Delhi High Court
Bayer Aktiengesellschaft vs Ajay Jain on 28 April, 1997
Author: A D Singh
Bench: A D Singh
JUDGMENT
Anil Dev Singh, J.
1. The plaintiff is a company incorporated under the Laws of The Federal Republic of Germany. Plaintiff No. 2 is the sister company of plaintiff No. 1 incorporated in India. Defendant No. 1 is the proprietor of defendant No. 2-firm. The plaintiffs manufacture plastic rubber : including rubber Chemicals, organic and inorganic Chemicals dyes and pigments and ceramics, polyurethanes, coating raw materials, pharmaceuticals, fibres, crop protection consumer products, animals health products, photographic products. They also deal in graphic systems, technical imagine systems and agroChemicals comprising crop protection and diagnostics. The plaintiff No. 1 is the proprietor of trade mark 'BAYER'. Besides, it is also proprietor of trade mark 'VULKANOX'. The following are the details of trade mark registered in favour of the plaintiff :
(i) Trade Mark BAYER registered under No. 197105 in class one in respect of Chemical products, used in industry, photography, agriculture, horticulture, forestry (other than insecticides, fungicides and preparations for killing weeds); tempering substances for preserving foodstuffs; tanning substances, adhesive substances used in industry.
(ii) Trade Mark BAYER registered under No. 197107 in class 7 in respect of plastics in the form of pellets, foam, foils, sheets, blocks, rods, tubes and casting resins, for use in manufactures; synthetics rubber (including latex); materials for packing, stopping and insulating; hose pipes (non-metalic).
(iii) Trade Mark BAYER write in cruciform inside a circle registered under No. 147346 as of 7-2-51 in class 5 in respect of pharmaceutical veterinary and sanitary substances, 'infants' and 'invalids' foods; medicinal and surgical plasters, materials for bandaging, material for stopping teeth, dental wax, disinfectants; preparations for killing weeds and destroying vermin.
(iv) Trade Mark VULKANOX registered under No. 296878 as of 14-6-1974 in class 1 in respect of Antioxidants being Chemical products for use in the rubber industries."
2. The plaintiffs also claim that the word 'BAYER' forms part of their corporate name and the same is registered under the Trade and Merchandise Marks Act, 1958 for various goods. The plaintiffs also claim that the trade mark VULKANOX/VULKANOX HS is being used in respect of the goods mentioned in Annexure-1 to the plaint.
3. It is the case of the plaintiffs that due to extensive use and advertisement of the trade marks 'BAYER' and 'VULKANOX/VULKANOX HS' be them, they have come to be identified and associated with their goods. The plaintiffs have also claimed that they are packing the goods in distinctive packages. It is the allegation of the plaintiffs that the defendants are selling their goods under the trade mark 'VULKANOX HS' and trade mark 'BAYER' in paper bags having the same design, get up as that of the plaintiffs'.
4. The defendants appeared in the matter, but subsequently absented themselves. with the result, they were proceeded ex-parte. The plaintiffs were directed to file ex-parte evidence by way of affidavits. Pursuant to the said order, the plaintiffs filed the affidavit of Shri D. N. Joshi, Regional Administration Manager of BAYER India Limited in which the facts stated in the plaint have been affirmed. The plaintiff has also proved on record that one Shri Surinder Kumar, Notary Public, Delhi, purchased one paper coated jute bag, VULKANOX HS Chemical printed with the name of BAYER VULKANOX HS from the defendants.
5. Having regard to the evidence produced by the plaintiff it is apparent that the defendants are using the trade mark of the plaintiffs on its goods. Consequently, the suit of the plaintiff is decreed and the defendants are restrained by means of a permanent injunction from manufacturing, selling and distributing Chemical products under the infringing trade mark 'VULKANOX/VULKANOX HS' and trade mark 'BAYER' of the plaintiff. The defendants are also restrained by means of permanent injunction from using the offending material, bearing trade mark 'VULKANOX/VULKANOX HS' and the trade mark 'BAYER'. The plaintiff will be entitled to the costs of the suit.
6. Injunction granted
