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High Court Of Delhi
PRAKASH ROADLINE LIMITED - Appellant
Versus
PRAKASH PARCEL SERVICE PRIVATE LIMITED - Respondent
Interim Application 14319 of 1991
Decided On : 03/01/1992
Held:
Having regard to the provisions of law, and in the light of the submissions made by the Counsel for the parties, the plaintiff has pleaded the necessary facts which could be pleaded at this stage and the plaintiff can not be non suited on the basis of arguments advanced on behalf of the defendant. At this initial stage the plaintiff can not ascertain the exact amount of loss/damages and, thereforee, can not claim in the plaint any specific amount by way of loss/damages. The plaintiff has sought relief of rendition of account and has also pleaded that the gain of the defendant is loss of the plaintiff. thereforee, if the plaintiff ultimately succeeds and the accounts are rendered, it will be possible to ascertain the exact amount of loss/damages suffered by the plaintiff and the plaintiff has undertaken to pay the requisite court fee on the basis of the ascertained amount.
The word Prakash has acquired a secondary meaning for the plaintiff in the trade on account of its use by the plaintiff over a long period of time and the use of the word Prakash in the name of the defendant is not bonafide.
The use of the word Prakash in the name of the defendant gives an impression even to an educated or qualified person that the defendant eompany belongs to the same group as the plaintiff. thereforee, prima facie the balance of convenience is also in favor of the plaintiff and demands that an injunction be granted in favor of the plaintiff to save its business and goodwill,
Unless the plaintiffs right to its trade name is protected the plaintiff is likely to suffer an irreparable Joss and injury.
Merely because no action is taken against certain other parties, it does not mean that the plaintiff is not entitled to take action against the defendant. The other parties may not be affecting the business of the plaintiff. They may be small-time operators who really do not matter to the plaintiff. thereforee, the plaintiff may not chose to take any action against them. On the contrary the plaintiff feels danger from defendant in view of the fact that the defendants promoters are the ex Directors/employees of the plaintiff who are fully in the know of the business secrets of the plaintiff. thereforee, the mere fact that the plaintiff has not chosen to take any action against such other parties cannot disentitle the plaintiff from taking the present action. This contention is, thereforee, prima-facie without any merit and is rejected.
The plaintiff has come to this Court on the basis of a specific case claiming an exclusive right in the use of the word Prakash in its name in relation to transport business. It has been prima- facie found that the plaintiff has such a right. thereforee, the plaintiff is entitled to succeed at this stage.
The result of the above discussion is that the interim order dated 5th December,1991 is confirmed till the disposal of the suit. LA. 14519/91 is allowed and I.A.14690/91 is dismissed.
( 1 ) THE plaintiff has filed the present suit for injunction to restrain defendant No. 1 from infringing its copyright in its name with the logo and for passing off its trade name/goodwill and for rendition of accounts. Defendant No. 2, who was an artist who prepared the logo used by the plaintiff, has been impleaded as defendant No. 2. However, no relief is claimed against him. The said defendant has died in the meanwhile. Therefore, the suit is now only against defendant No. l. Alongwith the suit, the plaintiff filed an application being I. A. No. l4519/91 under Order 39 Rules I and 2 of the Code of Civil Procedure for grant of interim injunction in its favour. On the said application, ex parte interim order was passed in favour of the plaintiff on 5th December,1991 whereby the defendant was restrained from using the trade name prakash or trade logo, which is deceptively similar to that of the plaintiff. The defendant moved an application being I. A. No. 14690/91 under Order 39 Rule 4 of the Code of Civil Procedure for vacating/discharging the said injunction order. This order will dispose of both the aforesaid applications.
( 2 ) THE case of the plaintiff is that for the last over 30 years, the plaintiff company is engaged in the business of transport and carriage of goods and parcels. The said business is being run under the name and style of prakash Road Lines Ltd. . The plaintiff has also been using the artistic worki comprising of the figure of a cat with a crown on its head and a parcel in its hands as its logo. According to the plaintiff, the continued user of the words prakash Road Lines , with the aforesaid logo has acquired a distinct identity. The said logo and the trade name has acquired enormous goodwill for the plaintiff in the transport business. The plaintiff claims to have acquired and established a superior reputation due to its impeccable record of providing high quality service to its clients. It has over 3300 offices all over India and is employing more than 2500 employees. The annual turn over of the plaintiff company is almost Rs. 50 crores. The plaintiff has given a break-up of its expenses on advertisement and promotion of its trade name/logo which during the last three years has been about Rs. l5 lakhs, Rs. 21 lakhs and Rs. 21 lakhs respectively.
( 3 ) ON the basis of the above facts, it is claimed that the said trade name/logo have been identified as a trade name and logo of the plaintiff in the entire transport industry through out the country to such an extent that plaintiff s name prakash and/or the logo comprising of the combination of a cat with a crown and a parcel is displayed, shown or mentioned, the common man associates the same with the plaintiff. The plaintiff claims to have obtained the endorsement of its copyright over the said logo from the Registrar of Companies. By virtue of long and established user coupled with vast publicity given to the said trade mark, the plaintiff claims to have acq2uired exclusive rights as proprietor thereof. The word prakash and the logo of the cat with a crown and a parcel in its hand is prominently displayed and is written in bold and distinctive writing in all the advertisements, publicity material, hoardings, sign-boards, printed material, price lists, stationary etc. of the plaintiff. Thus, the word prakash and the logo have become associated distinctively with the enormous goodwill enjoyed by the plaintiff.
( 4 ) IT is further the case of the plaintiff that the defendant company has been recently floated by former Directors/employees of the plaintiff company with the malafide intention of exploiting/encashing/mis-using the goodwill associated with the trade name prakash and the logo of the plaintiff. The defendant company has been floated under the name and style of prakash Parcel Services (P) Ltd .-The manner of the use of word prakash in the name of the company and the use of the logo of a cat with a crown and a par
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