* HIGH COURT OF DELHI : NEW DELHI
Judgment pronounced on: 29.07.2011
+ CS (OS) No. 127/2008
MR. DAVINDER KUMAR JAIN & ORS. .......PLAINTIFFS
Through: Ms. Tanvi Misra, Adv.
Versus
MR. SANJEEV SINGH & ORS. .....DEFENDANTS
Through: Nemo.
Coram:
HON'BLE MR. JUSTICE MANMOHAN SINGH
1. Whether the Reporters of local papers may
be allowed to see the judgment?
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be reported Yes
in the Digest?
MANMOHAN SINGH, J.
1. This suit was filed by the plaintiffs for permanent injunction, restraining infringement of trademark, passing off, and rendition of accounts along with damages.
2. The brief facts of the case are that the plaintiff No.1 Mr. Davinder Kumar Jain is an entrepreneur and the founder of the group of companies carrying on the business under style LUXOR since 1963 and is the sole proprietor of the trademark LUXOR. Plaintiff Nos.2 to 11 are all private limited companies, constituting the LUXOR group. CS(OS) No.127/2008 Page No.1 of 5
3. In September 2007, the plaintiffs came to know that the defendant No.1, along with defendant No.2 is selling electric bulbs under the brand name LUXOR.
4. Thereafter, the plaintiffs made various efforts to ascertain the facts of the identity of the defendants and found out that the defendant No.1 conducts the business of defendant No.2 and both these defendants have their establishment at 1367/1, Chowk, Ghoslyam, Opp. Narayan Market, Sadar Bazar, Delhi-6. At the said establishment, beside other objects, the defendant Nos.1 & 2 sell electric bulbs under the brand name LUXOR. The packaging thereof refers to "Sudhir Lamps" as the manufacturers, though the plaintiffs came to know that the actual manufacturers of these infringed goods are defendant Nos. 3 to 5.
5. Therefore, the plaintiffs filed the present suit. The matter was listed for the first time on 23.01.2008, and on that date the summons were issued. On 21.10.2008, the defendant No.1 appeared in person and both the parties submitted that the matter has been compromised. The statement of compromise was signed on 22.10.2008 and on the joint application of the parties for compromise, being I.A. No. 12844/2008 was allowed by the court and a decree of permanent injunction in favour of the plaintiffs and against the defendant Nos.1 and 2 restraining them from using the trade mark „LUXOR‟ or any other mark, trade dress or CS(OS) No.127/2008 Page No.2 of 5 packaging deceptively similar to or infringing the plaintiffs‟ mark LUXOR in relation to any good or services was also passed.
6. Further, it was ordered that the matter may be listed for the ex-parte evidence against the defendant Nos. 3 to 5 and the date 15.01.2009 was fixed for this purpose. Thereafter, the plaintiffs, on various occasions sought time to file the original documents for the ex- parte evidence against the defendant Nos. 3 to 5.
7. The plaintiffs adduced the ex-parte evidence by way of affidavit of PW-1 Mrs. Himlika Trivedi in which she reproduced the facts stated in the plaint. The same is exhibited as Ex.PW-1/A. In her affidavit, she has proved the following documents:
1. Certified copies of Resolutions of the Board of Plaintiffs No.2-11 and Power of Attorney have been proved as Ex.PW-1/1 and Ex.PW-1/2.
2. The Indian registrations of the LUXOR trade mark have been proved as Ex.PW-1/3 and Ex.PW-1/4.
3. ISO 9001 certification for quality is proved as Ex.PW-
1/5.
4. Certificates in Writing Instruments category for Environmental Management System (EMS) and Occupational Health and Safety Assessment have been proved as Ex.PW-1/6.
5. Copy of award of Largest Exporter of Writing Instruments for 2006-2007 has been proved as Ex.PW- 1/7.
6. Invoices showing expenditure on advertisements have been proved as Ex.PW-1/8.CS(OS) No.127/2008 Page No.3 of 5
7. The publicity documents have been proved as Ex.PW-
1/9.
8. A lifetime achievement award certificate of Mr. D.K.
Jain for HR has been proved as Ex.PW-1/10.
9. The LUXOR trade mark which has been designated a "Super Brand" has been proved as Ex.PW-1/11.
10. Photographs showing different awards bestowed to LUXOR have been proved as Ex.PW1/12.
11. Copies of the orders passed by different Courts have been proved as Ex.PW-1/13.
12. Samples of the said bulbs and packaging have been proved as Ex.PW-1/14.
13. Cards used by the defendants 3 to 5 have been proved as Ex.pw-1/15.
8. The evidence produced by the plaintiffs have remained unrebutted as no cross-examination was conducted by the defendant Nos. 3 to 5 being ex-parte.
9. The defendant Nos.3 to 5 are admittedly using the trade mark LUXOR on their packaging and labeling of bulbs manufactured and sold by them. It is stated in the plaint that the defendant Nos.3 to 5 have made a statement that their trademark is registered, which is not true. The defendant Nos.3 to 5 are also wrongly claiming their products are of ISI standard. But, in fact, they do not have any registration with the Bureau of Indian Standards and in case the defendant Nos.3 to 5 continue their offending activities by using the trade mark LUXOR in respect of CS(OS) No.127/2008 Page No.4 of 5 electric bulbs, they would be causing irreparable loss and injury to the goodwill, reputation and business of the plaintiffs.
10. The plaintiffs have also been able to establish the case of passing off. The goods manufactured by them are allied and cognate. In the facts of the present case, allowing the defendant Nos.3 to 5 to use the trade mark LUXOR in respect of electric bubls will create confusion and deception in the market, as it has been established that the plaintiffs have proprietory right in the mark LUXOR. (See Daimler Benz Aktiegesellschaft and another v. Hybo Hindustan; Air 1994 Delhi 239, Surjit Singh v. Alembic Glass industries Limited: AIR 1987 Delhi 319 and Sunder Parmanand Lalwani and others v. Caltex (India) Limited; Air 1969 Bombay 24)
11. The plaintiffs are, therefore, entitled to the reliefs prayed in the suit. Accordingly, the suit of the plaintiffs is decreed against the defendant Nos.3 to 5 in terms of para 13(a) and (c) of the plaint. As regards the reliefs claimed by the plaintiffs in para 13 (d) and (e), the plaintiffs are granted punitive damages to the tune of Rs.1 lac against the defendant Nos.3 to 5. The plaintiffs shall also be entitled to cost. Decree be drawn accordingly.
MANMOHAN SINGH, J.
JULY 29, 2011 jk CS(OS) No.127/2008 Page No.5 of 5