Rohtas Goel And Anr. vs Somay Nayak And Ors.
2010 Latest Caselaw 4991 Del

         THE HIGH COURT OF DELHI AT NEW DELHI

%                     Judgment Reserved on: 26.10.2010
                      Judgment Pronounced on: 29.10.2010

+           CS(OS) 1108/2006

ROHTAS GOEL AND ANR.                          ..... Plaintiffs


                             - versus -


SOMAY NAYAK AND ORS.                                ..... Defendants


Advocates who appeared in this case:
For the Plaintiff       : Ms Bitika Sharma
For the Defendant       : None.


CORAM:-
HON'BLE MR JUSTICE V.K. JAIN

1. Whether Reporters of local papers may
    be allowed to see the judgment?                              Yes

2. To be referred to the Reporter or not?                        Yes

3. Whether the judgment should be reported                       Yes
    in Digest?

V.K. JAIN, J

1.          This is a suit for permanent injunction and

damages. Plaintiff No.1 Rohtas Goel is the Chairman and

Managing         Director   of   plaintiff   No.2    M/s         Omaxe

Construction Ltd., which is a company engaged in real

CS(OS)NO. 1108/2006                                        Page 1 of 25
 estate development and construction of buildings, roads,

bridges, malls, shops, etc. It has been alleged that the

plaintiffs adopted "Omaxe" as a part of their corporate name

and their services in the year 1989 and have been

conducting their business activities, using that trade name.

The plaintiffs have developed a number of projects,

consisting of apartments and villas, including Omaxe Plaza

Wedding Mall, Omaxe Green Valley, Omaxe NRI City,

Omaxe Arcade, Omaxe Heights and Omaxe City. Omaxe has

thus become a well-recognized name in the field of real

estate, is a coveted property of the plaintiffs and is entitled

to highest degree of protection. The plaintiffs claim to be

proprietor of mark "Omaxe" in several classes including

class 19, and class 37 (which pertains to building

construction;         repair   and   installation   services).      The

registration under class 37 had been applied for when the

suit was filed but, is stated to have been granted during

pendency of the suit. According to the plaintiffs they have

turnover of about Rs. 450 Crore and have invested huge

amount in advertising and promoting the brand "Omaxe".

2.          It has been further alleged that the plaintiffs came

to know that a company by the name "Omaxe Real Estate

CS(OS)NO. 1108/2006                                         Page 2 of 25
 Pvt. Ltd."(defendant No.3) had been registered with Registrar

of Companies in January 2006.            Defendants No. 1 and 2

were shown as the subscribers to the Memorandum of

Association of defendant No.3 in the record. The use of the

word "Omaxe", according to the plaintiff, is in clear violation

of their statutory and common law rights and use of this

word as a prominent and essential part of the corporate

name of defendant No.3 is completely mala fide and

dishonest, as this word has no obvious meaning. It has also

been alleged that use of the word "Omaxe" as part of the

corporate name of the defendant would also result in

enormous confusion and deception in the market since the

defendants, as their name suggest, also are in the field of

real estate and the real estate venture that may be started

by the defendants may be connected or associated with the

plaintiff,    resulting   in   injury   to   their   reputation    and

misrepresentation to the public, which may think that the

defendants are someway connected with the plaintiffs and

that is why they are using this word "Omaxe".

3.           During pendency of the suit, defendants No. 4 and

5 were impleaded as additional defendants when the

plaintiffs came to know about incorporation of these

CS(OS)NO. 1108/2006                                        Page 3 of 25
 companies.            The name "Omex" has been used in the

corporate name of defendants No. 4 and 5 and these

companies are also stated to have incorporated in January

2006. On enquiry with the Registrar of Companies, the

plaintiffs came to know that the authorized share capital of

defendants No. 3 to 5 is Rs. 1 Lac each.

