Kashi Vishwanath Steels Ltd vs M/S Kys Manufacturer And Exporter ...
2015 Latest Caselaw 4025 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                  Date of Judgment:20.05.2015.

+     CS(OS) 2110/2009

      KASHI VISHWANATH STEELS LTD.

                                                               ..... Plaintiff

                          Through      Mr. Umesh Mishra and Mr. Sunil
                                       Kumar, Advs.

                          versus

      M/S KYS MANUFACTURER AND EXPORTER PVT. LTD.

                                                            ..... Defendant

                          Through      None.

CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J. (Oral)

1. Present suit has been filed by the plaintiff for the relief of

permanent injunction, infringement, passing off and rendition of

accounts.

2. The plaintiff is a company incorporated under the Indian

Companies Act. It is engaged in the business of manufacturing all kinds

of structural steels, angels, shapes and sections such as beams, channels,

rounds, flats, squares steels bars etc.

3. The plaintiff in the year 1998 had adopted the trademark/label

'KVS' and 'KVS (Label)' in respect of setting up steels furnaces and

continuous casting forging and rolling and re-rolling mill plant for

producing and manufacturing of steels and alloy steels ingots, steels and

alloy steels billets and all kind and size of re-rolled sections and has

been continuously using the same right up to the present time. The

alphabets/letters 'KVS' and 'KVS (Label)' are substantially and

essentially the trademark/label 'KVS' and 'KVS (Label)'.

4. The plaintiff has a reputed reputation and has generated a large

goodwill in this business under the trade name and label 'KVS' and

'KVS (Label)'. The plaintiff had also applied for a copyright in this

artistic work in 'KVS' under the Indian Copy Right Act. Submission is

that it is honestly, bonafidely and continuously in the course of business

and as proprietor using the trade name/trademark/label/logo in relation

to his business.

5. The defendant has adopted the trademark/label 'KYS' and 'KYS

(Label)' in respect of manufacturing and marketing M.S. bars, TMT

bars, M.S. rounds, M.S. angle and other steel and metal equipments.

They are engaged in the same business as that of the plaintiff. This

trademark/label 'KYS' and 'KYS (Label)' are identically and

deceptively similar to the trademark/label of the plaintiff. The imitation

is in exactitude of copying in such manner that not only ordinary

purchaser but also the big retailers/dealers/distributors are bound to

confuse and deceive.

6. The plaintiff became aware of the defendant's impugned adoption

in August, 2009 when the plaintiff received complaints from its dealers

and distributors regarding the sale of impugned goods of the defendant

bearing the impugned mark in the markets. The plaintiff made enquiry

in the market and it was revealed that the defendant is selling the

impugned goods in the market clandestinely and surreptitiously. The

defendant has applied for registration of the said trademark under class

6. The impugned action of the defendant is in violation of the plaintiff's

proprietary rights due to which the plaintiff has suffered business loss in

trade and business. Suit was accordingly filed.

7. Written statement was filed opposing the submissions. The

defence of the defendant was that he is the prior user of the trademark

and trade name 'KYS' and he is part of 'KYS' group of companies.

Present suit is not maintainable. The defendant is in the market for a

long time and his user is in fact prior to that of the plaintiff.

8. Replication was filed reiterating the averments contained in the

plaint and refuting the submissions made in the written statement.

9. On the pleadings of the parties, on 13.01.2011, the following

issues were framed. They read herein as under:-

(i) Whether the defendant is guilty of infringement of the registered trademark KVS and KVS LABEL of the plaintiff in class 6 ? OPP

(ii) Whether the defendant is guilty of passing off its goods as that of the plaintiff by manufacturing and marketing the goods in class-6? OPP

(iii) Whether the defendant is guilty of infringement of the registered copyright of the plaintiff in class 6 in respect of its trade mark KVS? OPP

(iv) Whether the plaintiff is entitled to a decree of perpetual and mandatory injunction against the defendant? OPP

(v) Whether the plaintiff is entitled for damages and rendition of accounts from the defendant. If so, to what extent and for what period? OPP

(vi) Relief.

10. The defendant thereafter stopped participating in the proceedings.

Evidence was led. The plaintiff in support of his case has examined two

witnesses. However none of them were cross-examined as the defendant

did not care to appear before the Local Commissioner for cross-

examination. Evidence of the plaintiff stood closed.

11. On 24.02.2014 a statement was made by the learned counsel for

the defendant seeking discharge on the ground that although he has sent

registered letter to the defendant, the defendant was not showing any

interest in the matter. The defendant was granted opportunity to lead

evidence but since none had appeared for him, he was proceeded ex-

parte on 25.11.2014. Matter has thereafter been listed for final

arguments. They have been heard ex-parte as the defendant has chosen

not to appear.

12. Since the defendant has been proceeded ex-parte and none of the

witnesses of the plaintiff have been cross-examined, the ex-parte

affidavits by way of evidence given by both the witnesses are taken on

record.

13. PW-1 Devendra Kumar Aggarwal is the Managing Director of the

plaintiff. He has proved the documents Ex.PW-1/1 to Ex.PW-1/80. He

was not cross-examined. PW-2 Sunil Aggarwal, Assistant in the

Copyright office had brought the summoned record showing registration

of A-93061/2012 proved as Ex.PW-21 in favour of the plaintiff.

14. The plaintiff has been able to establish its case and he has been

able to bring on record both orally and as through documentary evidence

that the defendant has infringed the trademark/trade name of the plaintiff

and has also infringed his copyright.

15. The suit of the plaintiff is accordingly decreed and a decree of

permanent injunction is passed in favour of the plaintiff and against the

defendant restraining the defendant, its directors, proprietors, partners,

agents, servants, assigns, representatives, successors and distributors

from using, selling, exporting, offering for sale, advertising or

displaying directly or indirectly or dealing in any other manner in steel

and twisted steel bars, M.S. bars, TMT bars, M.S. rounds, angle and

other related metal and steel material under the impugned trademark

'KYS' and 'KYS (Label)' or any other mark which is identically or

deceptively similar to the trademark/label of the plaintiff which may

amount to infringement of his registered trademark/passing of his

trademark and his copyright. The infringed goods, if any, lying with the

defendant are directed to be disposed of. The plaintiff is also entitled to

damages quantified at Rs.1 lac.

16. Suit of the plaintiff is decreed and disposed of in the above terms.

INDERMEET KAUR, J

MAY 20, 2015

A