ASIAN PAINTS I LTD Vs. VED PRAKASH SRIVASTAVA

JUDGEMENT

(1.) The plaintiff has filed this suit for permanent injunction, infringement of copyright, passing off, damages and delivery up, etc. against the defendants. The plaintiff is engaged in the business of manufacturing and marketing of paint, varnishes, enamels and other like products and colour concentrates for the last more than 50 years. It is the registered proprietor of the mark APCOLITE bearing No. 211175 and the label of APCOLITE with the device of GATTU under number 226466, particulars whereof are given in para 8 of the plaint. The plaintiff is also the owner of the picture of GATTU registered under the Copyright Act bearing No. A-51167/91 first published in India in the year 1959. The artistic work GATTU with ASIANT PAINTS (I) LTD. is also registered under the Copyright Act bearing No. A-51166/91 which the plaintiff claims was first published in the year 1959. Case of the plaintiff is that it has been using the trademark APCOLITE in respect of paints and synthetic enamel in a specially designed container having yellow and red colour background. In the middle of the container there is a dark green colour ribbon. The said background of red and yellow colour are used in an arrow style distinctive manner. The picture ofGATTU which is the subject matter of the trademark and copyright has also been depicted. The name ASIAN PAINTS has been mentioned in the said packing material in a particular manner. In the middle side of the container there is a roundish device where the directions for use are mentioned. All the above said features of the APCOLITE containers are the original artistic work of the plaintiff who has designed the said artistic features having unique and distinctive colour scheme, getup and layout of the APCOLITE synthetic enamel which is being used for the last more than 50 years. The plaintiff is, therefore, entitled to reproduce the same. Any other person other than the plaintiff without any licence or authority in case uses the same it would amount to infringement of copyright under Section 51 of the Copyright Act, 1956. It is also claimed by the plaintiff that the said artistic work along with the trademark APCOLITE and the name AS1ANT PAINTS is exclusively associated with the plaintiff and no one else. Being the corporate name ASIANT PAINTS of the plaintiff it has got various registrations, particulars whereof are given in the plaint.

(2.) The grievance of the plaintiff is against the defendants' manufacturing and marketing synthetic enamel by adopting the device of GATTU and it is the case of the plaintiff that by doing so the defendants are infringing the plaintiffs registered trademark as well as registered copyright in the device of GATTU. The defendants have also adopted almost similar designs of the container having yellow and red background. Along with the suit, the plaintiff had filed 1A No. 9817/2001 and on 17th October, 2001 ex parte ad interim was granted restraining the defendants, their agents, representatives or any person acting on behalf of the defendants from manufacturing, marketing, distributing or selling products that is Arsian Paints or NECOLITE synthetic enamel with the same colour scheme as has been used by the plaintiff with the device of GATTU. The defendants were also restrained from using the words Arsian NECOLITE with the synthetic enamel and manufacture or market the same. A Local Commissioner was also directed to go to the business premises of the defendant No. 3 where the infringing goods were lyingand prepare an inventory of the said goods in finished or unfinished condition.

(3.) Though the defendants were duly served and appeared through Counsel, no written statement was tiled. On 8th April, 2002 nobody even appeared on behalf of the defendants and the defendants were proceeded against ex parte. The plaintiff was permitted to lead the evidence in the form of affidavits. The plaintiff had filed affidavit dated 7th May, 2002 of Sh. Nirupam Sahay, Divisional Manager and thereafter on 11th November, 2002 affidavit of Mr. Rajesh Joshi, Divisional Manager was also filed. However, due to some infirmity in these affidavits, the plaintiff, thereafter, filed another one dated 4th November, 2004 of Sh. Rajesh Joshi, Divisional Manager (North) of the plaintiff company and it is this affidavit which is taken into consideration and is treated as evidence led by the plaintiff. In his affidavit, apart from affirming those facts, stated in the plaint on oath and taken note of above, the deponent has proved different registration of trademark as well as copyright as Ex. P1 to P4. Packing material used by the plaintiff for APCOLITE synthetic enamel, the photograph of which is filed along with the plaint, is Ex. P5.