4.          The       plaintiffs    have   sought   an   injunction

restraining the defendants from using the impugned

corporate name or any other name or mark, which contains

plaintiffs‟ trademark "Omaxe" or any word deceptively

similar to that mark.              The plaintiffs have also claimed

damages amounting to Rs. 25 Lac from the defendants.

5.          The defendants were proceeded ex parte, since they

did not appear despite service upon them.             The plaintiffs

have filed affidavits of plaintiff No. 1 Sh. Rohtash Goel and

Mr Venkat Rao, Company Secretary of plaintiff No. 2.

6.          In his affidavit, plaintiff No. 1 Rohtas Goel has

supported the case setup in the case and has stated that

the word "Omaxe" was coined and adopted by him in the

year 1989 and is a coveted property owned by him, which

enjoys immense goodwill in the market. He further stated

that the word "Omaxe" has no obvious meaning and that

CS(OS)NO. 1108/2006                                       Page 4 of 25
 the right to use trademark "Omaxe" was transferred by him

to plaintiff No.2 vide agreement dated 1st October 2005,

which is Ex.PW 2/1 and was extended till 31st March 2011

vide subsequent agreement Ex.PW 2/2. He also stated that

the trademark "Omaxe" is registered under various classes

including Class No. 19 for which it is registered vide

registration No. 1164507 and Class No. 37 where it is

registered vide registration No. 1366775.

7.          Sh. Venkat Rao in his affidavit stated that the

plaintiffs are in the business of construction and real estate

since the year 1989 and a number projects mentioned in

para 4 of his affidavit were handled by the plaintiffs.               He

further     stated    that   plaintiff   No.2   developed     various

apartments, commercial spaces etc. including Omaxe Plaza

Wedding Mall, Omaxe NRI City, Omaxe Arcade, Omaxe

Heights and Omaxe City. The brochures in respect of some

of these projects are Ex.PW 1/4 to PW 1/10. He also stated

that the plaintiffs today have a turnover of about Rs. 757

Crore and have invested huge amount for advertising and

promoting the brand "Omaxe". The expenses incurred on

advertisement and sales promotions in the year 2006-07,

2007-08 and 2008-09 amounted to Rs. 37.20 Crore,

CS(OS)NO. 1108/2006                                         Page 5 of 25
 Rs.30.52 Crore and Rs. 26.54 Crore, respectively.

8.          Ex. PW 2/3 is the certificate of registration of the

trademark "Omaxe" in the name of plaintiff No.1 Rohtas

Goel in Class No. 37 vide trademark No. 1366775 on 27th

June 2005, in respect of building construction, repair,

installation service, included in Class 37. A perusal of the

trademark agreement Ex. PW 2/1 would show that plaintiff

No.1 granted a license to plaintiff No.2 to use the trademark

"Omaxe" registered under Class 19.          Ex. PW2/2 is the

agreement dated 1st May 2009 whereby use of the

trademark "Omaxe" was licensed by plaintiff No.1 to plaintiff

No.2 of payment of license fee specified in the agreement.

9.          Ex. PW 1/14 is the search report obtained from the

website of Ministry of Company Affairs, which shows that

defendant No.3 has been registered under the name Omaxe

Real Estate Pvt. Ltd., with authorized and paid up share

capital of Rs. 1Lac, each, on 23rd January 2006, at the

address of E-6, Sector-I, Gautam Budha Nagar, Noida and

defendants 1 & 2 Somay Nayak and Surjit Nayak were the

subscribers to the Memorandum of Association and Articles

of Association of this company.

