M/S Symphony Ltd. vs Summer Cool Home Appliances Ltd ...
2016 Latest Caselaw 6393 Del

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*     IN THE HIGH COURT OF DELHI AT NEW DELHI
+        CS(COMM) 31/2015
%                                         Judgment dated 5th October, 2016
         M/S SYMPHONY LTD.                                 ..... Plaintiff
                      Through :           Mr.Mohit Bakshi, Adv.

                             versus

   SUMMER COOL HOME APPLIANCES LTD
   AND OTHERS                               ..... Defendants
                Through : Mr.Ankit Sahni and Ks.Kritika Sahni,
                          Advs. for defendant no.1.
CORAM:
   HON'BLE MR. JUSTICE G.S.SISTANI

G.S.SISTANI, J (ORAL)

    1.

Plaintiff has filed the present suit for permanent injunction, restraining infringement of registered trademark, passing off, recovery of damages, delivery up, etc.

2. As per the plaint, plaintiff is in the business of manufacturing and sale of a wide range of air coolers under the trade name Symphony, which is a well-established brand and household name known nationally and internationally for high quality products with excellent performance, aesthetic outlook and unique design. The plaintiff also sells a wide range of air cooler models under various registered trademarks all of which have become very popular in the whole country and they have become synonymous to good quality and high performance. In the financial year ending 2014-15, the plaintiff company has a total turnover exceeding Rs.515 crores.

3. As per the plaint, the plaintiff and its brands have become synonymous

with organized air cooler manufacturing and design. The plaintiff is known for its multi-models air coolers in the highly competitive consumer durables industry and has made a distinct and unmistakable image and reputation for itself. The plaintiff is the world's largest air cooler manufacturer. The success story of the plaintiff is the result of a well-orchestrated effort at constant innovation and consistent performance. The plaintiff is also engaged in the export of its products internationally to countries such as Europe, Middle East, Latin America, Africa and South East Asia. The products of the plaintiff cater to a global market with a strong presence in about 60 countries worldwide and its reach is unparalleled in the domestic market also with 28 warehouses servicing almost all states, about 16,400 retailers in over 4500 towns and cities around 840 distributors, a vast trained marketing team of professionals and a dedicated team for institutional sales, powered by a world class, global scale factory. The plaintiff is India's first manufacturer of plastic body air coolers as well as water heaters and the first ISO certified air cooler and water heater company. Sever products of the plaintiff carry CE, UL, ETL, NOM, SASO certifications.

4. Further according to the plaintiff, the plaintiff is engaged in the manufacturing of a variety of models of air coolers, sold under various registered trademarks, including SYMPHONY SUMO, SUMO XL and DIET, which model names are duly registered trademarks of the plaintiff. The plaintiff's products are prepared in compliance with stringent quality control standards. The plaintiff's products encompass a wide and diverse range and are well known for their efficacy, reliability and excellent quality. The plaintiff maintains state of art research and development facility for developing novel products and

upgrading their present range of products. All such products are subject to stringent quality testing to ensure safety and efficacy of these goods. All the products of the plaintiff command huge reputation in the market on account of high quality and reliability of the products.

5. The plaintiff, on 9.3.2009 (which was then known as 'Symphony Comfort Systems Ltd.'), applied for registration of its trademark SYMPHONY SUMO, claiming use from 25.12.1999. The aforesaid mark was invented and coined by the plaintiff and the plaintiff was the first to use the aforesaid trademark for its air cooler model. The aforesaid mark was subsequently granted by the Trade Marks Registry on 14.6.2005 with Trade Mark No.908726. The plaintiffs have given details of Trade Mark Registrations in para 13, which reads as under:

             Mark     Trademark             Date            Class       In use since
                      no.
             Symphony 908726                09/03/2000      11          25/12/1999
             Sumo
             Sumo XL 1557032                10/05/2007      11          11/10/1999
             Diet     1798044               20/03/2009      11          20/03/2009

6. The plaintiff has spent an enormous amount of money on promotion of its products under SYMPHONY SUMO, SUMO XL and DIET. The plaintiff has extracted sales figures in para 16 of the plaint.

7. Aggrieved by the action of the defendants in using an identical trade mark SUMO and DIET with respect to air coolers, the plaintiff has filed the present suit.

8. I have heard learned counsel for the plaintiff and defendant no.1.

Written statement has been filed. The defendant no.1 has also filed an affidavit dated 1.9.2016, wherein while relying on para 24 of the written statement, defendant no.1 has deposed that it has ceased to deal in any products bearing the trademark 'SUMO' and/or 'DIET' much

prior to the filing of the present suit and defendant no.1 has no intention of using the said trademarks at any time in future and further defendant no.1 has no objection if the present suit is decreed in terms of para 31a of the plaintiff in favour of the plaintiff and against defendant no.1. Counsel for defendant no.1, on instructions, also undertakes to the Court that defendant no.1 shall destroy all the products, catalogues, brochures, publicity material, stickers and all other material bearing the marks 'SUMO' and 'DIET', which is identical and deceptively similar to the plaintiff's marks 'SYMPHONY STORM' and 'SUMO XL'. Counsel for the defendants also submits that defendants no.2 and 3 are the agents/distributors of defendant no.1 and, thus, the decree passed against defendant no.1 shall be deemed as the decree passed against all the defendants.

9. Accordingly, as agreed by the plaintiff and defendant no.1, present suit stands decreed in favour of the plaintiff and against the defendants in terms of prayer 31a of the plaint. Plaintiff gives up the relief claimed in prayers 31b and c of the plaint. Defendant no.1 shall be bound by the undertaking given to Court. Let a decree sheet be drawn up accordingly.

G.S.SISTANI, J OCTOBER 05, 2016 msr