IMPORTANT POINT
The main legal point established in the judgment is the requirement to establish a prima facie case for grant of injunction in cases of trademark infringement, based on the essential features of trademarks, phonetic and visual similarity, and the likelihood of confusion and deception.

JUDGMENT :

Krishna Rao, J.

1. The plaintiff has filed the instant application for grant of injunction restraining the defendant and each of them, their servants, agents, assigns, distributors, stockists, dealers and all others acting for and on their behalf from any way or manner infringing the plaintiff’s trademarks “KHAITAN” and any other words or get up identical or deceptively similar to the plaintiff’s trademark and other reliefs.

2. The plaintiff is engaged in the business of trading and marketing of domestic and industrial fans, pumps, industrial products and appliances since 1970 and since then, the plaintiff has excelled in its business of trading and marketing of its products. The products of the plaintiff have been synonymous with excellent quality of fans and other products in India. The plaintiff’s goods have acquired immense goodwill and reputation in the market.

3. In order to built up a brand of its own and to distinguish its products with the other products in the market, in the year 1970, the plaintiff coined and adopted an innovative and distinctive mark, being “KHAITAN” with the word “KHAITAN’ written in red colour in a stylized manner and a visual representation of a fan placed above the letter “i” in the mark. The said mark consists of a distinct colour and font, represented in a distinctive manner.

4. The petitioner duly applied for registration of the mark “KHAITAN” in various forms, fonts and languages on and from 2nd June, 1981 and was subsequently granted registration in respect of the said mark. The products bearing the mark “KHAITAN” are identified with the plaintiff and the plaintiff alone. The plaintiff invests large amount of money in advertising its product bearing the mark “KHAITAN”. The petitioner has achieved phenomenal sales in respect of its goods sold under the mark “KHAITAN”. The turnover of the plaintiff during 2019-2020 was Rs. 5708.51 lacks. By the reasons of quality of such products and the efforts of the plaintiff, the products sold bearing the mark “KHAITAN” has acquired tremendous goodwill and reputation in the market.

5. In the month of June’ 2020, the plaintiff came to know that the defendants have slavishly imitated the unique and distinctive mark of the petitioner and are applying the mark “KHAITAR” in respect of its products. The said mark “KHAITAR” is phonetically, visually and structurally similar and deceptively similar to the mark of the plaintiff “KHAITAN”. The plaintiff further came to know that defendants have adopted the plaintiff’s distinctive mark for its products, majorly electric fans.

6. On further search in the Trade Mark Registry, the plaintiff came to know that the defendant no. 2 being one of the director of the defendant no.1 Company had applied for registration of the mark “KHAITAR’ on 13th September, 2017 as a proprietor of one ‘Rajguru Industries’ and has obtained registration fraudulently by claiming to be an user since 1st April, 2011.

7. The plaintiff through its Advocate had issued a notice on 8th June, 2020 to the defendant no. 1, calling upon the defendant no. 1 to cease and desist from using the deceptively similar mark “KHAITAR”. On receipt of the notice, the defendant had sent a reply on 22nd July, 2020 and refused to cease and desist from using the deceptively similar mark.

8. The adoption and use of the distinctive trademark by the defendants are wrongful, dishonest and only an attempt to deceive the customers into believing that they are connected with the plaintiff.

9. The defendants have filed their affidavit-in-opposition and the case of the defendants is that the marks “KHAITAN” and “KHAITAR” are registered trade mark under Class 11 and therefore, infringement does not lie in view of Section 28(3) of the Trade Marks Act, 1999.

10. The defendant no. 2 is the sole proprietor carrying on business interalia, manufacturing, trading and selling of fans of different varieties under the name and style of “Rajguru Industries”. The defendant no. 2 invented and