K.G. Khosla Compressors Limited vs Survika Industries
1996 Latest Caselaw 13 Del

JUDGMENT

Manmohan Sarin, J.

(1) This is a suit filed by the plaintiff seeking a permanent injunction to restrain the defendant from manufacturing the components and spare parts of K.G. Khosia Compressors according to the drawings and specifications of the plaintiff and passing off the spare parts of Khosia Compressors as if the same are the goods manufactured and sold by the plaintiff The plaintiff has sought liquidated damages of Rs. 5,05,000.00 together with interest for wrongfully exploiting the name and for loss of business, goodwill and reputation suffered by the plaintiff.

(2) The plaintiff's case in brief is that the plaintiff is engaged in manufacturing and sale of Air Compressors, Gas Compressors and Vacuum Pumps etc. The plaintiff claims to be a pioneer in the field of Air Compressor Industry in India and is a concern of repute known for quality manufacture of compressors of various types and designs. The plaintiff claims that it is the only company with the distinctive word "Khosia" in its name and its shares are quoted in the Stock Exchange in India by this name. The word Khosla is registered as the trademark of the plaintiff and is used on the products of the plaintiff and it is frequently used in advertisements, pamphlets and publications. The manual and catalogues of the plaintiff relating to compressors are duly registered under the Copyright Act.

(3) The plaintiff has been manufacturing Air Compressor of sophisticated design and has collaboration with M/s. Crepelle & Company and thereafter with M/s Ghh of West Germany. The plaintiff after the collaboration in the year 1977 with M/s Crepelle & Company started manufacturing and selling Air Compressor under the name and style of "Khosia Crepelle". The plaintiff has obtained specific know how and technology for the manufacture of various types of compressors in the form of drawings, analysis of material specification . The components and spare parts used in the compressors are manufactured strictly in accordance with the drawings and designs. The plaintiff manufactures various compressors. The catalogue of the "Khosia Crepelle Air Compressor" containing the code number of various components and spare parts, are duly registen'd under the Copyright Act. The plaintiff is also manufacturing "Screw Compressor in collaboration with M/s. Ghh West Germany. The plaintiff has publish sales literature in the form of catalogue so as to notify and apprise its customers about the various components, machineries and spare parts of the compressors. Code numbers have been indicated against each component. Codification of components is done to enable a customer to order a particular component or machinery. The codification and trade name of the various components and spare parts have acquired distinctivness.

(4) The plaintiff in the year 1977 started getting some of the components and spare parts manufactured by the defendant. The trading and marketing of the same was, however, done by the plaintiff exclusively. The plaintiff used to place purchase order. The defendant in terms of the purchase order had undertaken not to pass on the plaintiff's drawings and samples of items manufactured to any other party or sub contractor without the prior written permission of the plaintiff. The defendant during the course of manufacture of various components and spare parts acquired knowledge of the code numbers of components and spare parts of the plaintiff. It is stated that the plaintiff did not return the drawing and the samples supplied to them. The defendant fraudulently and illegally has been using the drawings and specifications used in the manufacture of components and spare parts of the K.G. Khosla Compressors for its wrongful gain and to the determent of the plaintiff. The plaintiff claims that the defendant is passing of the components and spare parts manufactured by it as those of "Khosia Crepelle Air Compressor" and trading the same under the plaintiff's code numbers as registered under the Copyright Act, thereby passing off those goods as if the same are manufactured and produced by the plaintiff. Besides the defendant has misrepresented to the various customers of the plaintiff and written introductory letters as if the plaintiff is the manufacture of components and spare parts of "Khosia Crepelle Air Compressor" and thereby deceiving the buyer and causing damage to the goodwill and reputation built by the plaintiff in the market. The defendant has also gone to the extent of wrongfully appointing one M/s. Srinivas Marketing Services as their agents for K.G. Khosia Compressors, for the areas of Tamil Nadu and Kamataka The defendant has also approached several parties representing it as original equipment supplier to the plaintiff and offered to take maintenance contract as well as contract for supply of parts of these compressors. The plaintiff has produced on record the said letters.

(5) The suit was filed in October 1990. The proprietor of the defendant denied on 28.11.1990, that defendant was manufacturing or using the drawings or specifications of the plaintiff or passing off the components or spare parts of the defendant as that of the plaintiff. On an interim application, the defendant was restrained vide order dated 26.8.1993, from trading or carrying on business or passing off components and spare parts manufactured by the plaintiff. The defendant had filed written statement on 19.4.1991, contesting the suit on merits and denied the reputation of the plaintiff as claimed. Further while admitting that Khosia Compressor Were registered as a trademark, it was contended by defendant that the word "Khosia" could not always be attributed to the plaintiff. It was contended that the codifications of part numbers cannot be exclusively claimed as belonging to the plaintiff. It was denied that the drawings had not been returned and the defendant was using drawings for manufacturing the components and spare parts and then passing off such spare parts as if the same were of the plaintiff.

(6) The defendant was proceeded ex parte on 6.2.1995 The plaintiff has led ex parts evidence by filing an affidavit of its General Manager, Sh. R.K. Rastogi on behalf of the plaintiff. The plaintiff has proved the case of the plaintiff as set out in paras 1 to 4 herein before. The plaintiff has proved the due institution of the suit. The catalogues bearing the code number of various .spare parts as given in the brochures and catalogue registered with the Registrar of Copyright have been proved on record and exhibited as "EX.A Colly". I he details of the various copyright registrations are given in para 13 of the affidavit and the registered documents have been exhibited as Ex.B. The terms of the purchase order under which the defendant was precluded from parting with the drawings and samples has been proved as Ex.C. The plaintiff has also produced and proved on record the letter written by the defendant concerning the appointment of M/s. Sriniwas Marketing Services as Ex.D. The plaintiff has also proved the letter dated 19.10.1989, by which the defendant approached M/s. Royal Agencies seeking maintenance contract and order for supply of parts referring to the various parties with whom defendant had contract. Similar letter relating to M/s. A ircompressor, Madras has been proved as Ex.F. Ex.G is an another quotation letter issued by the defendant.

(7) From the foregoing, the plaintiff has proved its case regarding the illegal unauthorised use by the defendant of the specifications drawings and the code numbers given in the various catalogues, which are registered under the Copyright Act. The plaintiff has also proved the passing off by the defendant of the spare parts and components manufactured by it as those of the plaintiff. There is no evidence on record on behalf of the defendant to rebut these assertions. The plaintiff has also proved various communications by which the defendant sought maintenance contracts and those for supply of spare parts, as if the parts are the ones manufactured by the plaintiff.

(8) Learned Counsel for the plain tiff during the course of arguments stated that the plaintiff does not press its claim for liquidated damages and for damages for violation of copyright and is pressing only for costs and the relief for permanent injunction. In view of the foregoing discussion, the defendant is hereby restrained by decree of perpetual injunction from manufacturing the components and spare parts of K.G. Khosla Compressors, according to the drawings and specifications of the plaintiff and from using, trading and carrying on business so as to pass off the spare parts of Khosia Compressors as if the same are the goods manufactured and sold by the plaintiff. The suit is decreed as aforesaid with costs. Counsel is permitted to file a memo of fee within three days. ..