H.K. Malhotra And Anr. vs Jasbir Singh
2003 Latest Caselaw 236 Del

JUDGMENT

S. Mukerjee, J.

1. The Plaintiff No. 1, Mr. H.K. Malhotra is a partner of Plaintiff No. 2, H.K. Mahinder & Co. having its registered office at 2167, Khampur, Opp. West Patel Nagar, New Delhi-110027. The partnership has been in existence since 1967 and was duly formalized in 1992.

2. The Plaintiff No. 2 is engaged in manufacturing and selling brushes under the trademark MAHINDAR in two device/logo formats with reference to its artistic depiction as described in paragraph 7 of the Plaint since the year 1980. The trademark MAHINDAR was adopted and selected by the Plaintiff No. 2 as it was the name of the brother of the Plaintiff No. 1 who was also a partner with the Plaintiffs firm.

3. The Trademark was registered under the provisions of Trade and Merchandise Marks Act, 1958 in respect of brushes falling in classes 16 under No. 479533 in 1987 and 21 bearing No. 272693 in 1981.

4. The Defendant Mr. Jasbir Singh individually as well as trading as M/s. Brush India Corporation at 36-Jind House, Ambala City, Haryana is dealing in the manufacture and sale of Brushes in the nature of Painting Brushes in class 16 as well as other brushes in class 21. The constitution of the Defendant is not known until after discovery in the present proceedings.

5. The Defendant adopted the trademark MAHINDAR (Device) which is depicted in the identical way as that of the Plaintiffs trademark MAHINDAR (Device) amounts to infringement of the Plaintiffs trademarks. The dishonesty of adoption by the defendant is writ large from a mere perusal and comparison of the competing marks.

6. The Plaintiff also states that the defendant is also passing off its goods as those of the Plaintiffs as the use of the trademark MAHINDER (Brush Stroke Device) is likely to deceive and cause confusion.

7. The defendants failed to put in their appearance despite service and were proceeded ex-parte on 14th May 2002. The plaintiff filed his evidence by way of affidavit. A number of arguments were heard by the Counsel for the plaintiff.

8. I have gone through the pleadings and the documents placed on record by the plaintiff Along with the plaint. The plaintiff has proved that the plaintiff No. 2, H.K. Mahindra, being of 2167, Khampur, West Patel Nagar, New Delhi is a partner concern and the plaintiff No. 2, Shri H.K. Mahindra has been its partner, the copy of the partnership deed has been proved to be the real signature of Shri H.K. Malhotra, the partner. The same is at Exhibit P1. As per the unrebutted evidence exhibited as PW1, Shri H.K. Malhotra and the plaintiff are engaged in the manufacturing and selling of brushes in the trade mark of Mahindra in two device/logo format since 1980 and the plaintiff got the same registered MAHINDRA under the provisions of Trade & Merchandise Marks Act of 1958 vide registration certificate duly exhibited.

9. The plaintiff has also proved their original artistic works as depicted in different forms with regard to the trade mark MAHINDAR (device) as a highly unique and stylish art work comprising of letter 'M' depicting in a large stylish font inside which the trade mark MAHINDAR appears to be written. The documents has been exhibited and proved as exhibit P3. The plaintiff have also proved that the artistic work is comprised of permanent orange colour device bearing the trade mark MAHINDAR (brushes) device. The link to the device the unique letters ('EE') appear in vide circular device. The same as per the plaintiffs are internal quality indicator typical only to the plaintiff. The plaintiff claims the copy right to the said artistic depictions by virtue of such artistic orientations. I am satisfied that the plaintiff have got the copyright on the artistic device ('EE') in the form, shape and colour depicted in the form of the plaintiff. The plaintiff has also proved a turn over of his products by filing the sale figures in the statement is at Exh. P4 which vary from more than Rs. 17 lakhs to Rs. 63 lakhs between the years 1990 to 2001 with regular increase/enhanced sale procedures reflecting the increasing popularity of the product in the market. Copies of the bills in response to the years placed by various agencies have been proved as exhibit P5. The plaintiff has also proved the colour photographs of his product as exhibit P6.

10. The plaintiff has also proved the colour photographs of the defendants product bearing the trade mark MAHINDAR (device) as exhibit P7, the same depicts that the defendant has deceptively used the identical, artistic orientations which amounts to infringement of plaintiffs trade mark, "MAHINDAR" (device). The use of the word, "MANINDER" is also phonetically deceptive with the trade mark of MAHINDER. The perusal and comparison of the trade marks clearly establish that the defendants has left no stone un-turned to dis-honeslty encash upon the goodwill and reputation attached to the plaintiffs trade mark.

11. The defendant is also passing off its goods as those of plaintiffs same the use of the trade mark, "MANINDER" (brushes of device) is likely to deceive and cause confusion in the public and buyers such as painters and other semi literate consumers/purchasers who normally engage themselves in the painting business. The defendant has even used similar get up, colour, scheme, lay out and trade dress so as to cause confusion. The similarity and identical nature of the artistic logo, colour, profile etc. are clearly visible while bearing Exhibits P6 & P7.

12. I am of the considered view that the use of similar logo is the result of deliberate and dis-honest and mala fide exercise on the Part of the defendant with a view to carry on unlawful trade under deceptive trade mark.

13. Under the circumstances, the plaintiff has established his case. I hereby grant a decree of permanent injunction in favor of the plaintiff and against the defendant in the following terms:-

(a) An order for permanent injunction restraining the Defendant through their partners or proprietor as the case may be, their servants, wholesalers, retailers, dealers, distributors and vendors are hereby permanently restrained from manufacturing selling, offering for sale, directly or indirectly dealing, carrying on business in and/or of brushes using the Plaintiffs original artistic works finding expression as the trademarks MAHINDAR (Device) & MAHINDAR (Brush stroke Device) or carrying on business with any artwork which may amount to be a substantial copy/reproduction of the original artwork of the Plaintiffs amounting to infringement of the Plaintiffs copyrights.

(b) An order for permanent injunction restraining the defendant through their partners or proprietor as the case may be, their servants, wholesalers, retailers, dealers, distributors and vendors are hereby restrained permanently from manufacturing, selling, offering for sale, directly or indirectly dealing in said products under the Plaintiffs registered trademark MAHINDAR (Device) or any other deceptively similar trademark amounting to infringement of Plaintiffs registered trademark.

(c) An order for permanent injunction restraining the Defendant through their partners or proprietor as the case may be, their servants, wholesalers, retailers, dealers, distributors and vendors restrained permanently from manufacturing, selling, offering for sale, directly or indirectly dealing in brushes or other allied and/or cognate goods affixed with the trademark MANINDAR (Device) and MANINDAR (Brush Stroke Device) or any other deceptively similar trademark and/or do any other thing as would result in confusion and deception amounting to passing off the defendant's goods as and for those of the Plaintiffs.

(d)     An order for rendition of account of profit illegally earned by the Defendant on account of use of the impugned copyright of the Plaintiffs and a decree be passed in favor of the plaintiffs of the amount so ascertained.
 

14. I hereby appoint Mr. Sanjeev Sharma, Advocate on the panel of Local Commissioners of this Court, as the Commissioner to go into accounts and submit a report in six months. His remuneration is fixed at Rs. 15,000/-. 
 

15. Suit is decreed accordingly with costs.