JUDGMENT
Anil Kumar, J.
1. This judgment shall dispose of plaintiff’s suit for permanent injunction, passing off, infringement of copyright, rendition of accounts and delivery of offending goods for destruction.
2. Plaintiff filed this suit for permanent injunction etc. contending inter alia that he is the sole proprietor of the firm M/s Guaranteed Parts Manufacturing Company. He manufacturers and markets pipes and hoses for use in automobiles.
3. The plaintiff and defendant are real brothers who had been carrying on business of manufacturing motor parts, tractor parts, engine parts, machinery parts for use in automobiles in partnership under the name and style of M/s Guaranteed Parts Manufacturing Company at J-11/31, Rajouri Garden New Delhi under a partnership deed dated 20th September 1984. The partnership business acquired the trademark ‘on 1st April 1985 in respect of pipes during the course of business. An application for registration of the trademark was filed by the partnership business. It was contended that the trademark of the partnership business is distinctive in relation to goods hoses and pipes. The terms of partnership carried on between the plaintiff and defendant were modified and a supplementary partnership deed dated 1st April 1996 was executed between the parties.
4. The partnership business carried on between the plaintiff and defendant was dissolved and a dissolution deed dated 19th September, 1997 was executed. The defendant was not willing to continue as a partner and consequently he retired from the partnership business. Consequently the partnership business between plaintiff and defendant was dissolved from 31st August, 1997. The trademark ‘in relation to goods on dissolution as per the terms of dissolution fell to the share of the plaintiff. Te said trademark’ is used by the plaintiff since 1st April, 1985 in respect of pipes and brakes hoses in distinctive cartons.
5. Plaintiff contended that the trademark ‘acquired a tremendous reputation amongst the general public and has been extensively used and advertised for a long time. Plaintiff gave the details of extensive advertisements got published by the plaintiff during different years. It was contended that the plaintiff has been packing hose pipes in distinctive manner having yellow strips on polythene bags on front side where the trademark’ is also mentioned. Plaintiff also averred that after thdissolution of the partnership business between plaintiff and defendant when the defendant had retired, the plaintiff had been supplying his goods to the defendant so that he could sell the same in the market in order to help him. The defendant had purchased the goods under the trade name’ from the plaintiff from November 1997 till December 1999.
6. After retirement defendant started his proprietorship firm under the name and style of M/s G.P. International. The plaintiff contended that in order to earn easy money and utilize the goodwill and reputation of the trademark, ‘the defendant has started using deceptively similar trademark’. Plaintiff relied on the fact that the purchasers of the goods are illiterate drivers and mechanics who are unable to make distinction between the goods of the plaintiff and the defendant. Most of tem buy the goods of the defendant considering them to be the goods of the plaintiff on account of similarity between the trademark ‘of the plaintiff and’ of the defendant. In order to deceive illiterate mechanics and drivers the defendant also using similar packing material which is having similar color scheme, getup and design as that of the plaintiff.
7. To dissuade the defendant from continuing with his illegal trade by using deceptively similar trademark, ‘plaintiff sent a notice dated 8th September, 2000 to the defendant asking him to stop using the trademark’ as well as its packing material similar to that of plaintiff. The notice sent by the plaintiff was replied by the defendant and a reply dated 21st September 2000 was received where the defendant raised certain baseless grounds. Contention of the plaintiff is that the goods of the plaintiff and defendant and their packing material and the trademark is so similar that even a literate person can be deceived. Goods of plaintiff and defendant are also sold by similar businessmen from the same counter and the purchasers are unableo make out a distinction between the goods of the plaintiff and the goods of the defendant. According to plaintiff even the area where maximum goods are sold are also the same. The plaintiff alleged that the act of the defendant in adopting a deceptively similar trademark ‘was deliberate and intentional dishonest act on the part of the defendant after retiring from the partnership business despite the fact that for some years the defendant had been purchasing the goods from the plaintiff under the trademark’ from the plaintiff.
8. By an order dated 15th February 2001, the plaintiff was granted an ex-parte interim injunction against the Defendant. After the defendant was served, an application under order 39 Rule 4 read with Section 151 of Code of Civil Procedure was filed. The application of the defendant to vacate the interim order dated 15th February, 2001 granted in favor of plaintiff was, however, dismissed after hearing by order dated 10th July, 2001 and interim order granted in favor of the plaintiff was confirmed. The defendant was asked to file the written statement, however, he failed to file the same and even failed to appear and consequently by order dated 23rd November, 2001 he was proceeded ex parte.
9. After the defendant was proceeded ex parte, the plaintiff filed the documents and the evidence of the plaintiff by filing an affidavit of Shri Harmohan Singh. In his affidavit he reiterated the statements made in the plaint as well as replication. Hedeposed that he is the sole proprietor of firm M/s Guaranteed Parts Manufacturing Company. He deposed about the partnership deed and the supplementary partnership deed which were exhibited as P-1 and P-2. The plaintiff also deposed about the dissolution deed and exhibited the same as P-3. The plaintiff categorically stated that the trademark ‘came to his share on dissolution and that the trademark is distinctive and is used by him since 1st April, 1985. The plaintiff deposed that the trademark his acquired a tremendous reputation amongst the general public on account of extensive advertising and publicity. The plaintiff proved the amount spent on publicity during various years.
