Delhi High Court
Ajinomoto Co., Inc. vs M/S. Sri Shankar Bhandar & Ors. on 16 August, 2011
Author: Manmohan Singh
* THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 16.08.2011
CS(OS) No. 550/2007
AJINOMOTO CO., INC. ..... Plaintiff
Through: Mr Pravin Anand, Adv. with Mr Dhruv
Anand and Mr Achuthan Srieekumar,
Advs.
versus
M/S SRI SHANKAR BHANDAR & ORS. ..... Defendants
Through: Nemo.
CORAM:-
HON'BLE MR JUSTICE MANMOHAN SINGH
1.
Whether Reporters of local papers may be allowed to
see the judgment ?
2. To be referred to the Reporter or not ? Yes
3. Whether the judgment should be reported in Digest ? Yes
MANMOHAN SINGH, J
1. The instant has been filed by the plaintiff for injunction
restraining infringement of its trademark, damages, rendition of accounts
of profits and delivery up etc.
2. The brief facts of the case are that the Plaintiff is a company
existing under the laws of Japan, having its registered office at 1-15-1,
Kyabashi, Tokya 104-8315, Jap. It is stated by the plaintiff that it is the
registered proprietor of the trade mark „AJI-NO-MOTO‟ written both in
English as well as in Japanese characters on bowl device in respect of
monosodium glutamate. Plaintiffs‟ predecessor in title S. Suzuki
Pharmaceutical Co. which was incorporated in 1907 started marketing
monosodium glutamate in 1908 and in 1909 it adopted the trade mark
AJI-NO-MOTO and since then it has been using the same continuously
and extensively.
3. It is stated by the plaintiff that AJI-NO-MOTO and the
BOWL DEVICE for monosodium glutamate is a well known trade mark
and the consumers recognize the origin as that from the plaintiff. Further,
it is stated that apart from the trade mark AJI-NO-MOTO the plaintiff
has also been using BOWL DEVICE which was adopted in the year
1911and the Japanese characters of the trade mark AJI-NO-MOTO on its
packaging of monosodium glutamate.
4. The trade mark AJI-NO-MOTO is registered in more than
150 countries and using BOWL DEVICE with Japanese characters is
registered in around 32 countries. The list of such trademark registrations
has been filed by the plaintiff as Mark K along with the evidence
affidavit. In the year 2003, the Plaintiff started a subsidiary retailing
company in India named Ajinomoto India Private Limited. In India,
plaintiff is the registered proprietor of various trademarks the details of
same is given pages 9-10 of the evidence affidavit. The trademarks of
the plaintiff have been extensively advertised in India.
5. In the month of December 2006, the Plaintiff came to know
that the defendants are also using the Plaintiff‟s trademark AJI-NO-
MOTO and the same bowl device in relation to the sale of their products
for Monosodium Glutamate. Being aggrieved, the plaintiff filed the
present suit. The matter was listed for the time on 26.03.2007 and on that
day the court granted ex-parte ad-interim injunction in favour of the
plaintiff and against the defendants and further appointed local
commissioners to visit the places where the impugned goods of the
defendants were stored.
6. It appears from the orders that after the execution of local
commission in compliance of order dated 26.03.2007 the parties settled
the matter and on 10.11.2008 the matter was lawfully compromised
between the plaintiff and defendant Nos. 1, 3, and 4. Defendant No.2 was
ordered to be deleted from the array of defendants. Thus the instant suit
survived against the sole surviving defendant i.e. defendant No.5, who
has been proceeded ex-parte vide Order dated 25.01. 2010 of this Court.
The relevant extract of the said order reads as under:
"By an order dated 10.11.2008 a settlement was
recorded between the plaintiffs and the defendant
nos. 1, 3 & 4. The suit against the said defendants
was decreed in terms of an I.A. No. 13621/2008.
By the very same order defendant no.2 was deleted
from the array of parties. The only defendant, in
respect of which the suit survives, is defendant
no.5. The learned counsel for the plaintiff has taken
steps for effecting service on defendant no.5
through Publication. The learned Jt. Registrar in the
order dated 07.01.2010 has observed that the
service on defendant no.5 has been effected by
publication. None has entered appearance on behalf
of defendant no.5. Accordingly, defendant no.5 is
proceeded ex-parte."
