KALPESH R JAIN Vs. MANDEV TUBES PVT. LTD

JUDGEMENT

(1.) The present Appeal is filed by the Appellants (original defendants), being aggrieved by the order and judgment delivered by the learned single Judge of this court (Coram : G.S. Patel,J.) on 06.12.2016 in Notice of Motion No. 2195 of 2016 filed in Suit No. 742 of 2016, thereby recording the finding that the Plaintiff therein has demonstrated a prima facie case and that the Hon'ble Court is persuaded to grant the said notice of motion in terms of prayer clauses (a), (b) and (c). The present appellants were impleaded as Defendants/ Respondents in the Suit No. 742 of 2016 which was filed by the plaintiff Company - Mandev Tubes Pvt. Ltd., seeking protection of its registered design and alleging infringement and passing off.

(2.) In the suit, it is the claim of plaintiff that pursuant to the said registration, the plaintiff applied its unique and novel design to the copper tubes manufactured by it and those copper tubes were marketed and sold under the trademarks "MT ECO SELF CONNECT" and "MT MEDI SELF CONNECT PLUS". The plaintiff promoted/ advertised its product extensively and acquired a good market through various industry magazines and due to the said advertisement, it had generated enormous sales and that the plaintiff was able to capture a significant market share. According to the plaintiff in or about February, 2015, the plaintiff learnt from trade sources that there was a fraudulent and obvious imitation of their product being sold in the market and on an enquiry, it was revealed by the plaintiff that these goods were marketed in uncanny resemblance to that of the plaintiff's self connect tubes and the deception was apparent to the eye. The plaintiff learnt that one - Hariom Metal and Tubes i.e. the defendant no.1, was manufacturing the said tubes which infringed the plaintiff's rights. Resultantly, the plaintiff issued notice through his counsel to the defendant no.1, who is appellant before us in this appeal, asking / directing the defendant to cease and desist from infringing its registered designs and passing off as the plaintiff's self connect tubes. Defendant no. 1 denied the claim of the plaintiff and informed the plaintiff that it had obtained the registration in respect of its product.

(3.) The plaintiff was aggrieved by the said act of the defendants and claimed that the "differences" sought to be emphasized by the defendant are trivial and meaningless and a close comparison of the products revealed that the defendant had copied the essential feature of the Plaintiff's design in the expanded bell-shaped ending. According to the plaintiff, deception is further aggravated by the use of identical colour for the caps used on the defendant's tubes. The plaintiff also moved an application for cancelling / rectifying the defendant no.1's registered design before the Controller of Designs, Kolkata and the said proceedings are pending. Left with no other effective remedy, the plaintiff filed the suit, claiming that the defendants have infringed the designs of the plaintiff and deceptively similar tubes manufactured by the defendants are being sold through the stockist market. The plaintiff had placed on record the evidence to that effect including the dealers invoices and delivery challan, depicting the pictures of the goods purchased under the said invoice. The plaintiff, thus was aggrieved by the unlawful and illegal manufacturing and about the supply and sale of the infringed copper tubes by the defendants and was also aggrieved and apprehensive of the irreparable loss and injury being caused to the goodwill of the business of the plaintiff. The plaintiff, therefore, prayed for a perpetual order and injunction, restraining the defendants from infringing in any manner the plaintiff's registered design and in any manner passing off of its design and tubes as those of the plaintiff. The plaintiff prayed for a decree in its favour and against the defendants for a sum of Rs.20,00,000/- by way of damages for the alleged act of infringement and passing off on the part of the defendants. The plaintiff also sought a temporary order of injunction, restraining the defendants from infringing the plaintiff's registered designs during the pendency of the said suit.