10. Plaintiff deposed that he has been packing goods viz pressure hose pipe in distinctive polythene packs having yellow stripes on front side where the plaintiff’s trade mark ‘is mentioned. The plaintiff proved his packing material as exhibit P-4. Plaintiff also categorically stated that he had been supplying material to defendant to further sell in the market under the trade name’ which is of the plaintiff. Plaintiff deposed about the packing material used by the defendant which is similator that of plaintiff in respect of pipes, oil seals, water pump kit, cooling pipes, thermostat, MC batteries etc. The packing material of defendant was exhibited as P-5.
11.Plaintiff deposed that the goods are used by illiterate persons who are not able to distinguish between the goods of the plaintiff and that of defendant on account of very conspicuous similarities in the packing material of plaintiff and the defendant. The illiterate mechanics and drivers, purchasers are purchasing the goods of the defendant under the impression that the goods are that of plaintiff. The color scheme, the package material, getup and design of the defendant is similar to that of plaitiff. The plaintiff proved some of the bills of the defendant as exhibit P-6. The plaintiff proved the notice issued on his behalf to the defendant to stop using deceptively similar trademark and packing material. The plaintiff also exhibited the repl dated 21st September 2000 received from the defendant. The plaintiff made categorical statement that the goods of the plaintiff and defendant are sold at the same counter and at the same shops and the market leading to utter confusion and the purchaser are unable to make a distinction between the two trademarks. According to plaintiff adoption of similar color scheme and the packing material and deceptively similar trademark’ by the defendant is deliberate and dishonest act on his part to get legal benefit from the reputation of the plaintiff. According to the deposition of the plaintiff the reputation, name and goodwill of the plaintiff has suffered adversely on account of illegal acts on the part of the defendant and attributable to the defendant. Use of deceptively similar trademark by the defendant is in gross violation of legal rights of the plaintiff.
12. Consequently plaintiff deposed that the defendant should be restrained from selling goods in identical packing material or in such material which is similar to that of plaintiff and the defendant be further restrained from passing off his goods as that of plaintiff by adopting a deceptively similar trademark ‘or any other trademark similar to that of plaintiff’s trademark’. The plaintiff has also prayed for rendition of account of profits illegally earned by the defendant on account of the use of deceptively similar trade mark ‘and after rendition of account, a decree for recovery of amount found due to the plaintiff be passed in his favor. The plaintiff has also prayed for delivery of the goods by the defendant to the plaintiff having deceptively similar packing material so that of packaging material comprising of cartons, blocks, dies, labels, wrappers, price lists, leaflets, literature and other infringing material bearing the trademark’ be destroyed.
13. I have perused the plaint, replication and the written statement filed by the defendant. The averments made by the plaintiff in his plaint though have been denied in the written statement, however, the facts established by the plaintiff have remainedun-rebutted. The plaintiff has been able to establish that he is the proprietor of the firm M/s Guaranteed Parts Manufacturing Company. Plaintiff established that the trademark ‘was started on 1st April, 1985 and has been continuously used by the firm M/s Guaranteed Parts Manufacturing Company. The deposition of the plaintiff that on dissolution, the trademark fell to his share as the defendant had retired from the partnership business and all the accounts were rendered and settled remained undoubted and in the circumstances, I have no hesitation to hold that plaintiff is entitled to use the trademark ‘exclusively. The plea of the plaintiff that the trademark of the defendant ‘is deceptively similar to’ of the plaintiff has also remained un-rebutted and consequently it is held that the trademark of the defendant ‘is deceptively similar to that of’ the plaintiff and the defendant has no right to use the deceptively similar trademark ‘I for the similar goods as are sold by the plaintiff after dissolution of partnership firm on 31st August, 1997. I have also perused the packing material of the plaintiff and the defendant. The packing material of the plaintiff has yellow stripes and the mark of the plaintiff and the goods description is given in red color. The packing material of the defendant is identical in as much as it also has yellow color stripes and the product name and the trade name’ is in red color. On comparison of two packing materials it is apparent they are strikingly similar and any ordinary person will be unable to distinguish the two. The carton and box of goods are also very similar as get up and color scheme are quite similar.
14. In the facts and totality of circumstances, the plaintiff has been able to make out a good case in his favor for grant of perpetual injunction. It has also been established that the plaintiff shall suffer irreparable loss in case the defendant is not restrained from using deceptively similar trade mark’.
15. Consequently the suit of the plaintiff is decreed and a decree for permanent injunction is passed in favor of plaintiff and against the defendant restraining him from selling, advertising and passing off goods under the trade name `GPI which is similar to plaintiff ‘trade mark’ in respect of automobile parts using similar packaging material as Exhibit P-4. A decree for mandatory injunction is also passed in favor of the plaintiff and against the defendant directing him to hand over to the plaintiff, the packing cartons, boxes and packing material for the automobile goods similar to that of the packing of the plaintiff as Exhibit P-4 for destruction.
16. A preliminary decree for rendition of account is also passed in favor of plaintiff and against the defendant to render accounts for a period of three years prior to date of institution of the present suit in respect of goods sold under the trade name. ‘Shri Kumud Kumar Khetan Advocate, 251 Lawyer’ Chambers, Delhi High Court, New Delhi (23389365 and Cellular, 9810389109) is appointed as a local Commissioner to go into accounts and submit his report within three months. The Fees of the Local Cmmissioner shall be Rs.15,000.00 payable by the plaintiff.
17. Costs of the suit is also awarded to the plaintiff against the Defendant. In terms hereof the suit is decreed and decree sheet be prepared accordingly.