7. The Plaintiff has filed its evidence by way of affidavit of Mr.
Masaki Yasui against the said defendant No.5and along with that it has
filed the photographs of its products in India as Mark E. Copies of
various brochures, pamphlets and other promotional material of the
plaintiff to advertise its products in India have been filed as Mark F. The
original promotional literature and original sample advertisements
appearing in newspapers and magazines in India have been filed as Ex
PW 1/3 and Ex PW 1/4, respectively. The original sample advertisements
of the plaintiffs‟ products in Indonesia, Nigeria and Brazil have been filed
as Ex PW 1/5.
8. The list of expenses incurred by the plaintiff and its
subsidiaries on advertisement during the last few years has been provided
on pages 4-5 of the evidence affidavit. The copies of specimen
advertisements of the plaintiff‟s products for monosodium glutamate
bearing the trademark AJI-NO-MOTO, around the world are filed as
Mark G (Colly.). A copy of the press release announcing the plaintiff‟s
official partnership with Japan Olympics Committee is filed as Mark H.
Copy of the literature on monosodium glutamate has been filed as Mark
I.
9. Copies of certificates pertaining to the registered trademarks
of the plaintiff in India have been filed as Mark T (Colly.) and the
original certificates as Ex PW 1/7 (Colly.).The copies of AJI-NO-MOTO
trademark registration certificates worldwide are filed as Mark L. A list
of trademark registrations for the Japanese characters (AJI-NO-MOTO)
and copies of the corresponding trademark registration certificates are
filed as Mark M and Mark N (Colly.) respectively. The list of trademark
registrations for AJI-NO-MOTO and the BOWL DEVICE, which are 47
in number, in various classes, around the world is filed as Mark O.
10. Copies of Orders passed in favour of the plaintiff by this court
granting an ex-parte and interim injunction and final order are filed as
Mark P (Colly.).Copies of Judgments of the United States District Court,
upholding the trademark AJI-NO-MOTO and BOWL DEVICE as well
as restraining infringement of the plaintiff‟s well known trademarks are
filed as Mark Q. The copies of the opposition in Peru and Thailand
wherein third parties were withheld from applying for trademarks that
were deceptively similar to the plaintiff‟s trademark are filed as Mark R.
The notarized declaration and copies of judgments obtained from NARA
are filed as Ex PW 1/6.
11. The plaintiff has also filed the copies of extracts of the 1987,
1988, 2001 and 2002 editions of the Journal of Japanese Group of AIPPI,
listing AJI-NO-MOTO and some of its other trademarks as well
known/famous marks as Mark S (Colly.).
12. Further, the plaintiff has filed an affidavit of Mr. T.K. Das,
Regional Manager of Globe Detective Agency Pvt. Ltd. that was engaged
by the plaintiff to survey the markets of Kolkata & Howrah for the
infringing goods of the defendants along with annexures has been filed as
Ex PW-1/8 wherein he has stated that when he visited the store of
defendant No.5, he purchased a pouch containing monosodium glutamate
bearing the trademark Ajinomoto and bowl device from the said party.
The coloured photocopy of the said pouch has been annexed as Annexure
E.
13. By order dated 26.03.2007 Mr. Gurinder Pal Singh was
appointed as the local commissioner to visit the premises of defendant
No.5. It appears from the report dated 31.03.2007 of the said local
commissioner the premises of defendant No.5 could not be located. The
relevant extract of his report reads as under:
"Despite the best efforts of the investigator and
despite my best efforts too to locate the address, we
could not locate it. In the circumstances, we could
not execute the said commission at Defendant No.5
given address in the memo of parties, more so
because no such address was found."
14. The evidence filed by the plaintiff has gone unrebutted. Since
the defendant No.5 neither contested the suit nor filed the written
statement, therefore, I am of the considered view that the plaintiff is
entitled for a decree of permanent injunction against the defendant No.5
also in terms of para 24 (a), (b) and (c) of the plaint. The suit of the
plaintiff is decreed in terms of para 24 (a), (b) and (c) of the plaint against
the defendant No.5. Since no infringing material was recovered from the
premises of the defendant No.5, the relief of damages is not being
granted. However, the plaintiff shall be entitled for the cost. The decree
be drawn accordingly. All pending applications stand disposed of.
MANMOHAN SINGH, J
AUGUST 16, 2011
jk/dp
