JOLEN INTERNATIONAL LIMITED Vs. DIWAN INDUSTRIAL CHEMICALS

JUDGEMENT

(1.) Jolen International Limited, who is the plaintiff in the instant case, claims itself to be the proprietor of trade mark COSMO which is registered under No.317797 in class 3 of 17/08/1976 in respect of toothpaste. The plaintiff is the assignee of this trade mark which was originally registered in the name of M/s. Hidustan Rimmer and assigned to M/s Gavs Laboratories Pvt. Ltd. who assigned the same in favour of the plaintiff. It is in fact claimed that all these companies are owned by the same family.

(2.) The present suit has been filed against the defendant for permanent injunction and infringement of trade mark and copy right, passing off, rendition of account and delivery up etc. as the case of the plaintiff is that the defendant started using of the. trade mark COSCO in respect of toothpaste which amounts to infringement of the plaintiff's trade mark and copyright etc. The averments relating to the aforesaid infringement, as made out in the plaint, are as under:

(3.) The plaintiff is the owner of the artistic logo on the packing of COSMO toothpaste having red colour background with the device of toothbrush. The trade mark COSMO is written in a particular manner. The plaintiff has been using the trade mark COSMO in a particular style which is a distinctive script in respect of toothpaste. The trade mark used in the said logo script constitutes an original artistic work within the meaning of Section 2(c) of the Copyright Act. It is also stated that the approximate sale figures of colour concentrates under the trade mark COSMO lacks of Rupees per annum. There has been extensive advertising in newspapers and direct marketing expenses involved in the efforts by the plaintiff to promote its products under the trade mark COSMO. It is further stated that as a result of intrinsic good quality of the products marketed, sold and dealt with by the plaintiff, the products of the plaintiff under the trade mark COSMO as well as packaging materials like Annexure 'A' have acquired a unique and enviable reputation and exclusive goodwill. The plaintiff has also acquired a valuable common law right in the trade mark COSMO. The reputation and goodwill of the trade mark COSMO extends throughout India. The said product has gained wide acceptance. The said mark COSMO has become distinctive of and exclusively identified with the plaintiff. By virtue of the registration under the Trade and Merchandise Marks Act, 1958, the plaintiff is entitled to the exclusive use of the mark and name COSMO, inter alia, in respect of toothpaste and cosmetic goods. It is further alleged that the defendant has started manufacturing and marketing its toothpaste under the trade name COSCO in a similar type of packing i.e. carton like having almost same get up, lay out and colour combination. It is also alleged that the defendant has copied all the features from the plaintiff's packing material of COSMO toothpaste and the adoption of the defendant's trade mark is deliberate and dishonest to introduce a deceptively similar mark by infringing the plaintiff's trade mark and also passing off its inferior goods as that of the superior goods of the plaintiff.