MOHINDER KAUR Vs. G M COSMETICS

JUDGEMENT

(1.) Plaintiff claims to be proprietor and user of trade mark VI- JOHN in respect of cosmetics, bleaching preparations, perfumery, polishing soap, Hair lotions and dentifrices etc. Though she has been using this trade mark since 1961 but got it registered on 27.3.1986 under no.451633 in class 3. For the purpose of packing the aforesaid articles, the plaintiff claims to have adopted artistic cartons & tube having unique/original artistic get up, colour combination, lay out and arrangement. These were conceived and designed and created by Mr.Anil Shrivastav for M/s. Divya Arts who is an artist, some time in the year 1985 for and on behalf of plaintiff for valuable consideration. The specimen of the carton is Annexure A and the specimen of the tube and shaving cream is Annexure B. The distinguishing features of the carton and the artistic design, lay out and colour combination are as under:-

(2.) One of the articles namely shaving cream being sold under the trade mark since 1985-1986 has fetched Rs.1,81,74,542/-. The defendants are also engaged in the manufacture and sale of shaving cream. The trademark adopted by the defendants is VI-JONE in respect of shaving cream. The carton and the tube used by the defendants has identical colour combination, writing style, get up and lay out. It is alleged that the defendants have adopted the identical trademark, carton, and tube while keeping in mind the plaintiff's trade mark, artistic carton, tube and their reputation in the minds of purchasing public with a difference in spelling of word "JOHN". Word "JONE" though sounds alike and for the unwary customers looks alike. Defendants have adopted the identical carton as well as tube. The use of the trademark came to the notice of plaintiff some time in the month of November, 1999. Hence the present suit.

(3.) Summons of the suit were duly served upon the defendants but they did not contest the claims of the plaintiff and allowed themselves to be proceeded ex-parte. Plaintiff has filed affidavit by way of evidence and has produced the following documents:- (i) Exhibit P-1 is the power of attorney executed by the plaintiff in favour of Mr.Bhupinder Singh; (ii) Exhibit P-2 is the copy of registration certificate dated 27.3.1986 in class 3; (iii) Exhibit P-3 is the copy of order allowing the recordal of change in constitution of the plaintiff's firm in Trade Marks Registry; (iv) Exhibits P-4 and P-5 are the specimen of the carton and tube published in the year 1985; (v) Exhibit P-6 is the photo copy of the assignment deed dated 6th January, 1985; (vi) Exhibits P-7 to P-7/50 are the specimen of sales bills/invoices in respect of sale of shaving cream; (vii) Exhibits P-8 is the copy of the letter dated 7.11.2000 whereby the defendants started making false claims to be the proprietor of said products after the institution of the suit; (viii) Exhibit P-9 is the legal notice dated 17.11.2000; and (ix) Exhibits P-10 and P-11 are the spicemen of the defendants impugned carton and tube.