Madras High Court
Vgn Projects Estates Private Limited vs M/S.Vgk Builders Pvt. Ltd on 12 March, 2025
Author: Senthilkumar Ramamoorthy
Bench: Senthilkumar Ramamoorthy
2025:MHC:705
C.S.(Comm.Div.) No.205 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 12.03.2025
CORAM
THE HONOURABLE MR.JUSTICE SENTHILKUMAR RAMAMOORTHY
C.S.(Comm.Div.) No.205 of 2023
VGN Projects Estates Private Limited,
Represented by its Managing Director
Mr.Pratish Vedhappudi,
No.Y-222, Kimberly towers, 2nd Avenue,
Anna Nagar, Chennai - 600 040. ... Plaintiff
vs.
1. M/s.VGK Builders Pvt. Ltd.,
No.25, 2nd floor, BR Complex,
Duraisamy Reddy Street,
West Tambaram, Chennai-600 045.
2. M/s. VGK Property Developers Pvt. Ltd.,
No.25, 2nd Floor, BR Complex, Duraisamy Reddy Street,
West Tambaram, Chennai – 600 045. ... Defendants
Prayer: Plaint filed under Order IV Rule 1 of the Original Side Rules and
Order VII Rule 1 of the Code of Civil Procedure, 1908 read with Sections
134 & 135 of the Trade Marks Act, 1999, prays for a Judgment and Decree
seeking following reliefs:
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(a) Pass and pronounce a Decree of Permanent Injunction against
infringement of plaintiff's registered Trademark by restraining the
Defendants, their assigns, successors-in-interest, licensees, franchisees,
sister concerns, representatives, servants, distributors, agents, family
members, employees, Legal Heirs etc., and/or any person or entity acting for
or on behalf of them, from using the Plaintiff's trade mark “VGN”,
components thereof, or any other mark(s) deceptively similar thereto
including VGK, singularly or in conjunction with any other words or
monogram/logo, as a trade mark, service mark, corporate name, trade name,
trading style, domain name, website address, electronic mail identity or in
any other manner whatsoever; on or in relation to or any product
service/business including advertising, business papers, etc.;
(b) Pass and pronounce a Decree of Permanent Injunction against the
Defendants, their assigns, successors-in-interest, licensees, franchisees,
sister concerns, representatives, servants, distributors, agents, family
members, employees, Legal Heirs etc. and/or any person or entity acting for
or on behalf of them, from Passing Off their services/goods as or for the
services/goods of the Plaintiff by restraining them from using Plaintiff's
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trade mark “VGN”, Impugned Branding or any other mark(s) deceptively
similar thereto including VGK, singularly or in conjunction with any other
words or monogram/logo, as a trade mark, service mark, corporate name,
trade name, trading style, domain name, website address, electronic mail
identity or in any other manner whatsoever; on or in relation to or any
product, service/business including advertising, business papers, etc;
(c) Pass and pronounce a Decree directing the Defendants and/or their
representatives, officers, etc. to deliver up to Plaintiff for the purpose of
destruction/erasure all infringing materials including but not limited to
catalogues, pamphlets, brochures, billboards, stationery, business cards, bill
books, vouchers, letterheads, signage, reprographic material, or any other
material bearing the name VGK and/or any other mark deceptively similar
to Plaintiff's trademark “VGN” used upon in relation to marketing, selling,
promoting and/or advertising Defendants' goods or business;
(d) Pass a preliminary Decree for rendition of accounts directing the
Defendants to produce before this Hon'ble Court or any person
nominated/designated/appointed by this Hon'ble Court all accounts in
general and invoices and sales figures/revenues in particular from the date
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of infringement/passing off of the Plaintiff's trademark by using the Mark
and upon such enquiry to pay such profits earned by the Defendants as may
be found to be due and payable to the Plaintiff on such account being taken;
(e) Pass and pronounce a final money decree in favor of the Plaintiff
for payment of damages in the sum of INR 10,00,00,000/- (Rupees Ten
Crores) or any such higher sum as may be determined/ascertained pursuant
to the rendition of accounts;
(f) Pass and pronounce an Order directing the Defendants to pay the
Plaintiff the cost of the proceedings; and
(g) Pass such further or other Order or Orders, as this Hon'ble Court
may deem fit and proper in the facts and circumstances of the case, and thus
render justice.
For Plaintiff : Mr.P.V.Balasubramaniam, Senior Counsel
for Mr.P.Siddarth, Mr.A.Aravind Raj
for M/s.BFS Legal
For Defendants : Mr.R.Sathish Kumar
Ms.Meha Varshini M.R.
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JUDGMENT
Background
The suit was filed seeking remedies in respect of alleged infringement
of the plaintiff's registered trade mark 'VGN' by use of the impugned mark
'VGK', either singly or in combination with other words, and for passing off.
2. In the plaint, the plaintiff states that it is a multi-million-dollar real
estate company head-quartered in Chennai and that it has built over 8
million square feet of residential real estate. It is further stated that the trade
mark 'VGN', under which the real estate development activities were carried
out, was derived from the name of Mr.V.Guruswamy Naidu, the great
grandfather of the managing director of the plaintiff. At paragraph 3 of the
plaint, the plaintiff has set out details of registered trade marks containing
the element 'VGN'. At paragraph 8, the annual turnover from 2009 - 2010 to
2020 - 2021 and sales promotion expenditure from 2010 - 2011 to 2020 -
2021 are set out.
3. The plaintiff has provided details of an opposition filed against the
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1st defendant's trade mark
under Trade Mark no.2430235 in class 37 as early as 14.07.2014. After
stating that the said application and opposition are pending, the plaintiff
further states that it came across a registration for the same mark under
Trade Mark no.2430234 in class 36 and that a rectification action had been
initiated in respect thereof. After also stating that the defendants' adoption
and use of the deceptively similar mark 'VGK' in respect of identical
services is likely to cause deception and confusion, the plaintiff has prayed
for the relief indicated at the outset.
4. In the written statement of the defendants, it is stated that the 1st
defendant is the registered proprietor of the trade mark
under Trade Mark no.2430234 in class 36 and that the said trade mark is
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valid and subsisting. Consequently, it is stated that the defendants are
entitled to claim protection under Section 28(3) read with Section 30(2)(e)
of the Trade Marks Act, 1999 (the TM Act). The defendants have also
stated that the plaintiff was aware of the defendants' application in class 37
as early as on 14.07.2014. Therefore, the defendants assert that the plaintiff
has acquiesced in the defendants' use of the trade mark 'VGK' inasmuch as
the suit was filed about nine years after lodging the opposition.
