The use of a deceptively similar trademark with the intention of misleading the public constitutes trademark infringement and passing off.

1. The issue to be decided in the above Notice of Motion is whether the defendants by using the trade mark "ULTRA TUFF" are guilty of infringing the plaintiff's trade mark "ULTRATECH CEMENT The Engineer's Choice" and/or are guilty of passing off their goods as that of the plaintiff.

2. Briefly set out hereinbelow are the relevant facts in the matter.

3. The plaintiff is a company carrying on the business, inter alia, in the field of manufacturing and marketing of `Cement' and other allied products. The first defendant is a private limited company carrying on the business of goods, inter alia, Cement and building materials. The second defendant is a sole proprietary concern operating as a licensee of the first defendant and carrying on business of goods, inter alia, of cement products.

4. The plaintiff is the registered proprietor of trade mark "ULTRATECH CEMENT The Engineer's Choice" registered under number 1326528 in respect of `cement of all types, building materials (nonmetallic), nonmetallic rigid pipes for building, asphalt, pitch and bitumen, non-metallic transportable building, monuments, not of metal" specified in Class-19 of the Fourth Schedule of the Trade Marks Rules, 2002 (`the Rules') under the Trade Marks Act, 1999 (`The Act') and the same is valid and subsisting.

5. According to the plaintiff, the words "ULTRATECH CEMENT" is a distinctive trade mark forming part of the corporate name, trade name, trade style and business name of the plaintiff. The plaintiff's cement bags have a colour scheme wherein the trade mark "ULTRATECH CEMENT The Engineer's Choice" is depicted in bold black font, having a distinctive get up, lay out and colour scheme and placement of the ISI certification logo appearing on one side of the cement bag.

6. According to the plaintiff, they are using the said trade mark and corporate name, trade name openly, continuously and extensively since the year 2004 in India in respect of "cement". The products sold under the registered trade mark "ULTRATECH CEMENT The Engineer's Choice" consists of the cement and other agnate and cognate goods. According to the plaintiff it has spent considerable time and amount to popularize the said trade mark "ULTRATECH CEMENT The Engineer's Choice". The said trade mark has been used by the plaintiff on an extensive scale in respect of cement. The cement sold, supplied and/or offered for sale by the plaintiff dealing with the trade mark "ULTRATECH CEMENT The Engineer's Choice" has acquired a vast and enviable reputation by virtue of its intrinsic quality and superiority. The said trade mark has therefore come to be associated solely and exclusively with the plaintiff amongst traders and members of the public. By virtue of the popularity of the goods of the plaintiff, there is considerable care and skill exercised by them in manufacturing and marketing the same and the trade mark "ULTRATECH CEMENT The Engineer's Choice" has become distinctive of the plaintiff's goods, which has come to be associated exclusively with the plaintiff, by the members of the industry, trade and public. It is submitted that during the course of the uninterrupted business, the said trade mark and trade name of the plaintiff has become well known in the trade and to the public at large, for the excellent quality and superiority of the goods. Consequently the plaintiff is solely and exclusively entitled to use the trade mark 'ULTRATECH CEMENT The Engineer's Choice" to the exclusion of others. A statement of sales turn over of the plaintiff's goods i.e. cement bearing trade mark 'ULTRATECH CEMENT The Engineer's Choice" for the years 2005-2006 to 2007-2008 and a statement of advertisement and publicity expenses incurred by the plaintiff during the said period duly certified by the plaintiff's Chartered Account is annexed and marked as Exhibit-C to the plaint.

7. According to the plaintiff, the plaintiff came across an advertisement in a daily local newspaper "SAKAL" dated 24th May 20