Riggio Tobbacco Corporation ... vs Ntc Tobacco India Limited And Ors.
2001 Latest Caselaw 1722 Del

JUDGMENT

O.P. Dwivedi, J.

1. Plaintiffs M/s Riggio Tabacco Corporation Limited have filed this suit for permanent injunction restraining the defendants from using plaintiffs trade mark "LEX-INGTON" on cigarettes and from passing off their goods as those of the plaintiff. Briefly stated the plaintiffs case is that the plaintiffs are wholly owned subsidiaries of Rothmans International N.V., a company incorporated in the Netherlands and belonging to the Rothmans Group of companies. Plaintiffs have been manufacturing and marketing cigarettes belonging to Rothmans Group of Companies under the trade mark LEXINGTON and have acquired international reputation, recognition and goodwill. Defendant No. 1 carries on the business, inter alia, of manufacturing and marketing cigarettes and the defendant No. 2 carries on the business of printing including the printing of cigarettes packaging material. The plaintiffs trade mark LEXINGTON stand duly registered in respect of cigarettes and artistic work also stand registered under the Copy Right Act. It is alleged that the plaintiffs have been selling cigarettes in cigarette packs consisting of the said label mark, copyright works and distinctive colour scheme, layout and getup since 1957. Plaintiffs/Rothmans Group of Companies have spent enormous amount of money by way of advertisement, publicity expenses for popularising the sale of their cigarettes under their distinctive cigarettes packs. It is alleged that they have come to know late that the defendant has started using the said trade mark, copy right and the artistic work on their inferior quality of cigarettes. The misuse of the trade mark, copy right and artistic work of the plaintiffs was detected in Bulgaria. On further inquiry the plaintiffs company come to know that actually counterfeit cigarettes were being manufactured by the defendant No. 1. It was further revealed that the counterfeit infringing packaging material of defendant was printed by the defendant No. 2 and hence the suit.

2. It may be pointed out here that in the original plaint, the plaintiff has claimed relief of injunction, rendition of accounts, delivery of goods for destruction etc. but at the time of the argument learned counsel for the plaintiffs stated that the plaintiffs will not press any of these except relief in para (a), (b) and (c) of para 29 of the plaint. Thus the plaintiffs have now confined its claim for injunction only.

3. Thereafter the plaint was amended-and the defendant Nos. 3 and 4 were also imp leaded as party to the suit as they are allegedly found to be indulging in the objectionable use of the plaintiffs trade mark. All the defendants were proceeded ex parted vide order dated 12th March, 1998. The plaintiffs have filed the evidence by way of affidavit of Debjit Gupta, the Constituted Attorney of plaintiff No. 1 and plaintiff No. 2. Through the said affidavit which is a deposition on path, the deponent substantiated the averments made in the plaint and also proved various documents namely the power of attorney (Ex. P-l), certificate regarding registration No. 276588 to be used in the legal proceedings of (Ex. P-2), prints of original artistic work (Ex. P-4), prints of plaintiffs original artistic work comprised in a seal device (Ex. P-5), plaintiffs cigarettes packs bearing the said label mark (Ex. P-6), plaintiffs world wide sales statement (Ex. P-7), a statement of the advertisement and publicity expenses (Ex. P- . 9), a statement of the yearly advertisement and publicity expenses incurred by or on behalf of plaintiff No. 2 in respect of sales in Bulgaria (Ex. P-10), the counterfeit products/packets found in Bulgaria (Ex. P-ll), documents showing involvement of defendant Nos. 3 and 4. In fact the plaintiff placed an order for supply of counterfeit packets of Lexington cigarettes with defendant No. 2 (Ex. P-12) and an affidavit of Mr. Jack Heslop, investigating officer, pertaining to his findings to the effect that the counter products/packs emanates from defendant No. 1 (Ex. P-13).

4. In absence of any evidence to the contrary, I find no reason to disbelieve the deposition of the plaintiffs attorney contained in its affidavit. The suit therefore deserves to be decreed ex-parte. Ordered accordingly.

5. Accordingly, by this exparte decree :-

(a) the defendants by themselves, their directors, servants, subordinates, representatives and agents are restrained by a perpetual order and injunction from infringing in any manner, plaintiff No. 1's trade mark LEXINGTON bearing registration No. 276588 and from using the essential features thereof and from using in relation to cigarettes, cigars or tobacco any mark or label which is similar or deceptively similar to plaintiff No. 1's trade mark bearing registration No. 276588 and from manufacturing, selling, offering for sale, exporting, advertising, dealing in cigarettes under the said trade mark bearing registration No. 276588 or under any other mafrk containing any of the essential features thereof;

(b) the defendants by themselves, their directors, servants, sub-ordinates, representatives and agents are hereby restrained by a perpetual order and injunction from infringing in any manner any of the copyright works of plaintiff No. 1 reproduced in Exhibits C-l, C-2 and D and from reproducing/copying any of the said Copyright Works or any substantial part thereof on counterfeit products/packs or any other cigarettes packs/cartons/packaging material or any other material or by manufacturing and selling or offering for sale or issuing copies of the counterfeit products/packs containing any of the copyright works ;

(c) the defendants by themselves their directors, servants, subordinates representatives and agents are hereby retrained by a perpetual order and injunction from using in relation to cigarettes, or any tobacco products the distinctive cigarette pack or any portion thereof on the mark Lexington or making or selling or exporting cigarettes from India in any carton/pack bearing all or any of the features of the distinctive cigarettes pack or the mark Lexington so as to pass off or enable others to pass off the defendants goods as and for the goods of the plaintiffs/Rothmans Group of Companies.

Let a decree be drawn accordingly.