NEEL ELECTRO TECHNIQUES Vs. NEELKANTH POWER SOLUTION

JUDGEMENT

(1.) This Notice of Motion, which is tagged with Notice of Motion No.294 of 2013 in Suit No.2574/2012 and Arbitration Petition Nos. 1260 of 2013 and 1347 of 2012, both under Section 9 of the Arbitration and Conciliation Act, 1996 and Arbitration Petition No.148 of 2013 under Section 11 of that Act, seeks a temporary injunction against the Defendants from in any manner using, directly or indirectly, the mark "Neel" or "Neelkanth" or any other mark, domain name, device, logo, label etc. which is similar/deceptively similar to the registered mark of the Plaintiffs, namely, "Neel". Learned Counsel for the parties chose to argue this Notice of Motion separately from the other matters, and hence, the same is being disposed of separately by this order. The suit is an infringement and passing off suit. The facts of the case may be briefly stated thus:

(2.) Plaintiff Nos. 1 and 2 are partnership firms carrying on business of manufacturing, marketing and selling Voltage Stabilizers and Isolation Transformers. The partnerships belong to two brothers and their family members Ravindra Gamanlal Mehta (Plaintiff No. 3) and Hemant Gamanlal Mehta. Plaintiff No. 3, and Plaintiff No. 5 (son of Plaintiff No. 3) and the said Hemant Mehta are partners of Plaintiff No. 1, Plaintiff Nos. 3 and 5 between them having 60% share in the partnership and the said Hemant Mehta holding the balance 40% share. Plaintiff Nos. 3 and 4 (wife of Plaintiff No.3) and the said Hemant Mehta are partners of Plaintiff No. 2 holding between them 60% (Plaintiff Nos. 3 and 4) and 40% shares (Hemant Mehta). Plaintiff No. 2 is the registered proprietor of the mark "Neel" and uses it as part of the trading name and also markets products under that trade mark. Plaintiff Nos. 7, 8 and 9 are associated firms/companies, majority shares in which are held by the group of Plaintiff No. 3, and use the trade name and mark "Neel" by way of a permitted user. It is the case of the Plaintiffs that from April 2011, Plaintiff Nos. 8 and 9 have stopped using the mark "Neel", though it continues to be a part of their trading name. Defendant No. 1 is a partnership firm of which Defendant No. 2 (wife of Hemant Mehta) and the said Hemant Mehta are the partners.

(3.) It is the case of the Plaintiffs that Defendant No. 1 is infringing the Plaintiffs' mark "Neel" and passing off its goods as those of the Plaintiffs. The Plaintiffs rely upon the registration of the mark "Neel", their list of products, their sales including exports sales, customers list, turnover, sales network, list of distributors etc. to prove the registration as well as extensive reputation acquired by the mark "Neel" in the market. The Plaintiffs also rely upon the Defendants' brochure to show that the Defendants are using the mark "Neel" as part of their trading name and also to market their goods which are similar to the Plaintiffs' goods. The Plaintiffs submit that there is not only infringement of the mark "Neel" thereby but that by claiming a common origin and connection with the Plaintiff firms the Defendants are actually passing off their goods as goods of the Plaintiffs and trading upon the goodwill and reputation of the Plaintiffs.