10.         The search report in respect of Omex Properties

CS(OS)NO. 1108/2006                                   Page 6 of 25
 Pvt. Ltd(defendant No.4) shows that this company was

registered on 27th January 2006 at the same address at

which defendant No.3 was registered and it also has

authorized and paid up share capital of `1Lac each and

Somay Nayak and Surjit Nayak were also subscribers to the

Memorandum of Association and Articles of Association of

this company.         The search report with respect to Omex

Realters Pvt. Ltd.(defendant No. 5) shows that this company

was     also    registered   at   the   same   address   at   which

defendants No.3 & 4 were registered and it also has

authorized and paid up share capital of Rs. 1Lac each and

the same persons were the subscribers to the Memorandum

of Association and Articles of Association of this company

11.         The case of the plaintiff against the defendants is

based upon infringement of their registered trade mark as

well as on passing off. Section 28 of Trade Marks Act, 1999

gives to the registered proprietor of the trade mark the

exclusive right to the use of the trade mark in relation to the

goods or services in respect of which the trade mark is

registered and to obtain relief in respect of infringement of

the trade mark in the manner provided by this Act.               The

action for infringement is, thus, a remedy provided by Trade

CS(OS)NO. 1108/2006                                      Page 7 of 25
 Marks Act to the registered proprietor of a registered trade

mark in case there is an invasion of the statutory right

provided to him for use of that trade mark in relation to the

goods for which the trade mark has been registered in his

name.      In a case based on infringement of this statutory

right it is necessary for the plaintiff to prove that his

registered trade mark has been used by the defendant,

though no such use is required to be established in an

action for passing off. It is also a settled proposition of law

that if the defendant resorts to colourable use of a registered

trade mark such an act of the defendant would give rise to

an action for passing of as well as for infringement. In an

action based upon infringement of a registered trade mark if

the mark used by the defendant is visually, phonetically or

otherwise so close to the registered trade mark of the

plaintiff that it is found to be an imitation of the registered

trade mark, the statutory right of the owner of the registered

trade mark is taken as infringed.     In such a case if it is

found that the defendant has adopted the essential features

of the registered trade mark of the plaintiff, he would be

liable even if he is able to establish that on account of

packaging, get up and other writings on his goods or on the

CS(OS)NO. 1108/2006                                  Page 8 of 25
 container in which the goods are sold by him, it is possible

to clearly distinguish his goods from the goods of the

plaintiff. On the other hand in a case of passing off if it is

shown that on account of these factors it is very much

possible for the purchaser to identify the origin of the goods

and thereby distinguish the goods of the defendant from the

goods of the plaintiff, the defendant may not be held liable.

12.         Section 29(5) of the Trade Marks Act provided that

a registered trade mark is infringed by a person if he uses

such registered trade mark, as his trade name or part of his

trade name, or name of his business concern or part of the

name of his business concern dealing in goods or services in

respect o which the trade mark is registered.

13.         Therefore, by using the word „Omaxe‟ which is the

registered trade mark of the plaintiff and an essential

feature of its corporate name, defendant No. 3 has clearly

infringed the registered trade mark of the plaintiffs.       The

trade mark „Omaxe‟ has also been registered, in the name of

plaintiff No. 1, under category 37 of the Fourth Schedule to

Trade Marks Act, 1999 in respect of building construction,

repairs and installation services. Plaintiff No. 2 is actually

engaged in the business of construction and real estate

CS(OS)NO. 1108/2006                                  Page 9 of 25
 development which are covered in clause 37 of the Fourth

Schedule.       Plaintiff No. 2 is a large company having turn

over of more than Rs.700 crores during a year.                 This

company        has    been   incurring   huge    expenditure      on

promotion and building of the trade mark „Omaxe‟ licenced

to it by plaintiff No. 1.        Plaintiff No. 2 has incurred

expenditure of more than Rs.94 cores in advertising and

promotion during the last three years.          A number of real

estate projects development by plaintiff No.2 used the trade

mark „Omaxe‟ as a prefix. Defendant No. 3 to 5 appear to

have been incorporated for engaging in the business of

construction and real estate development as is suggested by

their corporate names. All the three companies have been

registered on the same address in Noida. Plaintiff No. 2 has

already developed a large number of projects in Noida.

