VALVOLINE CUMMINS LIMITED Vs. APAR INDUSTRIES LIMITED

JUDGEMENT

(1.) BY this application under Order XXXIX Rule 1 and 2 CPC the Plaintiff seeks ad -interim injunction in favour of the Plaintiff and against the Defendant in relation to the trademark ,,4T PREMIUM or any other mark identically or deceptively similar to the Plaintiffs mark ,,4T PREMIUM amounting to infringement of the Plaintiffs registered trademark under No. 1261544 or leading to passing off the goods or business of the Defendant as that of the Plaintiff.

(2.) LEARNED counsel for the Plaintiff contends that the Plaintiff is a 50 -50 joint venture of Valvoline International Incorporation, USA and Cummins India Limited, the two 500 Fortune Company, that is, Ashland Inc. and Cummins. Inc. The Plaintiff is Indias fastest growing lubricant marketer and producer of quality branded automotive/industrial products. The Plaintiffs products include automotive lubricants, transmission fluids, gear oil, hydraulic lubricants, automotive filters, specialty products, greases and cooling system products. The Plaintiffs products are available in more than 15,000 retail counters across India. The products of the Plaintiff are imported under various famous trademarks one of which is ,,4T PREMIUM which has been used extensively, continuously and uninterruptedly by the Plaintiff since the year 2003 in India. The Plaintiff has been manufacturing and selling multi -grade engine oils under the trade name ,,4T PREMIUM under the strict quality control and supervision. The products of the Plaintiff under the trademark ,,4T PREMIUM improve engine life and provide maximum power, besides giving special protection to air cooled engines of four stroke motorcycles and are thus recommended for use in four stroke model Hero Honda, Bajaj, TVS, Yamaha, Suzuki, Honda, Kinetic Engineering, LML and all other makes. The Plaintiff is the proprietor of the trademark ,,4T PREMIUM in Class -4 for engine oils vide registration No. 1261544 dated 16th January, 2004.

(3.) LEARNED counsel for the Defendant on the other hand contends that the Plaintiff cannot claim exclusive right either in the word "4T" or "4T PREMIUM" because the word "4T" denotes four stroke engine and the word PREMIUM is a laudatory word descriptive of the goods and no -one can claim the right to use the word exclusively. The Defendant uses its trademark ,,AGIP with ,,4T PREMIUM. The packing of the Defendant is totally different from the Plaintiff and thus there can neither be any infringement nor passing of the Defendants goods as that of the Plaintiff. The Defendant has never used the mark ,,4T PREMIUM separately and has always used the same with its trade name ,,AGIP. The Defendant has already filed an application for cancellation of the Plaintiffs trademark before the Intellectual Property Appellate Board as the same could not have been registered in the first instance itself. Reliance is placed on Puma Stationer P. Ltd. and another vs. Hindustan Pencils Ltd., 2010 (43) PTC 479 (Delhi); Nestle India Limited vs. Mood Hospitality Private Limited, 2010 (42) PTC 514 Delhi; J.R. Kapoor vs. Micronix India, 1994 (14) PTC 260 SC; The Gillette Company and others vs. A.K. Stationery and others, 2001 (21) PTC 513 (Delhi); Rich Products Corporation and another vs. Indo Nippon Food Ltd., 2010 42 PTC 660 (Delhi) and Marico Limited vs. Agro Tech Foods Limited, 174 (2010) DLT 279.