9911796707
TMI Blog2012 (4) TMI 735X X X X Extracts X X X X X X X X Extracts X X X X ..... ehta, which is exhibited as Ex.PW-1/A and the Special Power Of Attorneys dated March 26, 2010 executed by plaintiffs No. 1 to 5 in favour of PW-1, are collectively exhibited as Ex-PW 1/1 (Colly). 4. PW-1 has deposed that plaintiff No. 1 is a partnership firm formed and registered under the laws of the Republic of India; and Ms.Satish Bala Malhotra, Ms.Monica Malhotra Kandhari and Ms.Sonica Malhotra are partners in the Plaintiff firm having its registered offices at Adda Hoshiarpur, Jalandhar City, Punjab, India and its branch offices at 6, Gulab Bhawan, Bahadur Shah Zafar Marg, New Delhi - 110002. Certified copy of the Registered Partnership Deed of the Plaintiff No.1 is on record from pages no. 11 to 14, of the documents file, filed by the Plaintiffs vide list of documents dated August 24, 2011 and the same are exhibited as Ex.PW-1/2. 5. PW-1 has also deposed that plaintiff No. 2 to 5, are companies duly incorporated and existing under the laws of the Republic of India having its registered offices at Gulab Bhavan, 6 - Bahadur Shah Zafar Marg, New Delhi - 110002. Certified copies of the Certificates of Incorporation of the Plaintiff No.2 to Plaintiff No.5 Companies are on record ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the group also prints technical books and children‟s books under various imprints popular in India as well as abroad. Plaintiff No.1 specializes in production of school level books such as textbooks, reference books, help books and study material for recapitulation in English and Indian regional languages. 9. This witness has also deposed that the Plaintiff No.1, along with other group companies of the MBD Group, has also acquired specialization in publishing text books and reference books for students at graduate and post graduate levels and for those pursuing a career in medical (covering exhaustively anesthesia and intensive care; anatomy and physiology; cardiology and cardiac surgery; dentistry, dermatology, ENT, gastroenterology and hepatology, haematology, and oncology; neurology, obstetrics and gynaecology, ophthalmology, orthopaedics, pathology, paediatrics, primary care, radiology and imaging, surgery, urology, electronic media), engineering and other technical areas. 10. PW-1 has also deposed that there are more than 8000 titles currently under the trade mark MBD and the same are increasing daily. The publishing house of the MBD Group, functioning under the trad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a and in all these centres, they are operated under the house mark MBD. 14. PW-1 has deposed that the MBD Group has also made its foray into premium and luxury mixed use developments primarily entailing hotel, retail and entertainment under brand names like MBD NEOPOLIS, MBD ZEPHYR, MBD PRIVE which are currently under operation and construction in Jalandhar, Ludhiana and Bangalore with planned presence in Hyderabad, Chennai, Mumbai, Delhi and Goa. Under the trade mark MBD NEOPOLIS & NUOVO, the MBD Group caters to international designers having the best labels like Fendi, Tommy Hilfiger, Van Cleef Arpel, Canali, Kimaya, etc. The luxury retail targets under the trade mark MBD ZEPHYR which includes brand names like Saks, Channel, Hermes, Gucci, Jimmy Chao, Louis Vutton, Christian Dior, Escada. 15. PW-1 has also deposed that the consolidated sales turnover of the plaintiff No.1 since the financial year 1982-83 to 2009-10 is ₹ 682,72,28,836.21/- (Crores). The annual turnover of the plaintiffs combined for the year 2009-10 was approximately ₹ 200 Crores. The approx. annual turnover of the plaintiffs for the past five financial years is given herein below : YEAR Plaintiff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ternational markets. 