JUDGMENT
Mukundakam Sharma, J.
1. This is a suit filed by the plaintiff
seeking for a decree of permanent injunction
restraining the defendants, their servants, agents,
stockings and all other persons acting on their
behalf from using the offending trade mark NATRAJ
and device of NATRAJ, trade mark APSARA BEAUTY of
the plaintiff or from using any other trade mark,
which is deceptively similar to the plaintiff’s
aforesaid registered trade marks and also from
using the firm name of M/s. Hindustan Pencil
Factory and Natraj Pencil Industries. The
plaintiff has also sought for a decree of rendition
of accounts.
2. Summons were issued to the defendants and
an ad interim injunction was granted in favor of
the plaintiff and against the defendants
restraining them, their agents and servants from
selling and marketing their goods under the name of
APSARA BEAUTY and NATARAJ along with the device of
NATARAJ and cartons like Annexure-Y or any carton
or label which is deceptively similar to the
registered carton and label of the plaintiff. The
defendants were also restrained from copying the
trading style and name of the plaintiff i.e. M/s.
Hindustan Pencil Factory and Nataraj Pencil
Industries.
3. Defendants 1 & 2 entered appearance and
filed their written statement whereas defendants 3
& 4 entered appearance but did not file any written
statement. However, subsequently, all the
defendants defaulted in appearance in the court and
accordingly, vide order dt. 7.12.2000 it was ordered
that the suit would proceed ex parte as against the
defendants and the plaintiff was allowed to lead
evidence by filing an affidavit by way of evidence.
4. Pursuant to the said order, an affidavit
by way of evidence is filed by Sh. P.N. Thanawala,
the Constituted Attorney of the plaintiff. It is
stated in the aforesaid affidavit filed by way of
evidence that Sh. Thanawala is the Constituted
Attorney of the plaintiff company and that he is
authorised to depose on behalf of the plaintiff.
It is also stated in the said affidavit that the
plaint was signed by Sh. B.J. Sanghvi, Director of
the plaintiff company, whose signature was
identified by the deponent. A copy of the power of
attorney executed in favor of the deponent is
placed on record. In paragraphs 2 & 4 of the said
affidavit the plaintiff has set out the various
trade marks of the plaintiff, in respect of which
it is a registered proprietor. It is also stated
in the affidavit that the plaintiff’s sale of
pencils and other stationery goods, under the
registered trade mark NATRAJ with the device of
NATRAJ AND APSARA BEAUTY is substantial and their
goods are sold in every nook and corner of India.
The sale figures of the plaintiff in respect of the
aforesaid trade mark have been furnished and
exhibited as Annexures C & D to the plaint. It is
also stated on oath that the plaintiff is spending
large amount of money on the sale promotion and
advertisement through various media of
advertisement such as television, newspapers,
magazines etc. and the details of the amounts so
spent are given in Annexure-D filed along with the
plaint. It is stated on evidence that the
defendants adopted the trading style M/s. Hindustan
Pencil Factory and M/s. Nataraj Pencils Industries,
which are deceptively similar with the name of the
plaintiff company, namely, M/s. Hindustan Pencils
Limited and the trade mark NATARAJ of the
plaintiff. It is stated that defendants 3 & 4 are
are selling pencils bearing the trade mark NATARAJ
and device of NATARAJ in the same packing material
like Annexure B and the samples of APSARA BEAUTY
pencils packed in polypack packets as well as
cartons used by defendants 3 & 4, which are
exhibited as Annexures X & Y. It is also stated
that by the aforesaid action, the defendants are
not only infringing the registered trade mark of
the plaintiff but are also passing off their goods
as goods of the plaintiff.
5. The aforesaid evidence placed on record
go unrebutted and unchallenged and thus, it is
established and proved that the defendants for
ulterior motives are using the aforesaid trade mark
NATARAJ and device of NATARAJ as well as are using
the trade mark APSARA BEAUTY of the plaintiff in
respect of pencils. On the basis of the evidence
placed on record, I am satisfied that the plaintiff
has been able to establish its claim, made in the
plaint. Accordingly, a decree is granted in favor
of the plaintiff and against the defendants
restraining the defendants, their servants,
agents, stockists and all other persons acting on
their behalf from using the offending trade mark
NATARAJ and device of NATARAJ, trade mark APSARA
BEAUTY of the plaintiff or from using any other
trade mark which is deceptively similar to the
plaintiff’s aforesaid registered trade mark.
The defendants, their agents, servants, stockists
and all other persons acting on their behalf are
also restrained from using the firm name of M/s.
Hindustan Pencil Factory and Nataraj Pencil
Industries.
6. As a decree to the aforesaid extent is
granted in favor of the plaintiff and against the
defendants, counsel appearing for the plaintiff has
fairly stated that he is not pressing for the
relief of rendition of accounts, as claimed in the
plaint. The relief sought for by the plaintiff to
the aforesaid extent stands rejected. The suit
stands decreed to the aforesaid extent. Parties
shall bear their own costs.