WIPPERMANN JR GMBH Vs. WIPPERDRIVE ENGINEERING

JUDGEMENT

(1.) Wippermann JR Gmbh, a West Germany Company has instituted a suit (No. 471 of 1976) against Wipperdrive Engineering, a Bombay concern for damages and injunction. In that suit an application has been filed under Order 39 Rules I and 2 read with Section 151 of the Code of Civil Procedure with the prayers that (1) the respondents, its servants etc. be restrained by an interim injunction from selling or offering for sale industrial or other chains under a mark containing a cross-legged 'W' in device of a star or a mark consisting of the word WIPPERDRIVE or any other word deceptively or confusingly similar to WIPPERMANN, and (ii) that the respondents, its servants etc. be restrained from infringing the applicant's said marks by using any mark or marks deceptively or confusingly similar thereto.

(2.) It has been alleged by the applicant that it was established in 1892 and has been engaged, inter alia, in the business of manufacture of chains of various kinds. Its products are exported to all countries of the world including India and have become well-known due to the excellence of their quality. The applicant is registered proprietor of the following trade marks in India. No. Mark Class Description of goods 274021 WIPPERMANN 12 Vehicles, apparatus for loco- motion by land, air or water. 274019 WIPPERMANN. 16 Roller Chains. 274024B Cross legged "W' in the device 12 Parts included in Class 12 of of a star. motor vehicles. 274022 Cross legged 'W' in the device 6 Chains (except driving chains of a star. for vehicles). The applicant's products are marketed "under its trade marks consisting of a cross legged 'W' in a star device and the word 'WIPPERMANN' and in cartons of a distinctive get up, colour scheme and designs. The products so sold have become associated in the minds of consumers of industrial chains and the public at large as being the products of the applicant. The respondent is selling and offing for sale a variety of industrial chains under trade 'mark of a crossed legged 'W' in a star device which is deceptively similar to the registered trade marks of the applicant and it has fraudulently adopted a trading style which is copied from and is confusingly and/or deceptively similar to the applicant's trading style and registered trade marks WIPPERMANN'. Further, the respondent is using in relation to its products the mark and trading style 'WIPPERDRIVE' which is intended to deceive and is confusingly and/or deceptively similar to the applicant's registered trade mark and trading style 'WIPPER MANN'. The respondent is "using the cross legged 'W' within a star device and/or 'WIPPERDRIVE' on or in relation to its products which are sold and offered for sale which is similar to that which has become associated in the minds of the purchasers and the general public with the products of the applicant and is, thus, passing off its goods as those of the applicant. By reason of the wrongful acts of the respondent the applicant has suffered loss and irreparable damage and if it is allowed to continue to infringe the applicant's rights it will amount to a fraud on the applicant as well as the trade and public interested in the purchase of the applicant's products. The balance of convenience is said to be in favour of restraining the respondent from continuing its objectionable activities. It has also been stated in the application that on account of the respondent's offering for sale in the Federal Republic of Germany diverse chains under a representation which consisted of the letter 'W' with crossed legs represented in a star device and its adopting a trading style 'WIPPERDRIVE', the first and most prominent part of which had been lifted from the the applicant's registered trade mark and trading style, an action for passing off was filed in the Hamburg District Court in May, 1975 and a judgment restraining the respondent from using in the Federal Republic of Germany a trade mark consisting of 'W' in a multipoint star device was obtained.

(3.) The respondent has opposed the application and denied infringement of the applicant's registered trade marks as well as passing off of its goods as those of the applicant. It has challenged the jurisdiction of this Court to entertain the application.