19. PW-1 has also deposed that, during this course of time the trade mark MBD has become a household name certainly in India, if not to that extent internationally, along with its various other affiliate / subsidiary companies, namely: S.NO. NAME OF COMPANY 1. Holy Faith International Pvt.Ltd. 2. Modern publishers 3. Oxbridge international Pvt.Ltd. 4. M.Gulab Singh & Sons Pvt.Ltd. 5. Holy Faith Exports 6. MBD Exports 7. D S Enterprises 8. MBD Properties Pvt. Ltd. 9. MBD Hotels Pvt. Ltd. 10. Dove Impex (India) Pvt. Ltd 11. MBD Graphics 12. MBD Creation 13. MBD Enterprises Pvt. Ltd. 14. MBD Overseas 15. Sonica Papers Converters & Printers 20. It is also deposed by PW-1 that the plaintiffs have extensively used MBD as a trade mark / corporate name / house mark and all the above companies have a strong presence in India and in neighboring countries. It is also deposed by this witness that without prejudice to the fact that the mark MBD is inherently distinctive being an arbitrarily coined mark, the plaintiffs have also acquired common law rights in the collective collocation and arrangement of the letters "M", "B&quo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 4. MBD Logo 01148149 16 5.11.2002 Pending 5. MBD (Stylized) 1811844 16 27.04.2009 Pending 6. MBD (Stylized) 1879218 08 03.11.2009 Pending 7. MBD (Stylized) 1879219 09 03.11.2009 Pending 8. MBD (Stylized) 1879220 21 03.11.2009 Pending 9. MBD (Stylized) 1879221 28 03.11.2009 Pending 10. MBD (Stylized) 1879222 29 03.11.2009 Pending 11. MBD (Stylized) 1879223 30 03.11.2009 Pending 12. MBD (Stylized) 1879224 35 03.11.2009 Pending 13. MBD (Stylized) 1879225 36 03.11.2009 Pending 14. MBD (Stylized) 1879226 37 03.11.2009 Pending 15. MBD (Stylized) 1879227 38 03.11.2009 Pending 16. MBD (Stylized) 1879228 40 03.11.2009 Pending 17. MBD (Stylized) 1879229 41 03.11.2009 Pending 18. MBD (Stylized) 1879230 42 03.11.2009 Pending 19. MBD (word mark) 1943440 08 30.03.2010 Pending 20. MBD (word mark) 1943441 09 30.03.2010 Pending 21. MBD (word mark) 1943442 21 30.03.2010 Pending 22. MBD (word mark) 1943443 28 30.03.2010 Pending 23. MBD (word mark) 1943444 29 30.03.2010 Pending 24. MBD (word mark) 1943445 30 30.03.2010 Pending 25. MBD (word mark) 1943446 35 30.03.2010 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atus 1. MBD ZEPHYR 1478046 16 11.08.2006 Pending 2. MBD ZEPHYR 1478047 42 11.08.2006 Registered 3. MBD ZEPHYR Lifestyle Luxury & Surprise 1740522 16 16.10.2008 Pending 4. MBD ZEPHYR Lifestyle Luxury & Surprise 1740523 42 16.10.2008 Pending 5. MBD ZEPHYR Stylized 1879190 36 03.11.2009 Pending 6. MBD ZEPHYR Stylized 1879191 37 03.11.2009 Pending 7. MBD PRIVE (Stylized) 1879203 08 03.11.2009 Pending 8. MBD PRIVE (Stylized) 1879204 16 03.11.2009 Pending 9. MBD PRIVE (Stylized) 1879205 21 03.11.2009 Pending 10. MBD PRIVE (Stylized) 1879206 29 03.11.2009 Pending 11. MBD PRIVE (Stylized) 1879207 30 03.11.2009 Pending 12. MBD PRIVE (Stylized) 1879208 42 03.11.2009 Pending 13. MBD ZEPHYR (Stylized) 1879217 35 03.11.2009 Pending 14. MBD ZEPHYR 1953193 16 20.04.2010 Pending 15. MBD ZEPHYR 1953194 42 20.04.2010 Pending 16. MBD PRIVE 1953197 08 20.04.2010 Pending 17. MBD PRIVE 1953198 16 20.04.2010 Pending 18. MBD PRIVE 1953199 21 20.04.2010 Pending 19. MBD PRIVE 1953200 29 20.04.2010 Pending 20. MBD PRIVE 1953201 30 20.04.2010 Pending 21. MBD PRIVE 1953202 42 20.04.2010 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 04.2010 Pending 10. MBD NEOPOLOS 1953204 35 20.04.2010 Pending 11. MBD NEOPOLOS 1953205 36 20.04.2010 Pending 12. MBD NEOPOLOS 1953206 37 20.04.2010 Pending 13. MBD NEOPOLOS 1953207 42 20.04.2010 Pending 14. MBD NEOPOLOS LOGO (B/W) 1953208 16 20.04.2010 Pending 15. MBD NEOPOLOS LOGO (B/W) 1953209 35 20.04.2010 Pending 16. MBD NEOPOLOS LOGO (B/W) 1953210 36 20.04.2010 Pending 17. MBD NEOPOLOS LOGO (B/W) 1953211 37 20.04.2010 Pending 18. MBD NEOPOLOS LOGO (B/W) 1953212 42 20.04.2010 Pending 20. MBD NEOPOLOS LOGO (Colored) 1953213 16 20.04.2010 Pending 21. MBD NEOPOLOS LOGO (Colored) 1953214 35 20.04.2010 Pending 22 MBD NEOPOLOS LOGO (Colored) 1953215 36 20.04.2010 Pending 23. MBD NEOPOLOS LOGO (Colored) 1953216 37 20.04.2010 Pending 24. MBD NEOPOLOS LOGO (Colored) 1953217 42 20.04.2010 Pending Plaintiff No.5 (MBD Printographics Pvt. Ltd.) Sl. Trade Mark Regn. Class Dated Status N No. / o Appl. No. Sl.No Trade Mark Regn.No. /Appl.No. Class Dated Status 1. MBD PRINTWELL Pure Perfection & Logo (col) 1811845 16 27.04.09 Pending 2. MBD PRINTWELL Pure Perfection & Logo (b/w) 1811846 16 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he activities of the plaintiff under the trade mark MBD and other composite marks containing the house mark MBD are collectively exhibited as Ex.PW 1/11. 