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2015 Supreme(Cal) 15
High Court of Judicature at Calcutta
DEBANGSU BASAK, J.
Sony Kabushiki Kaisha – Appellant
Versus
Sony Trade Links (India) Pvt. Ltd. & Another – Respondents
C.S.No. 255 of 1994 (Original Side)
Decided on: 14-01-2015
For the Plaintiff:Mainak Bose, Sachin Shukla, Advocates.
For the Defendants:Rudraman Bhattacharya, Kuldip Mallik, Swarajeet Dey, Advocates.
A suit must be properly instituted and the plaint must be verified by a person duly authorized by the plaintiff, and a power of attorney relied upon to prove such authority must be admissible in evidence in accordance with the Notaries Act, 1952.
Headnote:
SONY - TRADEMARK - SECTIONS 14, 29 OF THE NOTARIES ACT, 1952; ORDER VI RULE 14, ORDER XXIX RULE 1 OF THE CODE OF CIVIL PROCEDURE, 1908 - The plaintiff, a manufacturer of electronic goods, sought to restrain the defendants from using the trademark 'SONY' or any other deceptively similar mark, alleging infringement and passing off. The defendants denied the allegations and claimed that the name 'Sony' was part of their family name. The court held that the suit was not properly instituted as the plaint was not verified by a person duly authorized by the plaintiff. The power of attorney relied upon by the plaintiff was not admissible in evidence due to non-compliance with Section 14 of the Notaries Act, 1952, and the witness produced by the plaintiff was not competent to depose on its behalf. The court dismissed the suit, holding that the plaintiff failed to prove its case.
Fact of the Case:
The plaintiff, a manufacturer of electronic goods and the registered proprietor of the trademark 'SONY', filed a suit against the defendants for infringement and passing off of the trademark. The defendants denied the allegations and claimed that the name 'Sony' was part of their family name. The plaintiff adduced evidence through its sole witness, and the defendants filed written statements and submitted written notes of argument.
Finding of the Court:
The court held that the suit was not properly instituted as the plaint was not verified by a person duly authorized by the plaintiff. The power of attorney relied upon by the plaintiff was not admissible in evidence due to non-compliance with Section 14 of the Notaries Act, 1952, and the witness produced by the plaintiff was not competent to depose on its behalf. The court dismissed the suit, holding that the plaintiff failed to prove its case.
Issues: 1. Whether the defendants were wrongfully and illegally infringing the exclusive rights of the plaintiff by wrongful use of the mark 'SONY'? 2. Whether the defendants were dishonestly and deliberately infringing and/or passing off and have adopted the mark 'SONY' with the object of enabling the goods manufactured by the defendants to pass off the same and for the products manufactured and sold by the plaintiff? 3. Whether the plaintiff was entitled to the claims made in the plaint? 4. To what relief was the plaintiff entitled?
Ratio Decidendi: 1. A suit must be properly instituted in accordance with the provisions of the Code of Civil Procedure, 1908, and the plaint must be verified by a person duly authorized by the plaintiff. 2. A power of attorney relied upon to prove the authority of a person to verify a plaint must be admissible in evidence in accordance with the Notaries Act, 1952. 3. A witness produced by the plaintiff must be competent to depose on its behalf and must have personal knowledge of the facts of the case. 4. In a passing off action, the plaintiff bears the onus of proving that there is a likelihood of the defendant's goods being passed off as the goods of the plaintiff.
Final Decision: The court dismissed the suit, holding that the plaintiff failed to prove its case.
Debangsu Basak, J.
The plaintiff seeks perpetual injunction against the defendants for using the trademark ‘SONY” or any other trademark deceptively similar thereto. The plaintiff also seeks perpetual injunction restraining the defendants from passing off their business or goods as the business or goods of the plaintiff. The plaintiff seeks accounts and damages from the defendants.
The plaintiff is a manufacturer of electronic goods. It is the registered proprietor of the trademark ‘SONY’. The plaintiff claims exclusive right over the trademark ‘SONY’ by virtue of such registration. The plaintiff claims that it learnt of the defendants carrying on business under the name and style as the first defendant is described in the cause title of the plaint and subsequent thereto the plaintiff has filed the instant suit for the reliefs as sought for herein.
The first defendant has filed written statement and has denied the material allegations made in the plaint. The first defendant claims that it does not manufacture any electronic goods. The name ‘Sony’ has been used by the first defendant as a part of the family name of the persons in control of the first defendant.
The parties disclosed various documents in the suit. The plaintiff adduced evidence through its sole witness. Four issues were settled for trial in the suit. Such issues are as follows:-
1. Are the defendants wrongfully and illegally infringing the exclusive rights of the plaintiff by wrongful use of the mark ‘SONY’ as alleged in paragraph 9 of the plaint?
2. Are the defendants dishonestly and deliberately infringing and/or passing off and have adopted the mark ‘SONY’ with the object of enabling the goods manufactured by the defendants to pass off the same and for the products manufactured and sold by the plaintiff as alleged in paragraph 11 of the plaint?
3. Is the plaintiff entitled to the claims made in the plaint?
4. To what relief is the plaintiff entitled?
The learned Counsel for the defendants commenced arguments first. The learned Counsel for the defendants also submitted Written Notes of Argument on behalf of the defendants. Learned Counsel for the defendants submits that, the suit has not been properly instituted and that the plaintiff did not prove its case by a duly competent witness. Such being the situation, he submits that the merits of the case need not be gone into till such time the plaintiff is able to cross such hurdles. He also made elaborate submissions and cited various decisions on the merits of the case without prejudice to the contentions raised as to the maintainability of the suit. On the conclusion of the submissions on the part of the learned Counsel for the defendants, the learned Counsel for the plaintiff commenced his submissions. As rightly pointed out by the learned Counsel for the plaintiff, the plaintiff is required to get over the point of improper verification of the plaint and a witness being produced by the plaintiff who was not appropriately authorized by the plaintiff to adduce evidence, to obtain any relief in the instant suit. In such circumstances, the third and the fourth issues are taken up for consideration first.
On the third and fourth issues learned Counsel for the defendants submits that, the plaint has not been properly verified. He contends that, the plaint has been verified by Ms. Anuradha Salhotra who is the Advocate for the plaintiff. Learned Counsel for the defendants submits that, no Board resolution of the plaintiff authorizing Ms. Anuradha Salhotra has been produced. Learned Counsel refers to Order XXIX Rule 1 of the Code of Civil Procedure, 1908 and submits that, Ms. Anuradha Salhotra is not a Principal Officer of the plaintiff and, therefore, is not entitled to verify the plaint on behalf of the plaintiff. He refers to Order VI Rule 15 of the Code of Civil Procedure, 1908 and submits that, pleading has to be verified in accordance therewith. He relies upon All India Reporter 1958 Calcutta page 104 (Raj Kumar
