CAPITAL METERS LIMITED Vs. B P ELECTRIC

JUDGEMENT

(1.) The plaintiff company has filed the present suit for permanent injunction, rendition of accounts etc. The plaintiff company claims to manufacture and market electric goods like electrical meters, transformers, switches, relays, alarms, industrial and domestic electric appliances etc. under the trade mark CAPITAL since 1986. The plaintiff's trade mark CAPITAL is registered in relation to measuring apparatus and instruments including energy meters falling in Clause-9 of Fourth Schedule of the Trade & Merchandise Act,1958. In order to acquire statutory rights for the abovesaid trade mark for wider specification of goods, plaintiff filed three applications in Class-7, Class-9 and Class-11 with the office of Trade Mark Registry, New Delhi. The applications have already been advertised in Trade Mark Journal and the registration certificates are likely to be issued. The plaintiff's case is that their trade mark on account of its continuous, extensive and exclusive user for electrical goods has acquired a distinctive reputation and goodwill in the trade. The yearly sale of the products of the plaintiff company marketed under the trade mark CAPITAL is stated to run in crores of rupees. The trade mark CAPITAL also forms material part of plaintiff's trade name.

(2.) The plaintiff came to know in January, 1998 about the defendant's adopting the trade mark CAPITAL in relation to fans which are being manufactured and marketed by them. The allegations are that the defendant is marketing fans under the impugned trade mark in Delhi and other parts of the country in a clandestine and surreptitious manner without even issuing any invoices against the sale. The offending trade mark CAPITAL being used by defendant company for marketing their products is identical and deceptively and phonetically similar to that of the plaintiff. The goods of the defendant under the offending trade mark are being passed off as the products of the plaintiff with a view to take advantage and earn profits on account of the established goodwill and reputation of plaintiff. The defendant company is alleged to be guilty of violating the statutory rights of the plaintiff by infringing and passing off its goods as that of the plaintiff under the impugned trade mark CAPITAL. The plaintiff claims to have suffered huge loss in the business and reputation on account of inferior quality of products being sold by the defendants under the impugned trade mark. The plaintiff even served the defendant with a legal notice to stop the user of the offending trade mark, but the defendant declined to do so by a written reply. The plaintiff accordingly filed the present suit for permanent injunction, passing off, infringement of trade mark, damages and rendition of accounts etc. Summons of the suit were duly served upon the defendant but despite service, defendant failed to put in appearance and was proceeded ex-parte.

(3.) The evidence was lead by way of affidavit. One Dinesh Chand Gupta, Director of the plaintiff company filed his affidavit by way of ex-parte evidence and proved the relevant documents. He proved various documents like Memorandum of Articles & Association of the plaintiff company and the Resolution etc. authorising him to sign, verify and file the plaint. The deponent has further proved the allegations of the plaint. He has stated as to how the plaintiff came to know about the infringement of its trade mark CAPITAL by defendant. He also deposed that the plaintiff company had been manufacturing and marketing host of electrical products including the electric meters, switches, relays, transformers, industrial and domestic electric appliances etc. since 1986. He also proved copy of the registration certificate with respect to the trade mark CAPITAL in relation to measuring apparatus and instruments. He also proved the pending applications for registration of trade mark CAPITAL with regard to other electrical gazettes and appliances. He also proved various bills/invoices and advertisement material etc. as Exhibit P-2 to P-21 to establish the user of the trade mark CAPITAL by the plaintiff company. He also proved the plaintiff's trade mark CAPITAL label and that of the trade mark CAPITAL label of the defendant The legal notice served upon the defendant and its reply have also been proved on record. He also stated that the plaintiff suffered huge loss in its reputation and business on account of the fact that the defendant manufactured and passed off its products in the market as that of the plaintiff encashing on plaintiff's reputation and goodwill.