Delhi High Court
M/S Krishi Rasayan Exports Pvt Ltd vs M/S Indo -Swiss Chemicals Ltd on 15 July, 2015
$~13
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 15.07.2015
+ CS(OS) 1752/2014
M/S KRISHI RASAYAN EXPORTS PVT LTD ..... Plaintiff
Through: Mr. Prabhat Kaushik, Adv.
versus
M/S INDO -SWISS CHEMICALS LTD ..... Defendant
Through: None.
CORAM:
HON'BLE MR. JUSTICE NAJMI WAZIRI
NAJMI WAZIRI, J. (Open Court)
This is a suit for permanent injunction restraining the defendant
from infringing the registered trade mark, copyright and trade dress of
the plaintiff; restraining the defendant from passing off its goods and
business as that of the plaintiff; for damages etc. The defendant has
been proceeded ex parte and the plaintiff has led evidence supporting
the averments in the plaint. The plaintiff claims to be the owner of the
trade mark 'PAUSHAK' registered in Class 5 of the Schedule of the
Trade Marks Rules, 1999, which has been in use since 15.5.1995.
There has been a consistent increase in the annual turnover of the
plaintiff between the year 2005 and 2014 and the turnover for the last
financial year being Rs.26,13,28,098/-. The annual turnover in
respect of the products under the trade mark 'PAUSHAK' is stated
Rs.845/- crores. Between the year 2004 to 2015 the plaintiff has
consistently increased advertisement and promotional expenses
regarding the said trade mark. The expense in this regard for the last
financial year was Rs.26,94,714/-. The plaintiff claims that both its
trademark and its distinctive trade dress have gained popularity in the
eyes of its consumers. The plaintiff's trade mark looks as under:
The plaintiff came to know that the defendant is using the trade
name 'POSHAK' for the same class of goods, i.e., agro chemical
products. Evidently, there is clearly a phonetic and structural
similarity between the two names and an unsuspecting user or
uneducated farmer or agricultural worker could well be deceived by
the defendant's product. Additionally, the defendant's trade name
'POSHAK' tends to ride on the goodwill of the plaintiff in the trade
name 'PAUSHAK'. The defendant's trade mark looks as under:-
The certificate registering the plaintiff's trade mark is exhibited
as Annexure Ex.PW-1/4. Copies of bills, invoices and advertisement
expenses have been exhibited as Ex.P-1/6. The plaintiff seeks a
permanent injunction restraining the defendant from using the
impugned trade mark 'POSHAK' for manufacture and marketing in
the business of agro-chemicals products.
This Court is of the view that the plaintiff's trade mark
'PAUSHAK' and the defendant's trade mark 'POSHAK' are
phonetically identical and the latter is likely to deceive unwary users
of the said products who would primarily not be literate agriculturists
and field workers. Should the defendant be permitted to continue
marketing similar products with a deceptively similar trade name, it is
likely to violate the plaintiff's trade mark and goodwill in its well-
established products. The claim of the plaintiff is unrebuted.
In the circumstances, a case is made out for grant of the reliefs
sought in this suit. Accordingly, the suit is decreed in terms of
prayers (b), (c) and (d) of the plaint.
The learned counsel for the plaintiff does not press for rendition
of accounts. Accordingly, prayer (a) is dismissed as not pressed. The
plaintiff has incurred costs of Rs.10,000/- and has otherwise has
expended monies towards pursuing this case. In the circumstances,
an amount of Rs.50,000/- is imposed as costs.
Apropos the claim of damages, there is no evidence on record
to substantiate the same. Accordingly, the claim for damages is
declined.
The suit is disposed off in the above terms.
Let the decree sheet be drawn up.
NAJMI WAZIRI, J
JULY 15, 2015/ak
