NIIT LIMITED Vs. NIIT

JUDGEMENT

(1.) This is a suit tor grant of permanent injunction restraining the defendants from manufacturing/developing, selling or offering for sale computer software/hardware and imparting training/education in computer sciences or advertising in any manner, dealing in the field of computers and information technology under the trade mark 'NIIT' or any other mark as is identical to or deceptively similar with the plaintiff's mark 'NIIT'. Injunction has also been claimed which might amount to infringement of the plaintiff's copyright registration in their passing of any goods by defendants as is likely to pass off goods and business of the plaintiff.

(2.) Along with the suit plaintiff filed an application under Order 39 Rules 1 and 2 of the Code of Civil Procedure claiming temporary injunction. Defendant had lodged a caveat. The defendant filed its written statement whereafter parties were heard on the application under Order 39 Rules 1 and 2 C.P.C. On 14th May, 1995, the said application was disposed of and injunction, as prayed by the plaintiff, was granted for the duration of the suit. after the court came to the conclusion that a good and prima facie case for grant of injunction had been made out. The case was adjourned for a few hearings on request tor. settlement. Later on it was pointed out that parties were unable to enter into some settlement. On 19th July, 1994, defendants were proceeded against ex pane, since no appearance had been shown by the defendants since 14th December, 1993, plaintiffs were called upon to lead ex parte evidence, which they have done by filing affidavit of Shri Ashok Arora. Chief Finance Officer and also the constituted attorney of the plaintiff company. I have been taken through the entire evidence on record including the documents which stands duly proved on the affidavit of Shri Ashok Arora.

(3.) From the ex parte evidence on record, it stands established that plaintiff is' a company which is deemed to be a public limited company by virtue of Section 43A(IA) of the Companies Act. 1956 and has been engaged in the business of imparting education and training in the field of computer and information technology and has been developing and marketing computer software. Educational centres have been set up by the plaintiff initially in major towns and metropolitan cities and now there is a complete netware of educational centres opened up by the plaintiff. The business of the plaintiff is being conducted under the trade and service mark 'NIIT' which mark was newly and freshly coined by the plaintiff. From the evidence on record, it stands established that plaintiff is the proprietor of the trade mark and trade name 'NIIT' in relation to the business and the same has been in exclusive, continuous and uninterrupted use since 1981 in relation to its business, namely. field of Computer and Information Technology. Such mark is also being used by the plaintiff in relation to its stationary articles including letterheads, visiting cards, order forms, bill books, envelopes etc. The mark 'NIIT' has been used upon goods such as computer software, printed manuals, publications and magazines etc. The mark has also been extensively used in relation to the field Computers and information Technology, the same has acquired distinetiveness and is understood and associated hy consumers in India as the mark of the plaintiff denoting its goods and business. On account of high degree of inherent and acquired distinctiveness which the mark 'NIIT' is possessed of. the use of this mark or any oher phonetically, visually or other desceptively simila mark. in relation to the field of Computers and Information Technology by any other person would result in immense confusion and deception in the trade leading to passing off. Apart from this fact the plaintiff has proved by ex parte evidence that plaintiff is the proprietor of trade mark 'NIIT' in class 9 with respect to Computers and parts thereof, computer softwares of all kinds, audio and video cassettes and in class 16 of the goods printing mailer, hooks, publications, magazines. periodoeals II is clear that trade marks are valid and substing. plaintiff has also proved that it is the owner of registered copyright No. A-48938.87 dated 10th july, 1987 which compromise the word "NIIT" depieted in ,an artostic logoscript and on account of its copyright registration it has exclusive right to reproduce publish and other wise explain the artistic elements of its trade "NIIT" plaintiff has also proved on record its .sales turnover from 1988-89 to 1991-92 and the amount spent spent on, advertisement expenses it is alleged that defendant in the month of December. 1992 started using trade and service mark 'NIT'. Comparing the two marks, there is no manner of doubt that the marks are virtually identieal, the field of activity is also similar and the territories of operation are also the same. Since the defendant had started using mark 'NIT' in relation to computer education and or printed matters such as computer logoscript etc. obviously after the injunction was granted, the defendant was restrained from using the said mark hut plaintiff as on the date of filing of the suit had a cause to come to the Court and seek the decree prayed for.