FILEX SYSTEM Vs. ROTOMAC PENS

JUDGEMENT

(1.) Plaintiff company was incorporated under the provisions of the Companies Act. Plaintiff is manufacturing and selling variety of stationery products including presentation holders and envelopes, presentation clear books clip files, ring binders, report files and covers, business card holders, expansion cases, document cases, CD Rom Holders and zipper wallets conference holder which includes writing pads and pens, office stationery, adhesives, packaging, paper and paper products etc. In September, 1996, plaintiff adopted the trade mark SOLO in respect of stationery items of its manufacture and sale and has continuously and extensively used the same in the course of trade since March, 1997. It is pleaded that the goods manufactured and marketed by the plaintiff are of high quality and are identified and recognized as quality products originating from the plaintiff's source of manufacture and none else. The said trade mark SOLO is being identified and recognized by the purchasing public and the members of the trade with the prodvicts of the plaintiff. On account of priority in adoption, long, continuous and extensive use of the trade mark SOLO, the plaintiff claims to have acquired an exclusive right to the use of the said mark as a proprietor thereof in respect of the stationery goods referred to above. Besides the statutory rights of the plaintiff on account of prior, long, continuous and extensive user, the plaintiff also filed an application for registration of the trade mark SOLO before the Registrar of Trade Marks, Mumbai on 23rd September, 1996 and the same is still pending. It is alleged that defendant company is also engaged in manufacturing and marketing the stationery products including pens. The defendant has dishonestly and malafidely adopted an identical mark SOLO in respect of stationery goods like pens, ball point pens/jotter pens with a sole purpose to cause confusion and deception in the minds of unwary class of purchasers and to earn illegal profits by passing off its inferior quality goods as those of the plaintiff. The said mark SOLO adopted by the defendant is identical to the plaintiff's well established and reputed trade mark SOLO and is bound to cause confusion and deception in the normal course of trade. Plaintiff came to know about the defendant's adoption of trade mark SOLO for the first time in third week of April, 2003 and hence this suit. Plaintiff has sought the following reliefs :

(2.) After service of summons upon the defendant, defendant had appeared. Defendant has contested the plaintiff's application being LA No. 7986 / 2003 under Order 39 Rules 1 & 2, CPC for grant of ad interim injunction. The said application was disposed of by this Court's detailed order dated 11th December, 2003 whereby application was allowed and the injunction as prayed by the plaintiff was granted. Thereafter, the defendant stopped appearing in the case. Ultimately defendant was proceeded ex parte vide order dated 14th December, 2004.

(3.) In proof of its case, plaintiff has filed affidavit of Mr. Amit Gupta who is the Managing Director and Principal Officer of Filex Systems Pvt. Limited and is duly authorized and competent to sign and verify legal pleadings and to institute the present suit. In the said affidavit, Mr. Gupta has substantiated the averments contained in the plaint on Oath and also proved various documents namely copy of Resolution marked as Ex. P-1A, copy of Memorandum and Articles of Association containing the Certificate of Incorporation is marked as Ex.P-2A, catalogues/advertisements/magazines of the plaintiff's products are marked as Ex.P-1 to P-24, Ex.P 47 to Ex.P-48, Ex.P-49 to Ex P-258 (colly.), Ex P-270 to Ex P-289 (colly.), Ex P-290 to Ex.P-444 (colly.), Ex.P-445 to Ex.P-467 (colly), Ex.P-470 to Ex.P-472 (colly) Plaintiff has also placed on record the defendant's carton as well as the sample of defendant's product/pen describing as SOLO JOTTER PEN marked as Ex.P-468 and Ex.P-469 (colly).