Delhi High Court

Pest Control (India) Pvt Ltd vs Pest Control Innovative Pvt Ltd. on 2 May, 2017

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                          Judgment reserved on : 28.04.2017
                          Judgment delivered on : 02.05.2017

+     CS(COMM) 258/2016

      PEST CONTROL (INDIA) PVT LTD                         ......Plaintiff

                     Through:   Ms. Krwttika Vijay and Mr. Pundreek
                                Dwivedi, Advocates.

                     Versus



      PEST CONTROL INNOVATIVE PVT LTD.                           ...Defendant

                     Through:   None.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J.

1. The present suit has been filed by the plaintiff against the defendant

for permanent injunction restraining infringement of trademark, copyright,

passing off, delivery up, rendition of accounts of profits as also damages.

2. The plaintiff, Pest Control (India) Pvt. Ltd. is a company established

in 1954, incorporated under the provisions of the Companies Act, 1956, and

is the first and the largest pest management company in the country. It has

been offering a comprehensive range of Professional Pest Management

Services and Quality Products and Equipment. Plaintiff, registered under the

trademark of „PCI‟, being registered in the year 1984 in Class 5 has been

offering, selling, providing, offering for sale its products and services for

approx. 60 years under the mark „PCI‟. „PCI‟ is not only Plaintiffs trade

name but also Plaintiffs Trademark, House Mark, Service mark and trading

style since the time of its inception. The registered trade mark „PCI‟ of the

plaintiff qualifies as an original artistic work and has been duly registered

69235/2005 dated 05.04.2005. It is stated that one of the registrations A-

40931/83 is registered from the year 1983. The plaintiffs copyright in this

label is valid and subsisting. The label is used by the plaintiff in connection

with its business and has become synonymous with it. The plaintiff also

owns the domain name www.pestcontrolindia.com which provides

prospective customers access to the plaintiffs products and other services of

the plaintiff. Plaintiffs registered mark "PCI" is well known mark within the

meaning of section 11(6) and 11(7) of the Trade Marks Act, 1999.

3. The Defendant, Pest Control Innovators Pvt. Ltd. is a company

providing, marketing, exporting, offering pest control and pest management

services under an identical trademark "PCI" and a deceptively similar trade

name/ trading style "Pest Control Innovative."

4. In June, 2013 it came to the knowledge of the plaintiff that the

Defendant is blatantly, using and providing services under an identical

trademark "PCI". The impugned mark of the Defendant is identical in part

and deceptively/phonetically similar as a whole to the Plaintiffs trademark

"PCI".

5. A cease and desist letter dated 5.06.2013 was sent to the defendant

wherein plaintiff objected to the defendant‟s act of providing services under

the impugned trade name ie. "Pest Control Innovative" which is deceptively

similar to plaintiffs trade name/trading style "Pest Control India".

6. Defendant in its reply to the cease and desist letter dated 27.08.2013

denied any infringing activities on its part and stated that at the time of

incorporation on 30.03.2011 it was known as "Dazzle Unlimited Services

Pvt. Ltd." and it was only on 27.12.2012 it changed its name to "Pest Control

Innovative Pvt. Ltd." However, petitioner finds no justification for the

sudden change of the name from "Dazzal Unlimited Services Pvt. Ltd." to

"Pest Control Innovative Pvt Ltd."

7. Present suit has accordingly been filed praying for a relief of

permanent injunction and seeking a restraint on the infringement of the

trademark, copyright, and passing off, delivery up of goods of the plaintiff.

Rendition of accounts of profits and damages to the tune of Rs.20, 01,000/-

have also been prayed for.

8. In the course of proceedings of the suit, on 18.02.2014 an ex-parte ad-

interim injunction was granted in favour of the plaintiff and against the

defendants restraining them from using the plaintiffs registered trademark

„PCI‟ or any other deceptively similar trademark for its products.

9. Summons of the suit was issued to the defendant on 20.08.2014 who

despite of the service did not appear and the right to file the written

statement was closed. The defendant was proceeded ex-parte on 14.10.2015.

