Kirloskar Copeland Ltd. vs Daljeet Singh, Trading And Anr.
2002 Latest Caselaw 283 Del

JUDGMENT

Dr. Mukundakam Sharnia, J.

1. Heard the learned counsel appearing for the parties on the application seeking for an ad-interim injunction.

2. The present suit is filed by the plaintiff as against the defendant seeking for a decree for permanent injunction restraining the defendants from infringing the trade mark and copyright of the plaintiff in respect of the trade mark KIRLOSKAR & COPELAND and also for a decree against passing off the goods of the defendants as that of the plaintiff and also for delivery, destruction of the counterfeit trade mark KIRLOSKAR & COPELAND, if any, with the defendant and also for rendition of accounts and for costs of the suit. It is alleged that the defendant is selling and/or offering for sale the re-conditioned compressors and its components under the trade mark KIRLOSKAR & COPELAND.

3. While issuing summons in the suit an ad-interim injunction was granted in favor of the plaintiff and against the defendants, on 1.5.2001 restraining the defendants from selling or offering for sale re-conditioned compressors and its components under the trade marks KIRLOSKAR & COPELAND.

4. The contention of the defendant, however, is that the defendant is a small time shop-keeper and is in the business of repairing and re-conditioning of compressors and its components, during the course of which, it might have repaired/reconditioned compressors belonging to the plaintiff under the trade mark KIRLOSKAR & COPELAND.

5. My attention is drawn by Mr. Manmohan Singh, appearing for the plaintiff, to a passage in Hoover v. Airway, (1936) 53 RPC 399 wherein it was held that the advertisement of a machine described as "a reconditioned Hoover" and bearing a "Hoover" name plate was held an infringement of the trade mark 'Hoover'. It was further held that the machine contained component parts not of the plaintiffs manufacture. In the light of the same, it could be prima facie held that use of the mark by dealers in second hand goods of the plaintiff may constitute infringement even if it is made clear that the goods are not original and are re-conditioned.

6. Reference could also be made to two other decisions, namely, in Rolls Royce v. Zanelli, (1979) RPC 148 and Rolls Royce v. Dodd, (1981) FSR 517, which are also to the same effect. However, this question could be gone into at length, at the time of trial. At this stage, I am of the opinion that the plaintiff has been able to make out a case for grant Of a temporary injunction in its favor and against the defendants. Accordingly, the order of injunction dt. 1.5.2001 is made absolute.

7. Application stands disposed of in terms of the aforesaid order. S. No. 884/2001.

Let the suit be renotified on 23.7.2002 for framing of issues.