5. With regard to the reason for adoption of the impugned mark
'VGK', the defendants state that Mr.V.Prabakaran, who is one of the
directors of the 1st defendant company, was the proprietor of an entity called
'VGK Contractors and Promoters'. It is further stated that the 2 nd defendant
was formed in the year 2013 after the business of the proprietary concern
was hived off. At paragraph 7 of the written statement, the defendants have
set out the family tree to show that the promoters of the defendants are the
maternal grand children of Mr.V.G.Krishnan, whose name formed the basis
for the abbreviation VGK. The defendants further state that they have
carried on business using the impugned mark for about 22 years. After
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denying that the trade mark of the plaintiff and the defendants is similar, the
defendants prayed that the suit be dismissed.
6. On the basis of the pleadings and documents, the following issues
were framed on 15.04.2024:
“(i) Whether the suit is barred by Section 12 A of the
Commercial Courts Act, 2015 ?
(ii) Whether the plaintiff is entitled to claim proprietorship
over the trademark VGN or its formative marks?
(iii) Whether the defendants are the registered proprietor
of the trademark VGK BUILDERS
under No.2430234 in Class 36?
(iv) Whether the suit is maintainable as against the
registered proprietor in view of Section 28(3) of the Trademarks
Act, 1999?
(v) Whether the trademark VGK has been coined by the
defendants honestly and is based on the name of the predecessor
of the director of the defendants company ?
(vi) Whether the defendants are entitled to the defence
under Section 35 of Trademarks Act, 1999 ?
(vii) Whether the trademark VGN and VGK Builders/VGK
property Builders are deceptively similar to each other
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phonetically, visually or structurally ?
(viii) Whether the plaintiff relief to restrain the defendants'
name VGK as a company name/trade name is maintainable or
whether the same is barred by limitation ?
(ix) Whether the defendants are using the trademark VGK
since the year 2002 ?
(x) Whether the suit is liable to be dismissed on the
grounds of latches and acquiescence under Section 33 of the
Trademarks Act, 1999 ?
(xi) Whether the plaintiff is entitled to the reliefs claimed
in the suit ?
(xii) To what other reliefs ? ”
7. The plaintiff examined Mr.Pratish Vedhappudi, managing director,
as P.W.1. In course of the examination-in-chief of P.W.1, 24 documents
were exhibited as Exs.P1 to P24. P.W.1 was cross-examined by learned
counsel for the defendants. The defendants adduced evidence by examining
Mr.H.Manoj Krishnan, managing director of the 1st and 2nd defendants, as
D.W.1. In course of his examination-in-chief, 105 documents were
exhibited as Exs.D1 to D105. D.W.1 was cross-examined by learned senior
counsel for the plaintiff.
Counsel and their contentions
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8. Oral arguments on behalf of the plaintiff were advanced by
Mr.P.V.Balasubramaniam, learned senior counsel, and on behalf of the
defendants by Mr.R.Sathish Kumar, learned counsel. The parties also filed
written submissions.
8(a). The first contention of learned senior counsel for the plaintiff
was that the plaintiff has used the trade mark 'VGN' from 1942 and has
acquired significant reputation and good will. By referring to the turnover of
the plaintiff from the financial years 2009 – 2010 to 2020 – 2021, learned
senior counsel submitted that the turnover was as high as
Rs.693,56,68,762/- in financial year 2019 - 2020. For the said year, he
pointed out that the sales promotion expenditure was Rs.16,26,14,487/-. He
also referred to the certificate in this connection at page 670 of the
convenience set (Volume-II).
8(b). The second contention of learned senior counsel is that the
plaintiff and its group entities are the registered proprietors of several trade
marks containing the element VGN. With particular reference to the
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plaintiff, he referred to the registrations in classes 36 & 37 of device and
word marks. He particularly emphasises that the word mark is 'VGN
creating assets since 1942' and that the registration in class 37 is in respect
of building, construction, repair and installation services.
8(c). The third contention of learned senior counsel is that the
defendants are not entitled to rely on the prior use by VGK Contractors and
Promoters. In order to substantiate this contention, learned senior counsel
referred to the cross-examination of D.W.1. After pointing out that D.W.1
had not provided any authorisation for deposing on behalf of the 1st and 2nd
defendants (question and answer 5), he referred to the answers to questions
12, 13, 18 and 26. By focussing on the answer to question 26, he submitted
that none of the assets of the proprietary concern were transferred to either
the 1st or 2nd defendant. Therefore, he submits that the trade mark 'VGK' (an
intangible asset) was not assigned or transferred to the 1st or 2nd defendants.
In this connection, by referring to the answer to question 62, he contended
that D.W.1 admitted that Mr.V.Prabakaran, the proprietor of VGK, is not a
shareholder or director of the 2nd defendant. Since the defendants are not
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entitled to rely on the use by the proprietary concern of the trade mark
'VGK', learned senior counsel submitted that use by the defendants should
be examined only from the date of incorporation of the defendants in the
year 2012 (first defendant) and 2013(second defendant), respectively. By
referring to the defendants' explanation that the name VGK was derived
from V.G.Krishnan, learned senior counsel submitted that Section 35 of the
TM Act does not apply.
9(a). In response to these contentions, Mr.R.Sathish Kumar
submitted that the plaintiff has not provided any documents with regard to
the proprietorship of the trade mark 'VGN' or the authority under which the
plaintiff asserts title or right to use the trade mark 'VGN'. His next
contention is that the 1st defendant is the registered proprietor in class 36.
Consequently, the defendants are entitled to protection under sub-section (3)
of Section 28 even assuming that the trade marks of the plaintiff and the
defendants are identical or deceptively similar.
9(b). The next contention of learned counsel is that the rectification
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petition in respect of the 1st defendant's registered trade mark was filed in
January 2023 after issuing a cease-and-desist notice, and that this suit was
filed even later. Considering the fact that the opposition was lodged on
14.07.2014, learned counsel submits that the plaintiff has acquiesced in the
use of the impugned mark by the defendants. In order to buttress this
contention, learned counsel referred to the cross-examination of P.W.1.
