Delhi High Court
M/S Rx Infotech Pvt. Ltd vs Gopinath T. And Anr. on 22 December, 2016
$~29
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(COMM) 633/2016
M/S RX INFOTECH PVT. LTD. ..... Plaintiff
Through: Ms Gunjan Arora, Advocate.
versus
GOPINATH T. AND ANR. ..... Defendants
Through
CORAM:
HON'BLE MR. JUSTICE VIBHU BAKHRU
ORDER
% 22.12.2016
VIBHU BAKHRU, J
1. The present suit has been filed by the plaintiff, inter alia, seeking a
decree of permanent injunction restraining the defendants from directly or
indirectly doing business in any goods and services under the trademark/
trade name LAPCARE or any other mark which is deceptively similar to the
plaintiff's trademark LAPCARE. The plaintiff also prays for an order for
rendition of accounts and a decree of `20,05,000/- towards damages against
the defendants.
2. This Court by an order dated 28.09.2012 granted an ex-parte ad
interim injunction restraining the defendants from doing business, providing
any service, manufacturing, selling, offering for sale, advertising, directly or
indirectly doing business in any goods and services including but not limited
to laptop accessories and spare parts and providing back up services under
the trade mark LAPCARE till further orders.
3. Although the defendants were served, however, after a few hearings,
the defendants did not participate in further proceedings. By an order dated
27.09.2013, the right of the defendants to file the Written Statement stood
closed. Thereafter, the defendants were proceeded ex parte on 11.12.2013.
4. Mr. Atul Gupta (PW1) has filed an affidavit on behalf of the plaintiff.
Ex. PW 1/1 is the certified copy of the board resolution passed by the
plaintiff, inter alia, authorizing PW1 to take any steps as necessary in
furtherance of the final disposal of the present proceedings.
5. Briefly stated, the facts that emerge from the affidavit of PW1 are as
follows:
5.1 The plaintiff is a partnership concern established in the year 1997
under the name and style: Rx Technologies which was later acquired by the
plaintiff as a going concern in 2004. The plaintiff is engaged in the business
of import, export and distribution of IT hardware and allied products. The
plaintiff is stated to operate 30 branch offices with approximately 6000
distributors/channel partners covering more than 150 cities in India.
5.2 It is stated that the plaintiff has been continuously using the trademark
LAPCARE since 2002. It is stated that the trademark LAPCARE has been
extensively and continuously used by the plaintiff since its adoption. By
virtue of such use, the trademark LAPCARE is synonymous with high
quality laptop ad-ons and accessories as offered by the plaintiff.
5.3 The plaintiff is the registered proprietor of the trademark LAPCARE
in India under registration no. 1123733 in class 09. The plaintiff's
trademark LAPCARE is also registered in other countries including
Singapore, Hong Kong and Taiwan. The plaintiff's sales turnover with
respect to its products sold bearing the trademark LAPCARE in the year
2015-16 in India was `1,87,92,80,284/-.
5.4 It is stated that the plaintiff in the month of June 2011, became aware
that the defendants were offering the same kind of goods and services as that
of the plaintiff through the defendants' website with the domain name
www.lapcareservices.com. This led the plaintiff to send an email dated
23.06.2011 asserting the plaintiff's rights in the trademark LAPCARE.
However, the defendants did not acknowledge the plaintiff's rights in the
mark LAPCARE and replied by an email dated 23.06.2011 stating that they
have been using the trade name LAPCARE SERVICES for the past four
years. The plaintiff tried to amicably settle the matter with the defendants,
however, despite assurance given by the defendants, the defendants did not
desist from using the trademark LAPCARE.
6. PW1 has duly proved that plaintiff is the registered proprietor of the
mark LAPCARE in class 09 (computers and its parts and accessories) by
producing the printout of the certificate of registration from the website of
the Trade Marks Registry exhibited as Ex PW 1/10. PW1 has also duly
proved that plaintiff is the registered proprietor of the mark LAPCARE in
Hong Kong and Singapore by furnishing printouts of the certificate of
registration granted by the Trade marks Registry in those countries as Ex. X-
4.
7. Internet extracts from the defendants' website with domain name
www.lapcareservices.com through which defendants advertise their goods
and services has also been furnished as Ex PW1/19. Further PW1 has also
produced a visiting card used by the defendants and photographs of the
defendants' shop, exhibited as Ex PW1/24 and Ex PW1/26 respectively,
both the said exhibits indicate the defendants' use of the mark LAPCARE.
8. It is evident that the mark LAPCARE has been used by the plaintiff
for more than a decade and enjoys reputation and goodwill associated with
the plaintiff.
9. In view of the above, it is apparent that defendants are also carrying
on their business in the same field as that of the plaintiff and are infringing
the registered mark of the plaintiff by using the trade name LAPCARE for
similar goods and services and advertising the same through their website:
www.lapcareservices.com. A perusal of the visiting card and the
photographs of the defendants' shop further establishes that the defendants
have adopted the mark LAPCARE only to take advantage of the
goodwill/reputation of the plaintiff.
10. It is also apparent that the use of the trademark LAPCARE is not
honest. In the aforesaid circumstances, the plaintiff is entitled to a decree of
permanent injunction as prayed for by the plaintiff.
11. The plaintiff has been unable to establish the quantum of loss suffered
by its and therefore, its claim for damages cannot be allowed. The plaintiff
has submitted a bill of `93,000/- as legal costs. The same is reasonable and
the plaintiff is entitled to the same.
12. In view of the above, the suit is decreed in terms of prayer (i), (ii) and
(iii), that is, as under :-
"(i) An order for permanent injunction restraining
Defendants, its partners, servants, agents, successors,
assigns in business and representatives or any of them,
from doing business, providing any service, manufacturing,
selling, offering for sale, advertising, directly or indirectly
doing business in any goods and services including but not
limited to laptop accessories and spare parts thereof and
providing back-up services under trademark/ trade name
LAPCARE as a part of their trademark/ trade name or in
any other manner as may lead to infringement of the
Plaintiffs trademark LAPCARE registered under No.
1123733 in class 9.
(ii) An order for permanent injunction restraining the
Defendants, their principal officers, partners, servants,
representatives and agents or any of them, from doing
business, providing any service, manufacturing, selling,
offering for sale, advertising, directly or indirectly doing
business under the mark LAPCARE including but not
limited to laptop accessories and spare parts thereof and
providing back-up services and/or and other goods and
services thereunder, or in any other manner as may lead to
passing off the Defendants' business as that of the Plaintiff
or under authorization from the Plaintiff.
(iii) An order for permanent injunction restraining the
Defendants their principal officers, partners, servants,
representatives and agents or any of them, from using the
impugned mark LAPCARE in any manner amounting to
dilution of the distinctiveness of the said mark and
tarnishing the reputation of the Plaintiff's thereunder;"
13. The plaintiff is also awarded costs of `93,000/- including court fees.
14. Decree sheet be drawn accordingly. Any pending application(s) also
stands disposed of.
VIBHU BAKHRU, J
DECEMBER 22, 2016
RK
