BHARTI CELLULAR LTD Vs. JAI DISTILLERS PVT LTD

JUDGEMENT

(1.) The present Notice of motion has been taken out inter alia seeking relief of injunction of infringement of the plaintiffs artistic work being Exhibit-D to the plaint and also for an injunction from in any manner manufacturing, marketing, exhibiting and selling any goods bearing the trade mark 'airtel' as mentioned in Exhibit-A and b to the plaint or any other deceptively similar mark on the ground of passing off. Prayers (c) and (d) of the motion are for appointment of the Court Receiver with a power to take possession of the goods and destruct all the labels, cartons and advertising material.

(2.) Some of the material facts of the present case are as under :

(3.) The plaintiffs are a company inter-alia carrying on business in telecommunication services. The plaintiffs are also providing mobile services to various people in India and is a well known company in the name of 'airtel'. The plaintiffs are carrying on business in various states of India and are having a large turnover and are owner of well known popular brand name 'airtel'. Sometime in or about 1994 the plaintiffs conceived and invented the word mark 'airtel'. The plaintiff have also simultaneously adopted a distinctive label mark consisting the word 'airtel' written in a particular manner with a particular colour combination. Plaintiffs are also contending that they are a group of companies who are using the said mark 'airtel' essentially in relation to business of telecommunication services. The plaintiffs have also contended that they have acquired a super reputation in their mark 'airter thus the said brand should be either treated as super brand or a universal brand. They have further contended that by virtue of such a status of super brand they are entitled to protection visa-vis all kind of goods using such a word mark 'airtel'. Plaintiffs have stated in the plaint that sometime in or about 2002 the plaintiffs commissioned the services of M/s. Ray and Keshvan Designer for the purpose of creating an artistic work with the label mark using the word 'airtel'. It is their further case that Ms. Sujata Keshavan and Ms. Meeta malhotra, the Creative Controller employed by the creative agency were entrusted with the work of creating the artistic work and they have created the design and artistic work for the plaintiff with the use of the word 'airtel'. The said artistic work is set out at exhibit-D to the plaint which indicates use of the word in a particular manner with a different colour combination of Red, White and Black. According to the plaintiffs they also started using the said artistic work on the carton and/or on the label on the packs for the purpose of distributing, marketing and selling their services since 2002. They have contended that they have sold their products and services with the said label on a extensive basis all over India and thus they are the sole proprietor of the said artistic design. Plaintiffs have also filed an application for the registration of their word mark 'airtel' under the Trade and Merchandise Marks Act, 1958. The application is also filed for label mark and the same is also pending since 2002. Application for label mark with artistic work has been filed under the Copy Rights act. The plaintiffs have stated in the plaint that they are using the said mark 'airtel' and the artistic work covered by the said label all over the country extensively and in support of the same the plaintiff have relied upon the sales figures and the figures of advertisement expenses indicating extensive sale of their products and the huge amount of money spent towards the advertisement. Therefore the plaintiffs company claim to be known by the word 'airtel' in the market and thus plaintiffs are require to protect their business and goodwill in the market. Plaintiffs claims to have as of today 30. 71 million subscribers in almost 16 States and a customer base of 24% of the cellular subscribers in India i. e. the biggest and largest market in the cellular phone services. Plaintiffs also claims to be engaged in prepaid and post-paid mobile cards for the purpose of mobile sales services and recently the plaintiffs have also entered into land-line telephone services. Plaintiffs have also claimed to have diversified their business and services such as in the field of v-SAT services, submarine cable projects manufacturing of telecommunication equipment and health care.