Madras High Court
Aqua Pump Industries vs Ashok Kumar Jaiswal on 23 September, 2021
C.S.No.299 of 2020
& O.A.Nos.564 & 565 of 2020 &
A.No.2603 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 21.10.2021
Pronounced on :25.10.2021
Coram:
THE HONOURABLE DR. JUSTICE G. JAYACHANDRAN
C.S.No.299 of 2020
and
O.A.Nos.564 & 565 of 2020
and
A.No.2603 of 2020
1.Aqua Pump Industries,
rep by its Managing Partner
Mr.Ramaswamy Kumaravelu,
Thudiyalure Post, Coimbatore 641 034.
Having their branch office at
New No.10, Old No.26,
Errabalu Chetty Street, Parrys Corner,
Chennai 600 001.
2.Aqua Sub Engineering
rep. By its Managing Partner,
Mr.Ramaswamy Kumaravelu,
Thudiyalure Post, Coimbatore 641 034,
Having their branch office at
New No.10, Old No.26,
Errabalu Chetty Street, Parrys Corner,
Chennai 600 001. .. Plaintiffs
/versus/
1/19
https://www.mhc.tn.gov.in/judis/
C.S.No.299 of 2020
& O.A.Nos.564 & 565 of 2020 &
A.No.2603 of 2020
1.Ashok Kumar Jaiswal
C/o Arryan Future Aqua Engineering Pvt. Ltd.,
2258, Opposite Pratap Market,
Damoh Road,
Jabalpur 482 002,
Madhyapradesh
2.Arryan Future Aqua Engineering Pvt.Ltd.,
2258, Opposite Pratap Market,
Damoh Road,
Jabalpur 482 002,
Madhya Pradesh. .. Defendants
Prayer:- Civil Suit has been filed under Order IV, Rule 1 O.S. Rules and
Order VII, Rule 1 of the C.P.C., read with Sections 27, 134 and 135 of the Trade
Marks Act, 1999, praying to pass a judgment and decree for :-
(a). granting a permanent injunction, restraining the Defendants, by itself,
their servants, agents, distributors, or anyone claiming through them from
manufacturing, selling, advertising and offering for sale using the marks AQUA
GROUP INDUSTRIES or any other mark identical or deceptively similar to the
Plaintiffs registered Trade Marks , AQUATEX, AQUASUB,
AQUASUB ENGINEERING, AQUAPUMP & AQUAPUMP INDUSTRIES,
AQUA GROUP INDUSTRIES as such or prefix or suffix in Submersible Pumps,
2/19
https://www.mhc.tn.gov.in/judis/
C.S.No.299 of 2020
& O.A.Nos.564 & 565 of 2020 &
A.No.2603 of 2020
Electric Motors or any other pumps or motors and its spares or in any other goods
manufactured and sold by the Defendants or its trading style or in any media and
use the same in invoices, letter heads and visiting cards or by using any other trade
mark which is in any way visually, phonetically and deceptively similar to the
Plaintiffs' registered Trade Marks AQUATEX, AQUASUB,
AQUASUB ENGINEERING, AQUAPUMP & AQUAPUMP INDUSTRIES.,
AQUA GROUP INDUSTRIES or in any manner infringing the Plaintiffs
Registered Trade Mark Nos. 1285017, 1285018 in Class 37 and 3811351 in class
35 and other AQUATEX (word) and (device) registrations, AQUA SUB
ENGINEERING and AQUA PUMP INDUSTRIES and AQUA GROUP
registrations as set out in paragraph 10 of the plaint.
(b) Granting a permanent injunction, restraining the Defendants, by itself,
their servants, agents, distributors, or anyone claiming through them from
manufacturing, selling, advertising and offering for sale using the marks AQUA
GROUP INDUSTRIES or any other mark identical or deceptively similar to the
Plaintiffs Trade Marks , AQUATEX, AQUASUB, AQUASUB
ENGINEERING, AQUAPUMP & AQUAPUMP INDUSTRIES,AQUA
3/19
https://www.mhc.tn.gov.in/judis/
C.S.No.299 of 2020
& O.A.Nos.564 & 565 of 2020 &
A.No.2603 of 2020
GROUP INDUSTRIES as such or with prefix or suffix in Submersible Pumps ,
Electric Motors or any other pumps and motors and its spares or in any other
goods manufactured and sold by the Defendants and its trading style or in any
media and use the same in invoices, letter heads and visiting cards or by using any
other trade mark which is in any way visually, phonetically and deceptively
similar to the Plaintiffs Trade Marks , AQUATEX, AQUASUB,
AQUASUB ENGINEERING, AQUAPUMP & AQUAPUMP INDUSTRIES,
AQUA GROUP INDUSTRIES or in any manner pass off the Plaintiffs' goods.
(c) Directing the Defendants to surrender to the Plaintiffs all the goods,
packing materials, cartons, advertisement materials and hoardings, letter-heads,
visiting cards, office stationery and all other materials containing/bearing the
Trade Mark AQUA GROUP INDUSTRIES or other deceptively similar to the
Plaintiffs' registered Trademarks , AQUATEX, AQUASUB,
AQUASUB ENGINEERING, AQUAPUMP & AQUAPUMP INDUSTRIES.
