LOHIA AUTO INDUSTRY Vs. LOFIA STARLINGER LTD

JUDGEMENT

(1.) This appeal is arising out of an order passed by the District Judge, Kanpur Nagar dated 27th January, 2009 in an application under Order 39 Rule 1 & 2 read with Section 151 of Code of Civil Procedure in connection with the Suit No. 121 of 2008 (Lohia Starlinger Limited v. Lohia Auto Industries). The suit, as filed by the plaintiff before the court below, is for infringement of the trade mark by the defendant/appellant herein.

(2.) According to the plaintiff/respondent the defendant/appellant and/or its agents are using their house mark "LOHIA GROUP" or any other word deceptively similar "LOHIA GROUP" in relation to any of the defendant. The house mark of the famous LOHIA GROUP comprises of an exclusive device consisting of capital letter "G" in such stylized manner encompassing capital letter "L" with the word LOHIA GROUP underneath. This distinctive LOHIA GROUP and the device mark is used as a "house mark for all the units belonging to the Group". The term LOHIA GROUP has become synonymous with the plaintiff & its associates. The plaintiff enjoys a worldwide network and immense reputation all over the world as a part of the LOHIA GROUP. The plaintiff manufactures and sells products that range from plastic processing machines to part and components made of ferrous and non-ferrous metal. Castings, forgings, electrical components, data on recording discs, auto components, components of arms and ammunitions and its services provided for after sales services for the past over 20 years. None else is entitled to use the name and device mark "LOHIA GROUP" causing unlawful loss and damage to the plaintiff. The plaintiff was recently disturbed, rather astonished to know that the defendant in most unlawful and illegal manner is using the house mark LOHIA GROUP for promoting its business thereby creating impression in the minds of the general public that the goods and services offered by it are in someway related or connected to the plaintiff. The confusion created by the use of identical trade name LOHIA GROUP has been exasperated by the fact that even the Media Associates the defendants mark with that of the plaintiff's famous and distinctive device mark. This fact becomes evident from an article published in the internet wherein the mere mention of the name LOHIA GROUP for the defendant convinced the media to put the device mark of the plaintiff on the article. The use of the identical trading name in the article for the defendant along with the distinctive device has caused utter confusion in the media. The article opens with the lines "A new company has recently entered into the Indian automobile sector, and it is the joint business house with interests in different types of business. the Lohia Group". The intention is mala fide for such website. Again an article was published in Times of India, Lucknow Edition dated 22nd May, 2008 stating that LOHIA GROUP has entered into automobile sector. The confusion magnified to the plaintiff. The plaintiff received a letter from the Chief Manager & relationship Manager of the State Bank of India, Kanpur Branch congratulating the plaintiff on its new venture of entering into the automobile sector. Therefore, the plaintiff served a notice to the defendant vide letter dated 21st July, 2008 and called upon to immediately cease and desist from the use of the mark. The defendant did not agree to amicable resolution and sent a reply on 7th August, 2008 stating that they have many companies comprising the name LOHIA and falsely denying any infringement and passing off the plaintiff's distinctive house mark/trading style & name.

(3.) The defendant/appellant has opposed and filed objection stating that the name of LOHIA GROUP is a generic word and no person/entity can claim monopoly over it. LOHIA is a sub-case and the word group the defendant is not using the mark LOHIA GROUP for its and the word group is a word of English language which means an assemblage of persons or things. The word LOHIA GROUP is commonly used term and the plaintiff cannot claim the exclusive right over the same. The defendant has never used the term the word LOHIA GROUP as its trade mark/house mark. The said word LOHIA GROUP has been used in the common dictionary manner describing the assemblage of the aforesaid companies. The defendant/appellant is prior user of the word LOHIA as the defendant firstly stated using the said word in the form of Lohia Industries in the year 1960s much prior to the incorporation of the plaintiff in the year 1981. There is no intention to take unfair advantage of or be detrimental to any alleged distinctive character of the trade mark of the plaintiff/respondent. There is no intention to infringe the trade mark/house mark of the plaintiff and pass of the goods of the defendant as those of the plaintiff/respondent. The companies/firms belonging to the group of defendant/appellant are well established and the net worth of the said group companies is approx. Rs. 500.00 crores.