In passing off, cumulative circumstantial evidence establishing misrepresentation likelihood suffices on preponderance of probabilities, without strict proof of counterfeiting; good faith commercial communications not defamatory sans actual damage proof.

JUDGMENT :

P. VELMURUGAN, J.

These Original Side Appeals arise out of the common judgment dated 29.11.2019 passed by the learned Single Judge in C.S.No.405 of 2014 and C.S.No.891 of 2015. The appellant herein was the plaintiff in C.S.No.405 of 2014 and the defendant in C.S.No.891 of 2015. The respondent herein was the defendant in C.S.No.405 of 2014 and the plaintiff in C.S.No.891 of 2015. For convenience, the parties are referred to as the plaintiff and the defendant as per their ranking in C.S.No.405 of 2014.

2. The present appeals have been filed challenging the common judgment of the learned Single Judge whereby the suit filed by the plaintiff in C.S.No.405 of 2014 came to be dismissed and the suit filed by the defendant in C.S.No.891 of 2015 came to be decreed.

3. The plaintiff is a company engaged in the manufacture and sale of brass ball valves, fittings, pressure reducing valves and other related plumbing products. According to the plaintiff, it is the proprietor of the trademarks “Rubinetterie Bresciane” and “RB”, which are used in connection with its products. The plaintiff states that the defendant was appointed as its distributor in India for marketing and selling the plaintiff’s products and that the business relationship between the parties continued for several years.

4. According to the plaintiff, during the course of its business it received a complaint from one of its customers stating that certain valves bearing the plaintiff’s trademark appeared to be different from the original products manufactured by the plaintiff. The customer is stated to have forwarded certain documents including invoices and quality certificates relating to those products. Based on these materials, the plaintiff suspected that counterfeit products bearing its trademark had been circulated in the market.

5. The plaintiff states that upon examining the documents and materials received from the customer, it noticed that certain products bearing its trademark appeared to have been supplied though they were not manufactured by it. According to the plaintiff, the accompanying quality certificates were also not issued by it and therefore the plaintiff suspected that counterfeit products were being dealt with in the market in the name of the plaintiff.

6. In the above circumstances, the plaintiff instituted C.S.No.405 of 2014 before this Court seeking a permanent injunction restraining the defendant and persons claiming through it from passing off its valves and other plumbing products by using the offending, identical or well-known trademark or by advertising the same. The plaintiff also sought a direction to the defendant to render true and faithful accounts of the profits earned by using the said mark and to pay such profits to the plaintiff, a mandatory injunction directing disclosure of the identity and full particulars of the manufacturer of the alleged counterfeit products and seizure and destruction of the counterfeit products stocked with the defendant at its cost, and also claimed damages of Rs.10,00,000/- together with costs.

7. After the institution of the said suit, the plain