ATUL RAWAL Vs. S.B. EQUIPMENTS

JUDGEMENT

(1.) THE plaintiff manufactures and sells detergent products, and claims to have developed unique and novel detergent products based on its research. It markets and sells such products under the trade mark 'SUPER BRIGHT' followed by suffixes, such as EL, EL -C, EL -81, HD ULTRA, etc, which identify specific detergent products. The plaintiff relies on documents show that it has been using the trade mark from 1990 in respect of detergent chemicals. In 1999 the plaintiff developed two different products and starting marketing them as 'SUPER BRIGHT ULTRA' and 'SUPER BRIGHT EL -81'.

(2.) IN 2001 the plaintiff initiated talks for supply of its 'SUPER BRIGHT' range of detergent to various Army hospitals throughout the country. The plaintiff contends to having developed specific formulations for the Army and that on 12th October 2004 Director General of Armed Forces (Medical Services) called it for technical discussions regarding the products. The sample of the plaintiff's product was tested and approved by the army establishments. In June 2004 the plaintiff was awarded ISO 9001: 2000 Quality System by International Certifications Limited. On 17th August 2006 the plaintiff applied for registration of its trade mark 'SUPER BRIGHT' under Class 3 of the Schedule to the Trade Marks Act, 1999; the application is pending registration. In the plaint the plaintiff has given the sale figures for the product 'SUPER BRIGHT' for the last four years are as follows:

(3.) THE plaintiff, states that it came to know sometime in June 2007 that the defendant had bid for the supply of the SUPER BRIGHT range of chemicals to Army Hospitals. Immediately the plaintiff published a trade mark caution notice in leading newspapers cautioning the public not to deal in the products under the trade mark SUPER BRIGHT except those originating from it (the plaintiff). It also wrote to the Government authorities (Armed Forces) informing that the trade mark 'SUPER BRIGHT' is its property and that the defendant had no authority to use that trade mark. A legal notice was issued to the defendant. The plaintiff contends that there was a likelihood of confusion on the part of the public, in respect of the trade mark 'SUPER BRIGHT' since the mark and goods are identical and that the defendant's use of such mark was both 'deceptively and confusingly similar' and dishonest and mala fide. The plaintiff therefore, filed this suit on 13th August 2007. The interim injunction application (IA No. 9140 of 2007) was also moved. After summons were issued, the defendant appeared, and caused a statement to be made on its behalf, on 20th August 2007 that it "...has been supplying goods to Army and other authorities under the same trademark since the year 2005." This Court then made a conditional order on 20th August 2007 that no injunction was being issued, and that in case the statement was wrong, the court would consider making a compensatory order.