Delhi High Court
Kewal Krishan Kumar, Trading As ... vs Purity Foods, A Division Of Gautam ... on 10 January, 1997
Author: J Goel
Bench: J Goel
JUDGMENT
J.B. Goel, J.
1. This is a suit for perpetual injunction in an action for infringement of trade mark, passing off, rendition of accounts and delivering of the offending material. The case of the plaintiff is that the plaintiff is the Sole Proprietary firm 'Kumar Dal Mills' and has been carrying on business of manufacturing and marketing Flour (Atta), Gram Floor (Besan), Dal, Maida, Sooji, Bran, and preparations made therefrom since 1975 using the trade mark "Shakti Bhog". This trade mark was duly registered as No. 391844 in class 30 as of 16-6-1982 in respect of Flour, Dal (Broken Grams) Besan and other preparations made from cereals under Trade and Merchandise Marks Act, 1958, the registration is still valid, subsisting and effective and the plaintiff is continuously, regularly, extensively and exclusively using this trade mark and he has been advertising goods under this trade mark. The details of expenditure incurred on advertisements and also sale figures have also been filed.
2. It is alleged that the defendant recently started manufacturing and marketing same goods, i.e., Rice, Dal and other goods under the mark "Shakti Atta". This mark is identical and/or deceptively similar to the trade mark "Shakti Bhog" of plaintiff and thereby infringing the trade mark of the plaintiff and passing off their goods as those of the plaintiff. After coming to know of it a legal notice was served on the defendant on 26-2-1991 but no reply was given and on the other hand defendant has filed a suit against the plaintiff under Section 120 of the Trade and Merchandise Marks Act at India. Hence the plaintiff has filed this suit.
3. Written Statement was filed on behalf of the defendant disputing the claim of the plaintiff.
4. During the pendency of the suit the parties have filed an application being I.A. No. 7395/96 under Order 23, Rule 3 read with Section 151 of the Code of Civil Procedure whereby defendant had admitted the claim of the plaintiff that the plaintiff is the proprietor and prior user of the trade mark "Shakti Bhog" in respect of flour, Dal (Broken Gram), Besan and other preparations made from cereals etc. and has given an undertaking that the defendant will not directly or indirectly use or cause to be used the trade mark "Shakti Bhog" or any other trade mark identical and/or deceptively similar to the trade mark of the plaintiff in respect of consumer edibles, food products or any other goods for human consumption. Defendant has also declared that he has no stocks of infringing goods, boxes, labels, stock in trade or other infringing mark preparations of the trade mark "Shakti". In view of this admission and undertaking given by the defendant plaintiff has foregone his claim as to rendition of accounts and the parties have agreed that the suit of the plaintiff be decreed in terms of prayers made in paragraphs 18(i) & (ii) of the plaint. This application is supported by the affidavit dated 1-7-1996 of the plaintiff and also affidavit of Shri Pradeep Nahata one of the partners of defendant. The case was fixed for today for statement of the parties. Plaintiff is present but no one is present on behalf of the defendant. Plaintiff has examined himself as P.W. 1 and has deposed the facts which have been noticed above and he has also proved the aforesaid compromise petition as Ex. C-1, his supporting affidavit Ex. C-2, and that of the defendant Ex. C-3. He has also proved that the compromise is signed by him as well as by defendant at points 'A' & 'B' respectively.
5. By the statement made by P.W. 1, the compromise Ex. C. 1 entered into between the parties and documents Ex. PW 1/1 to Ex. PW-1/7 proved by the plaintiff-PW. 1, it is proved that plaintiff is the proprietor of the registered trade mark "Shakti Bhog" in respect of flour, dal (broken gram), besan, and other preparations made of cereals mentioned in class 30 under the certificate of Registration No. 391844 and the registration is subsisting. It is also proved that the defendant had recently started selling their similar goods under the trade mark of "Shakti Atta". The trade mark of the defendant is identical or deceptively similar to that of the plaintiff infringing and violating the trade mark of the plaintiff and thereby passing off their goods as those of the plaintiff which the defendant is not entitled to do.
6. I accordingly accept the compromise petition I.A. No. 7395/96. "The suit of the plaintiff is decreed to the effect that the defendant, their servants, agents, dealers, stockists, distributors, representatives and other persons on their behalf are restrained from selling or offering for sale or otherwise dealing in Atta, Rice, Dal, under the trade mark "Shakti Atta" or any other trade mark which may be identical and/or deceptively similar to the plaintiff's trade mark "Shakti Bhog"; and (2) they are also further restrained by means of perpetual injunction from passing off their said goods as and for the goods of the plaintiff. Claims made in Clauses (iii) and (v) are dismissed.
7. Parties are left to bear their own costs.
8. Suit decreed.
