MONTRES ROLEX S A Vs. AMIT GUPTA

JUDGEMENT

(1.) This is a suit for permanent injunction and damages under Sections 105 and 106 of the Trade and Merchandise Marks Act, 1958. When summons were issued in the suit initially, the defendants entered appearance. They did not, however, file any written statement but filed a reply to IA No. 406/2002 which was an application for interim injunction filed by the plaintiff under Order 39 Rules 1 and 2 CPC. Thereafter the defendants failed to appear and this Court by an order dated 25.07.2005 directed that the defendants be proceeded with ex parte. The plaintiff thereafter led its ex parte evidence by way of affidavit of one Mr V. Seetharaman. The said Mr V. Seetharaman claimed to be the constituted attorney of the plaintiffs No. 1 and 2. He has produced the original power of attorney in his favour before Court today. The same has been seen and returned. A copy of the power of attorney is already on record. The same is marked as Exhibit PW1/1. The affidavit by way of evidence essentially confirms the case as pleaded by the plaintiff. Apart from the affidavit by way of evidence, the plaintiff has also filed various documents which have been marked as Exhibits PW1/1 to PW1/21.

(2.) The case of the plaintiff, in short, is that the plaintiff is a worldwide renowned manufacturer of watches which are marketed under the trademark of ROLEX. According to the plaintiff, the plaintiff has been using this trademark since 1913, much prior to the user of the mark ROLEX by the defendants, which, as per the own case of the defendants as stated in the reply to IA No. 406/2002, is from 1990. The only defence that is discernible from the said reply filed by the defendants is that the defendants are using this trade mark for their products which are neck ties, whereas, the plaintiff's products are entirely different. The other defence that is discernible is that trade channels of both sets of goods are different and the shopkeepers and dealers are different as also the price range of the two products. Therefore, according to the defence of the defendants, there can be no confusion between the two products. The learned counsel for the plaintiff, however, submitted that the defendants have not come up with any case justifying the adoption of the trademark ROLEX which was well known in the worldwide. Apart from this, the learned counsel for the plaintiff has pointed out that the nature of products are also in the broad category of men's accessories, the retail channels are also through departmental stores and stores which keeps men's accessories and fashion shops. Neck ties as well as the plaintiff's watches are sold in common departmental stores and, therefore, the defendants' defence of there being different retail channels and trade outlets is also not made out.

(3.) The learned counsel for the plaintiff relied upon the case of Honda Motors Co. Ltd. v Charanjit Singh and Ors: 2003 (26) PTC 1 (Del). In that case the plaintiff's mark HONDA had been utilised by the defendants for their product, 'Pressure Cookers' and, in this context, a learned Single Judge of this Court held as under:-