Back
2005 Supreme(Del) 871
High Court Of Delhi
L.T.OVERSEAS LTD - Appellant
Versus
GURUJI TRADING CO - Respondent
CS(OS) : 2711 of 1999
Decided On : 09/07/2005
Sachin Gupta
The court established the infringement of trademark and passing off, and the entitlement of the plaintiff to a decree of permanent injunction and damages under the Trade Marks Act, 1999.
Headnote:
TRADEMARK - Infringement - [Trade Marks Act, 1999, Section 29(4), Section 135] - The court granted a decree of permanent injunction in favor of the plaintiff, restraining the defendants from using the trademark DAVAT or any other trademark identical or deceptively similar to the trademark DAAWAT. The court also awarded damages to the plaintiff based on the defendants' deliberate absence and non-disclosure of their books of accounts.
Fact of the Case:
The plaintiff filed a suit for a permanent injunction and damages in relation to the trademark DAAWAT, alleging infringement and passing off by the defendants. The plaintiff proved its rights in the trademark and substantial sales and expenses on advertisement.
Finding of the Court:
The court found that there was phonetic similarity between DAAWAT and DAVAT, and that the defendants, who had full knowledge of the plaintiff's goodwill, were attempting to utilize the plaintiff's name in an illegal manner. The court granted a decree of permanent injunction and awarded damages to the plaintiff due to the defendants' deliberate absence and non-disclosure of their books of accounts.
Issues: Infringement and passing off of trademark, deliberate absence of defendants, assessment of damages.
Ratio Decidendi: The phonetic similarity between trademarks, deliberate absence of defendants preventing assessment of damages, and the plaintiff's entitlement to a decree of permanent injunction and damages.
Final Decision: Decree of permanent injunction granted in favor of the plaintiff, restraining the defendants from using the trademark DAVAT or any other deceptively similar trademark, and award of damages to the plaintiff. The plaintiff was also entitled to costs.
( 1 ) THE plaintiff has filed a suit for decree of permanent injunction in respect of trademark DAAWAT and for damages. The plaintiff is a limited company incorporated and registered under the Companies Act, 1956 engaged in the business of processing and selling of rice.
( 2 ) THE trademark DAAWAT is stated to be adopted by the predecessor-in-interest of the plaintiff but by virtue of an agreement dated 26. 03. 1999 the rights were taken by the plaintiff for valuable consideration. The business is stated to be carried out under the said trademark for the last 14 years and the sale is not only in India but even in abroad.
( 3 ) IN para 8 of the plaint the sales made for the period of financial years commencing from 1991-92 to 1998-99 have been given showing substantial sales running into crores of rupees. In the last financial year before filing of the suit a sum of Rs. 75 lakhs is stated to have been spent on advertisement alone.
( 4 ) DEFENDANT No. 1 is stated to be a distributor and selling agent of defendant No. 2 under the trademark davat carrying on the same business. The style of the writing of the word DAVAT is stated to have been copied from the artistic work of the plaintiff bearing the trademark DAAWAT. The defendant is alleged to have been a distributor/selling agent of the plaintiff and thus has full knowledge of goodwill and reputation of the trademark of the plaintiff. The product rice is also stated to be such which is sold of the counter.
( 5 ) IT is in view of the aforesaid circumstances, a decree of permanent injunction has been sought for restraining the defendants from using the trademark DAVAT or any other trademark which may identical or deceptively similar to the trademark DAAWAT of the plaintiff. The plaintiff has also sought injunction against the defendants from infringing their copyright in the artistic work DAAWAT and from passing off the product of the defendants as that of the plaintiff. The plaintiff has requested for an order of destruction of all the materials having the trademark DAVAT and have sought rendition of accounts of the profits made by the defendants which have been estimated at Rs. 50 lakhs.
( 6 ) THE defendants entered appearance and filed their written statement. Defendant No. 1 claims that it has been selling the products of defendant No. 2 under the trade name DAVAT. Other than alleging this, there is only a mere denial in the written statement. Defendant No. 2, however, in its written statement have alleged that they have adopted the trademark DAVAT in the year 1988 and the application for the registration of the trademark is pending before the Registrar of trademarks, Mumbai. Defendant No. 2 claims prior user of trademark DAVAT.
( 7 ) THE defendants though appeared at the initial stage, subsequently stopped appearing and on 23. 02. 2004 defendants were proceeded ex parte as it is recorded by the learned Judge that after 28. 05. 2002 there is no representation on behalf of the defendants.
( 8 ) THE plaintiff has filed affidavit of evidence of Mr. Ashwini Arora, Director, who has proved the board resolution authorising the institution of suit and the same is exhibited P-1. It may be noticed that the plaintiff has been granted leave to lead secondary evidence in respect of certain documents in terms of the order dated 25. 07. 2005 including copies of the invoices from 1989-97 as also certain other communications since documents are stated to have been misplaced. The witness has confirmed the averments made in the plaint and has proved the various documents to show acquisition of rights by the plaintiff in the trademark DAAWAT by proving the assignment deed dated 25. 07. 2003 which is exhibited as P-3. The sales have been proved through copies of invoices which are collectively exhibited as P- 4 and the sample of the trademark DAAWAT filed with the plaint has been proved as exhibit P-5.
( 9 ) THE plaintiff was granted interim relief on 24. 12. 1999 at the st
