Delhi High Court
M/S. Drs Logistics (P) Ltd. vs Rajesh Agarwal & Anr. on 4 April, 2013
Author: Manmohan
F-4
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) 1131/2008
M/S. DRS LOGISTICS (P) LTD. ..... Plaintiff
Through: Ms. Ekta Sarin, Advocate with
Ms. Ankita Ubeja, Advocate.
versus
RAJESH AGARWAL & ANR. ..... Defendants
Through: None.
% Date of Decision: 04th April, 2013.
CORAM:
HON'BLE MR. JUSTICE MANMOHAN
JUDGMENT
MANMOHAN, J (Oral):
1. Present suit has been filed for injunction restraining infringement of
registered trade marks, passing off, unfair competition and damages.
2. However, learned counsel for plaintiff fairly states that she is only
pressing prayer 'A' and not prayers 'B to D'.
3. The relevant facts of the present case are that in 1988, plaintiff
commenced its business as a partnership firm under the name and style of
M/S. AGARWAL PACKERS & MOVERS. Subsequently, in 1991, the
partners of M/S. AGARWAL PACKERS & MOVERS formed the plaintiff
company and merged their partnership firm with the company.
4. It is stated in the plaint that plaintiff company is today a leading
packaging, moving and logistics service provider engaged inter alia in the
business of providing public carriers and carriers of goods, passengers,
merchandise, commodities and other products and transportation of goods
and luggage of all kind and description in any part of India and elsewhere by
any mode of transport.
5. It is also stated in the plaint that the mark AGARWAL PACKERS &
MOVERS is registered in plaintiff's favour in Classes 16, 17 and 39. The
said certificates have been exhibited.
6. Copies of balance sheets showing turnover and expenditure of the
plaintiff on advertising have been placed on record. Letters of appreciation
from various eminent personalities for services rendered by the plaintiff
have also been exhibited.
7. It is stated in the plaint that in and around April, 2008, plaintiff came
across a newspaper advertisement of the defendants wherein the defendants
described themselves as "AGARWAL's PACKER AND MOVERS''. Since
the defendants' mark was deceptively and confusingly similar to the
plaintiff's registered trade mark/trade name, plaintiff instituted the present
suit.
8. On 02nd June, 2008, this Court granted an ex parte ad interim
injunction against the defendants.
9. In October, 2008, defendants filed their written statement. On 04th
November, 2008, learned counsel for defendants stated that defendants have
changed their name from AGARWAL PACKERS AND MOVERS to
YASH AGARWAL PACKERS AND MOVERS and defendants are willing
to settle the matter with the plaintiff. On the said date of hearing, the ad
interim order was made absolute by this Court.
10. Learned counsel for plaintiff clarifies that the settlement proposal
mooted by the defendants was not acceptable to the plaintiff.
11. Moreover, as the defendants did not pay costs, the Joint Registrar on
09th January, 2009 struck off the written statement from the record.
12. On 12th March, 2009, defendants were proceeded ex parte and the
plaintiff was directed to file its evidence by way of affidavits.
13. Learned counsel for plaintiff points out that this Court has restrained
many other infringers from using the plaintiff trade mark in CS(OS) Nos.
2053/2006, 576/2008 and 834/2008.
14. Having heard learned counsel for the plaintiff and perused the ex
parte evidence as well as documents placed on record, this Court is of the
opinion that plaintiff has in fact proved the facts stated in the plaint and has
also exhibited the relevant documents in support of its case. Since the
plaintiff's evidence has gone unrebutted, said evidence is accepted as true
and correct. This Court is of the view that triple identity test namely,
identical goods/services, identical trade mark and identical trade channel is
satisfied in the present case. Further, this Court is of the view that the
defendants in adopting the plaintiff's mark have attempted to ride upon the
goodwill and reputation of the plaintiff amongst members of trade and
public desirous of availing of the services of the nature provided by the
plaintiff.
15. This Court is also of the opinion that there is enough material on
record to show that the trade mark AGARWAL PACKERS & MOVERS is
a well known trade mark in India. Accordingly, use of the plaintiff's mark
by the defendants besides constituting infringement and passing off as well
as unfair trade competition also amounts to dilution of the mark.
16. Consequently, the defendants, their partners, officers, employees,
agents, distributors, franchisees, representatives and assigns are restrained
by way of permanent injunction from using AGARWAL and/or
AGARWAL's PACKER and/or AGARWAL's PACKER & MOVERS or
any other trade mark or name similar to the plaintiff's registered trade mark
AGARWAL PACKERS & MOVERS or any other trade mark either as a
trade mark or part of the trade mark, trade name or corporate name or as part
of a trade or corporate name or in any other manner whatsoever so as to
infringe the registered trade marks of the plaintiff or to pass off their
services or business as and for the services or business of the plaintiff or
from using any other indicia whatsoever to show any association or
affiliation or connection of the defendants or their services with the plaintiff
or its services.
Registry is directed to prepare decree sheet accordingly.
MANMOHAN, J
APRIL 04, 2013
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