TIDIAMOND CHAIN LIMITED Vs. ASHOK KUMAR

JUDGEMENT

(1.) In this suit, the plaintiff pray for relief of perpetual injunction restraining defendants from manufacturing, selling, offering for sale and distributing Chain Packet Kit for use in Automobiles under the trade mark Diamond, both device and words, DIAMOND SUPER or any trade mark which is identical with or deceptively similar to the plaintiff's trade mark amounting to infringement: also seeking to restrain defendants from manufacturing, selling, offering for sale and distributing packing material like Annexure "B" so as to pass off the defendants'goods and products as and for the goods and products of the plaintiff or in any way connected with the plaintiff's trade mark DIAMOND both device and words, DIAMOND SUPER as well as packing material like Annexure "A" and ALSO restraining the defendants from infringing the copy right of the plaintiff and reproduction of the artistic work as shown in Annexure "A".

(2.) Defendants were served with the summons in the suit. Despite service of summons to the defendants, neither of the defendants filed appearance and defendants were accordingly proceeded ex-parte vide order dated 12.8.1998. The plaintiff filed affidavit by way of ex-parte evidence and the documents filed by the plaintiff were given exhibits.

(3.) The case set out in the plaint is that the plaintiff is a company incorporated under the Companies Act, 1956 and having its registered office at the address shown in the cause title of the plaint, that plaintiff company is one of the leading and pioneer and well reputed manufacturers of chains and sproket used in motorcycle mopeds that the chain front sproket and rear sproket are sold as a kit in a unique and distinctive packaging material (hereinafter referred to as 'Kit'); that the chains are made of common metal; that the Kits are used for motorcycles, mopeds, cars snd motor land vehicles,etc. and also as original equipment by leading two-wheeler manufacturers that the products are manufactured under collaboration arrangement with Diamond Chain Company, USA; that the plaintiff company products are well known for their quality not only in the domestic market but they are also exporting their products outside India; that the plaintiff company has also received ISO 9002 certificate for its manufacturing facility: that the plaintiff company has been continuously, regularly and extensively using the trade mark DIAMOND/DIAMOND SUPER on all their products including Chain Packet Kit in a unique and distinctive packing in which me plaintiff's goods are sold, advertised and displayed for sale all over India and several countries all over the world; that the plaintiff company is the registered proprietor of the marks in India pertaining to the trademark DIAMOND both word and device; that trade mark DIAMOND registered under No. 371 as of 2/06/1942 in Class 12 in respect of Chains made of common metals for conveying and for transmission of power, including machine-made chains, bicycle chains, motorcycle chains, automobile chains and parts of such chains comprising repair links, connecting links, roller links, offset links and side plates; that all these goods fall in Class 12; that trade mark device of DIAMOND registered under No. 717 as of 8/06/1942 in Class 12 in respect of chains made of common metals for conveying and for transmission of power, including machine made chains, bicycle chains, motorcycle chains, automobile chains and parts of such chains comprising repair links, connecting links, roller links, offset links and side plates; that all these goods fall in Class 12; that the above registrations have been duly renewed from time-to-time and they are still valid and subsisting that the packet Annexure "A" is unique and distinctive and have been used by the plaintiff for the first time in India and no one else; that the plaintiffs trade mark DIAMOND with every distinctive features have always been mentioned on its packing material and used since the very beginning; that the plaintiff made some changes in the packing material filed as Annexure "A" in 1996; that the plaintiff company are the absolute owners of the copyright which subsists in the original art work of the said packing material which is used for marketing the products of plaintiff company which are the original artistic work created by the plantiff company and no one else; that by virtue of long, extensive and continuous use of the plaintiffs goods under the above said trade mark, the plaintiff enjoys great reputation and goodwill all over India; that the plaintiffs goods under the abovesaid trade mark and distinctive packing material are of very high quality manufactured in sophisticated factories under the strict quality control, supervision of technical experts and engineers; that it has recently come to the knowledge of the plaintiff that defendants are selling and fabricating the Kits used for motorcycles, mopeds, cars and motorland vehicles bearing the plaintiffs registered trade mark DIAMOND/DIAMOND SUPER as well as using the identical packing material; that the defendants procured the inferior quality of chain material and used chains from the local market and have also reconditioned the said chains and packed the same with similar packing of the plaintiff and have been selling the same in the market: that the colour scheme, get up of packing is also exactly similar to the packing material used by the plaintiff that the defendants are using the old model packing material of the plaintiff company which have been discontinued by the plaintiff in the year 1996; that the defendants have adopted identical trade mark, getup, design of the packing of the products: that the defendants have even given fraudulently the name and address of the plaintiff of the said packing of the products manufactured and marketed by the defendants: that the defendants are indulging in the said activities in a clandestine manner and they are also to the best of their knowledge are not issuing any cash memo or any voucher of the sale of the said spurious products bearing the impugned trade mark and the copyright: that the conduct of the defendants is clearly dishonest and fraudulent and they are committing fraud upon the public and that the defendants use of the said trade mark DIAMOND or DIAMOND SUPER and its logo in marketing their substandard and reconditioned goods with a similar getup, layout and packing material has become an instrument of fraud on the unscrupulous dealers who are passing off their goods and enabling others in the trade to pass their goods as the goods of the plaintiff. With these averments, plaintiff pray for reliefs aforestated more particularly in plaint paragraph 18.