(d). Directing the defendants to render an account of profits made by them
by the use of the impugned trademark AQUA GROUP INDUSTRIES on the
goods pumps and motors and decree the suit for the profits found to have been
4/19
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C.S.No.299 of 2020
& O.A.Nos.564 & 565 of 2020 &
A.No.2603 of 2020
made by the defendants, after the defendants have rendered accounts;
(e). directing the defendants to pay to the plaintiffs the costs of the suit.
For Plaintiffs :M/s Gladys Daniel
------
JUDGMENT
(This case has been heard through video conferencing)
The case of the plaintiffs is that, the plaintiffs are the manufacturers of
different types of Electrical Motors and Pumps. They are trading as '
'AQUATEX', 'AQUASUB', 'AQUASUB ENGINEERING' & 'AQUAPUMP
INDUSTRIES'. Plaintiffs 1 and 2 were started business in the year 1974 and 1982
respectively as joint proprietors in respect of trademark for domestic and
agricultural pumps including bore well submersibles, open-well submersibles,
domestic pumps, jet pumps, agricultural mono blocks and electric motors. The
plaintiffs are also registered Proprietors of the mark “AQUATEX” and
the device
https://www.mhc.tn.gov.in/judis/
C.S.No.299 of 2020
& O.A.Nos.564 & 565 of 2020 &
A.No.2603 of 2020
They marketed their products under two Trademarks Registrations, which is
extracted as below:-
(i)The expression “TEXMO” and impressed on an inverted
triangle.
(ii)”TEXMO” word per se.
2. The trademark “TEXMO” with its device is used by the
plaintiffs since 1974. For specific goods, Registration of trademark has been
obtained as below:-
https://www.mhc.tn.gov.in/judis/
C.S.No.299 of 2020
& O.A.Nos.564 & 565 of 2020 &
A.No.2603 of 2020
https://www.mhc.tn.gov.in/judis/
C.S.No.299 of 2020
& O.A.Nos.564 & 565 of 2020 &
A.No.2603 of 2020
https://www.mhc.tn.gov.in/judis/
C.S.No.299 of 2020
& O.A.Nos.564 & 565 of 2020 &
A.No.2603 of 2020
https://www.mhc.tn.gov.in/judis/
C.S.No.299 of 2020
& O.A.Nos.564 & 565 of 2020 &
A.No.2603 of 2020
https://www.mhc.tn.gov.in/judis/
C.S.No.299 of 2020
& O.A.Nos.564 & 565 of 2020 &
A.No.2603 of 2020
https://www.mhc.tn.gov.in/judis/
C.S.No.299 of 2020
& O.A.Nos.564 & 565 of 2020 &
A.No.2603 of 2020
Among the plaintiffs, the categories of pumps and motors are identified and they
are manufacturing and marketing their respective allotted types of pumps and
motors. The mark 'AQUA GROUP' written inside a red bubble has been adopted
and used by the first plaintiff from the year 1974 and the second plaintiff from the
year 1982.
3.While so, the defendants, in order to exploit the goodwill and reputation
of the plaintiffs, had started using the mark 'AQUA GROUP INDUSTRIES' for
their product. The defendants are manufacturing, selling and distributing
Submersible Pumps, Electric Motors, its spares and other similar products under
the impugned trade mark “AQUA GROUP' and they are trading the same under
the name 'AQUA GROUP INDUSTRIES'. The plaintiffs have no objection for the
defendants used the trade mark 'AQUA MARSHAL', but the use of the trade name
'AQUA GROUP INDUSTRIES' is in violation of the registered trademark of the
plaintiffs. The defendants have adopted the impugned mark to deceive and
confuse the consumers. Being an infringement of the intellectual property rights,
injunction is sought against the use of the mark 'AQUA GROUP INDUSTRIES'
https://www.mhc.tn.gov.in/judis/
C.S.No.299 of 2020
& O.A.Nos.564 & 565 of 2020 &
A.No.2603 of 2020
by the defendants, which is phonetically and deceptively similar to the plaintiffs'
registered trade mark 'AQUA SUB', 'AQUASUB ENGINEERING', 'AQUAPUMP'
AND 'AQUAPUMP INDUSTRIES' AND 'AQUATEX'.
4.At the time of admission, this Court, on considering the description of the
defendants name boards, had granted exparte interim injunction on 05.11.2020.
Suit summon was served on the defendants on 25.02.2021. Since there was no
representation on behalf of the defendants, this Court called them absent and set
exparte vide, order dated 23.09.2021. The plaintiffs were directed to marshell
their evidence. Accordingly, the Additional Master No.II has recorded the
evidence of the plaintiffs.
