Ti Diamond Chain Ltd. vs Mr. Santhokh Singh
2004 Latest Caselaw 327 Del

JUDGMENT

H.R. Malhotra, J.

1. This is a suit brought by the plaintiff seeking a decree for perpetual injunction against the defendant for infringement of their trade mark, copyright and also seeking a decree for passing off and rendition of accounts. Brief facts as set out in the plaint are that the plaintiff company is one of the leading, pioneer and well reputed manufacturers of chains, land sprocket used in the Motorcycles, Mopeds under the trade mark Diamond/Diamond Super . According to the plaintiff, their products are well-known for their quality not only in the domestic market but they are also exporting their product outside India. The plaintiffs are stated to be the registered proprietors of the trade mark 'Diamond' registered in Class 12 as of 2nd June,1942 in respect of chains. The registration have been duly renewed from time to time and they are still valid and subsisting. It is further the case of the plaintiff that their company is not only the registered proprietor of the trade mark Diamond/Diamond Super but are also the absolute owners of the copyright which subsists in the original art work of the said packing mater (sic)al which is used for marketing the product of the plaintiff company which are the original artistic work created by them only and that the plaintiffs have been using the trade mark Diamond/Diamond Super in respect of their goods for quite long time and t(sic)us enjoy great reputation and goodwill all over India. The plaintiffs in order to prove superior quality of the goods have given their sales figures right from 1991 till the filing of the suit i.e. 1997 which finds place at para 7 of the plaint.

2. The necessity of filing of the present suit against the defendant arose as the plaintiffs came to know that the defendant is also selling the chains pocket kits used for motorcycles, mopeds bearing the trade mark Diamond/Diamond Super and are also using the identical packing material. The defendant, according to the plaintiffs, procured the inferior quality of chain material and used chains from the local market and recondition the said chains and packed the same with similar packing as that of the pl(sic) in tiff and have been selling the same in the market under the classified trade mark. According to the plaintiff the product of the defendant and the product of the plaintiff would not reveal any difference between the two to the naked eye as the defend at is using the identical trade mark and packing material in all respects. It is further averred in the plaint that the products manufactured and sold by the defendant are of poor quality and the defendant is indulging in the said activity in a clandestine manner and they are also not issuing any cash memo. or voucher for the said trade mark. According to the plaintiffs, there is a deliberate and dishonest intention on the part of the defendant to manufacture and market spurious products bearing the identical trade mark and copyright of the plaintiff which is an infringement of the plaintiff's registered trade mark as well as infringement of the copyright and that by such use an impression is being created in the minds of the purchasers that the defendant is marketing the products of the plaintiffs whereas the defendant is neither stockiest nor authorised person to manufacture the products of the plaintiffs under the trade mark Diamond of the plaintiffs.

3. Summons of the suit were sent to the defendant. He filed written statement pleading inter alias that the defendant has not infringed the trade mark of the plaintiff nor their copyright. He stated that he is an illiterate person who would only procure work job of various companies or at some time would allow the goods of others to be stored in shop and in turn he would get meager sum to support his family. He further stated that sometime he would also deal in packing the material of various companies (sic)n job basis and being uneducated he never knew that the work so undertaken by him, in fact, relates to the infringement of the plaintiff's. In the written statement he stated that he will indulge in work of these types of activities and the defendant is prepared to give any undertaking to this Court. In other words he denied having infringed the plaintiff's trade mark Diamond. Plaintiffs did not file replication to the written statement of the defendant. The defendant though appeared initially but after filing the written statement he abstained and was finally proceeded ex prate on 24th August,2001. The plaintiff was called upon to prove their case to which they filed an affidavit in the form of evidence of P. Gopalanakrishan, Manager-Legal of the plaintiff company. This witness in his affidavit deposed in line with the averments made in the plain (sic)t. He deposed that the plaintiff company was a leading manufacturers of chains used in the motorcycles and mopeds and their products are well-known for their quality not only in domestic market but also outside India. This witness stated in the affidavit that the plaintiff company have been regularly, continuously and extensively using the trade mark Diamond/Diamond Super on all their products and that their trade mark Diamond was registered under No. 371 as on 2nd June,1942 in Class 12 and also trade device 'Diamond' registered under No. 717 on 8th June,1942 in Class 12. This witness also testified in his affidavit that the defendant adopted exactly similar trade mark and also the copyright which belongs to the plaintiff exclusively and in this manner, the defendant gave an impression to the general public that the goods being purchased by the public from the defendant are coming from the source of the plaintiffs whereas in fact it was not so. I have heard learned counsel for the plaintiff and have also perused the plaint including the documents filed in support of this case. I have also perused the written statement of the defendant where he candidly admitted that he was not manufacturing the offending good under the falsified trade mark Diamond/Diamond Super but only used to store the goods of others and sometimes would pack the goods for them. The defendant categorically stated that he would never infringe the goods of the plaintiff. To sum up there is no opposition to the claim of the plaintiff. From the evidence led by the plaintiff coupled with documentary proof, I am satisfied that the plaintiffs have been able to prove their case entirely whereas the defendant has no defense to make. Accordingly the plaintiff has become entitled to decree as claimed in the plaint. The defendant himself, his servants, agents, dealers shopkeepers and all other persons acting on his behalf are restrained from manufacturing, selling, offering for sale and distributing chain packet kit for use in Automobiles under the trade mark Diamond, both device and words, Diamond Super or any other trade mark which is identical with or deceptively similar to the plaintiff's trade mark amounting to infringement.

4. The defendant himself , his servants, agents, dealers, shopkeepers and all other persons acting on his behalf are restrained from manufacturing, selling , offering for sale and distributing Chain Packet Kit under the trade mark DIAMOND both device and words, DIAMOND SUPER as well as packing material Annexure "B" so as to pass off the defendants' goods and products as and for the goods and products of the plaintiff or in some way connected with the plaintiff's trade mark DIAMOND ' both device an words, DIAMOND SUPER as well as packing material like Annexure "A" The defendant himself his servants, agents, dealers, shopkeepers and all other persons acting on his behalf are further restrained from infringement of copyright of the plaintiffs in the packing material as well as artistic work used in the packing material Annexure "B"of the plaintiffs and reproduction of the artistic work as shown in Annexure "A" and also for delivery upon affidavit by the defendant to the plaintiffs of all other offending material, label, stationary material, other printing blacks, dies, bearing the trade mark DIAMOND for purposes of destruction and/or obliteration as the case may be. He is further directed to render rendition of accounts into the profits made by him since the adoption of the said infringing trade mark an packing material and a decree for the amount so found due to the plaintiff. No order as to costs.