ORIENTAL LONGMAN LTD Vs. GULMOHAR PRESS P LTD

JUDGEMENT

(1.) This appeal seeks setting aside of the impugned order dated 16. 07. 2005 dismissing the appellant's suit (No. 150/03) seeking permanent injunction against the respondent/ defendant restraining it from infringement of its registered trademark "GUL MOHAR", passing off, rendition of accounts of profits, delivery up etc. The appellant is a publisher of books and had claimed that it has published a series of books under the Gulmohar series which is widely sold to and used by school children. It has shown a sales turnover of Rs. 56,89,000/- in the year 1983-84 which has grown in successive years to Rs. 4,91,42,000/- till 1991-92. The appellant has claimed to have spent large sums of money on publicity of the books published under the "GULMOHAR" series. Additionally, it claims that the "GULMOHAR" brand/trademark has attained valuable goodwill over the years, ever since it came into the public domain. According to the appellant, the amount expended towards publicity started from Rs. 87,000/- in 1983-84 and increased progressively to Rs. 12,50,000/- in 1992-93. This trademark "GUL MOHAR" was registered on 13. 05. 1986 bearing no. 453981 in Class 16 for inter alia printed matter, newspapers and periodicals, books, etc. and the same having been registered under Part A of the Register of Trade Marks is valid under the provisions of section 32 of the Trade & Merchandise Marks Act, 1958. According to the appellant, their trademark was more than seven years old, had been renewed, therefore, it had acquired conclusive validity.

(2.) The defendant under the name and style of "GulMohur Press Pvt. Ltd. ", situated at 101-4, Kaushalya Park, Hauz Khas, New Delhi used the word "GULMOHUR" as part of its trade name. It published a book titled "Mother Teresa" authored by Navin Chawla. It is the appellant's case that the defendant's use of the word "GULMOHUR" infringed their registered trade mark "GULMOHAR"; and the aforesaid publication could easily be passed off as a book having been published by the appellant. A permanent injunction against the respondent was sought from using the appellant's trademark "GULMOHAR". Their suit was dismissed on the ground that respondent/defendant had no intention to deceive. However, this conclusion is untenable because the law does not require an intention to deceive. All that needs to be considered is whether an ordinary unsuspecting person could be deceived.

(3.) Mr. Pravin Anand, the learned counsel for the appellant, refers to the judgment of the Hon'ble Supreme Court in Laxmikant V. Patel v. Chetanbhai Shah, 2002 3 SCC 65 which held: -