Hi-Tech Foods vs Khanna Enterprises
1998 Latest Caselaw 795 Del

ORDER

Dalveer Bhandari, J.

1. The plaintiff company Hi-Tech Foods (A division of Dharampal Satyapal - Noida) is a partnership firm. The plaintiff since 1987 has been engaged in manufacturing and sale of table salt and household spices under the trade mark CATCH. The trade mark CATCH on account of prior adoption, long and continuous user, extensive marketing, net work and advertisement campaigns, voluminous sales and excellent quality control, has acquired an envious reputation and goodwill among the purchasing public and trade and has become distinctive of the goods and business of the plaintiffs exclusively.

2. It is also mentioned in the plaint that on account of the outstanding reputation of the trade mark CATCH, the purchasing public and the trade associate goods bearing the said trade mark with the plaintiff. It is submitted that the use of the said trade mark in relation to any goods by any other person would create immense confusion and deception in the trade amounting to infringement of registered trade mark. It would also amount to passing off. The plaintiff is the owner of the copyright contained in respect of the container titled CATCH and holds an exclusive right for its reproduction. It is mentioned in the plaint that the table salt container is a cylindrical container, white in colour with a blue perforated smaller lid. The body of the container has three portions. The front portion has on its left hand top corner the words IODIZED written in black letters on a yellow background in a single wave-like pattern. In the top half of the front portion, the word CATCH is written in italics in red dotted lettering from left to right in an ascending fashion. There is also a red oblique wave-like line underlining the word CATCH. Below this, in the middle of the front portion are the words FREE FLOWING and TABLE SALT written in two different lines in black and red lettering respectively. In the lower portion are the figures of different vegetables in their respective colours.

3. It is mentioned in the plaint that this white crystalline iodized salt is processed from the normal salt and is vacuum dried. It does not absorb moisture. It remains free flowing even in rainy season.

4. It is mentioned in the plaint that the defendant, Khanna Enterprises has started manufacturing and selling salt under the trade mark CHETAK. It is mentioned in the plaint that the defendant has not only adopted the mark CHETAK deceptively in a similar manner and style to the plaintiff's trade mark CATCH but also adopted container which is a complete reproduction of the plaintiff's CATCH container in all respects including its lay out, colour combination and arrangements. Even the descriptive matter and the entire get-up thereof has been completely reproduced.

5. The defendant's container is also cylindrical and white with a perforated lid identical to that in the plaintiff's container. The container is designed with all the features of the plaintiff's container with the title CHETAK written in the same fashion as the word CATCH with red underlining. Even the descriptive matter is identical with no variations at all. The three food items' pictures are also identical except that they are in a different order. The plaintiff has filed the containers of the defendant also.

6. The plaintiff's container and the defendant's container have been shown to me during the course of the preliminary hearing of the suit by the learned counsel appearing for the plaintiff. In this view of the matter, the plaintiff was compelled to approach this court by filing a suit. It is mentioned that the defendant is carrying on its business and its work for gain within the territorial jurisdiction of this Court. The goods of the defendant are manufactured and offered for sale in Delhi. The plaintiff learnt about clandestine activities of the defendant sometime in 1992 and the suit was filed in January, 1993. The suit is well within the limitation and this Court has jurisdiction to try this suit.

7. This Court issued summons to the defendant on 8.1.1993. The defendant could not be served by ordinary process and ultimately the he had to be served by publication in the daily English newspaper "The Statesman". Despite service, the defendant chose not to appear and ultimately the defendant was directed to be proceeded ex parte by the order of this Court dated 20th July, 1994. This Court by the order dated 20.7.1994, after hearing the learned counsel for the plaintiff, granted an ad interim ex parte injunction restraining the defendant, its proprietors/partners, its servants, agents and representatives from manufacturing, selling, offering for sale. The Court further directed that the defendant be restrained from advertising in any manner dealing in salt or any other household spices by using the containers identical or deceptively similar with the plaintiff's containers bearing the trade mark CATCH. The Court further restrained the defendant from causing any further infringement of trade mark bearing registration No. 452558-B or from doing any other thing as may lead to confusion, deception and passing off of the goods. The plaintiff was directed to file ex parte evidence on affidavit and the Deputy Registrar was directed to exhibit the documents.

8. The plaintiff filed the affidavit of Mr. R.N. Goela, Managing Partner of the plaintiff company in which the witness reiterated the entire contents of the plaint. It is also mentioned that in the second week of November, 1992, the plaintiff firm came across the defendant's product which was being sold under the trade mark CHETAK which is deceptively similar to the trade mark CATCH. According to Mr. Goela, the defendant had not only adopted mark CHETAK deceptively in a similar manner and style to plaintiff's trade mark CATCH but also adopted container which is a complete reproduction of plaintiff's CATCH container in all respect including its get-up, lay out, colour combination and arrangements.

9. I have carefully considered the pleadings, documents and evidence filed in this suit on behalf of the plaintiff. I have also heard the learned counsel for the plaintiff. I am of the considered opinion that the defendant's product is bound to cause confusion and deception in the minds of unwary class of purchasers having imperfect recollection. The defendant is trying to pass off and/or enabling the others to pass off their goods and business as for the goods and business of the plaintiff.

10. On consideration of totality of the facts and circumstances of this case, the plaintiff's suit is liable to be decreed in following terms:-

i. the defendant, its proprietor or partners, as the case may be, its servants, agents and representatives restrained from manufacturing, selling, offering for sale, advertising or in any way dealing in salt or any other household spices under the impugned mark CHETAK or any other mark which is identical or deceptively similar with the plaintiff's mark CATCH thereby amounting to infringement of trade mark registration No.452558B.

ii. the defendant, its proprietor or partners, as the case may be, its servants, agents and representatives are restrained from manufacturing, selling, offering for sale, advertising or in any way dealing in CHETAK or any other mark which bears close resemblance to the plaintiff's work or art comprising of, subsisting in any depicted on the label titled CHETAK thereby amount to infringement of copyright.

iii. the defendant, its proprietor or partners, as the case may be, its servants, agents and representatives restrained from manufacturing, selling, offering for sale, advertising or in any way dealing in salt or household spices under the impugned mark CHETAK or any other mark as is identical with or is deceptively similar with the plaintiff's mark CATCH and from doing any other thing as is likely to pass off its goods and business as and for the goods and business of the plaintiff.

The suit and all surviving IAs are accordingly disposed of. The Registry is directed to prepare decree in aforementioned terms. In the facts and circumstances of the case the parties are directed to bear their own costs.