United Decoratives (P.) Ltd. vs Prem Traders
1994 Latest Caselaw 668 Del

JUDGMENT

R.C. Lahoti, J.

1. This is a suit for permanent injunction restraining the defendants from committing infringement of the plaintiff's trade mark and passing of the defendant's goods as plaintiff's goods. The defendants-firm having been served with the summons have chosen not to file any written statements. The case has preceded ex-parte against them. Ex-parte evidence of the plaintiff has also been recorded. At the stage of final arguments, the counsel for the defendants appeared and sought for time from the court for moving an application for setting aside ex-parte order and filing written statement. That prayer has been refused.

2. Counsel have been heard.

3. The evidence adduced by the plaintiff proves all the averments made in the plaint. The plaintiff has been using trade mark FIX for its Zip Fasteners and its parts and components manufactured and marked by it since 1986. The plaintiff is also registered proprietor of the trade mark FIXO under No. 475942B dated 28-7-1987 in respect of Zip Fasteners under the Provisions of the Trade and Merchandise Marks Act, 1958. vide certificate Ex. B. has been proved. The plaintiff is also the owner of the artistic work entitled FIX having a distinctive get up, colour scheme, lay, out, plan and lettering style. It is registered under the Provisions of Copy-right Act. Extract from the Register of Copyright Ex. C. has been proved.

4. According to the plaintiff, a little before the filing of the suit it came to the knowledge of the plaintiff that the defendants have recently started manufacturing and marketing of Zip Fasteners under identical or deceptively similar trade mark and label FEX. Plaintiff's label and defendant's label have been produced and marked respectively, Ex. E. and Ex. F.

5. A comparison of the two labels shows the defendants having adopted writing "FEX" in the same size of letters as the plaintiff's FIX. The plaintiff has written FIX in a black strip inside the photo of a globe. The defendants have also adopted a globe of the same size and written FEX in a green strip. The lable is of the same size. The word 'Zips' has adopted by the defendants in the letters of the same size and same style as of the plaintiffs FIX. The photo of Zip is similar. The style of writing FEX on the photo of Zip is the same as plaintiff's style. The plaintiff's label has a background of black dots spread through out the length and breadth of the label. The defendants have also adopted the same background except changing the colour. A comparison of the two labels shows that a customer is likely to be led away in believing the defendants label to be that of the plaintiff and the goods marketed under the trade mark/label of the defendants to be that of the plaintiff. A clear case of breach of copyright of the plaintiff and passing off the defendant's goods as the plaintiff's has been made out.

6. The plaintiff is entitled to the decree prayed for. Suit is decreed The defendants are permanently restrained either by themselves or through their servants, agents, representatives, dealers and anyone acting on their behalf from manufacturing, selling or otherwise dealing in Zip Fasteners and its parts and components under the trade mark/label FEX or any other trade mark/label identical or deceptively similar to the plaintiff's trade mark/artistic work FIX and FIXO, or the artistic work FIX registered under No. A-51970/92. The defendants are also directed to destroy or deliver to the plaintiff for destruction all the offending counterfeiting labels, cartons, Zip Fasteners, dies, blocks and all other incriminating articles bearing the infringing/offending trade mark FEX under the possession and/or control of the defendants. The defendants shall bear the costs incurred by the plaintiff. The suit stands disposed of.