With particular reference to the answers to questions 31 to 42, learned
counsel submits that P.W.1 admitted that proceedings were first initiated
only in 2023 and that no action was taken between 2014 and 2023. In this
regard, by referring to paragraph 8 of the evidence in support of the
application by the 1st defendant in relation to trade mark application
No.2430235 in class 37, he submits that the plaintiff was put on notice that
the 1st defendant is using the trade mark 'VGK Builders' as a trading style
since the year 1999. In view of the aforesaid, he submits that a classic case
of acquiescence in terms of Section 33 of the TM Act is made out. In
support of this contention, learned counsel referred to and relied upon the
following judgments:
(i) M/s.Power Control Appliances and others v. Sumeet Machines
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Pvt. Ltd., (1994) 2 SCC 448, particularly paragraphs 29 to 31 thereof;
(ii) Hatsun Agro Products Ltd. v. Arokiya Foods, 2023 (93) PTC
592[Mad], particularly paragraphs 22 to 24 thereof;
(iii) M/s.Addison & Company Limited v. M/s.Addison Cable Pvt.
Ltd., judgment dated 09.11.2023 in C.S.No.39 of 2021, particularly
paragraphs 43 to 45 thereof.
9(c). Learned counsel next dealt with the merits. After referring to the
family tree, he submitted that Mr.H.Manoj Krishnan and Mr.H.Satish
Krishnan are the maternal grandchildren of Mr.V.G.Krishnan and that
Mr.V.Prabakaran, who is the son of Mr.V.G.Krishnan, is their maternal
uncle. Mr.V.Prabakaran earlier carried on business as the proprietor of VGK
Contractors and Promoters. Such business was carried on until the
incorporation of the 1st and 2nd defendants. He also pointed out that
Mr.V.Prabakaran is currently a director of the 1st defendant and, in fact, was
a witness to the subscription by the first directors to the Memorandum and
Articles of Association of the 1st defendant. In effect, he contended that the
defendants have derived the names of the two defendant entities from the
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name of the business of the predecessor-in-business. Hence, he states that
the defendants are entitled to protection under Section 35 of the TM Act.
9(e) By virtue of being the registered proprietor of the trade marks
, learned counsel submits that the defendants have an impregnable defence
as regards the action for infringement. Even as regards the action for
passing off, he submits that acquiescence qualifies as a defence. Without
prejudice, after referring to the details of projects executed by the
defendants between 2014 and 2022 in respect of the aggregate built up area
of about 3,44,873.5 square feet, learned counsel submits that no case is
made out for the grant of relief either in respect of alleged infringement or
passing off. He also submits that the nature of the business should be taken
into consideration while examining whether the use of a mark is likely to
cause deception or confusion. In the specific context of the use of a mark in
relation to the development of real estate, learned counsel submits that
potential customers undertake detailed due diligence on the developer
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before deciding whether to enter into a joint development agreement or any
other agreement with a developer. On this issue, learned counsel relied upon
the relevant factors in a passing off action, as set out in paragraph 35 of the
judgment of the Supreme Court in Cadila Health Care Limited v. Cadila
Pharmaceuticals Limited, (2001) 5 SCC 73.
10. By way of rejoinder, learned senior counsel for the plaintiff made
the following submissions:
(i) Mr.V.Prabakaran was neither a subscriber to the Memorandum and
Articles of Association of the defendants nor a promoter director.
(ii) In answer to question no. 45, P.W.1 stated specifically that he had
obtained a no objection certificate from his father for use of the trade mark
VGN. Therefore, the plaintiff discharged the initial onus, which shifted to
the defendants but was not discharged by them.
(iii) In the factual context of the plaintiff lodging the opposition to the
trade mark application in class 37, an inference of acquiescence cannot be
drawn. In response to question no. 84, D.W.1 admitted that the plaintiff was
opposing the use of the mark by the defendants since 2003.
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(iv) Documents relating to the use of the mark by VGK Contractors
and Promoters were exhibited through D.W.1, who is neither the author nor
the recipient thereof. Therefore, those documents cannot be relied upon.
(v) Without prejudice, only the unregistered construction agreements,
and not the registered powers of attorney or the registered sale deeds, refer
to VGK Contractors and Promoters.
(vi) Since use by Mr.V.Prabakaran cannot be attributed to the
defendants, the defendants do not qualify as successors-in-business of
Mr.V.Prabakaran and, consequently, they cannot rely on Section 35 of the
TM Act.
(vii) The plaintiff was justified in not resorting to pre-institution
mediation under Section 12A of the Commercial Courts Act, 2015 (the
Commercial Courts Act) in view of the issuance of a cease-and-desist notice
prior to the institution of the suit and the failure by the defendants to
exhibit any intention to resolve the dispute by mediation or otherwise upon
receipt thereof. He also submitted that urgent interim relief was necessitated
upon noticing the advertisement by the defendants of the impugned mark at
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the fair of CREDAI.
Discussion, analysis and conclusions:
11. Upon taking stock of the rival contentions, it becomes necessary
to consider and dispose of the issues framed by this Court. The first issue
framed by this Court relates to whether the suit is barred by Section 12A of
the Commercial Courts Act, and the said issue is dealt with first.
Issue No.1
12. The suit was presented in August 2023. In the plaint, the plaintiff
has referred to the trade mark applications filed by the defendants, including
the last filings on 06.12.2022. The plaintiff has also referred to the cease-
and-desist notice dated 06.1.2023 and stated that the cause of action is
continuous and recurring since every use of the impugned mark by the
defendants qualifies as a fresh cause of action. Interlocutory applications
were submitted along with the plaint seeking interim relief.
13. In Yamini Manohar v. T.K.D.Keerthi, 2023 SCC OnLine SC
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1382, the Supreme Court examined whether the plaintiff can unilaterally
determine whether a suit contemplates urgent interim relief. While holding
that the plaintiff cannot make such determination unilaterally, the Supreme
Court further held that the Court should examine whether the interim
application was filed with a view to circumvent the requirement of Section
12A. In the context of an action for infringement and passing off in relation
to intellectual property, as contended by the plaintiff, every use of the
impugned mark constitutes a distinct cause of action. Although the plaintiff
was not granted interim relief, the admitted position is that the plaintiff
requested for such relief. I find no reason to conclude that such interim
application was lodged only to circumvent the requirement of pre-institution
mediation. Therefore, issue no.1 is decided in favour of the plaintiff.
