Delhi High Court
Usha International Ltd. vs Rajkot Agro Industries And Ors. on 4 October, 2007
Equivalent citations: MIPR 2007 (3) 384
Author: S K Kaul
Bench: S K Kaul
JUDGMENT
Sanjay Kishan Kaul, J.
Page 2650
IA No. 1271/2007 (Under Order 39 Rules 1 & 2 of CPC) INCS (OS) No. 214/2007
1. The written statement has been filed with a delay of 167 days. No reply has been filed to the interim application. The interim Orders dated 06.02.2007 are made absolute and the application stands disposed of.
IA No. 10751/2007 (Under Order 8 Rule 1 of CPC by Defendant Nos. 1 to 3)
IA No. 11588/2007 (Under Order 8 Rule 1 of CPC by Defendant No. 4)
2. The applications have been filed by the defendants seeking condensation of delay in filing the written statement. Defendant nos.1 to 3 were served on 13.02.2007 while defendant No. 4 was served on 15.02.2007. The local commissioner, appointed by this Court, to seize the offending goods visited the premises of the defendants on 13.02.2007 and handed over a copy of the Order. The written statement has been filed only on 29.08.2007 and re-filed on 15.09.2007. In the meantime, counsel for the defendants had entered appearance on 09.05.2007 and was directed to file the written statement along with the original documents in accordance with law.
3. A perusal of the averments made in the applications shows that it has been stated that the defendants are not well versed in English and were not aware of the legal position. It is further stated that the written statement was prepared on 20.05.2007 and sent by e-mail, but the local counsel could not open the e-mail. The defendants received a telephone call from their counsel in Delhi when they informed him about their difficulty and thus a hard copy was sent on 16.08.2007. condensation of delay of 167 days is sought.
Page 2651
4. It is not in dispute that this Court is not devoid of the power to condone delay even beyond a period of 90 days in view of the pronouncements of the Apex Court. It is simultaneously not in doubt that such a condensation is not to be granted as a matter of routine and special and compelling circumstances must be shown as to why the delay should be condoned even beyond a period of 90 days.
5. On perusal of the averments made in the applications, I find no such special circumstances in the present case. The defendants cannot plead ignorance of law. The counsel entered appearance on 09.05.2007 and it is stated that the written statement was sent by mail on 20.05.2007. If the mail could not be opened, the defendants or their local counsel ought to have taken action. Noting was done and it is stated that only when the defendants received a call from their counsel, was the counsel informed of this problem. There is a gap of almost two months during this interval.
6. It also transpires that the applications for condensation of delay are supported by an affidavit of the clerk of the counsel for the defendants. Whether such applications are maintainable is itself in doubt. Certainly, the averments made in the applications about lack of knowledge of the defendants could not have been affirmed by the clerk of the counsel for the defendants.
7. I thus find that the applications are totally devoid of any merit and dismiss the same.
IA No. 9435/2007 (Under Order 8, Rule 10 CPC)
8. The application has been filed by the plaintiff seeking a decree/pronouncement of judgment against the defendants on account of the failure of the defendants to file the written statement and for a decree to be passed in their favor as prayed for.
9. The applications for condensation of delay filed by the defendants have already been rejected. The present application is allowed in terms of the judgment pronounced in the suit hereinafter.
+ CS (OS) No. 214/2007
10. The plaintiff has filed the present suit for permanent injunction, infringement of trademark, acts of unfair competition, rendition of accounts, delivery up, damages etc. in respect of the trademark USHA of the plaintiff.
11. The plaintiff states that the plaintiff is a public limited company engaged in the marketing and sale of various consumer durables including Diesel Oil Engines and parts thereof, Pump Sets, Generators, etc. The trademark USHA of the plaintiff is well established and the plaintiff is represented all over the country through 17 Divisional Offices and 60 Company Showrooms with a network of 15,000 dealers.
12. The plaintiff is a registered proprietor of the trademarks in respect of Diesel Oil Engines:
i) USHA (word mark) bearing No. 427015 dated 12.09.1984 for Diesel Oil Engines and parts thereof included in Class 7.
ii) USHA logo style bearing number 276104 dated 06.11.1971 in respect of Diesel Oil Engines and parts thereof included in Class 7.
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iii) USHA logo bearing No. 427014 dated 12.09.1984 in respect of Diesel Oil Engines and parts thereof included in Class 7.
iv) USHA bearing no.427018 dated 12.09.1984 in respect of Diesel Engines included in class 7.
vi) USHA (logo in Hindi) bearing No. 297947 dated 25.07.1974 in respect of Diesel Oil Engines (not for land vehicle) and parts thereof included in Class 7.
13. The plaintiff's trademarks are stated to be subsisting. It is further stated that the trademarks bearing No. 427014, 427015, 276104 and 297947 were earlier owned by M/s Shriram Industrial Enterprises Ltd but the plaintiff became the proprietor of these registered trademarks by virtue of a deed of assignment dated 30.04.1994. The plaintiff has set forth the large sale figures and turn over running into crores for Diesel Engines under the trademark USHA of the plaintiff, which are re-produced as under:
Year Units (Nos) Approximate Value
(in Rs. crores)
1989-90 4705 3.5
1995-96 18425 17.5
2001-02 16900 16.1
2002-03 18500 23.5
2003-04 21500 23.94
2004-05 11634 16.85
2005-06 19983 25.41
14. The grievance of the plaintiff is that in January, 2007, the plaintiff came to know that the defendants were manufacturing various types of Diesel Engines under the trademark USHA MARSHAL, which was similar to the trademark USHA of the plaintiff. It is the case of the plaintiff that mere addition of the suffix MARSHAL would not make any difference.
15. The plaintiff has also pointed out that earlier in the Trademark Journal no.1279 Supplementary (1), the defendants caused an application to be published for registration of the trademark USHA MARSHAL in class 7 under application no.682962 for "Diesel Oil Engines (not for land vehicles) centrifugal pumps and parts thereof included in Class 7". A notice of opposition was given by the plaintiff. In pursuance to the same, the defendants Page 2653 abandoned the application vide Registry's Order dated 15.04.2007. The plaintiff thus contends that the defendants were conscious of the opposition of the plaintiff to the trademark and yet chose to use the trademark and thus the defendants are entitled to damages to the full extent.
16. It may be noticed that in the written statement proposed to be filed by the defendants, there is an admission by the defendants that they have given up the use of the trademark USHA MARSHAL and that they undertake to the Court not to use the said trademark but seek exemption from damages and costs.
17. The defendants came to the Court at the inception, but it cannot be lost sight of that the defendants were conscious of the opposition of the plaintiff to the trademark USHA MARSHAL and despite that they chose to use the trademark. The defendants abandoned their application for trademark registration and attempted to circumvent the said proceedings by using the said trademark. The defendants cannot be said to be a party to whom indulgence ought to be shown on the questions of damages or costs.
18. In view of the aforesaid, a decree is passed in favor of the plaintiff and against the defendants in terms of prayer Clause (a) to (h). Plaintiff is also entitled to damages to the tune of Rs. 7.5 lakh against the claim made in prayer (i) apart from costs.
19. Decree sheet be drawn up accordingly.