The ex-parte ad-interim injunction was then made absolute on 07.10.2016.

10. Ex parte evidence by way of affidavit of PW-1 (Mr Parvez Nowrojee

Vice President-Strategic HR & CRM) has been filed. PW-1 has reiterated all

the averments made in the plaint and has proved various documents

delineated as Ex.PW1/1 to Ex.PW-1/25 and documents marked as Mark A to

Mark F.

11. The plaintiff has established and proved its case. In view of the

testimony of the witness of the plaintiff i.e. PW-1 as also documentary

evidence adduced and proved in the court, the plaintiff is entitled to a decree

of permanent injunction. It is clear that the defendant‟s have copied the

plaintiff‟s trademark „PCI‟ and its copyright subsisting in the label „PCI‟.

This adoption of the trademark of the plaintiff is fraudulent and has caused

injury, loss and damage to its name, business goodwill and reputation.

12. Accordingly, the suit of the plaintiff is decreed and by way of the

permanent injunction, the defendant‟s, its directors, wholesalers, distributors,

partners, or proprietor as the case may be, their officers, servants and agents

and all others acting for and on their behalf are restrained from using the

plaintiff‟s trademark PCI and from selling, offering, providing, offering to

provide, advertising, directly or indirectly dealing in pest control and pest

management services including fumigation, home-care services for

cockroaches, ants etc or other services under the trademark PCI and trade

name/trade style "Pest Control Innovative" or any other deceptively similar

trademark with the plaintiff‟s and copyright in label PCI amounting to

infringement/passing off the plaintiff‟s registered trademarks as also from

misrepresenting or holding out to be connected or related to the plaintiff in

any manner whatsoever.

13. The defendant is also directed to destroy all the goods, dies, blocks,

cartons, labels, and any other infringing material bearing the trademark and

the label „PCI‟ or any other deceptively similar trademark/label(s).

14. As far as damages are concerned, the plaintiff has claimed damages to

the tune of Rs 20,01,000/. In the affidavit by way of evidence it has been

reiterated that the use of the infringing trademark by the defendant‟s has

caused injury, loss and damage to its name, business goodwill and reputation

of the plaintiff.

15. Reference in this regard maybe had to the judgment of this court in

116 (2005) Delhi Law Times 599, Time Incorporated vs. Lokesh Srivastava

and Anr. wherein it has held as follows:-

" This Court has no hesitation in saying that the time has come when the Courts dealing

actions for infringement of trademarks, copy rights, patents etc. should not only grant

compensatory damages but award punitive damages also with a view to discourage end

dishearten law breakers who indulge in violations with impunity out of lust for money so

that they realize that in case they are caught, they would be liable not only to reimburse

the aggrieved party but would be liable to pay punitive damages also, which may spell

financial disaster for them. In Mathias v. Accordingly Economy Lodging, Inc.

reported in 347 F.3d 672 (7th Cir. 2003) the factors underlying the grant of punitive

damages were discussed and it was observed that one function of punitive damages is to

relieve the pressure on an overloaded system of criminal justice by providing a civil

alternative to criminal prosecution of minor crimes. It was further observed that the award

of punitive damages serves the additional purpose of limiting the defendant's ability to

profit from its fraud by escaping detection and prosecution. If a torfeasor is caught only

half the time he commits torts, then when he is caught he should be punished twice as

heavily in order to make up for the times he gets away This Court feels that this approach

is necessitated further for the reason that it is very difficult for a plaintiff to give proof of

actual damages suffered by him as the defendants who indulge in such activities never

maintain proper accounts of their transactions since they know that the same are

objectionable and unlawful. In the present case, the claim of punitive damages is of Rs. 5

lacs only which can be safely awarded. Had it been higher even, this court would not have

hesitated in awarding the same. This Court is of the view that the punitive damages

should be really punitive and not flee bite and quantum thereof should depend upon the

flagrancy of infringement."