Issue Nos.2, 3 & 4:
14. Issue no.2 relates to whether the plaintiff is entitled to claim
proprietorship over the trade mark 'VGN' or its formative marks. The
plaintiff has referred to various trade mark registrations in paragraph 3 of
the plaint. These registrations are stated to be in the name of the plaintiff or
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its group companies. In support of the contention that the plaintiff is the
registered proprietor, the plaintiff filed registration certificates. The said
registration certificates were exhibited as Exs.P15 and P16. Ex.P15 relates
to trade mark no.3411942 for the mark 'VGN creating assets since 1942'
under classes 36 and 37, which was registered with effect from 17.11.2016.
Ex.P16 is also in respect of an identical device mark, which was registered
with effect from 24.03.2017. Therefore, without doubt, at least as regards
Exs.P15 and P16, the plaintiff qualifies as the registered proprietor. In
answer to question no. 45, P.W.1 stated that a no objection certificate was
obtained by him from his father for the use of the trade mark 'VGN'. An
annual turnover certificate showing turnover from financial year 2009-2010
is on record as Ex.P17. On balance, I conclude that the plaintiff is entitled to
claim proprietorship over the trade mark 'VGN'.
15. Issue no.3 relates to whether the defendants are registered
proprietors of the trade mark 'VGK Builders' under trade mark No.2430234
in class 36. The rectification petition of the plaintiff in respect of trade mark
No.2430234 has been exhibited as Ex.P11. A mere perusal of this exhibit is
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sufficient to conclude that the 1st defendant is the registered proprietor of the
trade mark 'VGK Builders' under trade mark no.2430234 in class 36. This
leads to issue no.4, which is whether the suit is maintainable against a
registered proprietor in view of Section 28(3) of the TM Act.
16. Section 28(3) of the TM Act is as under:
"28(3) Where two or more persons are registered
proprietors of trade marks, which are identical with or
nearly resemble each other, the exclusive right to the use
of any of those trade marks shall not (except so far as
their respective rights are subject to any conditions or
limitations entered on the register) be deemed to have
been acquired by any one of those persons as against any
other of those persons merely by registration of the trade
marks but each of those persons has otherwise the same
rights as against other persons (not being registered
users using by way of permitted use) as he would have if
he were the sole registered proprietor."
From the text of sub-section (3) of Section 28, it is clear that it is applicable
where two or more persons are registered proprietors of trade marks, which
are identical or nearly resemble each other. In such situation, it stipulates
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that, as between the two registered proprietors, neither can claim the
exclusive right to the use of the mark merely by registration of such trade
mark. It further stipulates that each registered proprietor will continue to
have the rights conferred by registration as against all other persons, as if
such registered proprietor was the exclusive registered proprietor.
17. In view of the conclusion that the 1st defendant is the registered
proprietor of the trade mark 'VGK Builders', even if it were to be concluded
that the two marks are identical, the 1st defendant would be entitled to rely
on this provision to contend that the plaintiff is not entitled to exclusive use
of its trade mark vis-a-vis at least the said defendant. Issue nos.2, 3 and 4
are disposed of on the above terms.
Issue Nos.5, 6 & 9:
18. In the written statement, the defendants set out the family tree and
stated that Mr.V.Prabakaran adopted the abbreviation/initialism VGK from
the name of his father V.G.Krishnan. Upon the proprietary concern of
Mr.V.Prabakaran ceasing to carry on business, it is stated that the maternal
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grandchildren of Mr.V.G.Krishnan formed the 1st and 2nd defendants and
adopted the name of the business carried on by Mr.V.Prabakaran, which
name is also an abbreviation of the maternal grandfather's name. As
evidence of use of the trade mark 'VGK', the defendants have placed on
record several sets of documents relating to the development of real estate.
Each set consists of a power of attorney, construction agreement and a sale
deed. By way of illustration, the defendants exhibited power of attorney
dated 20.06.2001 as Ex.D1. This power of attorney relates to a vacant house
site bearing plot no.12 in S.No.62/3 at Chitlapakkam village, Rajendran
Avenue, Tambaram Taluk, Kanchipuram District. The corresponding
agreement for sale of land and construction dated 24.06.2002 was exhibited
as D2. The schedule to Ex.D2 tallies with the schedule in the power of
attorney. The corresponding sale deed dated 29.11.2002 has been exhibited
as D3. Once again, the schedule tallies with that in Ex.D1. Out of these
documents, Ex.D2 contains a reference to VGK Constructors and
Promoters, represented by Mr.V.Prabakaran.
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19. Learned senior counsel for the plaintiff submitted that the
construction agreement is unregistered and could have been subsequently
created so as to establish use of the mark 'VGK'. This contention cannot be
countenanced for more than one reason. As noticed earlier, the description
of the property in the schedules to all three documents tally. Secondly, in all
three documents, Mr.V.Prabakaran is described as the son of
Mr.V.G.Krishnan. Although it was contended that he was described as the
son of the late Mr.V.G.Krishnan only in the construction agreement, it is
likely that an inadvertent error was committed in this regard. Similar sets of
documents have been exhibited in respect of other parcels of land as Exs.D5
to D25. It should be noticed that the first set (Exs.D1 to D3) pertains to the
period 2001- 2002 and cumulatively these sets of documents broadly cover
the period running from 2001 to 2013.
20. In addition to the above documents, the defendants have exhibited
the certificate of incorporation of the 1st defendant as Ex.D28. The
Memorandum and Articles of Association of the 1st defendant also forms
part of Ex.D28. On perusal, it is clear that the subscribers to the
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Memorandum and Articles of Association signed their names in the
presence of Mr.V.Prabakaran. Such attestation by Mr.V.Prabakaran
underscores that he was aware of and agreed to the formation of the
company under the name and style of VGK Builders Private Limited. Form
32 in respect of his appointment as a director of the 1st defendant has also
been included in Ex.D28. This document discloses that he became a director
of the company on 04.03.2013. The defendants have proceeded to also
exhibit documents relating to the use of the impugned mark by the 1 st and
2nd defendants from the year 2013 to the year 2023. These documents are
exhibited as Exs.D40 to D102. The list of projects of the 1st defendant has
been exhibited as Ex.D39 and the sales turnover of the 2nd defendant is
exhibited as Ex.D38.
