GIANI GURCHARAN SINGH Vs. MADHUSUDHAN SINGH

JUDGEMENT

(1.) This is a suit for injunction, delivery up of infringing material and rendition of accounts or in the alternative for damages.

(2.) The plaintiff is a partnership firm engaged in the business of manufacturing and marketing of edible items including milk and dairy products, ice creams, faluda, milk shakes etc. The plaintiff claims to have adopted through its predecessors the trademark/trade name/label GIANI'S in the year 1960 and using the same since then. The plaintiff also claims to be the proprietor of the artistic features involved in the trademark/trade name/label GIANI'S. the trademark has been registered in the name of the plaintiff in respect of flour and preparations made from cereals including faluda as well as in respect of milk and other dairy products. The plaintiff claims sale of Rs.34,90,040/-, 36,03,980/- and 49,649,30/- during the years 2006-07, 2007-08 and 2008-09 respectively. It is also claimed that on account of continuous and extensive user since 1960, the goods/services and business being carried under the trademark GIANI'S have come to be identified and associated exclusively with the plaintiff. The plaintiff claims to have incurred substantial expenditure on promoting and advertising its products as well as the trademark and trade name adopted by it.

(3.) It is alleged that the defendants have adopted and started using the trade name GIAN'S in respect of edible items including milk and dairy products, ice creams, faluda, milk shakes etc. Mr. Madhusudhan Singh, defendant Nof.1 is alleged to be the proprietor of defendant No.2 M/s GIAN'S. It is also alleged that the trademark adopted by the defendant is deceptively similar to the trademark of the plaintiff on account of phonetically, visually and structurally similarity and by using the trademark GIAN'S, the defendants have infringed the registered trademark of the plaintiff and they are also passing of their goods and business as that of the plaintiff. It is further alleged that members of the public including house wives and person in village and semi rural areas are being deceived in dealing with and purchasing the defendants goods/services and business under the impression that they emanate from the plaintiff or there exists some link between the plaintiff and defendants and thereby the defendants are creating confusion and deception in the market. The plaintiff has sought permanent injunction restraining the defendants from using the trademark GIAN'S and from manufacturing, selling, offering for sale or advertising any product bearing the aforesaid trademark or some other mark deceptively similar to the trademark of the plaintiff as also from passing of their goods as those of the plaintiff. The plaintiff has also sought delivery up of all the packaging material, cartons and goods etc. for the purpose of destruction and erasure of the mark GIAN'S. The plaintiff has further sought rendition of accounts and in the alternative, damages amounting to Rs.20,01,000/- from the defendants.