A District Court in New Delhi passed a permanent injunction towards the Fictitious Merchandise containing trade name/label similar to that of KAKE DI HATTI and asked the defendants to pay Rs 50,000/- towards damages.
The court of ADJ Ms. Twinkle Wadhwa has passed the judgement in the case titled as Gurdeep Singh versus Vinit and others.
The plaintiff's complaint regarding impugned marks/trade names are deceptively similar and identical with and confusingly similar to the plaintiff's trademark / tradename ,its basic idea and in its essential features and that the defendants have been using the same in the course of trade without the leave and license of the plaintiffs.
It is alleged that the defendants have adopted and started using the impugned trade mark/trade names dishonestly, fraudulently and out of positive greed with a view to take advantage and to trade upon the established goodwill, reputation and proprietary rights of the plaintiff in the plaintiff's said trade mark/trade name.
Defendant also adopted KAKE DI HATTI as domain name http://Kakedihatti.co.in which also amounts to infringement of plaintiff's trademark. Because of such activities of the defendants, the plaintiff is suffering huge losses both in business and in reputation which cannot be compensated in terms of money.
Under Order 26 Rule 9 read with Section 151 CPC,there was an appointment of local commissioner for preserving and protecting infringement evidence as per Section 135(2) (b) of the Trade Mark Act,1999.
As claimed by the defendants, Court denied that the plaintiff is neither an honest nor bona fide adopter of the mark KAKE DI HATTI.
Court further denied that the plaintiff through its predecessors adopted the trademark KAKE DI HATTI and since 1942 has been continuously and uninterruptedly using the same till present time. Necessary documents were produced by the plaintiff as Representation of Trademark/ Label of plaintiff.
Court stated that the defendants failed to prove the suppressed material facts, plaintiff is entitled to permanent injunction thereby restraining the defendants and its representatives, stockists etc. from using, selling, soliciting etc. of impugned goods containing Trade Mark/label 'KAKE DI HATTI.
Sessions Court stated that Plaintiff has not led any evidence to show the actual damages suffered. However, in view of the second report of LC showed that defendant has still been using the trademark Kake Di Hatti despite there being injunction orders by Court, hence plaintiff was awarded damages of Rs.50,000/ against the defendants jointly and severally.
The court held that the plaintiff is entitled to
- Decree for permanent injunction restraining defendants,its agents, representatives, stockists, etc for using, selling, soliciting, etc of impugned goods containing Trademark/label ‘KAKE DI HATTI’
- Decree of injunction restraining the defendants and their subjects from dealing with or disposing of the merchandise containing Trade Mark/label 'KAKE DI HATTI'.
- Plaintiff is entitled to Rs. 50,000/ towards damages against the damages.
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