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2014 Supreme(Del) 3395
IN THE HIGH COURT OF DELHI
G.S. SISTANI, J.
Fantech Pty. Ltd. - Appellant
Versus
Adept Fantech India Pvt. - Respondent
C.S. (OS) 921 of 2012
Decided on : 31-03-2014
Advocate Appeared:
For the Appellant :Surinder Singh, Advocate
The main legal point established in the judgment is the protection of trademarks, likelihood of confusion, and the award of damages in cases of trademark infringement and passing off.
Headnote:
Trademark Infringement - Intellectual Property - Trademark Act, 1957 - Section 2(c), Section 27 - The court discussed the plaintiff's prior adoption and use of the trademark FANTECH, its registration in India and other parts of the world, and its distinctive layout and arrangement of features. The court also highlighted the plaintiff's long-standing use, mass popularity, and global consumer appeal of the FANTECH branded products. The judgment referenced key legal provisions such as Section 2(c) of the Trademark Act, 1957 and legal principles established in the cases of Kaviraj Pandit Durga Dutt Sharma Vs. Navaratna Pharmaceutical Laboratories and Ellora Industries Vs. Banarsi Das Goela and Others to establish infringement and likelihood of confusion in the defendant's use of the mark FANTECH.
Fact of the Case:
The plaintiff filed a suit for trademark infringement, passing off, and damages against the defendants for using the mark FANTECH. The defendants failed to file written statements despite summons and time granted, leading to ex-parte proceedings. The plaintiff established its prior adoption and use of the trademark FANTECH, its registration, and its global consumer appeal.
Finding of the Court:
The court found that the defendant's use of the mark FANTECH was deceptively similar to the plaintiff's mark, likely to cause confusion, and aimed at riding on the plaintiff's goodwill and reputation. The court also held that damages must be awarded, and a defendant staying away from proceedings should not escape liability.
Issues: The issues involved trademark infringement, passing off, damages, and delivery up of goods bearing the plaintiff's mark.
Ratio Decidendi: The court established infringement based on the similarity between the plaintiff's and defendant's marks, likelihood of confusion, and the defendant's intention to ride on the plaintiff's goodwill. The court also emphasized the need to award damages and hold absent defendants accountable.
Final Decision: The suit was decreed in favor of the plaintiff against the defendants, and the plaintiff was awarded damages of Rs. 2.0 lacs.
JUDGMENT :
G.S. Sistani, J.
The Plaintiff has filed the present suit for restraining infringement of trademark, passing off and for damages and delivery up against the defendants. Summons were issued in the suit on 18.04.2012. Defendant No. 3 entered appearance on 7.12.12. Fresh summons were issued for Defendant No. 1 and defendant No. 3 on the next date of hearing i.e. 15.03.2013. Counsel for defendant No. 2 entered appearance and sought time to file written statement. Right to file written statement with regard to defendant No. 3 was closed on 10.09.2013. Costs of Rs. 20,000 were imposed on defendant No. 2 and delay in filing written statement was condoned. Since defendant No. 1 was unserved, fresh summons were issued to defendant No. 1 vide order dated 10.09.2013. In the order of 5.12.13 it was noted that counsel for defendant No. 1 had filed his vakalatnama in the registry. Four weeks' time was granted to defendant No. 1 to file the written statement. As the written statement was not filed, on 11.02.2014, right to file written statement of defendant No. 1 was also closed. As the defendant No. 2 did not remove the objections, nor the written statement was refiled by him, on 26.02.2014, right to file written statement of defendant No. 2 was also closed. On 4.03.2014, counsel for defendant No. 3 made a statement in court that she had instructions not to contest the matter provided the plaintiff gave up his relief of damages. Accordingly, the suit was decreed in favour of plaintiff and against defendant No. 3 on 04.03.2014 in terms of paragraph 35(i) and 35(h) of the Plaint.
2. On the same date i.e. on 04.03.2014, it was prayed by counsel for the plaintiff that a decree be passed against defendant No. 1 and defendant No. 2 under order 8 rule 10 CPC as despite service of summons and time being granted to counsel for the said defendants to file written statement, no written statement has been filed. Consequently Defendant No. 1 and Defendant No. 2 were proceeded ex-parte on March 04, 2014. Documents stand exhibited before the Joint Registrar.
3. The plaint is duly supported by the affidavit of Puneet Rastogi, Authorised Signatory of the Plaintiff Company. On 04.03.2014 counsel for the Plaintiff has averred that the plaint may be read as the affidavit by way of evidence. He has averred in the plaint that the plaintiff company was established under the laws of Australia in the year 1973 (Incorporation Certificate has been exhibited as Ex. PW-1/1) and has been carrying on the business of manufacturing and marketing of its products viz. ventilation installations; fans for domestic, commercial and industrial use; components thereof; sound absorbers being parts of apparatus for exhaust installations or for smoke extraction or steam extraction. He has further averred that the Plaintiffs extensive resources and design expertise enable it to provide excellent technical support for commercial and industrial ventilation requirements as well as domestic applications. He has further averred that the products of the plaintiff are sold worldwide and the plaintiff entered Indian market in the year 2007.
4. It has further been averred in the plaint that the Plaintiff company has been carrying on its business under the trademark/trade name FANTECH for the last more than 30 years with its customer base spread over almost all parts of Asia. The plaintiff company has been using the mark FANTECH as a trademark as well as its corporate name FANTECH PTY LIMITED. It has been averred that it is prior adopter and user of the trademark/trade name FANTECH. It has also been averred that the word FANTECH was neither in existence nor in use by any other company or person till its adoption by the plaintiff in the year 1973.
5. Further, as per the plaint the trademark FANTECH has been cultivated through extensive use under strict quality control, ingenious marketing strategy, advertisement and promotion and therefore the plaintiff company has built invaluable business
