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TMI Blog2012 (4) TMI 735X X X X Extracts X X X X X X X X Extracts X X X X ..... ower 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 and the same are collectively exhibited Ex.PW-1/3) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 trading name of plaintiff No.1, publishes and exports books to No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 No.1 (Crore) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from those of others. PW-1 has also deposed that the trademark MBD has been internationally used by the plaintiff No.1 and by all the other plaintiffs under a license from Plaintiff No.1. 18. Mr.Rohit Mehta has deposed that the trade mark MBD has also been prominently appended by the plaintiffs as an essential feature to most of its other leading trade marks / trade names like MBD NEOPOLIS, MBD ZEPHYR, MBD ALCHEMIE, MBD GROUP, etc., and thus the trade mark MBD has come to be associated as a house mark and the said use of over five and a half (5 ) decades has generated colossal sales volumes for the plaintiffs and unprecedented and unmarked reputation/goodwill in the domestic as well as international 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. Oxbrid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y renewed, subsisting and conclusively valid under the provisions of the Act. Certificates for use in legal proceedings and Registration Certificates, along with their renewal certificates are collectively exhibited as Ex.PW-1/9. 22. Mr.Rohit Mehta has deposed that the MBD Group boasts of a trade mark portfolio of approximately two hundred and fifty (250) trade mark applications, out of which approximately one hundred and forty (140) applications have been filed for registration of trade-marks bearing the mark MBD. All these applications are pending registration and are at an advanced stage of the process. Copies of the trade mark applications filed for registration by the plaintiffs for the trade mark MBD and other composite marks containing the house mark MBD are collectively exhibited as Ex.PW-1/10. PW-1 has also deposed that all the applications, pending or registered, bearing the trade mark MBD of the plaintiffs, have been reproduced below in a consolidated list: Plaintiff No.1 (Malhotra Book Depot) Sl.No. Trade Mark Regn. No./Appl. No. Class Dated Status ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Stylized) in Hindi 1953134 36 20.04.2010 Pending 41. MBD (Stylized) in Hindi 1953135 37 20.04.2010 Pending 42. MBD (Stylized) in Hindi 1953136 38 20.04.2010 Pending 43. MBD (Stylized) in Hindi 1953137 40 20.04.2010 Pending 44. MBD (Stylized) in Hindi 1953138 41 20.04.2010 Pending 45. MBD (Stylized) in Hindi 1953139 42 20.04.2010 Pending 46. MBD (Stylized) in Punjabi 1953140 08 20.04.2010 Pending 47. MBD (Stylized) in Punjabi 1953141 09 20.04.2010 Pen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Pending 26. MBD VERNAZZA 1967844 16 19.05.2010 Pending 27. MBD VERNAZZA 1967845 36 19.05.2010 Pending 27. MBD VERNAZZA 1967846 37 19.05.2010 Pending 28. MBD VERNAZZA 1967847 42 19.05.010 Pending Plaintiff No.3 (MBD Alchemie Pvt. Ltd.) Sl.No. Trade Mark Regn. No./ Appl. No. Class Dated Status 1. MBD ALCHEMIE igniting excellence in education 1513380 16 14.12.2006 Pending 2. MBD ALCHEMIE LMS 1516326 41 23.05.2007 Pending 3. MBD ALCHEMIE (Stylized) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Class Dated Status 1. MBD NEOPOLIS Where The Experience Never Ends Stylized 1338754 16 16.02.2005 Pending 2. MBD NEOPOLIS Where The Experience Never Ends Stylized 1338755 41 16.02.2005 Registered 3. MBD NEOPOLIS Where The Experience Never Ends Stylized 1338756 42 16.02.2005 Registered 4. MBD NEOPOLIS (Stylized) (col) 1879185 16 03.11.2009 Pending 5. MBD NEOPOLIS (Stylized) (col) 1879186 35 03.11.2009 Pending 6. MBD NEOPOLIS (Stylized) (col) 1879187 36 03.11.2009 Pending 7. MBD NEOPOLIS (Stylized) (col) 1879188 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 27.04.09 Pending 3. MBD WRITEWELL And W‟ Stylized (col) 1811847 16 27.04.09 Pending 4. MBD WRITEWELL And W‟ Stylized (b/w) 1811848 16 27.04.09 Pending 5. MBD PRINTWELL 1953155 16 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the plaintiffs have expended a great amount of time, money and effort to promote and advertise the trade mark MBD, all its variants and the composite marks to which MBD has been appended as a house mark, in all and every possible manner. Print outs of a few media releases covering the 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) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Thus, any adoption or use of the mark MBD or of any deceptively similar mark in relation to identical and/or similar goods will not only cause confusion and deception to the public, but will also be contrary to the protection required to be afforded to a well-known mark, dilute its image and be generally misleading to consumers and members of the trade. 