Castrol Limited And Anr. vs P.K. Sharma And Ors.
2000 Latest Caselaw 341 Del

JUDGMENT

S.K. Mahajan, J.

1. Plaintiff No. 1 is a Company incorporated in England. Plaintiff No. 2 is a Company incorporated in India. Both the plaintiffs are engaged in the business of processing and trading in high grade automotive and industrial lubricants, greases, brake fluids, wood preservatives, metal cleaning compounds etc. Plaintiff No. 1 had commenced its activities in India in the year 1919. Plaintiff No. 2 was set up on 31st May 1979 with the object of processing and marketing high grade automotive and industrial lubricants and speciality products and to take over the entire operations of the Indian Branch of Plaintiff No. 1 in India. On 1st July 1979 Castrol Limited was amalgamated with Indrol Lubricants Specialities Pvt. Ltd. and its name was later on changed to its present name, namely, Castrol India Limited.

2. Plaintiff No. 1 has claimed itself to be the registered proprietor of the trade mark "Castrol" in respect of oils for heating, lighting and lubricating. The mark was registered for the first time on 29th June 1942 and the registration is subsisting. Though the trade mark is registered in the name of Plaintiff No. 1, however, Plaintiff No. 2 is the registered user of the same under Section 49 of the Trade and Merchandise Marks Act 1958. The annual turn over of the goods sold by plaintiff No. 2 was approximately Rs. 546 crores in 1994. Plaintiffs have also been incurring heavy expenditure in advertising their products and in 1994 they had incurred a sum of about Rs. 15 crores in advertising and publishing their products in India. Plaintiff No. 1 is also the registered proprietor of the trade mark "CASTROL GTX" in Class 4 in(respect of industrial oils and greases. The said trade mark was registered in 1985 and the registration is still subsisting in the name of Plaintiff No. 1. Plaintiff No. 2 is the registered user of the said trade mark as well. The mark "GTX" and "GTX 2" have been used by the plaintiffs in conjunction with the trade mark "CASTROL" in respect of engine and multi-grade engine oils. The plaintiffs are also marketing their another product under the name "CASTROL CRB". The container in which this oil is used has allegedly artistic features, get up and layout and colour combination and this is allegedly exclusively advertised and depicted in colours in various printed medias. It is alleged that the goods of the plaintiffs being sold under the trade marks "CASTROL", "CASTROL GTX", "CASTROL GTX 2" and "CASTROL CRB" have become distinctive of the plaintiffs and are exclusively identified with the goods of the plaintiff and with none-else by the consumers and public.

3. It is alleged in the plaint that during the month of December 1994 the plaintiffs came to know that defendant No. 2 who was the proprietor of defendant No. 1 was carrying on business of selling multigrade engine oil and lubricants under the trade mark "CASTROL GTX" as well as "CASTROL CRB" in identical containers as used by the plaintiffs. It is alleged that the defendants have adopted and used the identical trade marks which are not only an infringement of the registered trade marks of the plaintiffs but is also a dishonest act on the part of the defendants. The Trade mark is being infringed dishonestly by the defendants only with the view to cause loss and injury to the reputation and to pass off their products as those of the plaintiffs. The plaintiffs, therefore, filed this suit for perpetual injunction, infringement of trade marks, passing off, copyright, damages etc.

4. By an ex-parte order passed on June 19,1995 this court had restrained the defendants from using the aforesaid trade mark in respect of their products. This order is continuing till date. Defendants were served by publication in the newspaper STATESMAN and inspite of service when they did not appear they were proceeded ex-parte. Ex-parte evidence has been led by means of affidavit and admitted documents have been exhibited as Ext. P-1 to P-17.

5. I have heard the party and on the basis of the material on record I am satisfied that the plaintiffs are the registered owners of the trade marks "CASTROI", "CASTROL GTX", "CASTROL GTX 2" and "CASTROL CRB" and being the, registered owners of the said trade marks they have the exclusive right to use them and lake steps to restrain other persons from using their trade marks in case the same are infringed. The products of the plaintiffs are well received by the general public and their trade marks have become distinctive of the goods of the plaintiff alone and none-else. The user of the said trade marks by the defendants, who have no right whatsoever to use the same is clearly dishonest and is an attempt to pass off their products as those of the plaintiffs. The plaintiffs have been able to establish their case and there being no rebuttal to the evidence led by the plaintiffs I have no hesitation in accepting the same.

6. I accordingly pass an ex-parte decree against the defendants restraining them from manufacturing, selling, offering for sale, advertising directly or indirectly, dealing in multigrade engine oil, lubricants or any other allied and cognate goods under the trade mark "CASTROL GTX" and "CASTROL CRB" or any other trade mark which is identical or deceptively similar to the registered trade marks of the plaintiffs; They are also restrained by a decree of injunction from selling, advertising directly or indirectly in multigrade engine oil with the aforesaid trade marks in containers which are similar to the containers being used by the plaintiffs. There is nothing on record to show as to what was the loss suffered by the plaintiffs and as the defendants are ex-parte, in my view, the plaintiffs are not entitled to the reliefs claimed in sub para (iii), (iv) and (v) of the prayer clause of the plaint. Decree is passed accordingly.