JUDGMENT
Badar Durrez Ahmed, J.
1. By an order dated 20.10.2003, the defendant was directed to be proceeded with ex parte. The plaintiff was directed to lead ex parte evidence by way of affidavits. The plaintiff filed the ex parte evidence by way of affidavit of one Mr C.R. Bakshi who is the constituted attorney of the plaintiff company. Various documents have also been filed by the plaintiff which are exhibited as Exhibits P1 to P6/1.
2. The case of the plaintiff is for infringement of copyright and passing off. The plaintiff is in the stationery business and has been marketing and selling its products under the trade name PELIKAN. The plaintiff has been using the trade mark PELIKAN in a special script and the device of a Pelican sitting on its nest and feeding two small pelicans. The plaintiff has been using the said trademark and device since 1900 and its trademark is registered in over 130 countries including in India. The plaintiff is also the proprietor of the copyright in the original artistic work in the device of the Pelican sitting on its nest and feeding two small pelicans.
3. The plaintiff has been able to show that sometime in January 2001 they came across a website on the internet having the following address : www.epages,webindia.com. This website belonged to the defendant and upon a study, the plaintiff noticed that the trademark PELIKAN as well as the entire device in the very form which is being used by the plaintiff had been copied. Thereafter, the plaintiff on 9.1.2001 (Exhibit P3) issued a notice to the defendant to cease and desist from the using of the trademark PELIKAN as also the logo of the Pelican. The defendant by its reply dated 1.2.2001 (exhibit- P4) offered to settle the matter amicably in order to have a harmonious relationship between the plaintiff and the defendant. The defendant, it appears, is not in the stationery business but is in engineering products and machines and the defendant indicated its willingness to amend the trademark / script and style and also to adopt a device entirely different to that being utilised by the plaintiff. In response to this letter, the plaintiff issued another letter to the defendant on 9.4.2001 (Exhibit P5) wherein the plaintiff made some reasonable suggestions as to how the matter could be resolved. The suggestions being that the trademark PELIKAN be amended by altering the form and style from the one that is being used by the plaintiff. Another suggestion was that the word and styling of the word PELIKAN appearing in the name of the company should be changed to PELICAN in a different style. It was also suggested to the defendant to undertake not to extend their trade mark rights and business activities to the goods and services in which the plaintiff is dealing, namely, articles of stationery, coloring matters, drawing instruments as detailed in the letter dated 9.1.2001 ( Exhibit P3). As no response was received to this letter from the defendant, the plaintiff had no alternative but to institute this suit.
4. The reliefs now claimed by the plaintiff as indicated by the learned counsel appearing on behalf of the plaintiff are that an injunction be issued restraining the defendant from using the device which is given at page 2 of the documents file and the artistic work i.e., embodied therein which belongs to the plaintiff. The learned counsel for the plaintiff states that he is not interested in and gives up his prayer with regard to damages and rendition of accounts and he would be satisfied if an injunction is granted in the aforesaid terms. The learned counsel for the plaintiff states that an injunction should also be granted not to use the trade mark PELIKAN and the device employed by the plaintiff in respect of the business activities undertaken by the plaintiff, namely, articles of stationery, coloring matters, drawing instruments as detailed in the letter dated 9.1.2001 (Exhibit P3) issued by the plaintiff to the defendant. The suit is decreed in terms of the above, with costs. The decree sheet be prepared accordingly.