Considering the extensive use of the trade mark „Omaxe‟ by

the plaintiffs over the last more than 20 years and the huge

expenses incurred by them in advertising and promoting the

brand „Omaxe‟ in the filed of real estate development, there

is a strong possibility of the persons considering buying of

space in the projects developed by plaintiff No. 2         getting

confused on account of similarity of names and going in for

CS(OS)NO. 1108/2006                                     Page 10 of 25
 buying space in the projects that may be developed by

defendants No. 3 to 5, under a bonafide impression that

since the word „Omaxe‟/‟Omex‟ has been used as an

essential part of their corporate name, they are some how

associated with the plaintiffs or are their group companies

and they may end up purchasing space in the projects that

may be developed by the defendants No. 3 to 5.           If the

quality of the projects that may be developed by defendants

3 to 5 is not as good as the quality of the projects developed

by the plaintiffs or defendants 3 to 5 are not able to

complete the construction and deliver possession of the

space to the buyers within the time promised by them, that

may affect not only the reputation but also the business

interest of the plaintiffs, since the buyers may, in such a

case, form an impression that the projects developed by the

plaintiffs are not of the desired quality and/or that they are

not delivering on the time promised by them.

14.         It has come in evidence that the work „Omaxe‟ has

no obvious meaning and was coined by plaintiff no. 1 to be

used as his trade name.       the defendants have not come

forward to tell the Court as to why they chose to use the

word „Omaxe‟/‟Omexe‟ as a part of their corporate name,

CS(OS)NO. 1108/2006                                 Page 11 of 25
 particularly when the name has no connection with real

estate development or construction of buildings.

15.         Thus, as far as use of the word „Omaxe‟ is

concerned, there is a clear case of infringement made out

against defendants No. 3.         Since the word „Omex‟ is

phonetically so close to the word „Omaxe‟ that it may not be

possible for an ordinary buyer to distinguish the projects

which have been developed or may be developed in future by

the plaintiffs, from the projects that may be launched by

defendants 4 & 5 this is also a case of an apparent imitation

of the trade mark of the plaintiffs by these defendants.

Since the defendants have chosen not to appear in the

Court to contest the claim of the plaintiffs, there is no

attempt even to make out a case for distinguishing the

projects that may be launched by defendant No.s. 3 to 5

from the projects that have already been launched by the

plaintiffs or may be launched by them in future, on account

of any distinguishing feature or factor.

16.         In    Ramdev   Food   Products    Pvt.   Ltd.     vs.

Arvindbhai Rambhai Patel & Ors. AIR 2006 SC 3304, a

partnership firm consisting of father and his three sons was

doing business under the name and            style of Ram Dev

CS(OS)NO. 1108/2006                                  Page 12 of 25
 Masala Stores and was the owner of the trade mark Ram

Dev Masala.            Later the firm was reconstituted and

incorporated as a private limited company and trade mark

Ram Dev Masala was assigned. The firm was dissolved but

the three brothers continued to be engaged in the business

of spices through firm‟s name Ram Dev Exports and Ram

Dev Masala.            A user agreement was also executed

permitting these firms to use the trade mark till a particular

time and subject to certain conditions. The disputes arose

amongst        the    brothers   and   were   settled   through       a

Memorandum of Understanding whereby the respondents

were permitted to sell products of the plaintiff through their

retail outlets. The respondents had been writing the words

„Ram Dev Masala‟ on their packaging. It was found that the

packing, material and wrapper of both the parties was

phonetically and visually similar to the registered trade

mark and that the use of deceptively similar packaging

material and lables could create deception as well as

confusion in the mind of the customers who used to buy the

products in retail market from small shops as well as big

departmental stores. Noticing that the respondents had

adopted a part of the appellant‟s registered trade mark as a

part of its corporate name though they had merely been

permitted to trade from seven outlets it was held that they

could not have started manufacturing of spices under the

name and style of Ram Dev Masala.

