Etona Company Ltd. vs Jakeman Engineering And ...
1995 Latest Caselaw 606 Del

JUDGMENT

Devinder Gupta, J.

(1) Plaintiff in this suit has claimed decree for injunction restraining defendants 1 to 14 from manufacturing and/or selling and/or offering for sale, or trading in any manner, in staples and stapler pins bearing the trade mark Etona or any other mark deceptively similar to and/or colourable imitation of Etona and from selling and offering for sale Etona staplers and stapling pins like A and B; which are not the manufacture of the plaintiff. Injunction has also been claimed against the defendants from using the offending mark Etona in relation to their products so as to pass off and/or to enable others to pass-off defendant Nos. 1 to 4's goods as and for the goods of the plaintiff or as goods in some manner connected or associated with the plaintiff.

(2) PLAINTIFF'S case is that it has been dealing various types of office equipments and specialises in manufacturing staplers also referred as stapling machines and staple pins, also referred as staples. It is claimed that word "ETONA" has been coined by the plaintiff and used as such as the key portion of the trading style. Staplers and staples manufactured by the plaintiff are also sold under the trade mark ETONA. Plaintiff has got registered trade mark Etona in several countries including Japan, United states of America, Canada, Sweden and Peoples Republic of China in respect of various goods including staplers and stapler pins. The goods produced by the plaintiff are also imported into India. Goods manufactured by the plaintiff are of the highest quality and to ensure high standard of quality considerable amount has been spent by the plaintiff in popularising its trade mark ETONA. Plaintiff has also made three different applications in class 6, 8 and 16 for registration of trademark Etona in India, claiming its user since 3rd December, 1983. Sale of staplers and stapling pins in India has been very large. Plaintiff's turn over in India is more than rupees one crore. The word "ETONA" denotes and connotes to the purchasing public, the stapling machines and staples manufacturted, sold and offered for sale by the plaintiff in India and other parts of the world. It is further alleged that defendant No. 1 is a concern engaged in the illegal business of manufacture and sale of spurious products as of the plaintiffs-company. Defendant No. 2 is an associate of defendant No. 1. Defendants 4 to 14 are the distributors of or outlets for the spurious staples and stapling machines manufactured by defendants 1 and 2. The defendants started passing off their product of inferior quality as the products manufactured by the plaintiff-company, in respect of staples and stapling machines using the trade mark ETONA. The word Etona being used by the defendants is exactly in the same style of lettering as that of the plaintiff. In nutshell the plaintiff has alleged encroachment of its trade mark at the behest of the defendants and has sought the decree aforementioned.

(3) Defendants were duly served. Defendants 1,2,3,4,6 and 9 were represented by a Counsel. After filing the written statement, a statement was made by learned Counsel for the plaintiffs on 3rd July, 1989 that the plaintiff would proceed only against defendants 1,2,3,4,6 and 9. Accordingly, the names of other defendants were ordered to be struck off. Name of defendant No. 6 was also ordered to be struck of on 26th October, 1989. Defendants 1, 2, 3, 4, and 9 were proceeded against ex-parte on 26th October, 1989. On 13th January, 1994 and on 17th March, 1994 ex-parte proceedings against them were set aside. Nobody put in appearance on their behalf thereafter and again they were proceeded against exparte on 25th January, 1995. In the meanwhile, defendant No. 3 had expired. His name was ordered to be deleted from the array of defendants. In these circumstances, suit only survives against defendants 1,2,4 and 9. Against them, plaintiff has led its ex-parte evidence on the affidavit of Shri S.D.Ahuja, constituted attorney of the plaintiff-company. In the affidavit sworn on 14th January, 1994, Shri S.D. Ahuja, has not only supported the plaintiff's stand as taken In the plaint but also referred to the report of the local Commissinoner, who was been appointed by virtue of an order passed on 26th April, 1989. The local Commissioner visited the premises of the defendants and prepared an inventory of the stock of staples and staplers.

(4) From the material on record, which has been produced and proved on the record by the plaintiff including the report of the local Commissioner, it stands established that defendants have been using the trade mark Etona for their products and also on the packing material for their products. The get up and colour scheme used by the defendants on their products as also on the packing material is similar to that of the plaintiff. In this manner it is proved on record that defendants have passed on their products as that of the plaintiff. It is also proved On record by the plaintiff with the help of numerous documents that trade mark Etona has been used exclusively by it in many countries of the world including India in respect of staple machines and staplers and it is the trade mark of the plaintiff. The word Etona 'denotes and connotes to the purchasing public, the stapling machines and staples manufactured, sold and offered for sale by the plaintiff. Plaintiff has thus proved its case for grant of injunction against the defendants, which if not granted will result in incalculable loss and injury to the plaintiff.

(5) In view of the above, plaintiff's suit as against defendants 1,2,4 and 9 is decreed ex-parte retraining defendants 1,2,4 and 9 from manufacturing and /or selling and/or offering for sale, or trading as, in any manner, bearing the trade mark Etona or any other mark deceptively similar to and/or colourable imitation of Etona and from selling and offering for sale Etona staplers and stapling pins like A and B; which are not the manufactured product of the plaintiff. Defendants 1, 2, 4 and 9 are further restrained from using the offending mark Etona in relation to their products so as to pass off and/or to enable others to pass-off defendant Nos. 1,2 and 4's goods as and for the goods of the plaintiff or as goods in some manner connected or associated with the plaintiff. Decree he drawn accordingly.