21. On careful appraisal of documents referred to in the preceding
paragraphs, the conclusion that follows is that the defendants honestly
adopted the trade mark 'VGK' on the basis of the name under which
Mr.V.Prabakaran carried on business, and this trade mark is an initialism of
the name of the maternal grandfather of the promoters of the 1st and 2nd
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defendants. This leads to the question whether the defendants are entitled to
the benefit of Section 35 of the TM Act.
22. Section 35 of the TM Act is as under:
"35.Saving for use of name, address or description
of goods or services-
Nothing in this Act shall entitle the proprietor or a
registered user of a registered trade mark to interfere
with any bona fide use by a person of his own name or
that of his place of business, or of the name, or of the
name of the place of business, of any of his predecessors
in business, or the use by any person of any bona fide
description of the character of quality of his goods or
services. "
The text of Section 35 reveals that a registered proprietor of a trade mark
cannot interfere with the bona fide use by a person of any of the following:
(i) his own name;
(ii) the name of his place of business;
(iii) the name of any of his predecessors-in-business;
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(iv) the name of the place of business of any of his predecessors-in-
business; or
(v) the use by any person of a bona fide description of the character or
quality of his goods or services.
23. As discussed above, the evidence on record leads to the
conclusion that V.G.Krishnan was the name of the maternal grandfather of
the promoters of the defendants. An initialism of the said name, VGK, was
adopted as the trading name of Mr.V.Prabakaran, the son of V.G.Krishnan
and maternal uncle of the promoters of the defendants. After he ceased to
carry on business as the proprietor, his maternal nephews formed the 1st and
2nd defendants, and he was a witness to their subscription of the
Memorandum and Articles of Association. He subsequently became a
director on the board of the 1st defendant. When these facts and
circumstances are considered holistically, the only reasonable conclusion is
that the defendants have bona fide adopted and used the name of the
predecessor-in-business. Consequently, the defendants are entitled to the
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protection offered by Section 35 of the TM Act. Issue nos.5, 6 and 9 are
disposed of on the above terms.
Issue Nos.8 & 10:
24. Issue no.8 relates to whether the relief of restraining the
defendants from using the trade name 'VGK' is barred by limitation. Section
16(1)(b) of the Companies Act, 2013 prescribes that a registered proprietor
of a trade mark may apply to the Central Government for the rectification of
the name of a company on the ground that such name is identical with or too
nearly resembles the registered trade mark of such proprietor within a
maximum period of three years from the date of incorporation. If this time
limit runs out, the consequence is that an action for rectification of that
company's name is not maintainable under Section 16. It does not follow
from such conclusion, however, that a suit for infringement and passing off
is not maintainable thereafter. These are two independent remedies. As
narrated earlier in course of discussing issue no.1, every act of alleged
infringement or passing off constitutes a fresh cause of action. Therefore, it
certainly cannot be said that the suit is barred by limitation.
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25. Issue no.10 relates to whether the suit is liable to be dismissed on
the grounds of laches and acquiescence under Section 33 of the TM Act. I
first deal with laches. Mere delay will not non-suit a person seeking either
statutory or common law remedies unless such delay either results in the
action being barred by limitation or leads to an inference of acquiescence,
waiver, estoppel or abandonment. Whether the plaintiff acquiesced falls for
consideration next. Section 33 of the TM Act reads as under:
"33. Effect of acquiescence-(1) Where the
proprietor of an earlier trade mark has acquiesced for a
continuous period of five years in the use of a registered
trade mark, being aware of that use, he shall no longer be
entitled on the basis of that earlier trade mark-
(a) to apply for a declaration that the registration
of the later trade mark is invalid, or
(b) to oppose the use of the later trade mark in
relation to the goods or services in relation to which it
has been so used,
unless the registration of the later trade mark was not
applied in good faith.
(2) Where sub-section (1) applies, the proprietor of
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the later trade mark is not entitled to oppose the use of
the earlier trade mark, or as the case may be, the
exploitation of the earlier right, notwithstanding that the
earlier trade mark may no longer be invoked against his
later trade mark. "
26. As is evident from the above, in order to rely on Section 33, the
party placing reliance thereon should discharge the onus of establishing that
the proprietor of the earlier trade mark acquiesced for a continuous period
of five years in the use of the registered trade mark by a later user. Section
33 is, however, not applicable if the registration of the later trade mark was
not applied in good faith. In the case at hand, it was earlier concluded that
the adoption and use by the defendants and the defendants' predecessor-in-
interest was bona fide. Therefore, the exception does not apply.
27. On account of lodging the opposition in respect of the application
by the 1st defendant in class 37, it becomes clear that the plaintiff was
aware of use of the trade mark by the defendants at least as of January 2013.
The present suit was instituted in 2023. Undoubtedly, a period in excess of
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five years had lapsed. Learned senior counsel for the plaintiff, however,
contended that the filing of opposition proceedings militates strongly
against any inference of acquiescence. Put differently, his contention is that
the plaintiff did not merely stand by while its rights were infringed and
instead chose to challenge the application for registration. As regards the
registration in class 36, he submitted that such registration was challenged
in rectification proceedings shortly after the plaintiff became aware of such
registration. These contentions cannot be completely brushed aside. Sub-
section (1) of Section 33, however, places emphasis on acquiescence in the
use of the registered trade mark. It also imposes the condition that the
person acquiescing should be aware of such use. In the opposition
proceedings, the defendants filed evidence of use of the impugned trade
mark. Therefore, the plaintiff cannot deny knowledge or awareness of such
use. In effect, it appears that the plaintiff did not acquiesce in the
registration of trademarks by the defendants, but appears to have acquiesced
in the use of such trade mark. In any event, in view of the conclusions
drawn on other issues, a definitive finding with regard to acquiescence may
not be necessary for the adjudication of this dispute.
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Issue No.7
28. On account of the conclusion that the defendants are entitled to
protection both under sub-section (3) of Section 28 and Section 35 of the
TM Act, it becomes immaterial as to whether the trade marks 'VGN' and
'VGK Builders' and 'VGK Property Developers' are phonetically, visually or
structurally deceptively similar. The contention of learned counsel for the
defendants, on this issue, that the nature of business and the manner of
decision-making is material while deciding an action for infringement and
passing off is not devoid of merit. As contended by him, the purchase of
immovable property is a big ticket or high value transaction, which is
typically preceded by due diligence by the intending purchaser both on the
property and on the developer. The defendants' predecessor was in business
since 2001, and the two defendants ever since their respective incorporation.
