SAURASHTRA CEMEMNT LIMITED Vs. ZUARI CEMENT LIMITED

JUDGEMENT

(1.) The plaintiff in C.S.No.462 of 2012 filed the above said application seeking for an order of ad interim injunction restraining the respondent, its agents, servants or any one claiming from them, from infringing the registered trade mark of the applicant by featuring Elephant(s), being the registered Trade Mark of the applicant in respondent's advertisement.

(2.) It is the case of the applicant that the company was incorporated in the name and style of "Saurashtra Cement and Chemical Industries Limited" on June 11, 1956, with a main object to manufacture, market, sell or otherwise deal in various kinds of cement. Subsequently, in the year 1994, the company's name was changed from "Saurashtra Cement and Chemical Industries Limited" to ''Saurashtra Cement Limited". Originally, in the year 1960, the applicant conceptualised and conceived a trade mark, being a device of ELEPHANT and adopted the same along with the word ELEPHANT/"HATHI" in respect of cement falling under Class 19. The applicant also secured registration for its trade mark, ELEPHANT, "HATHI" and the device of ELEPHANT in different poses under various registration numbers as detailed in the application. The applicant, therefore, stated that they are the registered proprietor of the Trade Mark, ''ELEPHANT'', "HATHI" and the device of an ELEPHANT, and the applicant has the exclusive right to use the aforesaid trade marks and prevent others from using an identical and/or deceptively similar trademarks in respect of the cement. The goods manufactured by the applicant under the said trade marks have been widely accepted and known as the product of the applicant and the product of the applicant are extremely popular.

(3.) It is further stated by the applicant that during the month of of January, 2012, the applicant came across defendant's advertisements both in print and television media, featuring the device of ELEPHANT(S) in different poses for marketing its cement and cement products. Therefore, on 17th January, 2012, the applicant through its trade mark attorney issued a Cease and Desist Notice to the respondent, calling upon the respondent to discontinue the usage of the device of an ELEPHANT or ELEPHANTS in its advertisements and the respondent by its interim reply dated 28th January, 2012 sought time to file a detailed reply but instituted a suit in C.S.No.318 of 2012 before this Court under Section 142 of the Trade Marks Act, 1999 and also obtained an order of interim injunction. Thereafter, a detailed reply was sent by the respondent on 07th May, 2012, repudiating the claim of the applicant.