INTEX TECHNOLOGIES (INDIA) LTD Vs. AZ TECH (INDIA)

JUDGEMENT

(1.) The appellants ( "Intex ") are aggrieved by the judgment and / or order dated 24.12.2016 delivered by a learned single Judge of this court in IA No.17138/2013, which was an application filed under Order 39 Rules 1 & 2 of the Code of Civil Procedure, 1908 ( "Code ") in CS(OS) 2060/2013, filed by the respondents ( "AZ Tech "). The said suit and application were filed in respect of the trade mark "AQUA ". The respondents filed the said suit seeking a permanent injunction against the appellants ( "Intex ") restraining them from using the mark "AQUA " in respect of mobile phones / cellular phones. The case was one of purported passing off. By virtue of the impugned judgment and / or order, the learned single Judge has allowed the application (IA No.17138/2013) filed by the respondents under Order 39 Rules 1 & 2 of the Code and has restrained Intex from using the mark "AQUA " or any other deceptively similar mark in respect of cellular / mobile phones and their accessories. Of course, when the present appeal came up for hearing on 06.01.2017, we had granted stay of the operation of the said judgment.

(2.) Mr. Sudhir Chandra, the learned senior counsel, appearing on behalf of Intex, submitted that as per the respondents, Intex had launched its product under the mark "AQUA " in 2012. This is evidenced by paragraph 17 of the amended plaint. However, Mr Sudhir Chandra submitted specifically that Intex launched its mobile phones under the mark "AQUA " in Aug. 2012. He also submitted that, as indicated in their written statement, the adoption of the mark "AQUA " was an honest adoption as it had no knowledge whatsoever of the respondent's product under the mark "AQUA ". In fact, it was submitted that at the time when the Intex launched its product under the mark "AQUA ", the respondent's alleged product with the mark "AQUA " was non-existent in the market.

(3.) The learned senior counsel further submitted that the suit was filed on 28.10.2013, that is, after 14 months of the launch of the mobile phones of Intex under the mark "AQUA " which was, as pointed out above, within the knowledge of the respondents. Within this period, Intex had sold "AQUA " phones to the extent of Rs 200 crores. It was pointed out that between 01.08.2012 and 31.03.2013, Intex had sold 1.75 lakh phones under the mark "AQUA ". Between 01.04.2013 and 13.11.2013, a further 2 lakh phones under the mark had been sold by Intex. It was also pointed out that approximately Rs 27 crores were spent on advertising and, in particular, on TV Commercials, which include commercials featuring the famous actor, Mr Farhan Akhtar. It was also submitted that the TV advertisements were first telecast on 11.06.2013 and the second video clip was telecast on 01.10.2013 onwards.