5.PW-1- Mr.R.Prasanna Raghavan, Branch Manager of the second plaintiff
company has filed his proof affidavit in lieu of chief examination. Eight exhibits
were marked in respect of the plaintiffs' case. Ex.P2 is the legal use certificate
issued in favour of the plaintiffs. These exhibits clearly show that the plaintiffs
are the proprietors of the trademark 'AQUA SUB, AQUASUB ENGINEERING,
https://www.mhc.tn.gov.in/judis/
C.S.No.299 of 2020
& O.A.Nos.564 & 565 of 2020 &
A.No.2603 of 2020
AQUAPUMP & AQUAPUMP INDUSTRIES AND AQUATEX' etc. The
defendants had applied for registration of the trademark 'AQUA GROUP
INDUSTRIES'. The same has been objected by the plaintiffs and the application
is pending before the Registrar of Trademark at Mumbai.
6.The name board of the defendants is marked as Ex.P7, which is extracted
as below:-
https://www.mhc.tn.gov.in/judis/
C.S.No.299 of 2020
& O.A.Nos.564 & 565 of 2020 &
A.No.2603 of 2020
7.The plaintiffs do not claim any right over the defendants' use of the mark
'AQUA MARSHALL' , but it is concerned with the use of the trade name 'AQUA
GROUP INDUSTRIES' which likely to resemble the plaintiffs trade house and
deceptively pass off as the products of the plaintiffs. The word 'AQUA GROUP'
is identified with the plaintiffs trade house and turnover of the plaintiffs' firm
besides expenses incurred for publicity indicates that, the plaintiffs' trademark has
gained secondary meaning associated with them. Therefore, the use of the word
'AQUA GROUP INDUSTRIES' by the defendants will diminish the goodwill of
the plaintiffs.
https://www.mhc.tn.gov.in/judis/
C.S.No.299 of 2020
& O.A.Nos.564 & 565 of 2020 &
A.No.2603 of 2020
8.Therefore, this Court is of the view that, the defendants are to be
restrained from infringing the plaintiffs mark 'AQUA GROUP'. The relief of
permanent injunction sought against the defendants in prayer (a) and (b) is
granted. If the defendants are in possession of any goods, packing materials,
cartons, advertisement materials and hoardings, letter-heads, visiting cards, office
stationery and all other materials containing/bearing the trademark 'AQUA
GROUP INDUSTRIES' or other deceptively similar to the plaintiffs' registered
trade mark 'AQUA GROUP', 'AQUATEX', 'AQUASUB', 'AQUASUB
ENGINEERING', 'AQUAPUMP' AND 'AQUAPUMP INDUSTRIES', the same
shall be surrendered to the plaintiffs, within a period of 30 days from the date of
this judgment. Accordingly, prayer (c) is granted. Since there is no evidence to
show that the defendants are benefited or profited by the alleged infringement, the
prayer for rendering account is dismissed.
https://www.mhc.tn.gov.in/judis/
C.S.No.299 of 2020
& O.A.Nos.564 & 565 of 2020 &
A.No.2603 of 2020
10. In the result,
The relief sought under prayer (a), (b) and (c) is granted. The relief sought
under prayer (d) is declined. Accordingly, this Civil Suit is partly allowed with
costs. Consequently, connected applications are closed.
25.10.2021
Index:yes/no
ari
List of Witnesses were examined on the side of the plaintiffs:-
Mr.R.Prasanna Raghavan(PW-1)
List of witnesses were examined on the side of the defendants:-
Nil
List of exhibits were marked on the side of the plaintiffs:-
Sl. Exhibits Dated Description of documents
No.
1. Ex.P1 07.10.2021 Original Authorization letters dated 07.10.2021
2. Ex.P2 Series of photocopy of legal use certificate of sample
registration certificate pertaining to the AQUA GROUP
and other AQUA formative trademarks registered in
favour of the plaintiffs
https://www.mhc.tn.gov.in/judis/
C.S.No.299 of 2020
& O.A.Nos.564 & 565 of 2020 &
A.No.2603 of 2020
Sl. Exhibits Dated Description of documents
No.
3. Ex.P3 Printout of plaintiffs label along with 65B affidavit
4. Ex.P4 Photocopy of Awards obtained by the plaintiffs
5. Ex.P5 Certified copy of Advertisements for the year 1999-2019
6. Ex.P6 Original Chartered Accountant Certificate
7. Ex.P7 Printout of Defendants' name board photograph mentioned
in 65B certificate
8. Ex.P8 Printout copy of the status of the trademark
AQUAGROUP INDUSTRIES under Application
No.4338050 dated 05.11.2019 in Class 35 with 65B
certificate.
List of exhibits were marked on the side of the plaintiffs:-
Nil
https://www.mhc.tn.gov.in/judis/
C.S.No.299 of 2020
& O.A.Nos.564 & 565 of 2020 &
A.No.2603 of 2020
DR.G.JAYACHANDRAN,J.
ari
Pre-delivery Judgment made in
C.S.No.299 of 2020
and
O.A.Nos.564 & 565 of 2020 &
A.No.2603 of 2020
25.10.2021
https://www.mhc.tn.gov.in/judis/
