JUDGMENT
Pradeep Nandrajog, J.
1. In spite of being served, defendant chose not to join issues with the plaintiff. After filing written statement, defendant absented from entering appearance. Vide order dated 7.5.2003, defendant was proceeded ex parte. Plaintiff was directed to lead evidence by way of affidavits. Needful has been done by the plaintiff.
2. Plaintiff is a company engaged in the manufacture of pressure cookers and parts thereof. Vide registration No. 179714, plaintiff holds registration in its favor under class 21 of the Trade and Marchandise Marks Act, 1958 in respect of the word ‘Hawkins’. Registration continues to ensure for the benefit of the plaintiff. Thus, plaintiff claims to be the holder of proprietory rights in the trade mark/name ‘Hawkins’.
3. As per the plaintiff, the trade mark Hawkins forms a predominant feature of its corporate name and trading style. In common parlance, plaintiff is referred to as Hawkins.
4. Plaintiff claims that the trade mark Hawkins appears and is used as house mark by the plaintiff on all products. Products being pressure cookers and parts thereof including gaskets, safety valves, cooker weight, handles etc.
5. Evidenced by the registration obtained in the year 1957, petitioner claims to be in business and actively using the trade mark Hawkins w.e.f. said date.
6. Grievance in the suit is to the actions of the defendant in vending parts and accessories of pressure cookers having thereon the trade mark of the plaintiff “Hawkins”.
7. Plaintiff has filed affidavit of Mr. D.S.V. Ranji by way of evidence.
8. As per the affidavit deposed to by Mr. DSV Ranji, following documents have been proved:-
(a) Ex.P. 1, being the certified copy of the power of attorney executed by the plaintiff company in his favor.
(b) Ex.P.2 being the certificate of incorporation showing name of the plaintiff as “Hawkins Cookers Ltd.
(c) Ex.P.3 and P.4 being the certificates in respect of trade mark registration Nos. 179714 and 429058.
(d) Ex.P.5 being the safety valves of the plaintiff bearing the trade mark ‘Hawkins’.
(e) Ex.P. 6 being the advertisement issued by the plaintiff.
(f) Ex.P.7 being the safety valves marketed/sold by the defendant.
(g) Ex.P.8 being the affidavit dated 24.7.2000 of Mr. D.K. Gupta and investigator.
(h) Ex.P.9 being the report of Notary Public in support of purchase of produce by Mr. D.K. Gupta from the defendant having ‘Hawkins’ mark thereon.
9. In the affidavit filed it has been deposed by the deponent that approximate sales of the plaintiff of its products from March, 1987 to March, 1994 rose from Rs. 26.53 crores to Rs. 61.59 crores.
10. Plaintiff has not been cross-examined in respect of evidence led as the defendant has chosen to remain ex-parte. Testimony of the witness of the plaintiff has, therefore, to be accepted.
11. Evidence brings out the fact that the plaintiff holds registration in its favor under class 21. Registration pertains to the word ‘Hawkins’.
12. Defendant having chosen not to join issues with the plaintiff, consequence must follow. Defendant would have no right to market a produce, much less a product relating to part of a pressure cooker using the mark/name ‘Hawkins’.
13. Ex.P.8 and P, 9 as well as report of the Local Commissioner appointed by this Court establishes that the defendant has been selling pressure cooker parts in packets on which mark ‘Hawkins’ has been embossed. It, therefore, stands conclusive establish that the defendant has been marketing its product as that of the plaintiff.
14. Really speaking, it is a case of counterfeiting, a much graver version of the offence of the infringement of trademark or passing of.
15. Evidence on record establishes that the defendant is marketing its own produce as that of the plaintiff. In any case, defendant would have not right to use the trade mark/name ‘Hawkins’ as the proprietory interest therein vests with the plaintiff by virtue of the fact that the plaintiff holds registration in its favor.
16. Suit is accordingly decreed in terms of the prayer for permanent injunction. Defendant, its partners or proprietors, stockists, distributors, agents or assigns are restrained from manufacturing, selling offering for sale, advertising directly or indirectly dealing in pressure cooker safety valves or any other parts of pressure cookers, under the trade mark ‘Hawkins’ or any other trade mark deceptively similar to the trade mark ‘Hawkins’, as also from using packaging material having the mark ‘Hawkins’ or a mark deceptively similar thereto.
17. Suit is further decreed in favor of the plaintiff and against the defendant, in that, defendant is directed to make over to the plaintiff all infringing goods being spars/parts of pressure cookers, packaging material stationery, dyes, blocks etc. bearing the trade mark ‘Hawkins’ or a mark deceptively similar thereto.
18. Notwithstanding that the defendant has chosen to remain ex-parte considering that the defendant was counterfeiting goods of the plaintiff, plaintiff, would be entitled to compensatory damages in sum of Rs. 5 lacs. Costs shall follow in favor of the plaintiff and against the defendant in the sum of Rs. 25,000.
19. Decree be drawn on plaintiff paying court fee on damages awarded.