There is no evidence of actual deception or confusion over this considerable
period. While such evidence is not necessary in an action for infringement
and passing off, in the facts and circumstances, it is a relevant consideration.
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As discussed earlier, the evidence on record also points towards
acquiescence by the plaintiff at least in the use of the impugned trade marks
by the defendants. Therefore, notwithstanding the fact that the plaintiff and
the defendants are engaged in the same line of business and that the trade
marks are similar, the plaintiff is not entitled to relief. Issue no.7 is disposed
of accordingly.
Issue Nos.11 and 12:
29. For reasons set out while disposing of the other issues, the
plaintiff is not entitled to the relief claimed. Since costs follow the event, as
the successful party, the defendants are entitled to costs. The plaintiff is
directed to pay a sum of Rs.2,00,000/- as costs to the defendants towards
lawyer's fees and other expenses.
30. In the result, C.S(Comm.Div)No.205 of 2023 stands dismissed by
directing the plaintiff to pay an aggregate sum of Rs.2,00,000/- (Rupees
Two lakhs only) as costs to the defendants.
12.03.2025
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C.S.(Comm.Div.) No.205 of 2023
Index : Yes / No
Internet : Yes / No
Neutral Citation: Yes / No
kj
Plaintiff's witness:
Mr.Pratish Vedhappudi – P.W.1
Defendants witness:
Mr.H.Manoj Krishnan – D.W.1
Documents exhibited by the plaintiff:
Exhibits Documents
Ex.P1 Printout of the plaintiff's balance sheet starting from the period
2011 to 2021.
Ex.P2 Printout of the plaintiff's invoice evidencing the use of
trademarks for the period 2012 to 2023.
Ex.P3 Photocopy of the notice of opposition of the plaintiff in
opposition No. MAS-817485 dated 11.07.2014.
Ex.P4 Photocopy of the counter statement filed by the 1st defendant
in opposition No. MAS-817485 dated 10.11.2014.
Ex.P5 Photocopy of the Rule 50 Application filed by the plaintiff
opposing the 1" defendant registration - opposition No. MAS
817485 dated 05.03.2015.
Ex.P6 Photocopy of the Rule 51 (Evidence in support of the
Application) filed by the 1 defendant in Opposition No. MAS
817485 dated 04.06.2015.
Ex.P7 Photocopy of the Rule 52 (Evidence in support of the
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Exhibits Documents
Application) filed by the 1" defendant in Opposition No. MAS
817485 dated 05.08.2015.
Ex.P8 Printout of the plaintiff's invoice No.88002812 dated
30.11.2018.
Ex.P9 Office copy of the cease & desist notice issued by the
plaintiff to the defendants dated 06.01.2023 along with postal
receipt.
Ex.P10 Photocopy of the notice of opposition filed by the plaintiff
No.5326849 against the 2nd defendant's mark dated
09.01.2023.
Ex.P11 Photocopy of the application for rectification of the 1st
defendant's mark - rectification proceedings No.2430234 dated
13.01.2023.
Ex.P12 The original certified true copy of the Board Resolution of the
plaintiff company dated 30.01.2023.
Ex.P13 The original side by side comparison of the plaintiff and the
2nd defendant's mark in an advertisement published in The
Hindu dated 17.02.2023.
Ex.P14 The original side by side comparison of the plaintiff and the
2nd defendant's mark in an advertisement published in The
Times of India dated 17.02.2023.
Ex.P15 The photocopy of the legal proceedings certificate issued by
the Trademark registry of the trade mark no.3411942 dated
24.04.2023.
Ex.P16 The photocopy of the legal proceedings certificate issued by
the Trademark registry of the trade mark no.3513745 dated
24.04.2023.
Ex.P17 The original certificate issued by the chartered accountant of
the plaintiff detailing the turnover the plaintiff company dated
16.06.2023.
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Exhibits Documents
Ex.P18 Original certificate issued by the chartered accountant of the
plaintiff detailing the marketing expenses dated 16.06.2023.
Ex.P19 Original defendant's reply notice to the cease & desist notice
issued by the plaintiff.
Ex.P20 Photocopy of the term sheet between the plaintiff and Piramal
Finance Private Limited.
Ex.P21 Printout of the images of awards received by the plaintiff.
Ex.P22 Printout of the images of the advertisements and Billboards of
the plaintiff.
Ex.P23 Printout of the images of the flyers issued by the plaintiff for
various promotional! activities undertaken by them.
Ex.P24 Printout of the images of the Chennai Super King's Jersey
showing the plaintiff's mark.
Documents exhibited by the defendants:
Exhibits Documents
Ex.D1 Photocopy of the Power of Attorney dated 20.06.2001.
(Original is produced, compared and returned to the
defendant's counsel.)
Ex.D2 Photocopy of the Sale of Land and Constructive agreement
dated 24.06.2002.
Ex.D3 Certified copy of the Sale deed dated 29.11.2002.
Ex.D4 Photocopy of the Power of Attorney dated 7.02.2003.
(Original is produced, compared and returned to the
defendant's counsel.)
Ex.D5 Photocopy of the Power of Attorney dated 7.02.2003.
(Original is produced, compared and returned to the
defendant's counsel.)
Ex.D6 Photocopy of the Builders Agreement dated 9.07.2004.
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Exhibits Documents
Ex.D7 Certified copy of the Sale Deed dated 27.08.2004.
Ex.D8 Photocopy of the Power of Attorney dated 8.09.2004.
Ex.D9 Certified copy of the Sale Deed dated 30.09.2005.
Ex.D10 Certified copy of the Sale Deed dated 25.01.2006.
Ex.D11 Photocopy of the Power of Attorney dated 30.06.2006.
(Original is produced, compared and returned to the
defendant's counsel.)
Ex.D12 Certified copy of the Sale Deed dated 6.06.2007.
Ex.D13 Photocopy of the Power of Attorney dated 23.02.2006.
Ex.D14 Photocopy of the Builders Agreement dated 30.12.2009.
Ex.D15 Certified copy of the Sale Deed dated 10.02.2010. (The
counsel for the plaintiff objects on the ground that the
document now produced was not filed along with the written
statement.)
Ex.D16 Photocopy of the Builders Agreement dated 15.12.2010.
Ex.D17 Photocopy of the Sale deed dated 8.03.2011.
Ex.D18 Photocopy of the Builders Agreement dated 3.11.2010.
Ex.D19 Certified copy of the Sale deed dated 24.01.2011.
