Delhi High Court
Hindustran Pencils Ltd. vs N.H.N. Products on 19 December, 2005
Author: S K Kaul
Bench: S K Kaul
JUDGMENT
Sanjay Kishan Kaul, J.
1. The plaintiff is a public limited company, which has filed the suit for permanent injunction, infringement of trademark and copyright, passing off, rendition of accounts and delivery up in respect of the products manufactured by the defendant of slate pencils under the trademark NATRAJ and device of NATRAJ and the packing material like Annexure-X, which is stated to be a colourable imitation of plaintiff's packing Annexure-F.
2. Summons were issued in the suit and notice in the interim application, but the defendant has chosen not to appear and defend the suit. Interim orders were, thus, confirmed on 18.11.2005 and the defendant was proceeded ex parte.
3. The plaintiff claimed to be well-established manufacturer of pencil and other items of stationery carrying on business since the year 1957 and the suit has been instituted through Mr. P.N. Thanawala. The copy of the Board Resolution in his favor authorising him to institute the suit has been proved as Exhibit P-2 by the affidavit of evidence filed by Mr. Manoj Dabke. Mr. Dabke has proved the Resolution in his favor as Exhibit P-1.
4. The plaintiff claims to have adopted the trademark NATRAJ in the year 1961 with the device of NATRAJ in respect of pencils and are the registered proprietor of three trademarks under class 16. The certified copies of the registrations have been proved as Exhibit P-3, Exhibit P-4 and Exhibit P-5. The plaintiff claims to be having large sales and has been advertising through various mediums the product of pencil, which is identified with the trademark and the device NATRAJ of the plaintiff. The carton is made in a colour combination of red and black colours, which is Exhibit P-6.
5.The grievance of the plaintiff is that since the trademark and device of the plaintiff have become popular in view of the high quality of the products of the plaintiff, the defendant started using the said trademark to take advantage of the goodwill and reputation of the plaintiff in respect of the same set of goods. The carton of the defendant has been proved as Exhibit P-7. The adoption of the mark and the packaging is stated to be dishonest, mala fide and tainted with the sole object to trade upon the goodwill and reputation of the plaintiff.
6. Learned counsel for the plaintiff submits that the trademark of the plaintiff is well known within the meaning of Section 11 of The Trademark Act, 1999 and the carton of the plaintiff has distinctive / artistic work, which is protected under Section 2(c) of The Copyright Act, 1957. Learned counsel submits that the plaintiff has the exclusive right to use the registered trademark in view of the catena of judgments including in National Bell Co. v. Metal Goods Manufacturing Co., AIR 1971 SC 898 and American Home Products v. Mac Laboratories, AIR 1986 SC 137.
7. After some hearing, learned counsel for the plaintiff does not press the suit insofar as the get-up and cartons are concerned and confines his relief to the trademark and the device.
8. In my considered view, there can be no doubt that in view of registration of the plaintiff's mark of NATRAJ and the device of NATRAJ, which is identified with the product of the plaintiff being slate pencils, the defendant does not have any right to use the said mark and device and it is clearly an attempt on the part of the defendant to trade on the name of the plaintiff.
9. In view of the aforesaid, a decree of permanent injunction is passed in favor of the plaintiff and against the defendant restraining the defendant from manufacturing or offering for sale the slate pencils or any other stationery goods under the trademark NATRAJ and the device NATRAJ or any other deceptively similar trademark.
10. The plaintiff is also entitled to costs.
11. On a perusal of the plaint, it is found that the plaint is not properly stamped for purposes of court fee and jurisdiction in view of judgment of this Court in CS (OS) No. 1165/2001 titled 'Pfizer Products, Inc. v. B.L. and Co. and Ors.' and Connected Matters decided on 03.10.2005. Learned counsel for the plaintiff undertakes to make up the deficiency of court fee within 2 weeks and the decree-sheet be drawn up only on deficiency of court fee being made up.
