HINDUSTAN SANITARYWARE AND INDUSTRIES LTD Vs. CHAMPION CERAMIC

JUDGEMENT

(1.) This appeal arises out of an order dated 07.02.2005 passed by the ld. Additional District Judge in Suit No.107/2003, whereby the learned Judge has dismissed the application filed by the appellant under Order 39 Rule 1 and 2 CPC r/w Section 151 CPC seeking injunction against the respondent for injuncting them from selling their goods under the trade mark "HIMWARE" on the pretext that the appellant company is manufacturing sanitary wares and other allied products which are used in toilet and bathroom fittings since decade. The products of the appellant company were being sold under the trade name/trade mark "H-VITREOUS" since 1960. According to them, they added "HINDWARE" to their existing trademark since 1990 and got it registered.

(2.) It is also their case that they garnered the lion's share in the sale of sanitary wares and their products command very high reputation and goodwill amongst their consumer. It is also their case that the respondent by using deceptively similar trade mark in the same class of goods are eating market and profits of the appellant company inasmuch as, despite the said company having come into business much later than the appellant company precisely since 1999 have attempted to eat into the market share of the appellant company by selling the goods under the trade mark "HIMWARE". It is their case that the trade mark adopted by the respondent i.e. "HIMWARE" has both colour and audible resemblance and given the fact that the appellant has a large number of people as their customer going across various sections of the society, uses their product, there is a strong possibility of deception amongst them. Moreover, the appellant company being registered trade mark holder, have a right to restrain the respondent company from using the trademark "HIMWARE" which is deceptively similar to the trademark of appellant and becomes all the more important since there is a potential for damage being caused to their goodwill and reputation which partially higher as both trademarks are used in similar type of goods. It is submitted that the respondents by having started using trademark "HIMWARE" infringed the registered trademark of the appellant and thus a prayer was made that the respondent company be injuncted by means of injunction from selling their products under the trademark "HIMWARE" with respect to the class of goods in which they were manufacturing and selling their goods under the trademark "H-VITREOUS HINDWARE".

(3.) The suit/application filed by the appellant was contested by the respondents on the ground that the appellant cannot monopolize the word "HINDWARE" since "Hind/Hindustan" is the geographical name of our country India and the word "Ware" is taken out from the word sanitary ware, which is the common trade name, neither coined nor invented by the appellant, therefore, it was pleaded that the appellant cannot be permitted to monopolize the same. It was further stated that the trade name of the respondent's product is only "HIMWARE" whereas the trademark of the appellant is conjunction of two words i.e. HINDWARE along with VITREOUS written in between capital H. Therefore, there is no possibility of any confusion to anyone since the trade name/trademark are distinct from each other both visibly and phonetically and for that matter even Structurally.