Yoshida Kogyo K.K. vs Rajindra Jain And Ors.
1991 Latest Caselaw 625 Del

JUDGMENT

Usha Mehra, J.

(1) Defendant by this application wants ex-parte , Interim injunction granted by this Court vide order dated 25th July, 1991 be vacated. The basis of this prayer is that the defendant had been selling genuine product purchased from M/s. Art Work Export Ltd. Calcutta. These products which were seized by the police were purchased against the bills and challans from the said concern who in turn had imported the same from the foreign manufacturer in Korea. The goods which the defendant bad been selling are all genuine nylon goods manufactured in Korea by the authorised manufacturers of the plaintiff under their alleged trade marks. Moreover after 1988 defendant has not been dealing in the sale of these products.

(2) In Order to dispose of this application, the brief facts of the case are to be understood. Scantly the facts are that the plaintiff M/s. Yoshida Kogyo K.K. a company incorporated under the laws Of Japan having the registered office at Tokyo. Japan is manufacturing nylone zips under the trade mark Ykk ? and Zaglan in respect of slide fasteners & [Slide Fasteners (zippers) hook loop type fasteners hooks and eyes button snap button and press button. The company has its factories in almost all over the world. Zip fastners are sold extensively by the plaintiff company in foreign countries as well as in India under the Trade Mark Ykk and ZAGLAN. The trade mark Ykk and Zaglan, according to plaintiff is associated with superior quality on account of which, It has acquired unique reputation and good-will in India and abroad. On its advertisement company is spending huge amounts. These are sold only through those shops, the dealers of which are approved by the company. The products of the plaintiff are reputed and superior in quality. Because of the long user of the trade mark it has acquired a distingtive character and its goods are identified as the superior quality goods.

(3) It is the grievance of the plaintiff that the defendant started selling its spurious goods under the plaintiff's trade mark"YKK"nnd "ZAGLAN". Complaints were filed under Sections 156(2) and 156(3) of the Cr. P.C. General searches were ordered by the Additional Chief Metropolitan Magistrate, Delhi on 21st, 1990. On raid being conducted 'police recovered the goods from the possession of the defendants at their factory premises with the plaintiff's trade mark "YKK" and "ZAGLAN". Defendants requested for the release of these goods but the Magistrate rejected the request of the defendant. In spite of seizure of the goods, the defendant Is selling the spurious goods under the false trade mark of the plaintiff, as a result of which plaintiff has suffered. The public is likely to be deceived with the spurious product of the defendant.

(4) In view of these facts and documentary evidence placed on the record, particularly the search & seizure Memo pursuance to which the goods were seized from the possession of the defendant an ex-parte injunction was granted in favor of the plaintiff thereby restricting the defendants from manufacturing & selling the goods under the trade-mark of the plaintiff.

(5) It is to get this ad interim injunction vacated that present application has been moved by defendant.

(6) I have heard Mr. Manmohan Singh for the plaintiff and Mr. Aggarwal for the defendant. Mr. Aggarwal's main thrust of argument is that be purchased these goods from a Calcutta firm who is the genuine Importers of these goods from foreign manufacturers of Korea. Manufacturer of Korea is the parent concern of the plaintiff. He has placed on record the challan and voucher to prove these facts.

(7) I have perused the documents and also the bills and the challatis. Addaittedly in the premises of the defendant at the time of search as ordered by the Additional Chief Metropolitan Magistrate police recovered nylone zips and fasteners bearing the same trade mark as that of the plaintiff. Mr. Aggarwal's contention that these goods were purchased by him prior to 1988 and are still lying in his premises, prima facie, cannot cut ice nor a convincing argutment. The plea of by Mr. Aggarwal can be rejected on a short ground because as pet the bill/challan i.e. the evidence placed on record, defendanta purchased "'Metat fitting" zip 'puller' Ykk brand, made in Korea. Whereas when the search took place "Nylone zippers" were recovered from the premises of the defendant. No explanation has come on record as to bow the metal zippers became nylon zippers and how these find place in the premises of the defen dants. Not only the defendant has used the trade mark of the plaintiff on its goods but even on its letter-beads defendant has used the logo with trade mark of the plaintiff, Perusal of the letter-head produced by the defendants with this application at pages 16,17 & 18 clearly point out the facts asserted by the plaintiff. Identical trade mark of the plaintiff is ingraved on these letter-beads i.e. In the centre there is a globe around it is the fasteners which is the logo and trade mark of the plaintiff. This cirounistance. also lend support to the apprehension of the plaintiff that the defendants are still selling the fake zip and Zaglan under the name of the plaintiff's trade mark. Defendant's plead that he had since closed his business in this regard cannot be appreciated in view of police report. If defendant's firm had no sale of sliders and zippers w.e.f. 1st April, 1988 then all the more a reason that defendant should not be worked up or worry on the grant of the Injunction. The fact prima facie is otherwise. This can be seen from the certificate/report of the Notary public produced by the plaintiff in which he certified that be bad purchased the Nylon zipper from the defendants as on 24th January, 1991 with the trade mark Ykk ft Zaglan. Therefore, primafacie the plaintiff has been able to prove that the defendants is/ are still selling the products under the trade mark of the plaintiff even after the seizure of the goods by the police. This certificate the plaintiff has filed to strengthen his arguments that the defendant is not in fact buying the goods from any Calcutta concern, but is manufacturing the same himself. Be that as it may, the fact remains that the plaintiff Is the Company who has a proprietory interest in the trade mark Ykk and Zaglan and that it can based its claim if there if any infringement of the same. It can also file action for passing off on account of prior user of the trade mark. Because of prior user in point of time, the plaintiff has acquired a proprietory right. On account of having spent huge amount in advertisement it has acquired goodwill and reputation. And if the defendant is allowed to sell the products under the same trade name it will cause damage to plaintiff. It is not necessary for the plaintiff to prove at this stage that defendants goods are spurious nor the plaintiff need prove the actual damages suffered. Suffice it to any shall common man because of defendants goods under the same trade mark is likely to be deceived. The defense of the defendant that he imported it from foreign manufacturers, at this stage has no relevance. At this stage the Court has to keep in mind the prima facie case and the balance of convenience as well as the interest of justice, Prima facie, plaintiff has proved that he is the prior user of the trade mark Ykk and ZAGLAN. His registered trade mark not only in India but in number of other countries where they are selling these goods under the trade mark Ykk & ZAOLAN. The defendant by using the trade mark of plaintiff on its letterhead as well as on his product is prima facie commiting an infringement of the trade mark of the plaintiff beside passing of its product as that of the plaintiff thereby deceiving the common man. If the defendants are not restrained and are allowed to sale these goods under the trade mark of the plaintiff the infringement will be writ large. Plaintiff is a reputed concern and has spent huge amount on advertisement as is apparent from the documents placed on record, therefore, if defendant is allowed to sell its product under the trade mark of the plaintiff, naturally the plaintiff will suffer in reputation as well as in goodwill. Therefore, the balance of convenience is also in favor of the plaintiff. Hence the plea raised by the defendants has no force.

(8) For these reasons I confirm the order passed on 25th July, 1991 restraining the defendants, its servants, partners, agents from manufacturing, selling, offering for sale and dealing in the sale of fasteners (Zips) bearing the trade mark Ykk and Zaglan or any otter trade mark disceptively similar to that of the plaintiff. Accordingly the application of the defendant is dismissed and the stay order is confirmed.