MONTBLANC SIMPLO-GMBH Vs. NEW DELHI STATIONERY MART

JUDGEMENT

(1.) THIS order shall dispose off I. A. No. 7725/2007 and I. A. No. 11669/2007 preferred under Order 39 Rule 1 and 2 and Order 39 Rule 4 of the Code of Civil procedure, 1908, respectively.

(2.) THE facts relevant for the present purposes are as follows. The plaintiff has filed this suit for infringement of its registered Trade Marks (No. 17905 and 1152812 in class 16), and for passing off in relation to its trade mark, which include the word mark "starwalker", a three ring device as well as the shape and configuration of the "meisterstuck" and "starwalker" range of pens/ writing instruments (hereafter called "pens" ). It is averred that the plaintiff has been manufacturing high quality writing instruments for the past 100 years and has gained extensive reputation, as a producer of superior quality goods under the well-known "mont Blanc" and "white Star" devices. In addition to the said marks, it is averred that the plaintiff also uses a 3-ring device mark and a white star device on its pens; the design, shape, configuration and get-up of such pens are unique. It is also claimed that the plaintiff's said brands, launched in 1924 and 1996 respectively, have acquired a secondary meaning, reputation and goodwill. The plaintiff claims that a consumer of writing instruments as well as the traders of such goods instantly recognize the shapes and configuration as originating from it. While, starwalker is registered a word-mark in class 16 bearing no. 1152812, the 3-ring device is registered in the same class bearing no. 749405. It is also averred that these pens are sold through the plaintiff's boutiques in six cities across india. Further, the plaintiff claims to process registration in respect to these brands in 180 countries and also avers to spending about Rs. 2. 5 crores for advertising its brands.

(3.) THE Plaintiff alleges that the defendant has infringed its rights in respect of the aforesaid registered marks. It claims that the defendants are manufacturing and selling pens that are identical to its goods. The defendant, it is alleged, in relation to its product styled "spacewalker" are using an identical three ring device, a deceptively similar brand name to that of its "starwalker" and a confusingly similar shape, configuration and get-up. It also claims that use of the three ring device, and a deceptively similar get up in relation to the "meisterstuck" brand of the plaintiff, by the defendants in their product "add Gel Gold Top", infringes the rights in the former. It is further alleged that the malafide intent of the defendant is evident from the fact that both the defendant's brands, that is, "spacewalker" and "add Gel Gold top", are deceptively similar to the get-up, colour and shape of the plaintiff"s brands. It is submitted that even after a cease and desist notice was served on the defendants in August 2006, they refused to discontinue the selling of their brands, although they acknowledged the use of the three-ring device. Therefore, it is claimed that by using the three-ring device and the expression "spacewalker", the defendants are infringing the plaintiff's registered trademarks. The defendants actions, it is alleged, amounts to passing off, as it takes advantage of the plaintiff's distinctive and identifiable marks. It is therefore, submitted that an ad - interim injunction is necessitated, in the absence of which the plaintiff would be put to irreparable harm.