Ex.D20 Photocopy of the Builders Agreement dated 14.06.2013.
Ex.D21 Certified copy of the Sale deed dated 28.09.2012.
Ex.D22 Photocopy of the Construction Agreement dated 26.10.2012.
Ex.D23 Certified copy of the Sale deed dated 30.11.2012.
Ex.D24 Photocopy of the Construction Agreement dated 5.05.2012.
Ex.D25 Certified copy of the Sale deed dated 13.07.2012.
Ex.D26 Photocopy of the Letter From Tamil Nadu Mercantile Bank
dated 19.04.2011.
Ex.D27 Photocopy of the Letter from Tamil Nadu Mercantile Bank
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Exhibits Documents
dated 3.06.2015. (Original is produced, compared and
returned to the defendant's counsel.)
Ex.D28 Printout of the Certificate of incorporation of the 1" defendant
dated 28.12.2012.
Ex.D29 Photocopy of the PAN CARD dated 28.12.2012. (Original is
produced, compared and returned to the defendant's counsel.)
Ex.D30 Printout of the Electronic Record of the WHOIS printout
details of the domain name www.vgkbuilders.com dated
5.06.2013.
Ex.D31 Photocopy of the Income Tax Returns of the 1st Defendant
dated 2013-2014 To 2022-2023.
Ex.D32 Photocopy of the Sanction letters from various banks
/financial institutions to be l% defendant dated 2018-2023.
Ex.D33 Original of the Sales turnover of the 1st defendant.
Ex.D34 Printout of the Certificate of incorporation of the 2nd
defendant dated 22.11.2013.
Ex.D35 Photocopy of the PAN CARD dated 22.11.2013. (Original is
produced, compared and returned to the defendant's counsel.)
Ex.D36 Photocopy of the Income tax Returns of the 2nd defendant
dated 2014-2015 to 2022-2023.
Ex.D37 Photocopy of the Sanction letters from various banks/financial
institutions to the 2nd defendant dated 2012-2023.
Ex.D38 Original of the Sales turnover of the 2nd defendant.
Ex.D39 Original of the List of Projects by the 1 defendant with details.
Ex.D40 Certified copy of the sale deed and the photocopy of the
Construction Agreement for VGK JASMINE along with
original brochure dated 17.04.2013 To 15.07.2013.
Ex.D41 Certified copy of the Sale deed and photocopy of the Sale
Agreement for VGK RAM along with original brochure dated
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Exhibits Documents
18.04.2016 To 8.06.2016. (The counsel for the plaintiff
objects on the ground that the certified copy of the sale deed
attempted to be marked is not filed along with the written
statement by the defendant.)
Ex.D42 Certified copy of the sale deed and photocopy of the
Construction Agreement for VGK LOTUS along with the
original brochure dated 21.05.2016 & 15.07.2016.
Ex.D43 Certified copy of the sale deed and photocopy of the
Construction Agreement for VGK SNOWDROP along with
original brochure dated 26.09.2013 & 29.09.2013.
Ex.D44 Certified copy of the sale deed and Construction Agreement
for VGK BLUE BELL along with original brochure dated
3.07.2014.
Ex.D45 Certified copy of the sale deed and construction agreement for
VGK SUNSHINE VILLA along with original brochure dated
27.11.2014 & 10.12.2014.
Ex.D46 Certified copy of the sale deed and construction agreement
and sale deed for VGK HAJARAH VILLA along with
original brochure dated 03.08.2021.
Ex.D47 Certified copy of the sale deed and construction agreement
and sale deed for VGK SUMANGALI along with original
brochure dated 28.04.2014 & 17.01.2018.
Ex.D48 Certified copy of the sale deed and photocopy of the
construction agreement and sale deed for VGK BARBERRY
along with original brochure dated 25.05.2018 & 13.06.2018.
Ex.D49 Certified copy of the sale deed and construction agreement
and sale deed for VGK LOTO along with original brochure
dated 28.02.2015 & 04.03.2015.
Ex.D50 Certified copy of the sale deed and construction agreement
and sale deed for VGK SPEEDWEL along with original
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Exhibits Documents
brochure dated 01.06.2017 & 23.06.2017.
Ex.D51 Certified copy of the sale deed and construction and sale deed
for VGK SAMUDRA along with original brochure dated
02.08.2016 & 29.08.2016.
Ex.D52 Certified copy of the Sale Deed for VGK ORANGE COURT
dated 11.04.2017
Ex.D53 Certified copy of the sale deed and photocopy of the
construction agreement for VGK SNOWBERRY along with
original brochure dated 01.08.2018 & 17.09.2018.
Ex.D54 Certified copy of the sale deed and photocopy of the
construction agreement for VGK ADIDEV along with the
original brochure dated 21.08.2017 and 24.11.2017.
Ex.D55 Certified copy of the sale deed and construction agreement for
VGK ADHIRA along with original brochure dated
31.08.2017 & 25.10.2017.
Ex.D56 Certified copy of the sale deed and photocopy of the
Construction Agreement CUM Sale Deed for VGK DIKSHA
along with original brochure dated 27.10.2018.
Ex.D57 Certified copy of the sale deed and photocopy of the
construction agreement for VGK YOGMAYA along with
original brochure dated 17.01.2019 & 22.02.2019.
Ex.D58 Certified copy of the sale deed and construction agreement for
VGK ARKITA along with original brochure dated
30.08.2018.
Ex.D59 Certified copy of the sale deed and photocopy of the
construction agreement for VGK SRINIKA along with
original brochure dated 11.10.2018 & 12.12.2018.
Ex.D60 Certified copy of the sale deed and construction agreement for
VGK DHRUVAH along with original brochure dated
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Exhibits Documents
13.06.2019.
Ex.D61 Certified copy of the sale deed and construction agreement for
VGK RAKSHAN along with original brochure dated
06.02.2019.
Ex.D62 Certified copy of the sale deed and construction agreement for
for VGK MAHITA along with original brochure dated
28.11.2020.
Ex.D63 Certified copy of the sale deed and construction agreement
VGK ADITI along with original brochure dated 10.11.2021
Ex.D64 Certified copy of the sale deed and construction agreement for
VGK AKSHITA along with original brochure dated
23.07.2021.
Ex.D65 Certified copy of the sale deed and construction agreement for
VGK PRAGATHI along with original brochure dated
25.01.2021.
