witness is entitled to say whether the mark is likely to deceive or to CS(OS)NO. 1108/2006 Page 18 of 25 cause confusion; that all factors which are likely to create or allay deception or confusion must be considered in combination; that broadly speaking, factors creating confusion would be, for example, the nature of the market itself, the class of customers, the extent of the reputation, the trade channels, the existence of any connection in course of trade, and others."
21. In Corn Products Refining Co. vs. Shangrila Food Products Ltd. 1960 (1) SCR 968, the Supreme Court observed that the question whether two competing marks are so similar as to be likely to deceive or cause confusion is one of first impression and it is for the court to decide it. The question has to be approached from the point of view of a man of average intelligence and imperfect recollection.
22. In Cadila Health Care Ltd. vs. Cadila Pharmaceuticals Ltd. (2001) 5 SCC 573, the Supreme Court, inter alia, observed that its decisions in the last four decades had clearly laid down that what had to be seen in the case of a passing off action was the similarity between the competing marks and to determine whether there was likelihood of deception or causing confusion.
23. In Atlas Cycles (Haryana) Ltd. vs. Atlas Products Pvt. Ltd. 2008(36) PTC 269 (Del.)(DB), the plaintiff was the CS(OS)NO. 1108/2006 Page 19 of 25 owner of the registered trade mark „Atlas‟ since 1952. Defendant No.1 Atlas Products Pvt. Ltd. commenced manufacture of cycles in February, 2002. A suit for injunction was filed seeking injunction against infringement of the trade mark of the plaintiff. Allowing the appeal filed by the plaintiff and granting injunction against use of the work Atlas in the corporate name of the defendant/respondent, a Division Bench of this Court, inter alia, observed as under:-
"There cannot be two opinions on the question that, in the interests of the public/consumer, confusion as to the source of the products should not be permitted to persist. Indeed, this should be the primary concern of the Court. Law protects trade marks to enable a consumer to rest assured that the product on which he has placed his preference and which he identifies by its name, is in fact the one which he has purchased.
From the standadpoint of the manufacturer, his entire purpose is the sale of his product; this cannot be achieved if some other manufacturer can by clever manipulations and machinations, deceive or confuse the customer into buying a product that he does not intend to buy. It is for this reason that we fell that the protection must principally be from the customers‟ perspective."
24. In the case before this Court, as far as defendant No. 3 is concerned, it has clearly infringed the registered CS(OS)NO. 1108/2006 Page 20 of 25 trade mark of the plaintiff by using the work „Omexe‟ as an essential part of its corporate name. The test of deception and confusion is, therefore, not even required to be applied as far as the use of the word „Omexe‟ is concerned. Even the use of the word „Omex‟ is a clear imitation and is a colourable use of the trade mark of the plaintiff and this word appears to have been used as an essential part of the corporate name of the defendant Nos. 4 & 5 only with a view to encash upon the goodwill and reputation of the trade mark „Omaxe‟ owned by the plaintiffs. In any case, as noticed earlier, use of the word „Omaxe‟ as well as „Omexe‟ may result in confusion in the mind of the buyer as to the source of the products that may be launched by defendant No. 3 to 5 in the market. Not only from the point of view of the owners of the trade mark where business interest may be adversely affected on account of use of these names by defendants, but from the point of view of the consumers also, the defendants need to restrain from using the work „Omaxe‟ and „Omex‟ so as to avoid any possibility of confusion in the mind of the consumer as regards the source of the products which he purchases in the market. CS(OS)NO. 1108/2006 Page 21 of 25
25. It is true that in view of the provisions contained in Section 22 of the Companies Act, it is open to the plaintiffs to approach the Central Government for a direction to defendant no. 3 to 5 to change their name on the ground that their name nearly resembles with the registered trade mark of the plaintiffs, the availability of that remedy does not come in the way of the plaintiffs approaching this court for grant of prohibitory injunction. The statutory remedy provided under section 22 of the Companies Act is altogether independent of the remedy available to the plaintiff to approach a Civil Court. Another important aspect in this regard is that the Central Government has no power to prevent the defendants from using the name under which they have been incorporated, till the time the government examines the representation made to it by the plaintiffs and decided to give requisite direction under section 22 of Companies Act for rectification of the name of defendants 3 to 5. No immediate relief, thus, can be granted to the aggrieved owner of a registered trade mark, either in a case of infringement or in a case of passing off. The provisions of the Companies Act do not bar the remedy available to the plaintiffs before a Civil Court and it is open CS(OS)NO. 1108/2006 Page 22 of 25 to them to either approach a Civil Court or to approach the Central Government or to approach both.
26. This issue came up for consideration before a Division Bench of this court in Montari (supra) where it was contended that the Central Government having allowed the incorporation of the company the plaintiff could have applied for rectification of the name of the defendant company utilizing the remedy under Companies Act. Rejecting the contention, it was noted by this Court that the plaintiff had two independent rights of action against the defendants who may be using the corporate name of a previously incorporated company, one under section 22 of the Companies Act and the other for injunction restraining the defendants from using the corporate name of the plaintiff or from using a name bearing a close resemblance which may influence or is likely to create confusion in the mind of the consumers or in the mind of the general public in view of the similarity of names. It was also observed that both the remedies, one under Section 22 and the other under the common law, operate in different fields.
27. For the reasons given in the preceding paragraphs, the plaintiffs are entitled to perpetual injunction against the CS(OS)NO. 1108/2006 Page 23 of 25 defendants 3 to 5 restraining them from using the name „Omaxe‟ and/or „Omexe‟ or any other name deceptively similar to the registered trade mark „Omaxe‟.
28. Though the plaintiffs have also claimed damages to the tune of Rs.25 lakhs, no evidence has been led to prove any damage to the equity, goodwill and reputation of the plaintiffs on account of use of the words „Omaxe‟ and/or „Omex‟ in the corporate name of the defendant No. 3 to 5. This is more so when there is no evidence even to show any business activity by defendant No. 3 to 5. As far as defendant Nos. 1 & 2 are concerned, they being only the subscribers to the Memorandum and Articles of Association of defendant nos. 3 to 5, no relief needs to be granted against them.
29. The suit is hereby decreed to the extent that defendant No. 3 is restrained from using the corporate name „Omexe Real Estates Private Ltd.‟, defendant No. 4 is restrained from using the corporate name „Omex Properties Pvt. Ltd‟ and the defendant No. 5 is restrained from using the corporate name „Omex Realters Pvt. Ltd.‟ It will, however, be open to them to adopt any name which does not include the word „Omaxe‟ and/or „Omex‟ or any other CS(OS)NO. 1108/2006 Page 24 of 25 name deceptively similar to the name „Omaxe‟. There shall be no order as to costs. Decree sheet be prepared accordingly.
(V.K. JAIN) JUDGE OCTOBER 29, 2010 Bg/Ag/RS CS(OS)NO. 1108/2006 Page 25 of 25