29. PW-1 has also deposed that the defendant as per the information received by the plaintiffs, is an education institution; and the plaintiffs in the month of December 2010, acquired knowledge of the fact, through an advertisement published on cyber space and through a web link advertising the infringing mark, that the defendants were using the name MBD School of Biosciences Biotechnology ( infringing mark ). PW- 1 has also deposed that the plaintiffs are aggrieved by the usage of the mark MBD in the infringing mark MBD School of Biosciences Biotechnology by the defendant for their business activities as the same contains the trade mark MBD as a whole and bears an identical / deceptive resemblance to the composite marks of the plaintiffs bearing the house mark MBD, viz., MBD Alchemie, MBD Zephyr, MBD, Neopolis, MBD Prive, e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me, which is associated exclusively with the Plaintiffs. Any use or adoption of an identical or deceptively similar mark, such as the infringing mark, would be without any basis and would be construed to be originating from the Plaintiffs; (ii) The infringing mark, namely, MBD School of Biosciences Biotechnology, contains the Plaintiffs well-known and widely used mark MBD as a whole. The manner of use of the infringing marks suggests that prominence has been given to the mark MBD. This evidences the mala fide motive of the Defendant to use an identical mark to that of the Plaintiffs for promoting and passing off its own services as that of the Plaintiffs; (iii) The trade mark MBD (per se) has been registered, and applied for registration, by the plaintiffs in various classes with user claim since the year 1956. Furthermore, all the variants of the trade- mark MBD, along with composite marks of the Plaintiffs, which contain the mark MBD, are also registered and/or are pending registration. Thus, adoption and user 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... kely to continue to suffer dilution, diminution and eventual erosion of the goodwill and reputation of their mark MBD and all other composite marks adopted and used by the plaintiffs which contain the mark MBD as a whole. 34. I have heard counsel for the plaintiffs and perused the plaint and the accompanying documents and the evidence led by the plaintiffs. The evidence of the plaintiffs remained unrebutted. In this case, vide order dated 04.05.2011 interim orders were granted in favour of the plaintiff and against the defendants. Thereafter defendant was proceeded ex parte and plaintiff was directed to file affidavit by way of evidence. 35. Plaintiff has filed affidavit of PW-1 (Rohit Mehta). As per the affidavit the MBD group is one of the largest group with more than five decades of experience and all the group companies use the corporate name/house mark MBD in some form or the other for their business activities. Copies of brochures and other materials have been placed on record and the same has been exhibited as Ex.PW1/4. The 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 s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l and reputation of the plaintiff. 36. Counsel for the plaintiff also prays for damages @ ₹ 21,00,000/- for loss of reputation and business as also the cost of the present proceedings. It is trite to say that the defendant has deliberately stayed away from the present proceedings with the result that an enquiry into the accounts of the defendant for determination of damages cannot take place. The infringement of the trademark of the plaintiff is not in dispute. Counsel for the plaintiff in support of his case has drawn attention of this court to a number of judgments ['M/s L.T. Overseas Ltd. v. M/s Guruji Trading Co. and Anr. [CS (OS) No. 2711/1999; and Relaxo Rubber Limited and Anr. v. Selection Footwear and Anr., 1999 PTC 578. Counsel has also placed reliance on Time Incorporated v. Lokesh Srivastavaand Anr., 2005 (30) PTC 3 (Del) where apart from compensatory damages of ₹ 5 lakhs, punitive damages have also been awarded. Justice R.C. Chopra, has set out in Time Incorporated's case (supra) that punitive damages are founded on the philosophy of corrective justice. 37. For the reasons stated above, the plaintiff has made out a case for grant of decree as p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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