17. In Montari Overseas Ltd. vs. Montari Industries

Ltd. 1996 PTC (16), the plaintiff Montari Industries Ltd.

was incorporated on January 17, 1980. The

defendant/appellant Montari Overseas Ltd. was

incorporated later on April 21, 1993. On coming to know of

the existence of the appellant/defendant, the

plaintiff/respondent filed a suit seeking injunction against

the use of the name „Montari‟ in the corporate name of the

defendant. It was contended on behalf of the

appellant/defendant that there was no evidence to show

that any confusion had been created in the mind of the

customers or members of the public by the use of the word

Montari in the corporate name of the appellant/defendant

nor was there any evidence to show that the business of the

plaintiff/respondent had been diverted by the appellant.

Rejecting the contention of the appellant/defendant a

Division Bench of this Court, inter alia, observed as under:-

"It is well settled that an individual can trade under his own name as he is doing no more than making a truthful statement of the fact which he has a legitimate interest in making. But while adopting his name as the trade name for his business he is required to act honestly and bonafidely and not with a view to cash upon the goodwill & reputation of another. An individual has the latitude of trading under his own name is in recognition of the fact that he does not have choice of name which is given to him. However in the case of a Corporation the position is different. Unlike an individual who has no say in the matter of his name, a company can give itself a name. Normally a company can not adopt a name which is being used by another previously established company, as such a name would be undesirable in view of the confusion which it may cause or is likely to cause in the minds of the public. Use of name by a company can be prohibited if it has adopted the name of another company. It is well settled that no company is entitled to carry on business in a manner so as to generate a belief that it is connected with the business of another company, firm or an individual. The same principle of law which applies to an action for passing off of a trade mark will apply more strongly to the passing off of a trade or corporate name of one for the other. Likelihood of deception of an unwary and ordinary person in the street is the real test and the matter must be considered from the point of view of that person. Copying of a trade name amounts to making a false representation to the public from which they have to be protected. Besides the name of the company acquires reputation and goodwill, and the company has a right too to protect the same. A competitor cannot usurp the goodwill and

reputation of another. One of the pernicious effects of adopting the corporate name of another is that it can injure the reputation and business of that person."

18. A person is well within his right to sell his goods or

render services using any trade name for the purpose. With

the passage of time the goods sold or the services rendered

by him, as the case may be, may acquire certain reputation

or goodwill in the market which becomes the property of

that person and needs to be protected by the court. It is not

permissible for any other person to start selling goods or

rendering services either using the same name or imitating

that name so as to cause injury to that person and enrich

himself at the cost of the person who had already been

using that name and had acquired a certain reputation with

the passage of time and on account of the quality of the

goods sold or services rendered by him. Any attempt on the

part of a person to enrich upon the goodwill generated by

any other person needs to be curbed by the court whenever

approached by the aggrieved party in this regard.

19. Even if the person using or imitating the trade

mark or goodwill of another person is yet to commence his

business activities his dishonest intention to make use of

the mark and name of the other party will be obvious from

the very use or imitation of the mark and goodwill of the

other person and, therefore, it should not be a defence to

say that there has so far been no use of the offending

corporate name or mark.

