BEIERSDORF A.G. Vs. AJAY SUKHWANI

JUDGEMENT

(1.) M /s. Beiersdorf AG, the plaintiff is the registered proprietor of the mark NIVEA under Class 3, toiletries, under the Trade Marks Act, 1958 (hereinafter referred to as the Act, for short). Defendant no.-2 M/s. Nivea International is a partnership firm and Mr.Ajay Sukhwani, defendant no.1 is one of its partners. It is engaged in the business of educational consultancy and allied services. The plaintiff has filed the present suit for passing off and restraining the defendants from using mark/word NIVEA as a trademark/trade name or as a part of trading style and also from operating a website with the domain name www.niveainternational.com.

(2.) ON the basis of the pleadings and documents filed by the parties, the following issues were framed on 8th November, 2005 :-

(3.) ISSUE nos. 1 to 4 are interconnected, inter related and are therefore being dealt with together. The plaintiff came into existence in 1890 and is incorporated under the laws of Germany. The plaintiff coined and adopted the mark NIVEA, which was registered as a mark in Germany on 23rd June, 1905. In 1911, the plaintiff started first commercial use of the mark NIVEA and by 1991, NIVEA cream was available in 150 countries. The plaintiff started marketing its products in India in 1943. The plaintiff had made an application for registration of mark NIVEA in India in Clause 3 on 12th April, 1943.The registration was granted and has continued since then. The mark Nivea has been continuously, extensively and uninterruptedly used by the plaintiff in India and worldwide.