2013 (4) TMI 305 - HC - Companies Law

Infringement of registered trade marks - Passing off - Unfair trade competition - The defendants mark was deceptively and confusingly similar to the plaintiff s registered trade mark/trade name - Held that - Having heard learned counsel for the plaintiff and perused the ex parte evidence as well as documents placed on record, this Court is of the opinion that plaintiff has in fact proved the facts stated in the plaint and has also exhibited the relevant documents in support of its case. Since the plaintiff s evidence has gone unrebutted, said evidence is accepted as true and correct. Use of the plaintiff s mark by the defendants besides constituting infringement and passing off as well as unfair trade competition also amounts to dilution of the mark. The defendants, their partners, officers, employees, agents, distributors, franchisees, representatives and assigns are restrained by way of permanent injunction from using AGARWAL and/or AGARWAL s PACKER and/or AGARWAL s PACKER & MOVERS or any other trade mark or name similar to the plaintiff s registered trade mark or in any other manner whatsoever so as to infringe the registered trade marks of the plaintiff or to pass off their services or business as and for the services or business of the plaintiff or from using any other indicia whatsoever to show any association or affiliation or connection of the defendants or their services with the plaintiff or its services- Registry is directed to prepare decree sheet accordingly.

Summary

Issues:
Injunction for trademark infringement, passing off, unfair competition, and damages.

Analysis:
The present suit was filed for injunction against infringement of registered trademarks, passing off, unfair competition, and damages. The plaintiff, a leading packaging and logistics service provider, registered the mark AGARWAL PACKERS & MOVERS in Classes 16, 17, and 39. The plaintiff presented evidence of its business activities, including turnover, expenditure on advertising, and letters of appreciation. The suit was initiated when the defendants advertised themselves as "AGARWAL's PACKER AND MOVERS," which was deceptively similar to the plaintiff's mark.

An ex parte ad interim injunction was granted against the defendants in June 2008. Subsequently, the defendants changed their name to YASH AGARWAL PACKERS AND MOVERS and expressed willingness to settle. However, the plaintiff did not accept the proposed settlement. As the defendants did not pay costs, their written statement was struck off the record, and they were proceeded ex parte in March 2009.

The court found that the plaintiff had proven its case with unrebutted evidence. The triple identity test was satisfied, indicating infringement by the defendants. The court recognized the plaintiff's mark as well-known in India, and the defendants' use of a similar mark was deemed to dilute the plaintiff's mark. Consequently, the defendants were permanently restrained from using marks similar to the plaintiff's registered trademark or engaging in activities that could infringe on the plaintiff's rights.

In conclusion, the court ruled in favor of the plaintiff, granting a permanent injunction against the defendants and directing the registry to prepare a decree sheet accordingly.