M/S Cico Technologies Ltd & Anr vs M/S Network Marketing & Exports
2008 Latest Caselaw 1888 Del

     *IN THE HIGH COURT OF DELHI AT NEW DELHI

+                  CS(OS) 1939/2002

%                                 Date of decision: 23.10.2008

M/S CICO TECHNOLOGIES LTD & ANR ....... Plaintiffs
                             Through: Mr Ashok Chhabra, Advocate

                                Versus

M/S NETWORK MARKETING & EXPORTS
INC. AND ORS                  .......Defendants
                              Through: Ex parte.


CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1.     Whether reporters of Local papers may
       be allowed to see the judgment?                No

2.     To be referred to the reporter or not?         No

3.     Whether the judgment should be reported        No
       in the Digest?


RAJIV SAHAI ENDLAW, J.

1. The plaintiffs have instituted the present suit, inter alia, for

restraining the infringement and passing off of the trade mark CICO

in respect of Polymer Modified Cementatious Material. It is, inter

alia, the case in the plaint that M/s Structural Waterproofing

Company Pvt Ltd is the registered owner of the said mark; that the

said company belonged to the family of one Shri S.R. Gupta; that

upon the demise of Shri S.R. Gupta, as per the settlement between

his family members, the said mark fell to the share of Shri Amit

Gupta s/o Shri S.R. Gupta; that accordingly M/s Structural Water

Proofing Company Pvt Ltd assigned the said mark in favour of the

plaintiff No.2 M/s Bengal Ceramics Pvt Ltd which, in turn, assigned

the said mark in favour of the plaintiff No.1 - both plaintiffs 1 and 2

being under the management and control of the said Shri Amit

Gupta; that the defendants 1, 2 and 3 were the distributors of the

CS(OS) 1939/2002 Page of 1 of 4 goods under the trademark CICO and have attempted to sell the

same goods under the trademark SEIKO which is phonetically same

and identical to the plaintiffs' mark CICO. The plaintiffs, besides the

relief of permanent injunction, also sought the relief of investigation

against the defendants 2 and 3, the relief of rendition of accounts

and for delivery of goods bearing the infringing mark and also

sought a direction against the Registrar of Trademarks, impleaded as

the defendant No.4, to cancel the registration of the trademark

SEIKO in the name of the defendant No.1.

2. The defendants 1, 2 and 3 appeared on the date the suit was

listed first, perhaps noticing the same in the cause list. The

defendants 1, 2 and 3, however, failed to file any written statement

and vide order dated 23rd November, 2004 the right of the

defendants to file the written statement was closed. The plaintiffs

were thereafter directed to file affidavits by way of their evidence. A

perusal of the record shows that the defendants appeared before the

Joint Registrar on one of the dates but again stopped appearing and

did not cross examine the witnesses of the plaintiff.

3. The plaintiffs filed affidavits by way of evidence of Shri Amit

Gupta aforesaid and Shri D Bhattacharya, Deputy General Manager,

Finance and Commercial of the plaintiff No.1 company. The plaintiffs

have, in their ex parte evidence, besides the oral statements of the

witnesses of the plaintiffs to the effect that M/s Structural

Waterproofing Company Pvt Ltd was the registered owner of the

trademark and had assigned the same in favour of the plaintiff No.2

who, in turn, has assigned the same in favour of the plaintiff No.1,

CS(OS) 1939/2002 Page of 2 of 4 also proved as Exhibit PW1/7A the receipt on account of Form TM-23

under the Trademark Rules of lodging of registration of assignment

of the trademark from the name of the plaintiff No.2 to the name of

the plaintiff No.1 and as exhibit PW1/7B the receipt of Form TM-24

with respect to registration of assignment of the trademark from M/s

M/s Structural Waterproofing Company Pvt Ltd to the plaintiff No.2

M/s Bengal Ceramics Pvt Ltd. The plaintiffs have also proved as

Exhibit PW1/12 the photographs of the product of the defendants

bearing the mark SEIKO. Exhibits PW1/5 and PW1/6 are the

extracts of the resolution of the Board of Directors of M/s Structural

Waterproofing Company Pvt Ltd with respect to the assignment of

the trademark in favour of M/s Bengal Ceramics Pvt Ltd and Exhibit

PW1/8 is the deed of assignment by the M/s Structural

Waterproofing Company Pvt Ltd in favour of the plaintiff No.2 M/s

Bengal Ceramics Pvt Ltd. Exhibit PW1/9 is the settlement deed

between the family members of Shri S.R. Gupta aforesaid. The said

evidence remains unrebutted by the defendants.

4. Even though the witnesses of the plaintiffs have not deposed of

the plaintiffs having been registered as the owners of the trademark

but in view of the judgments of this court in M/s. Modi Threads

Limited v. M/s. Som Soot Gola Factory and another AIR 1992

(Delhi) 4, Grandlay Electricals (India) Ltd v Vidya Batra 1998

PTC (18) Delhi and Astrazeneca UK Ltd. and Anr. v. Orchid

Chemicals and Pharmaceuticals Ltd. (2006) PTC 733 DELHI that

rights in the trademark accrue on the basis of assignment deeds and

such rights cannot be denied on the ground that in the records of the

Registrar of Trademark, the mark is still shown in the name of the

CS(OS) 1939/2002 Page of 3 of 4 assignor and that the assignee is entitled to protect the violation of

the trademark at the hands of unscrupulous persons.

5. The mark adopted by the defendants is found to be infringing

the registered trademark of the plaintiff. Accordingly I find the

plaintiffs entitled to the relief of permanent injunction. However, the

plaintiffs have not led any evidence with respect to the entitlement to

any accounts from the defendants. It was not even averred that

notwithstanding the non grant of any interim order against the

defendants, the defendants have continued to sell the goods under

the trademark SEIKO.

6. Accordingly, a decree for permanent injunction is passed in

favour of the plaintiffs and against the defendants 1, 2 and 3

restraining them, their servants, agents, nominees from

manufacturing, selling, offering for sale, advertising or dealing in

Polymer Modified Cementatious Materials under the trademark

SEIKO or any other trademark which is deceptively similar to the

trademark CICO of the plaintiffs. The plaintiffs shall also be entitled

to costs of the suit against the defendants 1, 2 and 3.

Decree sheet be drawn up accordingly.

                                               RAJIV SAHAI ENDLAW
                                                    (JUDGE)
October 23, 2008
M




CS(OS) 1939/2002                                              Page of 4 of 4