Ex.D66 Certified copy of the sale deed and Construction agreement
for VGK DHARIKA along with original brochure dated
4.3.2022.
Ex.D67 Certified copy of the sale deed and Construction agreement
for VGK AKRITI along with original brochure dated
29.11.2020.
Ex.D68 Certified copy of the sale deed and Construction agreement
for VGK ADHVAY along with original brochure dated
7.2.2020.
Ex.D69 Certified copy of the sale deed and Construction agreement
for VGK ADHVAY along with original brochure dated
7.2.2020.
Ex.D70 Certified copy of the sale deed and Construction agreement
for VGK SADHANA along with original brochure dated
8.09.2021.
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Exhibits Documents
Ex.D71 Certified copy of the sale deed and Construction agreement
for VGK SAINDHAVI along with original brochure dated
28.12.2022.
Ex.D72 Certified copy of the sale deed and Construction agreement
for VGK SANGAMITHRA along with original brochure
dated 01.02.2023.
Ex.D73 Certified copy of the sale deed and Construction agreement
VGK UNITY KINGDOM with original brochure dated
07.11.2022.
Ex.D74 Photocopy of Joint Development agreement for VGK
SPRING FIELD along with original brochure dated
07.07.2023.
Ex.D75 Certified copy of the sale deed and photocopy of the
Construction agreement for VGK DIVINE LIGHT along with
original brochure dated 17.08.2016 & 28.11.2016.
Ex.D76 Certified copy of the sale deed and photocopy of the
Construction agreement for VGK PRIME ROSE along with
Original brochure dated 27.03.2018 & 20.04.2018.
Ex.D77 Certified copy of the sale deed for VGK BRINDAVAN along
with original brochure dated 19.11.2017.
Ex.D78 Certified copy of the sale deed and photocopy of the
Construction agreement for VGK MATHURA along with
original brochure dated 10.07.2018 & 20.08.2018.
Ex.D79 Certified copy of the sale deed and photocopy of the
Construction agreement for VGK Sai Gurus than along with
original brochure dated 06.12.2018.
Ex.D80 Certified copy of the sale deed and photocopy of the
Construction agreement for VGK ISHANI along with original
brochure dated 15.12.2018 & 18.01.2019.
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Exhibits Documents
Ex.D81 Certified copy of the sale deed and Construction agreement
for VGK CHETHANA along with original brochure dated
27.04.2019.
Ex.D82 Certified copy of the sale deed and photocopy of the
Construction agreement for VGK MITHILA along with
original brochure dated 10.04.2019 & 23.05.2019.
Ex.D83 Certified copy of the sale deed and Construction agreement
for VGK AATHMIKA along with original brochure dated
1.11.2019.
Ex.D84 Certified copy of the sale deed and construction agreement for
VGK AVYUKTA along with original brochure dated
10.01.2020 & 22.01.2020.
Ex.D85 Certified copy of the sale deed and Construction agreement
for VGR ARADHANA along with original brochure dated
15.09.2019 & 11.09.2019.
Ex.D86 Certified copy of the sale deed and Construction agreement
for VGK ADVAITHA along with original brochure dated
15.04.2021.
Ex.D87 Certified copy of the sale deed and Construction agreement
for VGK LAVANTHIKA along with original brochure dated
09.12.2019.
Ex.D88 Certified copy of the sale deed and Construction agreement
for VGK SAMYUKTHA along with original brochure dated
11.01.2021.
Ex.D89 Certified copy of the sale deed and Construction agreement
for VGK SAKSHI along with original brochure dated
20.10.2020.
Ex.D90 Certified copy of the sale deed and Construction agreement
for VGK AARUNYA along with original brochure dated
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Exhibits Documents
09.09.2021.
Ex.D91 Certified copy of the sale deed and Construction agreement
for VGK VAINAVI along with Original brochure dated
16.07.2021.
Ex.D92 Certified copy of the sale deed and Construction agreement
for VGK MITHRAN along with Original brochure dated
14.10.2020.
Ex.D93 Certified copy of the sale deed and photocopy of the
Construction agreement for VGK SAI KRIPA along with
Original brochure dated 02.12.2021 & 11.02.2022.
Ex.D94 Certified copy of the Sale Deed for VGK GREEN CITY along
with Original brochure dated 23.11.2022.
Ex.D95 Certified copy of the Sale Deed for VGK GREEN CITY II
along with Original brochure dated 23.02.2023.
Ex.D96 Certified copy of the sale deed and Construction agreement
for VGK SUMMER GARDEN along with Original brochure
dated 24.08.2023.
Ex.D97 Certified copy of the Power of Attorney for VGK SRI SAI
ENCLAVE along with Original brochure dated 27.07.2022.
Ex.D98 Certified copy of the sale deed and photocopy of the
Construction agreement for VGK SRI SAI ENCLAVE along
with Original brochure dated 10.4.2023 & 4.5.2023.
Ex.D99 Certified copy of the Power of Attorney VGK SAI
AROOGYA along with Original brochure dated 27.07.2022.
Ex.D100 Certified copy of the Power of Attorney VGK SAI SHRISHTI
along with Original brochure dated 27.07.2022.
Ex.D101 Certified copy of the Power of Attorney VGK SAI
AKSHAYA along with Original brochure dated 27.07.2022.
Ex.D102 Certified copy of the Power of Attorney VGK SAI SUROOPA
https://www.mhc.tn.gov.in/judis ( Uploaded on: 17/03/2025 08:16:06 pm )
C.S.(Comm.Div.) No.205 of 2023
Exhibits Documents
along with Original brochure dated 27.07.2022.
Ex.D103 Printout of the Advertisement flyers of the defendants.
Ex.D104 Original of Promotional material in newspapers, brochures,
calendars.
Ex.D105 Photocopy of Membership Registrations of the defendants.
12.03.2025
https://www.mhc.tn.gov.in/judis ( Uploaded on: 17/03/2025 08:16:06 pm )
C.S.(Comm.Div.) No.205 of 2023
SENTHILKUMAR RAMAMOORTHY,J
kj
C.S.(Comm.Div.) No.205 of 2023
https://www.mhc.tn.gov.in/judis ( Uploaded on: 17/03/2025 08:16:06 pm )
C.S.(Comm.Div.) No.205 of 2023
12.03.2025
https://www.mhc.tn.gov.in/judis ( Uploaded on: 17/03/2025 08:16:06 pm )
