CARTER WALLACE INC Vs. MOD LABORATORIES PRIVATE LIMITED

JUDGEMENT

(1.) This is a suit for perpetual injunction, restraining infringement of trade mark, copyright, passing off and rendition of account seeking following reliefs :

(2.) The case of the plaintiff is that it is a company organised and incorporated and existing under the laws in force in the State of Delaware, U.S.A. having its registered office at 1345, Avenue of Americans, New York, NY 10105, U.S.A., Mr. B.H. Antia is the constituted attorney of the plaintiff and is conversant with the facts of the case and is able to depose the same.

(3.) It is alleged in the plaint that the plaintiff is a registered proprietor of trade marks 'NEAIR' (registered in India) and 'NAIR' having obtained under the laws applicable in U.S.A.; that the plaintiff has also inter alia obtained registration of the trade mark "NAIR" under the relevant laws applicable for registration of trade marks all over the world. Annexure "A" is a statement showing the registration of the plaintiff's trade mark 'NAIR' throughout the world; that the plaintiff had also applied for and obtained registration of its trade mark 'NEAIR' in India under the provisions of the Trade and Merchandise Marks Act, 1958 as per the following particulars : <FRM>JUDGEMENT_858_DLT65_1997Html1.htm</FRM> That the registration of the said Trade Mark 'NEAIR' is valid and subsisting.. Annexure "B" is a copy of the certificate issued by the Registrar of Trade Marks pertaining to the plaintiff's said Trade Mark "NEAIR"; that Annexures "C" to "G" are the statements of sale figures of the plaintiff's goods bearing the Trade Mark "NAIR" for the last five years; Annexure "H" is a statement showing the worldwide expenditure incurred by the plaintiff on sales, promotion, advertisement and publicity of their products manufactured and sold under the Trade Mark "NAIR"; that in or about October, 1991 the plaintiff came to know that the defendant was manufacturing and selling hair removes under the plaintiff's trade mark "NAIR" in India and also exporting and selling the same in various foreign countries such as Oman and United Arab Emirates; that the lattering and/or script in which the said trade mark "NAIR" used by the defendants is written as identical to the script/ lettering used by the plaintiff; that the get up and colour scheme used by the defendants for its hair removers is identical to the get up and colour scheme used by the plaintiff in its products sold under the trade mark "NAIR", Exhibit 'I' is a copy of the plaintiff's cartion and /or label bearing the Trade Mark "NAIR", Exhibit "J" is a copy of the defendants' carton and/or label bearing the Trade Mark "NAIR"; that the defendants selling his products under the trade mark "NAIR" with letter 'R' within a circle; that the plaintiff's application for registration of their trade mark "NAIR" was pending registration in India, the plaintiff has caused a search to be undertaken with the Trade Mark Registry at Bombay in order to ascertain whether the defendants had in fact obtained registration of the Trade Mark "NAIR" in class 3 are/or class 5; that the search undertaken by the plaintiff revealed that the defendants has not registered the said trade mark "NAIR" nor has the defendants even applied for registration of the trade mark "NAIR" in class 3 and/or class 5; that the plaintiff has relied on the search reports obtained from the Trade Mark Registry in respect of the Trade Mark "NAIR" in class 3 and class 5; that the defendants are not the registered proprietors of the trade mark "NAIR" and are, thus, guilty of violating Sections 77, 78, 79 and 81 of the Act as also having caused confusion and deception among members of the public and trade, hence the suit.