ITC LIMITED Vs. OM GARMENTS

JUDGEMENT

(1.) THE plaintiff engaged, inter alia, in the business of branded apparel under the trademark WILLS SPORT and JOHN PLAYERS has instituted the suit for permanent injunction against four defendants for restraining them from dealing in garments bearing the trademark WILLS SPORT and JOHN PLAYERS and ITC in combination or individually and for the ancillary reliefs of accounts, damages, delivery etc. Vide ex parte order dated 17th February, 2004 the defendants were restrained from selling, marketing or distributing the wearing apparels with the plaintiff's trademark and logos WILLS SPORT and JOHN PLAYERS and ITC or any other trademark or logo deceptively similar to that of the plaintiff.

(2.) THE defendant No. 1 on being served with the summons of the suit appeared on 2nd September, 2004. The defendants 2 and 4 failed to appear inspite of service and were proceeded against ex parte on 17th January, 2005. However, on 28th April, 2005 the defendants 2 to 4 were ordered to be served again. The defendants 2 to 4 neither filed the written statement nor appeared. The defendant No. 4 was proceeded against ex parte on 13th February, 2006. The defendant No. 1 filed a written statement and to which replication was filed by the plaintiff. However, the defendants 1, 2 and 3 also failed to appear thereafter and vide order dated 7th February, 2007 were proceeded against ex parte and the application of the plaintiff for amendment of the plaint to incorporate therein the factum of registration of its trademark during the pendency of the suit allowed. The ex parte ad interim order was made absolute and the plaintiff was ordered to file ex parte evidence.

(3.) THE witness of the plaintiff has proved as Exhibit P1 the registration certificates showing the plaintiff as the registered proprietor of the device WILLS SPORT with "W", however without any right to the exclusive use of latter "W" or the word SPORT, in relation to clothing, footwear, headgear for sale in India and for export and also in relation to leather goods, accessories, animal skins etc of the word JOHN PLAYER for bleaching preparations and other substances for laundry use etc of the device WILLS SPORT with "W" for sporting equipment , games play things, supporting articles, decorations etc as well as for clothing, footwear, headgear for sale in India and for export, of the device JOHN PLAYER for sporting equipment, games, gymnastics without any right to the exclusive use of the PLAYERS. It, thus, stands established that the plaintiff is the registered proprietor of WILLS SPORT, WILLS SPORTS LOGO & JOHN PLAYERS.