20. In Mahendra & Mahendra Paper Mills Ltd. vs.

Mahindra & Mahindra Ltd. 2002(24) PTC 121 (SC), the

respondents before the Supreme Court was a company

incorporated under the name „Mahindra & Mahindra Ltd.‟

The appellant/defendant was incorporated under the name

„Mahendra & Mahendra Paper Mills Ltd‟. A suit was filed

by the plaintiff/respondent „Mahindra & Mahindra Ltd.‟

against the appellant/defendant „Mahendra & Mahendra

Papers Ltd.‟ seeking injunction against the use of the words

„Mahindra & Mahindra‟ and words deceptively similar to

„Mahindra & Mahindra‟. „Mahindra‟ was the registered trade

mark of the plaintiff in respect of the goods in Class 12 of

the Trade & Merchandise Marks Act, 1958. The case of the

plaintiff was that the words Mahendra & Mahendra were

phonetically, visually and structurally almost identical or

deceptively similar to its corporate name and use of this

name was intended to deceive the member of the public into

believing that the defendant was an officiate of the plaintiff

or was in someway connected with it. The contention of the

appellant/defendant was that it was not an action for

infringement of trade mark but was an action for passing off

and in the absence of any similarity of the goods

manufactured or ;sold by the parties, test of deception or

confusion amongst the consumers did not arise. Noticing

that the name „Mahindra & Mahindra‟ had acquired a

distinctiveness and a secondary meaning in the business

and trade circles and people had come to associate the

name „Mahindra‟ with a certain standard of goods and

services, the Supreme Court was of the view that any

attempt by another person to use the name in business and

trade circles is likely to and in probability will create an

impression of a connection with the plaintiffs‟ group of

companies. During the course of the judgment, the

Supreme Court, inter alia, observed as under:

"Without intending to be exhaustive some of the principles which are accepted as well settled may be stated thus; that whether there is a likelihood of deception or confusion arising is a matter for decision by the Court, and no witness is entitled to say whether the mark is likely to deceive or to

cause confusion; that all factors which are likely to create or allay deception or confusion must be considered in combination; that broadly speaking, factors creating confusion would be, for example, the nature of the market itself, the class of customers, the extent of the reputation, the trade channels, the existence of any connection in course of trade, and others."

21. In Corn Products Refining Co. vs. Shangrila

Food Products Ltd. 1960 (1) SCR 968, the Supreme Court

observed that the question whether two competing marks

are so similar as to be likely to deceive or cause confusion is

one of first impression and it is for the court to decide it.

The question has to be approached from the point of view of

a man of average intelligence and imperfect recollection.

22. In Cadila Health Care Ltd. vs. Cadila

Pharmaceuticals Ltd. (2001) 5 SCC 573, the Supreme

Court, inter alia, observed that its decisions in the last four

decades had clearly laid down that what had to be seen in

the case of a passing off action was the similarity between

the competing marks and to determine whether there was

likelihood of deception or causing confusion.

23. In Atlas Cycles (Haryana) Ltd. vs. Atlas Products

Pvt. Ltd. 2008(36) PTC 269 (Del.)(DB), the plaintiff was the

owner of the registered trade mark „Atlas‟ since 1952.

Defendant No.1 Atlas Products Pvt. Ltd. commenced

manufacture of cycles in February, 2002. A suit for

injunction was filed seeking injunction against infringement

of the trade mark of the plaintiff. Allowing the appeal filed

by the plaintiff and granting injunction against use of the

work Atlas in the corporate name of the

defendant/respondent, a Division Bench of this Court, inter

alia, observed as under:-

"There cannot be two opinions on the question that, in the interests of the public/consumer, confusion as to the source of the products should not be permitted to persist. Indeed, this should be the primary concern of the Court. Law protects trade marks to enable a consumer to rest assured that the product on which he has placed his preference and which he identifies by its name, is in fact the one which he has purchased.

From the standadpoint of the manufacturer, his entire purpose is the sale of his product; this cannot be achieved if some other manufacturer can by clever manipulations and machinations, deceive or confuse the customer into buying a product that he does not intend to buy. It is for this reason that we fell that the protection must principally be from the customers‟ perspective."

24. In the case before this Court, as far as defendant

No. 3 is concerned, it has clearly infringed the registered

trade mark of the plaintiff by using the work „Omexe‟ as an

essential part of its corporate name. The test of deception

and confusion is, therefore, not even required to be applied

as far as the use of the word „Omexe‟ is concerned. Even

the use of the word „Omex‟ is a clear imitation and is a

colourable use of the trade mark of the plaintiff and this

word appears to have been used as an essential part of the

corporate name of the defendant Nos. 4 & 5 only with a view

to encash upon the goodwill and reputation of the trade

mark „Omaxe‟ owned by the plaintiffs. In any case, as

noticed earlier, use of the word „Omaxe‟ as well as „Omexe‟

may result in confusion in the mind of the buyer as to the

source of the products that may be launched by defendant

No. 3 to 5 in the market. Not only from the point of view of

the owners of the trade mark where business interest may

be adversely affected on account of use of these names by

defendants, but from the point of view of the consumers

also, the defendants need to restrain from using the work

„Omaxe‟ and „Omex‟ so as to avoid any possibility of

confusion in the mind of the consumer as regards the

source of the products which he purchases in the market.