26. Mr.Rohit Mehta has deposed that the trade mark MBD and other composite marks containing the mark MBD, prominently feature in print and electronic media including trade journals, directories, magazines and periodicals having, which have wide coverage and circulation and also have a voluminous presence on cyber space with domain names like mbdgroup.com, mbdneopolis.com, mbdalchemie.com and mbdzephyr.com; and that the sales, promotional and advertisement expenses incurred by the plaintiffs, on promotion of the trade mark MBD and other composite marks containing the mark MBD as a house mark, are as follows:- YEAR Plaintiff No.1(Crore) Plaintiff No.2 (Crore) Plaintiff No.3 (Lakh) Plaintiff No.4 (Lakh) Plaintiff No.5 (Lakh) 2004-05 1.44 1.32 NIL NIL NIL 2005-06 3.56 1.45 NIL 1.20 0.13 2006-07 2.36 1.76 NIL 5.96 NIL 2007-08 2.29 2.38 10.51 5.36 1.63 2008-09 4.79 4.01 30.37 0.20 0.13 2009-10 3.64 4.31 190.81 0.03 .05 TOTAL 18.08 15.23 231.69 12.75 1.94 27. PW-1 has further deposed that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tical / deceptive resemblance to the composite marks of the plaintiffs bearing the house mark MBD, viz., MBD Alchemie, MBD Zephyr, MBD, Neopolis, MBD Prive, etc. This witness has also deposed that the photographs depicting use of the infringing mark by the defendant and printouts of the web pages demonstrating usage of the infringing mark are collectively on record from page nos. 17 to 24 (Volume - I) of the documents filed by the plaintiffs vide list of documents dated December 24, 2010 and are collectively exhibited as Ex.PW-1/15. 30. Sh.Rohit Mehta has also deposed that the defendant school is affiliated to the Dr.B.R. Ambedkar University, Agra as "Mata Basanti Devi School of Biosciences & Biotechnology" and not as MBD School of Biosciences & Biotechnology. This witness has next deposed that the defendants‟ adoption of an abbreviation which is identical to the registered trade mark of the plaintiffs is intentional. Print Out of the list of schools affiliated to the Dr.B.R.Ambedkar University, Agra, obtained from the website of the University, i.e., from http://www.dbrau.ac.in/college_detail.pdf is on record from page nos. 25 to 52 (Volume - I) of the documents f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of the infringing mark by the defendant would violate the statutory and common law rights of the plaintiffs in the mark MBD and other composite marks containing the mark MBD; (iv) The trade mark MBD is an essential feature of the Plaintiffs trading activities and the use of the infringing mark by the defendant leads to gross colorable imitation of the trade mark MBD and other composite marks of the Plaintiffs, resulting in deceptive similarity, likelihood of confusion, infringement, dilution of goodwill, unfair competition and / or passing off; (v) The Defendants infringing mark is phonetically, visually, structurally, and otherwise, identical and / or deceptively similar to the registered trade mark MBD, and other composite marks of the Plaintiffs, bearing the mark MBD. The infringing mark is similar in idea and contains an identical collocation and arrangement of words to that of the Plaintiffs marks. The competing marks are liable to be confused for each other on account of imperfect recollection by unwary consumers; (vi) The services, for which the infringing mark is being used by the Defendant, are cognate and allied to the goods and services of the Plaintiffs. It is note ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he print outs have also been exhibited as Ex.PW-1/5. It has been established by the evidence that plaintiff no.1 is the prior user of the mark "MBD" since the year 1956, has more than 32 branch offices in India alone, has approximately 3000 employees, a network of around 1000 distributors, and 10,000 book sellers. The plaintiff no.1 has been using the trademark continuously and extensively along with plaintiff no.2-5 and other group companies. It has also been proved that group companies of the MBD Group, have also acquired specialization in publishing text books and reference books for students at graduate and post graduate levels and for those pursuing a career in medical, engineering and other technical areas. It has also been proved that plaintiff no.1 publishes and exports books to North American Countries, Europe, Gulf countries and South Asian countries. The plaintiff has obtained six registrations for the mark MBD, details of which is given in the affidavit by way of evidence and the certificates for use in legal proceedings and registration certificates, along with renewal certificates are proved and collectively exhibited as Ex.PW-1/9. Invoices for the promotion ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
