LAWS(DLH)-2010-1-142

KISHORE KUMAR Vs. L CHUNI LAL KIDARNATH

Decided On January 12, 2010
KISHORE KUMAR Appellant
V/S
L.CHUNI LAL KIDARNATH Respondents

JUDGEMENT

(1.) The present common order will dispose off three applications in the suit; IA 11441/2009 (by the plaintiff, seeking ad-interim injunction against the defendant in respect of trademark usage); IA 13812/2009 (by the plaintiff, for amendment of the suit) and IA 14024/2009 (by the defendant, for vacation of the ex-parte injunction granted by this Court).

(2.) The suit contends that the plaintiff has been carrying on an old and established business of manufacturing and trading of rechargeable torch, battery, fans, emergency lights etc. as well as their parts since 1997, under the style M/S SPEEDEX BATTERIES. The plaintiff claims to be proprietor and owner of the trademark HOMELITE, which it developed, and has been using since 1997. The plaintiff alleges that in order to protect its rights, it has applied for registration of the trademark HOMELITE, on various dates, described in Para 3 of the suit. It is alleged that registrations were granted on 06.10.1997 and 13.09.2001, in respect of rechargeable torches, which is subsisting. The plaintiff's applications for registration for HOMELITE made on 13.08.2009, in respect of batteries and fans, torches, emergency lights, etc are pending. It is claimed that the registration under No. 1044471 is valid and subsisting and in force; the plaintiff has filed an application for renewal and restoration of trademark no. 771268 which is pending. The plaintiff has contended successfully selling its products under the trademark HOMELITE in respect of the goods manufactured by him. He alleges having sold them throughout the country either directly or through his dealers' network. It is also alleged that the plaintiff sells all his goods under the same trade mark with sub brands such as RANGER, SUPERSTAR, URJA, ENERGY etc. The suit claims that for the 11 year period between 1997-1998 and 2008-2009, the plaintiffs products sales have increased from Rs. 84,120/- to Rs. 48,80,809/-.

(3.) To establish both usage of the trademark as well as its advertisement in the media, the plaintiff relies upon copies of invoices issued by him on various dates such as 28.11.2001; 28.01.2002; 10.06.2003, 16.06.2006, 19.09.2006; 28.11.2006; 20.09.2007; 22.03.2008; 05.07.2007; 04.12.2008; and 03.08.2009. He also relies upon copies of advertisements published in the trade journal "ELECTRICITY APPLIANCE" on 30.06.2007; 30.08.2007 and 02.08.2007.