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TMI Blog2011 (2) TMI 1531X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the years 2006-07, 2007-08 and 2008-09 respectively. It is also claimed that on account of continuous and extensive user since 1960, the goods/services and business being carried under the trademark GIANI'S have come to be identified and associated exclusively with the Plaintiff. The Plaintiff claims to have incurred substantial expenditure on promoting and advertising its products as well as the trademark and trade name adopted by it. 3. It is alleged that the Defendants have adopted and started using the trade name GIAN'S in respect of edible items including milk and dairy products, ice creams, faluda, milk shakes etc. Mr. Madhusudhan Singh, Defendant No.1 is alleged to be the proprietor of Defendant No. 2 M/s GIAN'S. It is also alleged that the trademark adopted by the Defendant is deceptively similar to the trademark of the Plaintiff on account of phonetically, visually and structurally similarity and by using the trademark GIAN'S, the Defendants have infringed the registered trademark of the Plaintiff and they are also passing of their goods and business as that of the Plaintiff. It is further alleged that members of the public including house wives and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ardings etc. 6. Mr. Param Jeet Singh has further stated that the Defendants are engaged in the same business in which the Plaintiff is engaged and they have adopted and started using the trademark/trade name/label GIAN'S in respect of edible items including milk and dairy products, ice creams, faluda, milk shakes etc. He has further stated that the Plaintiff had come across the goods of the Defendant being sold under the impugned trademark/trade name/label GIAN'S in the beginning of May, 2009 and sent a legal notice to him, which was not replied to. 7. The case of the Plaintiff against the Defendants is based upon infringement of their registered trade mark as well as on passing off. Section 28 of Trade Marks Act, 1999 gives to the registered proprietor of the trade mark the exclusive right to the use of the trade mark in relation to the goods or services in respect of which the trade mark is registered and to obtain relief in respect of infringement of the trade mark in the manner provided by this Act. The action for infringement is, thus, a remedy provided by Trade Marks Act to the registered proprietor of a registered trade mark in case there is an invasion of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the services rendered by him, as the case may be, may acquire certain reputation or goodwill in the market which becomes the property of that person and needs to be protected by the court. It is not permissible for any other person to start selling goods or rendering services either using the same name or imitating that name so as to cause injury to that person and enrich himself at the cost of the person who had already been using that name and had acquired a certain reputation with the passage of time and on account of the quality of the goods sold or services rendered by him. Any attempt on the part of a person to enrich upon the goodwill generated by any other person needs to be curbed by the court whenever approached by the aggrieved party in this regard. 10. In Corn Products Refining Co. v. Shangrila Food Products Ltd. 1960 (1) SCR 968, the Supreme Court observed that the question whether two competing marks are so similar as to be likely to deceive or cause confusion is one of first impression and it is for the court to decide it. The question has to be approached from the point of view of a man of average intelligence and imperfect recollection. 11. In Parle Products ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es its trademark in a substantial degree on account of extensive use of the main features found in his trademark. In fact, any intelligent person, seeking to encash upon the goodwill and reputation of a well-established trademark, would make some minor changes here and there so as to claim that the trademark being used by him, does not constitute infringement of the trademark, ownership of which vests in some other person. But, such rather minor variations or distinguishing features would not deprive the Plaintiff of injunction in case resemblance in the two trademarks is found to be substantial, to the extent that the impugned trademark is found to be similar to the registered trademark of the Plaintiff. 13. A perusal of mark 'A' (Colly.) which are the copies of Registration No. 622601 and 622602 dated 21st March, 1994 would show that the mark GIANI'S is registered in the name of the Plaintiff Giani Gurcharan Singh and Sons under Class 30 in respect of milk and other dairy products as well as in respect of flour and preparation made from cereal. Ice creams, in my view, would be covered under dairy products. Hence, the Plaintiff is the registered proprietor of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... old by the Defendant in a mistaken belief that he was buying the product of the Plaintiff firm. The letters GIAN'S are the essential features and primary components of the Plaintiff's registered trademark GIANI'S and use of these very letters by the Defendant for selling the same product is likely to give an impression that both the products were emanating from the same source or that the products being sold under the trademark GIAN'S had some trade link or association with the products being sold under the trademark GIANI'S. 16. In Cadila Health Care Ltd. v. Cadila Pharmaceuticals Ltd. (2001) 5 SCC 573, the Supreme Court, inter alia, observed that its decisions in the last four decades had clearly laid down that what had to be seen in the case of a passing off action was the similarity between the competing marks and to determine whether there was likelihood of deception or causing confusion. 17. The Defendant has not come forward to contest the suit and tell the Court as to why he chose to use the mark GIAN'S in particular. The obvious inference, therefore, is that on account of the mark GIAN'S being similar to the well-known and reputed mark GIA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Plaintiff but gets an inferior product. It is, therefore, in the interest not only of the Plaintiff but also of the customer that such confusion and deception is not allowed to continue and the consumer gets what he wants to buy and pays for. I, therefore, hold that the Plaintiff has been able to prove not only infringement of its copyright and also that the Defendant is passing off his products as those of the Plaintiff. The Plaintiff is, therefore, entitled to injunction against use of the trademark GIAN'S by the Defendant in respect of ice-cream and other milk and dairy products as also in respect of flour and cereal products. 20. Though the Plaintiff has also claimed delivery up of infringing material and rendition of accounts, these reliefs were not pressed during arguments. The learned Counsel for the Plaintiff, however, pressed for award of punitive damages, actual damage has not been proved by the Plaintiff. 21. In Times Incorporated v. Lokesh Srivastava and Anr. 2005 (30) PTC 3 (Del), this Court observed that punitive damages are founded on the philosophy of corrective justice and as such, in appropriate cases these must be awarded to give a signal to the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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