Delhi High Court
M/S Shree Rajmoti Industries vs M/S Giriraj Sugandh Industries ... on 31 October, 2011
Author: Manmohan Singh
* HIGH COURT OF DELHI: NEW DELHI
+ C.S.(OS) No.668/2008
Judgment Reserved on: 10.10.2011
% Judgment Pronounced on: 31.10.2011
M/S SHREE RAJMOTI INDUSTRIES ..... Plaintiff
Through Mr. S.K.Bansal, Adv. with
Mr. Vikas Khera & Mr. Akshay
Srivastava, Advs.
Versus
M/S GIRIRAJ SUGANDH INDUSTRIES AND ANR
..... Defendants
Through Defendants already ex parte.
CORAM:
HON'BLE MR. JUSTICE MANMOHAN SINGH
1. Whether the Reporters of local papers may
be allowed to see the judgment?
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be reported Yes
in the Digest?
MANMOHAN SINGH, J.
1. The plaintiff has filed the above-mentioned suit under Sections
134 & 135 of the Trade Marks Act, 1999 seeking relief of permanent
injunction to restrain infringement, passing off and delivery up etc.
2. The case of the plaintiff is that it is engaged in the business of
manufacture and sale of edible oils including groundnut oil and cotton
seed oil. In the year 1962, the plaintiff honestly, bonafidely and in the
course of trade, adopted, coined and conceived the word/mark
"RAJMOTI" (word per se and in artistic manner), the artistic label bearing
the word/mark "RAJMOTI" and its firm name M/s Shree Rajmoti
Industries of which the word "RAJMOTI" is an essential key material and
distinguishing part.
3. The copyright in the said label is duly registered in favour of
the plaintiff under the Copyright Act under Copyright Registration
No.A-61228/2002, and the said trade mark "RAJMOTI" forms a part of
this label viz. copyright registration.
4. The plaintiff's said trade mark "RAJMOTI" in an artistic
manner is duly registered in favour of the plaintiff under the Trade Marks
Act, 1999 under trade mark registration No.289101 in relation to
groundnut oil (edible) falling in Class-29 for sale in the State of Gujarat.
The said trade mark is registered as from 02.07.1973 vide trade mark
application No.791444 in Class-29 in relation to all kinds of edible oil
including groundnut oil and cotton seed oil as of 16.02.1998 which is
registered in favour of the plaintiff. The plaintiff has also got registration
of its trade mark RAJMOTI LOGO, RAJMOTI LABEL and RAJMOTI
(word mark) for different goods in Classes-29, 31, 32, 35 & 42 under
Nos.1318742, 1345896, 1380312, 1380308 & 1380304. The plaintiff also
filed some applications for registration of trade mark RAJMOTI for wider
specification of goods which are pending registration.
5. The allegations against the defendants are that they have
adopted and commercially started using the impugned trade mark/label
RAJ which is identical or deceptively similar to the plaintiff's trade mark
"RAJMOTI".
6. The plaintiff came to know about the defendants' impugned
adoption and use, first time from the publication of the defendants'
application for registration of the trade mark RAJ under application
No.1448976 in Class-29 in the Trade Mark Journal No.1376, Regular,
16.09.2007 at page 3515. The said Journal was made available to the
public on 16.11.2007.
7. As per the plaintiff, the cause of action has arisen in its favour
on 16.11.2007 when the plaintiff learnt about the defendants and their
impugned adoption and application for registration from the aforesaid
Trade Mark Journal in which their application was advertised. Further, the
cause of action again arose on 19.01.2008. The defendants have sought
registration for the impugned trade mark and have all the intentions of
using it for the impugned goods or goods covered thereby if not already
used.
