HINDUSTAN PENCIL LTD Vs. GYANANDRA KUMAR

JUDGEMENT

(1.) The plaintiff has filed this suit for permanent injunction, infringement of trademark, copyright, passing off, rendition of accounts against the defendants. The plaintiff is a well established manufacturer of various stationery goods including erasers, pencils, refills for propelling pens, clips, pencils, sharpeners, pens, fountain pens, clips and stapples and is carrying on the business since the year 1957. As per the averments made in the plaint, in the year 1958, the plaintiff adopted the trademark APSARA in respect of stationery goods including pencils and is using the same continuously, regularly, extensively and uninterruptedly. The plaintiff is the registered proprietor of the following registered trademarks:

(2.) The plaintiff claims that sale of goods under the aforesaid trademarks with the distinctive colour scheme and getup is substantial and its goods are being sold in every nook and corner in India. The plaintiff is also the registered owner of the copyright of the label of APSARA BEAUTY Pencil registered under No. A- 63082/2002. The plaintiff has placed on record APSARA carton/packing material. The essential features of the said APSARA carton/packing material are described in para 7 of the plaint as under:

(3.) According to the plaintiff, the above said APSARA carton is distinctive/ artistic and constitute original artistic work under Section 2(c) of the Copyright Act, 1957 which has been designed and drawn by the plaintiff for the first time in India. All the essential features of the said carton are exclusively associated with the plaintiff and no one else. On the basis of the aforesaid averments, it is claimed that the trademark label APSARA BEAUTY black lead HB is a well known trademark within the meaning of Section 11 of the Trade Marks Act, 1999. It is also claimed that no other person in India has ever used the trademark APSARA BEAUTY along with logo of two oblique devices HB prior to the date of user of the plaintiff and, therefore, the plaintiff is the proprietor of the above said trademarks and also the owner of the copyright in its favour. The plaintiff has further stated in para 10 of the plaint that in the month of July, 2003, the plaintiff's attention was drawn to the bonded lead HB pencils brought into market by defendant Nos. 6 and 7 under the trademark HERO CATTY. The defendants are selling their bonded HB pencils in an exactly similar carton, in similar size having the similar background, colour scheme and arrangement of features having similar panels and the directions for use of the pencils which have been copied from the plaintiff's carton. Thus the defendants have slavishly copied the carton of the plaintiff. The cartons used by the defendants are placed on record.