A V R ENGINEERS Vs. SHARMA MOULDING WORKS

JUDGEMENT

(1.) THIS order, will dispose of IA No. 4274/08 in CS (OS) 2362/07, preferred under Order 7 Rule 10 of the Code of Civil Procedure, 1908, ("the cpc") by the second defendant.

(2.) THE facts relevant for deciding the applications are the following. The plaintiff is engaged in manufacturing, marketing and selling bathroom fittings, valves, cocks and industrial valves of all types since 1984. It is averred that in the same year, it adopted the mark "ego" and has been using it continuously and uninterruptedly ever since. The mark is also registered under the Trademarks act, 1999 (hereafter "the Act") in relation to products in Class 6, 7 and 11 (No. 1314352, No. 442765 and No. 1314353 respectively ). It is also averred that the plaintiff is the proprietor of the trademarks "eco" and "igo", both of which are also registered with respect to class 11 under the Act. It is averred that the plaintiff is using different versions of the Ego label; all of them are original artistic works in which copyright subsists. The plaintiff is the author, owner and proprietor of the respective copyrights too. It is claimed that on account of prior use and widespread reputation, the mark is distinctively associated with the plaintiff. The plaintiff alleges that the goodwill generated by the goods, is evidenced by the large turnover for the same. It places reliance on the sales figures. It also avers about to the large sums of money spent by it for advertising and promoting that brand. Therefore, it claims to be a well known mark within the meaning of Section 2 (1) (zg) of the Act.

(3.) THE plaintiff alleges that the defendants" adoption of the identical trademark ECO label in respect of same/similar allied/cognate goods is dishonest, malafide and fraudulent. It is alleged that they have blatantly copied the essential and striking features of plaintiffs trade mark/label. It is averred that the defendants" malafide intent is apparent from the mentioning on their impugned label "technology By Hi EGO Valves" which is a direct reference to plaintiff's said goods and business in the said trade mark/label. It is alleged that the defendants are misrepresenting that the impugned goods are the plaintiff's and that the first defendant is a part of the plaintiff. The defendants are illegally projecting and canvassing their association with the plaintiff, which causes confusion in the minds of the public and therefore, amounts, as well as passing off. It is also submitted that the second defendant, who was for a number of years, the commission agent of the plaintiff had suddenly started dealing with the first defendant had severed his ties with the plaintiff. The fact that the second defendant is privy to the business activities of the plaintiff and their trade secrets further shows the malafide intent of the defendants to unlawfully benefit from the goodwill of the plaintiff.