REV ON INC Vs. HOSIDEN LABORATORIES INDIA

JUDGEMENT

(1.) Plaintiffs have brought have a suit seeking perpetual injunctio against the defendats restraining them, their agents, servants or any person on their behalf from manufacturing, selling, offering for sale and distributing talcum powders and other cosmetics goods falling in class 3 and thereby infringing plaintiffs registered trade mark 'JONTUE' or any mark deceptively similar to the plaintiff No. 2's registered trade mark and using the said offending mark 'JONTUE' on Talcum Powder and to pass of their goods as those of plaintiffs' goods. Some other reliefs are also sought in the plaint. Along with the plaint, an application I.A. 9377 of 1988 was moved seeking temporary injunction till the disposal of the suit and an ad-interim injunction order was granted on December 20, 1988 against the defendants. Defendants have filed I A. 12/89 seeking vacation of the said ad interim injunction order. Arguments have been heard in both the applications.

(2.) . The case of the plaintiffs, in brief, is that plaintiff No. 1, is a company incorporated in United States of America and plaintiff No. 2 is a company incorporated in Switzerland and it is wholly owned by plaintiff No.1 company. The plaintiff No. 1 is stated to have been incorporated in the year 1933 and deals in manufacture and sale of various types of cosmetics perfumary and toileteries including talcum powder etc. The plaintiff No. 2 has got registered trade mark 'JONTUE' since 1975 and it is averred that the said trade mark has been registered by the plaintiffs in a large number of ceuntries and plaintiff No. 1 and its subsidiaries under the subsidiaries under the said trade mark 'JONTUE' produce various types of perfumary, talcum powder and other toilet and cosmetic products and have over the years built up a comiderable good-will and reputation in market and the said products of plaintiffs are of superior quality and arc considered by the trade and members of the public all over the world as the best of its kind. It is also averred that plaintiff NO. 2 is the registered proprietor of the trade mark 'JONTUE' in a characteristic style under the trade mark No.306483 in class 3 since June 25, 1975 and that the application of the plaintiff No 2 filed since 1985 for getting styleWise written word trade mark. registered is still pending It is further placed that huge amount has been spent by the plaintiffs in advertising its products under the aforesaid trade mark by advertising in world famous magazines which are also available in India and over the years the plaintiffs have done considerable business in sale of such products under the said trade mark all over the world including India. The plaintiffs have filed alongwith the plaint anoexures showing all these facts. It is averred by the plaintiffs that defendant No lisa firm carrying on business of manufacturing and sale of cosmetics including talcum powder and defendant No. 2 is manufacturing the aforesaid goods for and on behalf of defendant No. I and defendant No.3 has been selling and marketing the above goods and various places including Delhi and defendants 4 and 5 are wholesalers and distributors of the goods manufactured by defendants 1, 2 and 3. It was pleaded that in first week of June, 1988. the plaintiffs found in the newspaper -Hindu dated June 26, 1998, an advertisement given by defendant No 1, in respect of talcum powder manufactured by it and being marketed under the trade mark 'JONTUE'. It was pleaded that defendant's use of the said trade mark is an infringement of plaintiffs' trade mark and defendants have infringed the trade mark of the plaintiffs with the sole intention of the public and trade by passing off their goods as the goods manufactured by the plaintiffs and in that way get themselves enriched fraudulently.

(3.) . The defendants have contested the suit as well as the application and have taken the plea that the plaintiffs' goods are not being sold in India under the aforeiaid trade mark and defendants since 1985 have been manufacturing, selling talcum powder under the said trade mark. It was also pleaded that the word 'JONTUE' being phonetically equivalent to Hindi word 'Jantu' meaning a living being, no trade mark under the said name could be got registered under Section 9 (d) of the Trade and Merchandise Marks Act. It has been pleaded that defendants has been honestly using the said trade mark without the knowledge that plaintiffs have got registered the said trade mark in their own name. Lastly it was pleaded that suit has been filed belatedly by the plaintiffs and thus plaintiffs should be debarred from complaining about the user of the said trade mark by the defendants.