8. As regards the territorial jurisdiction, the plaintiff submits that
this Court has the territorial jurisdiction to try and adjudicate upon the
present suit. The defendants are committing the impugned acts within the
jurisdiction of this Court by conduction, soliciting, selling and marketing
their impugned goods and business under the impugned mark in Delhi
clandestinely without issuing formal bills/invoices beside other parts of the
country. The defendants as such have all the intentions of extending their
impugned trade into Delhi, if not already existing in Delhi. The plaintiff is
also carrying out its trade and business and selling its goods and business
bearing the said trade mark in Delhi through its distributors/dealers/ agents
M/s Pure Agro Chem Corporation, 212, Syndicate House, No.3 Old
Market Road, Inderlok, Delhi and M/s Bishan Dass Khainati Lal, 2742,
Naya Bazar, Delhi besides other parts of the country. This Court, as such,
has the jurisdiction to try and adjudicate upon the present suit by virtue of
Section 134 of the Trade Marks Act, 1999 and Section 62 of the Copyright
Act, 1957.
9. The defendants were served by way of publication in the
newspaper "The Times of India" dated 04.09.2010, but no one appeared on
their behalf. The defendants were proceeded ex parte vide order dated
07.02.2011.
10. The plaintiff was given time to file the affidavit(s) in terms of
the ex parte evidence. The plaintiff in its ex parte evidence examined
PW-1 Shri Samir Ishwar Lal Gandhi who has filed his affidavit Ex.PW1/A
and proved the following documents:-
Ex.PW1/1 Artistic label bearing the word/mark RAJMOTI
Ex.PW1/2 Artistic label adopted by the plaintiff in the year 1995
Ex.PW1/3 Representation of the defendants' trade mark/label
Ex.PW1/4 Copy of publication of the defendants' application for
registration of the trade mark RAJ
Ex.PW1/5 Copy of notice of opposition filed by the plaintiff before
the Trade Marks Registry against the impugned trade mark
Ex.PW1/6 Certified copy of newspaper SAROVAR BHUMI dated
21.12.1999 placed on record of CS(OS) No.942/2005 vide
list of original documents dated 17.04.2006.
Ex.PW1/7(1) Certified copies of Bills towards the advertisements of
to 1/7(71) the plaintiff's mark placed on record of CS(OS)
No.942/2005 vide list of original documents dated
17.04.2006
Ex.PW1/8 Copy of Power of Attorney issued by the plaintiff-firm
in his favour
11. I have heard the learned counsel for the plaintiff and have also
gone through the affidavit in ex parte evidence as well as the documents
placed on the record.
12. As far as the case of the plaintiff for infringement of the
copyright is concerned, it appears that the two artistic works of the parties
are not similar. Therefore, the claim of the plaintiff for infringement of the
copyright is rejected.
13. As regards the case of the plaintiff for infringement of the trade
mark and passing off, it is to be examined, as to whether the two marks
RAJMOTI and RAJ are deceptively similar or not. The learned counsel
for the plaintiff, in support of his submissions, has referred the following
judgments:-
(i) Devi Pesticides Private Ltd. rep. by Power of
Attorney Holder Sankar M.V. vs. Shiv Agro
Chemicals Industries rep. by Proprietor Mr. Ashok
Thakkar, reported in 2006(32) PTC 434 (MAD).
(ii) Shaw Wallace and Company Ltd. and Anr. vs. Mohan
Rocky Spring Water Breweries Ltd., reported in
2006(33) PTC 180 (Bom).
(iii) Izuk Chemical Works vs. Babu Ram Dharam
Prakash, reported in 2007(35) PTC 28 (Del.)
(iv) B.K.Engineering Company, Delhi vs. U.B.H.I.
Enterprises (Regd.) Ludhiana and another, reported in
AIR 1985 Delhi 210.
14. I have gone through the aforesaid judgments. Besides above, it
appears from the facts and circumstances of the present case that the
plaintiff's evidence has gone unrebutted, as the defendants did not file any
written statement, nor they contested the matter. Therefore, the plaintiff is
entitled for the decree of permanent injunction in its favour and against the
defendants. Accordingly, the defendants are hereby restrained
permanently from using the trade mark RAJ in respect of castor oil, edible
oil and food grains etc. The plaintiff is also entitled for the cost of the suit.
Decree be drawn accordingly. The suit and the pending applications are
disposed of.
MANMOHAN SINGH, J.
OCTOBER 31, 2011
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