George Lillington & Co. Ltd. And ... vs Kesarwani Brothers
2001 Latest Caselaw 1742 Del

JUDGMENT

V.S. Aggarwal, J.

1. The plaintiff has filed the present suit seeking a permanent injunction to restrain the defendants for infringement of the plaintiffs registered copyright nos. A-32770/81, A-32765/81, A-32768/81, A-32766/81 by using the offending layout, design, colour scheme on the packing as the one used by the plaintiffs and restraining the defendants from using the mark SUPER SNWOCEM, which is an infringement of the plaintiffs trade mark SUPER SNOWCEM. It further seeks a permanent injunction to restrain the defendants on their behalf from using the impugned label with the mark SUPER SNOWCEM so as to pass of and enable others to pass off SUPER SNOWCEM cement paints of plaintiff's manufacture. It is prayed further that defendant should render accounts of profits earned by them from the sale of the cement paint under the said impugned mark.

2. The facts alleged are that plaintiff no.1, George Lillington & Co. Ltd, London is incorporated and organized under the laws of England and carrying on business, inter alia, in cement paints. It is the registered proprietor of the trade mark SNOWCEM under no. 89847 in class 2 of Schedule IV of the Trade and Merchandise Marks Act, 1985. This trade mark has been renewed from time to time and subsist on the register of the trade marks. Plaintiff no.3, Snowcem India Ltd is the registered user of the trade mark SNOWCEM in India. The said paints under the trade mark SNOWCEM are manufactured and filled in jars, drums and sacks of various sizes duly marked, painted and sealed at their factory in Bombay and district Nagaur, Rajasthan besides in Tamilnadu. Plaintiff no.2, Killick Nixon Limited, is the user of the trade marks SNOWCEM. It is duly registered with the Registrar of Copyrights as proprietor of copyrights work in respect of the same vide registration nos.A-32770/81, A-32765/81, A-32768/81, A-32766/81. Plaintiff no.3 is affixing its copyright on drums and sacks in which SNOWCEM is packed. M/s Killick Nixon Ltd, Bombay is the distributor of the said Snowcem India Limited.

3. It is the case pleaded that the trade mark SNOWCEM is continuously and regularly being used by the plaintiff no.2 with respect to the cement paints in India for last more than 38 years. It is a very well known advertised trade mark and is world renowned trade mark. The said cement paints under the trade mark SNOWCEM is sold in every nook and corner of India. It has achieved a unique reputation, name and goodwill. The Snowcem cement paint is sold in jars, drums and bats. The drums are painted with yellow background and the mark SNOWCEM is written conspicuously in bold letters. There are diagonal lines of blue colour. Similarly bags are affixed with the trade Mark SNOWCEM along with diagonal blue lines. The containers used for SNOWCEM are special types and thus has a special get up and layout. The above said registration is existing for past 38 years.

4. In December, 1996 it came to the notice of the plaintiffs that defendant have started using the mark SUPER SNWOCEM on their cement paint. The defendants are doing the above offending acts without license and permission of the plaintiffs. In this process it has infringed the copyright and trademarks of the plaintiff. Defendants are stated to be cheating and defrauding the public. They are damaging the goodwill and name and reputation of the plaintiff. On these facts the above said reliefs have been claimed.

5. On 2nd March, 1988 this court had proceeded ex parte against the defendant. This Court directed that the evidence be led by way of affidavits.

6. In support of the claim the affidavit of R.C. Saxena, attorney of the plaintiffs has been filed. He has sworn an affidavit and in other words the evidence is in line with the assertions of the plaint.

7. The evidence on the record clearly show that Snowcem India Limited, Killick House, Baji Pasalkar Marg, Bombay has registration no.32766/81 with respect to the copyright, the title of the work is SUPER SNOWCEM SACK (25 KG). Similarly registration of copyright no.A-32768/81 clearly show that SUPER SNOWCEM DRUM of 50 KG has the above said registration number in the name of Snowcem India Ltd. Super Snowcem (Plastic Jar) has registration no. A-328567/81 in the name of SNOWCEM India Ltd, Killick House, Charanjit Rai Marg, Bombay. To that extent it must be held accordingly. The evidence on the record further show that the defendant has started using the (SIC) sale of their articles as SUPER SNOWCEM. Indeed this is the grievance of the plaintiff. Plaintiff as is apparent from the recorded facts above application using the trade mark SUPER SNOWCEM. They have a copyright in this regad. The defendant is using the mark SUPER SNOWCEM. Phonetically it is similar to that of the plaintiffs and that otherwise also the bag contains the same ingredients and they can easily be passed of as that of the plaintiffs goods. Any ordinary man would take the goods of the defendant to be that of the plaintiff. Therefore, the plaintiffs indeed have a grievance and right to state that their valuable copyrights as such are being infringed and goods of defendant can be passed of as that of the plaintiff.

8. Learned counsel for the plaintiff did not press for the relief of rendition of accounts. The said relief is accordingly refused and with respect to the same the suit is dismissed.

9. However, for reasons given above since the plaintiffs valuable rights are being infringed defendants are restrained themselves or through their servants from infringing the plaintiffs registered copyrights no.A-32770/81, A-32765/81, A-32766/81, A-32857/81, A-32768/81 by using the offending layout, (SIC) design and colour scheme on the packing as that of the plaintiffs. The defendants are further restrained from using SUPER SNOWCEM as a mark which is an infringement of plaintiffs right by using the mark SNOWCEM. The defendant should not use the label work SUPER SNOWCEM to pass of their goods as the goods of the plaintiff i.e. the cement paints. Since the defendants are proceeded ex parte there will be no order as to costs.