Calcutta High Court
Kirloskar Brothers Ltd vs Mitra Trading And Ors on 27 January, 2025
Author: Ravi Krishan Kapur
Bench: Ravi Krishan Kapur
IN THE HIGH COURT AT CALCUTTA
ORIGINAL SIDE
(Intellectual Property Rights Division)
IA NO: GA-COM/1/2024
In IP-COM/8/2024
Kirloskar Brothers Ltd.
Vs
Mitra Trading and Ors.
For the petitioner : Mr. Ranjan Bachawat, Senior. Advocate
Mr. Debnath Ghosh, Senior Advocate
Mr. Nishad Nadkarni, Advocate
Mr. Shounak Mitra, Advocate
Ms. Vaibhavi Pandey, Advocate
Mr. Aasif Navodia, Advocate
Mr. Biswaroop Chowdhury, Advocate
Ms. Tiasha Gupta, Advocate
For the respondent no.1 : Ms. Rudraman Bhattacharyya, Advocate
Mr. Aakash Munshi, Advocate
Ms. Amrita Panja Moulick, Advocate
For the respondent no.3: Ms. Sheha Dutta, Advocate
Mr. Soumon Nanda, Advocate
For the defendant no.5 : Mr. Sudipto Sarkar, Senior Advocate
Mr. Soumya Ray Chowdhury, Advocate
Mr. Paritosh Sinha, Advocate
Mr. Deepan Kumar Sarkar, Advocate
Mr. Tushar Ajinkya, Advocate
Ms. Shrayashee Das, Advocate
Ms. Sukanya Sehgal, Advocate
Mr. Rohan Kumar Thakur, Advocate
Mr. Tridibesh Dasgupta, Advocate
Judgment on : 27.01.2025
Ravi Krishan Kapur J.
1. This is an application seeking interim reliefs.
2. The petitioner is engaged in the business of manufacturing engineering
and fluid management solutions for large infrastructure products in the
areas of water supply, power plants, irrigation, oil & gas, marine and
defence. The petitioner has been manufacturing, marketing and selling
centrifugal pumps, valves for industrial and agricultural use, turbines
and other ancillary goods for more than 100 years and has established
immense goodwill and reputation both in the domestic and international
market.
3. The defendant no.5 company is part of the Kirloskar Group of Companies
and the owner of the trademark which is the subject matter of the suit i.e.
Kirloskar brand. This suit has been filed against the respondent nos.1 to
4 (including unknown respondents) who are purporting to pass off their
goods under the mark KIRLOSKAR and thereby infringing the said mark.
4. The grievance of the petitioner pertains to the unlawful and unauthorised
use of the mark 'Kirloskar' by the respondent nos. 1 to 4. It is alleged that
the respondent nos.1 to 4 are involved in imitation and passing off goods
as that of the brand 'Kirloskar'. The mark 'Kirloskar' is a reputed mark
and the products manufactured and marketed under the mark 'Kirloskar'
are internationally renowned. The mark 'Kirloskar' was first adopted and
used as far back as in 1920. The mark has gained immense goodwill and
reputation over the years and has revenue in excess of crores. The mark
'Kirloskar' is also a part of the corporate domain name. The mark has
been registered in different, distinctive and unique styles.
5. It is alleged that in the month of January, 2023 the petitioner came to
learn that borewell and submersible pump sets are being sold, marketed
and promoted by the respondent nos.1, to 4 bearing the mark 'Kiloskar'
alongwith the word "Gold Pumps". The impugned mark is deceptively
similar to the mark 'Kirloskar'. Despite receipt of a notice dated 5
January, 2023, the respondents failed to take any remedial measures or
even respond to the same. The impugned mark 'Kiloskar Gold Pump' and
'Kiloskar Gold' are being unauthorisedly and fraudulently used by the
respondent nos.1 to 4. The packaging of the impugned products also do
not bear any details which also points towards the dishonesty and
fraudulent intent of the respondent nos.1 to 4 in diluting the
distinctiveness of the KIRLOSKAR mark.
6. On behalf of the respondent no.1 it is alleged that, the respondent no.1 is
not guilty of selling any infringing or counterfeit product and has been
improperly impleaded in this proceeding. In fact, the respondent no.1 is
an authorized dealer of several well-known brands and also other locally
manufactured brands and all such products are lawfully being sold by the
respondent no.1. The respondent no.1 also submits that they have been
carrying on business since 2006 and are in no way involved with the
alleged infringement.
7. In view of the analogous hearing in GA 2 of 2024 in this suit, the
contentions raised on behalf of the defendant no.5 are not germane for
the purposes of adjudication of the limited disputes raised in this
application.
8. Pursuant to interim orders dated 26 April 2024 and 6 May 2024, Special
Officers had been appointed by this Court who had visited the premises of
the respondent nos. 1 to 3. From a perusal of the Reports of the Special
Officers it appears that upon an inventory being made at the premises of
the respondent nos.1, 2 and 3 there were different pumps of sizeable
quantity lying at the premises for sale under the name 'Kirlosker'.
Moreover, invoices of the respondent no.1 reflecting sale of the impugned
products have also been retrieved form the shop room of respondent no.3.
It also appears from the Report of the Special Officers that the respondent
nos.1, 2 and 3 are fraudulently and with dishonest intent selling goods
under the name and style of 'Kirlosker', 'Kiloskar' and 'Kiloskar Gold'. The
impugned marks are deceptively similar to that of the petitioner and there
is every possibility of confusion and deception.
9. From the Reports filed by the Special Officer it prima facie appears that
the respondent nos.1 to 4 have been selling similar goods bearing
deceptively similar trademarks of the mark 'Kirloskar'. The mark
'Kirloskar' being a well-known mark, the use of a deceptively similar mark
by the respondent nos. 1 to 4 would inevitably lead to confusion and
dilution of the mark 'Kirloskar'. Prima facie, there is no merit in the
contention of the respondent no.1 that being an authorized dealer of the
KIRLOSKAR brand of goods it cannot be involved in selling the infringing
materials.
10. The mark 'Kirlosker', 'Kiloskar' and 'Kiloskar Gold' in respect of similar
category of goods as that being manufactured and sold under the mark
'Kirloskar' also demonstrates the malafide intent of the respondent nos.1
to 4 in infringing the mark 'Kirloskar'. There is a clear attempt to ride
upon the reputation and goodwill of the mark 'Kirloskar'. [Midas Hygiene
Industries (P) Ltd. vs. Sudhit Bhatia & Anr. (2004) 3 SCC 90].
11. In view of the above, the petitioner has been able to demonstrate a strong
prima facie case on merits. The balance of convenience and irreparable
injury is also in favour of orders being passed as prayed for herein. The
petitioners will suffer irreparable loss and damage if orders as prayed for
are not passed in their favour.
12. In such circumstances, there shall be an order of injunction in terms of
prayer (a), (b) and (c) of the Notice of Motion. The ad interim order dated
26 April 2024 stands confirmed. To the above extent, GA 1 of 2024 stands
allowed.
(Ravi Krishan Kapur, J.)
