MALHOTRA BOOK DEPOT Vs. MBD ELECTRONICS PVT LTD

JUDGEMENT

(1.) By this application the Plaintiffs seek injunction against the Defendant and its assignees, franchisees, licensees etc. restraining them from selling, offering for sale, advertising, directly or indirectly dealing in identical or similar goods and services under the infringing mark/trading name containing the mark "MBD" or any other trademark identical or deceptively similar as the same amounts to infringement of the trademark registered in the name of the Plaintiffs.

(2.) Learned counsel for the Plaintiffs contends that "MBD" is a housemark of the Plaintiffs which was adopted in the year 1956. Since 1977 the Plaintiffs are the registered owners of "MBD" in Class 16 and thereafter have got the registration of this mark in 20 other classes and have applied for 250 other products and services. The Defendant adopted a deceptively similar trade mark being "MBD Electronics" though it is not dealing in electronics goods and is only trading in shares. As held in Kaviraj Pandit Durga Dutt vs. Navratna Pharmaceutical Laboratories, 1965 AIR(SC) 980 and Ruston and Hornsby vs. The Zamindara Engineering Company, 1969 2 SCC 727 once the Plaintiff is able to establish that the essential features of the Plaintiff's trademark have been adopted by the Defendant no further evidence is required to be established that the Plaintiff's right has been violated and thus the Defendant is liable to be injuncted on this ground itself.

(3.) It is further argued that the Defendant in the written statement has replied that it is not doing any business of manufacturing any goods and articles and the Defendant is doing the business of trading in shares in the name of its company "MBD Electronics Pvt. Ltd." since incorporation in 1986. It is thus the defence of the Defendant that the Plaintiffs have filed the suit belatedly and are thus not entitled to the reliefs claimed much less the interim relief. Relying on Sections 29(4) and 29(5) of the Trademark Act and the decision in Larsen and Toubro Ltd. vs. Lachmi Narain Trades and others, 2008 36 PTC 223 (Del.) (DB), Kirloskar Diesel Recon. Vs. Kirolskar Proprietary Ltd., 1997 17 PTC 469 it is contended that the facts that the goods and services offered by the Defendant are different from those offered by the Plaintiff is no defence to a claim of infringement since the "Common Field Activity Test" is no longer valid. Furthermore the delay in bringing an action of infringing the trademark is not sufficient to defeat the purpose of grant of injunction. Reference is made to Midas Hygiene Industries (P) Ltd. and another vs. Sudhir Bhatia and others, 2004 3 SCC 90. Relying on Cadila Healthcare Ltd. vs. Cadila Pharmaceuticals Ltd., 2001 5 SCC 73 it is contended that the similarities between the competing marks, rather than the dissimilarities have to be seen while adjudging deceptive similarity.