A S HAMEED Vs. P MAHESWARAN

JUDGEMENT

(1.) Suit for permanent injunction, direction and rendition of accounts.

(2.) The averments contained in the plaint are briefly stated as follows:

(3.) The plaintiffs have honestly adopted the mark and have put in enormous amount of hard work and labour and invested huge sums of money for advertisement and sales promotional expenses. Because of the efforts made by the plaintiffs, the trade and the public, associate the mark with the plaintiffs and none else. The plaintiff has also registered the beedi kattu and bundle wrappers under the Copy Right Act bearing No.A17430/77. The thread used in beedi by the plaintiff is rose in colour and the defendant also uses rose colour. In retail sales, the consumers are misled and it affects the plaintiffs' sales and market. The plaintiff in view of protecting its intellectual property, particularly with respect to its trade mark applied for the registration of this label as their trademark and therefore, made an application on 01.06.2006 in Class 34. Registrar of trademarks accepted the the application and the same was advertised in trademarks Journal dated 16.04.2008 and after the statutory period, the Registry granted the registration for the mark No.10 A.S.Photo Beedi label. The trademark Number is 1458480 - class 34 and the same was registered on 1.06.2006 and the registration is valid upto 01.06.2016. The certificate number is 752895 and it was issued on 13.09.2008. The plaintiff has become exclusive registered owner of this mark and no one else apart from the plaintiff has the right to use this mark, If anyone uses this mark or similar trade mark without the prior permission of the plaintiff, then the same will amount to passing off and infringement. Due to the efforts of the plaintiff, its turn over in the market has been growing at a impressive rate and the plaintiff has also incurred expenses in advertising its products. The plaintiff's popularity and demand had been steadily increasing since the inception of its business in the year 1975. The trademark is associated with none other than the plaintiff. While so the plaintiff came across the defendant goods namely Top 10 A.S.M. PHOTO BEEDIES available in the market in a deceptively similar manner having same colour scheme, get up, identical trademark words and letters and the same is a blatant infringement of the plaintiff's registered trademark. The two are visually and phonetically similar and it is a conscious copy. Hence, the adoption of the impugned mark is dishonest and solely on the object of exploiting the commercial goodwill attached to the plaintiff's registered trade mark. The copy of the original is so deceptively similar that not only a layman but anyone would be easily mislead into buying the deceptive product instead of the plaintiff's product. Thus, the defendant is consciously infringing registered trade mark. The defendant's product is inferior in quality and substanding and if one was not careful enough to note the physical features of the wrapper on the plaintiff's goods will undoubtedly mistake the defendant's wrapper for the plaintiff if shown to him some time after the consumer had seen the plaintiff's. The defendant is using the deceptively similar trade mark of the plaintiff to market its goods in the market. Thus, the defendant is guilty of infringement of the plaintiff's registered trademark. The defendant's acts are dishonest and motivated and the defendant should not be allowed to malign and dilute the goodwill and reputation enjoyed by the plaintiff. The defendant being well aware of the goodwill and reputation of the plaintiff's trademark sold its product through the same trade channels and hence, the conduct of the defendant amounts to falsification of the trademark an offence punishable under the Trademark Act and hence, the plaintiff has been necessitated to lay the suit for appropriate reliefs.