Delhi High Court
Hitkari Potteries Ltd. vs Hitkari Ceramics Private Limited on 20 March, 2014
*IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 20th March, 2014.
CS(OS) 1257/2010
HITKARI POTTERIES LTD. .....Plaintiff
Through: Mr. Rahul Malhotra, Adv.
Versus
HITKARI CERAMICS PRIVATE LIMITED. ...Defendant
Through: None
CORAM:-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. The plaintiff has instituted this suit on 10th June, 2010, claiming, (a)
the reliefs for permanent injunction, (i) restraining the defendants from using
plaintiff's registered trade mark "HITKARI" as part of their trading style or
domain name; (ii) restraining the defendant from using plaintiff's trade mark
and passing off defendant's goods as that of the plaintiff or that having any
association with the plaintiff company; (b) mandatory injunction directing the
defendants to freeze the domain name i.e. www.hitkariceramics.com and to
transfer the same in the name of the plaintiffs; (c) mandatory injunction
directing the defendant to deliver up all the printed material; and, (d) for
rendition of account of profits made by the defendant's by using plaintiff's
mark.
CS(OS) 1257/2010 Page 1 of 7
2. The case of the plaintiff in the plaint is:
(a) that the plaintiff Company is a registered company incorporated
under the Companies act 1956, which forms a part of the Hitkari
group of companies which apart from the plaintiff includes
Hitkari Industries Limited, Hitkari China Limited and M/s
Hitkari Brothers. The core business sectors of the Hitkari group
of companies is of plastic packaging films, ceramics, potteries
and chinaware;
(b) that the Hitkari group of companies was formed in 1957, by late
Sh. Krishan Kapoor and his elder bother Sh. Ved Kapoor and
who promoted the trademark "HITKARI"; in the year 1996, Sh.
Krishan Kapoor along with Sh. Ved Kapoor and Sh. Ramesha
Chathrath floated a private company by the name and style of
"Hitkari Potteries Pvt. Ltd." which specialised in manufacturing
of various ceramic and stoneware products;
(c) that in the year 1987, the group diversified and resultantly
"Hitkari Industries Limited" and "Hitkari China Limited" were
formed dealing with plastics and exporting of china ware
respectively;
CS(OS) 1257/2010 Page 2 of 7
(d) that due to the serious losses in profits the company went into
heavy looses to be ultimately declared as a sick industry under
the Sick Industrial Companies (Special Provisions) Act 1985 and
a scheme of revival was formulated by the Board for Industrial
and Financial Reconstruction in 1999; ever since the company
has been on a constant path of progress;
(e) that the trademark of the plaintiff "HITKARI" has been used by
the company for about 50 years now and has been used since
inception, thus forming an integral part of the identity of the
company; money to the tune of 25 Crores has been spent on the
publicity and advertising of the plaintiff company under the said
trade mark and total business of more than Rs. 500 Crores has
been carried out by the company under the said mark;
(f) that the trademark "HITKARI" has been registered under various
classes including Registration No. 438581 in class 21 for inter
alia glassware, enamelware, containers, dishes etc. and
Registration No. 438582 in class 8 for cutlery;
(g) that by virtue of extensive and continuous use, the mark/name
"HITKARI" has attained unparalleled reputation in bone china
CS(OS) 1257/2010 Page 3 of 7
tableware and has carved a distinctive niche for itself in the trade
circles and also amongst its consumers like Le Meridian Hotel,
Taj Hotels, Oberoi Hotels etc. and has been associated closely
with the plaintiff;
(h) that the trademark "HITKARI" has acquired immense fame and
reputation not only in India but has also acquired a distinct trans-
border reputation by exporting bone china tableware to USA,
Europe, Australia and by participating in reputed international
shows in Germany like 'Tendence' and 'Ambiente';
(i) that in or about the first week of June 2010, the plaintiff's
representatives came across a website on the internet, with the
universal Resource Locator (URL) 'www.hitkariceramics.com';
(j) that on perusal of the internal records of the plaintiff company
revealed that no such domain name was registered by or on behalf
of any of the Hitkari Group entities;
(k) that on further perusal of the website, it was found that the same
was owned by the defendants i.e. Hitkari Ceramics Private
Limited and furthermore they claimed to be in the business of
'manufacturing and marketing superior quality bone china
CS(OS) 1257/2010 Page 4 of 7
crockery products; furthermore, the website claimed that the
defendants were also offering an entire range of cutlery products;
(l) that on enquiring with the Registrar of Companies, the plaintiff
found that none of the persons in charge of the defendants had any
connection with the plaintiff company whatsoever;
(m) that the market survey carried out by the plaintiff revealed that no
products of the defendant could be found in the market;
furthermore, the balance sheet obtained from the Registrar of
Companies revealed that the defendant had no or little business
and no manufacturing assets;
(n) that the defendant, by unlicensed use of "HITKARI" which forms
a prominent part of trading style and also a prominent part of its
domain name, is trying to infringe that trademark of the plaintiff
and are trying to encash on the goodwill of the plaintiff by causing
confusion in the minds of the customers by passing off its goods
as that of the plaintiff; and,
(o) that the plaintiff's trademark has now gained a reputation of a well
known mark and forms a distinct character for the plaintiff
company and the unlicensed use of the defendant would be
CS(OS) 1257/2010 Page 5 of 7
detrimental to the goodwill and reputation of the plaintiff
company.
3. Summons of the suit and notice of the application were issued vide
order dated 20th August, 2010 and vide order dated 17th September, 2010 an
ex parte ad interim order was passed restraining the defendant from using the
said mark as a part of its corporate name.
4. Summons sent at the address of the defendant were received back with
the report that the address of the defendant had changed. Liberty was given to
the plaintiff to furnish the new address of the defendant. Despite service at
the new address, the defendant did not appear and vide order dated 2 nd
September, 2013 the defendant was proceeded against ex parte.
5. The plaintiff has filed an affidavit by way of examination-in-chief of its
director in its ex-parte evidence.
6. I have perused the ex-parte evidence led by the plaintiff in support of
its case aforesaid. The plaintiff is found to have proved the case as pleaded.
7. Accordingly, a decree is passed in favour of the plaintiff and against the
defendant; (i) of permanent injunction restraining the defendant from using
the trademark "HITKARI" as part of trading style/trade name or as part of its
domain name or as a trademark or otherwise, in relation to cutlery or bone
CS(OS) 1257/2010 Page 6 of 7
china products or ceramic products or in relation to any other goods or
services; and, (ii) the defendant is also directed to transfer the domain name
www.hitkariceramics.com to the plaintiff.
8. However, it being the own case of the plaintiff that the defendant has
merely squatted over the said name and has otherwise not earned therefrom,
no case for grant to the plaintiff of the reliefs sought of delivery or of
rendition of accounts is made out.
9. The defendant having not contested the suit, no order as to costs also.
Decree sheet be prepared.
RAJIV SAHAI ENDLAW, J.
MARCH 20, 2014
shk/bs