25. It is true that in view of the provisions contained in

Section 22 of the Companies Act, it is open to the plaintiffs

to approach the Central Government for a direction to

defendant no. 3 to 5 to change their name on the ground

that their name nearly resembles with the registered trade

mark of the plaintiffs, the availability of that remedy does

not come in the way of the plaintiffs approaching this court

for grant of prohibitory injunction. The statutory remedy

provided under section 22 of the Companies Act is

altogether independent of the remedy available to the

plaintiff to approach a Civil Court. Another important

aspect in this regard is that the Central Government has no

power to prevent the defendants from using the name under

which they have been incorporated, till the time the

government examines the representation made to it by the

plaintiffs and decided to give requisite direction under

section 22 of Companies Act for rectification of the name of

defendants 3 to 5. No immediate relief, thus, can be

granted to the aggrieved owner of a registered trade mark,

either in a case of infringement or in a case of passing off.

The provisions of the Companies Act do not bar the remedy

available to the plaintiffs before a Civil Court and it is open

to them to either approach a Civil Court or to approach the

Central Government or to approach both.

26. This issue came up for consideration before a

Division Bench of this court in Montari (supra) where it was

contended that the Central Government having allowed the

incorporation of the company the plaintiff could have

applied for rectification of the name of the defendant

company utilizing the remedy under Companies Act.

Rejecting the contention, it was noted by this Court that the

plaintiff had two independent rights of action against the

defendants who may be using the corporate name of a

previously incorporated company, one under section 22 of

the Companies Act and the other for injunction restraining

the defendants from using the corporate name of the

plaintiff or from using a name bearing a close resemblance

which may influence or is likely to create confusion in the

mind of the consumers or in the mind of the general public

in view of the similarity of names. It was also observed that

both the remedies, one under Section 22 and the other

under the common law, operate in different fields.

27. For the reasons given in the preceding paragraphs,

the plaintiffs are entitled to perpetual injunction against the

defendants 3 to 5 restraining them from using the name

„Omaxe‟ and/or „Omexe‟ or any other name deceptively

similar to the registered trade mark „Omaxe‟.

28. Though the plaintiffs have also claimed damages to

the tune of Rs.25 lakhs, no evidence has been led to prove

any damage to the equity, goodwill and reputation of the

plaintiffs on account of use of the words „Omaxe‟ and/or

„Omex‟ in the corporate name of the defendant No. 3 to 5.

This is more so when there is no evidence even to show any

business activity by defendant No. 3 to 5. As far as

defendant Nos. 1 & 2 are concerned, they being only the

subscribers to the Memorandum and Articles of Association

of defendant nos. 3 to 5, no relief needs to be granted

against them.

29. The suit is hereby decreed to the extent that

defendant No. 3 is restrained from using the corporate name

„Omexe Real Estates Private Ltd.‟, defendant No. 4 is

restrained from using the corporate name „Omex Properties

Pvt. Ltd‟ and the defendant No. 5 is restrained from using

the corporate name „Omex Realters Pvt. Ltd.‟ It will,

however, be open to them to adopt any name which does

not include the word „Omaxe‟ and/or „Omex‟ or any other

name deceptively similar to the name „Omaxe‟. There shall

be no order as to costs. Decree sheet be prepared

accordingly.

(V.K. JAIN) JUDGE

OCTOBER 29, 2010 Bg/Ag/RS