JUDGMENT
J.D. Kapoor, J.
1. Plaintiff claims to be the proprietor of the trade mark `Anuradha’ being used by it in respect of textile materials and claims to have adopted this trade mark in the year 1984 and also using the same since then yet the registration of the trademark was made on 13th July, 1988. In support of the use of the trade mark the plaintiff has produced invoices and the statement of Annual Sales for the period from 1.7.1985 to 31.3.1994. Defendant No. 1 is also engaged in the business of manufacturing and using textile materials under the trademark `anuradha’ and operates from Bhilwara . Plaintiff’s trade mark starts with capital letter `A’ whereas that of the defendant with small letter `a’. Defendant No. 2 is the dealer of defendant No. 1 having its establishment in Delhi. According to the plaintiff its trade mark has established goodwill and reputation over the years as to the quality of goods and the use of the deceptively similar trade mark by the defendants is a source of confusion and deception and amounts to not only infringement but passing off the mark of the plaintiff.
2. As against this, the defendant claims to have adopted this trademark sometime in December, 1987 and using the same w.e.f. 21.1.1988 when for the first time the sale was made to M/s. Babu Lal Prakash Chand Fancy Bazar, Gauhati. Since then it has been continuously and uninterruptedly using the trade mark. Defendants also denied the claim of the plaintiff about the use of trademark since 1984. Apart from this, the defendant has also taken the plea that the lettering of the trade mark used by it does not have an element of confusion or deceptive similarity as the first alphabet of the trade mark of the plaintiff is in capital whereas that of the defendants is in small letter and therefore the device of letter `a’ used by the defendants is distinctive in character than the device used by the plaintiff and this distinction itself shows that there is no deceptive similarity that may be a cause for confusion. In support of its claim of using the trademark since 1987, defendants produced invoices and annual statement of its sales. Besides these claims, the defendants have also sought protection under section 33 of the Trade and Merchandise Marks Act, 1958 which entitle the proprietor or a registered user of a registered trade mark to interfere with or restrain the use by any person of a trade mark identical with or near resembling in relation to goods in relation to which that person or a predecessor in title of his has continuously used that trademark from a date prior to the date of registration of the first mentioned trade mark in respect of those goods in the name of the proprietor or a predecessor in title on his whichever is earlier.
3. Both the parties filed affidavits by way of evidence. The documents proved by the plaintiff are as under:-
(1) Exhibit P-1(Colly) are the original invoices of the sales of plaintiff’s goods for the period from 30.1.1984 to 20.11.1987 under the trade mark `Anuradha’.
(2) Exhibit P-2(Colly) are the copies of invoices pertaining to the advertisement and sale promotion expenses;
(3) Exhibit P-3 is the photograph of the hoarding of the plaintiff’s trade mark `Anuradha’.
(4) Exhibit P-4 is the copy of certificate of registration of plaintiff’s trade mark permitting the use of trade mark in legal proceedings.
(5) Exhibits P-6 and P-7 are the cash memos of sale of goods of defendant No. 1 by defendant No. 2.
(6) Exhibits P-7 and P-8 are the labels of the plaintiff and defendants respectively.
(7) Exhibit P-9 is the copy of legal notice served upon to the defendants calling up it to stop using its trademark and Exhibit P-10 is defendants reply.
4. The documents proved by the defendants are as under:-
(1) Exhibit D-1 is the affidavit deposed on 20.7.1995 by Shri Prakash Chand Nahata, proprietor of M/s. Babulal Prakash Chand.
(2) Exhibits D-2/1 to D-2/22 are the original invoices of sales of goods for the period from 21.1.1988 to 1994-95 and the sales turn over.
(3) Exhibits D-3/1 to D-3/20 are the original bills.
The sales figures of both the parties shows that plaintiff has edge over defendants though sales figures of defendants for some of the years are also in near proximity to sales figures of the plaintiff.
5. The aforesaid averments of the parties gave rise to the following issues framed vide order dated 30.4.1998:-
1. Whether defendant No. 1 is prior in adoption and use of the trade mark `anuradha’ device of `a’ in distinctive manner? OPD
2. Whether suit of the plaintiff suffers from delay, latches and acquiescence? OPD
3. Whether defendant is infringing the trade mark of the plaintiff? OPD
4. Whether defendant is passing off the goods and business as of the plaintiff? OPP
5. Whether plaintiff is entitled to the discretionary relief of injunction against the defendant? OPP
6. Whether defendant is liable to render the accounts of profits? OPP
7. Whether plaintiff is entitled for decree against the defendant? OPP
8. Relief.
Issue Nos. 1,3,4;5 and 7
6. Issue Nos. 1,3,4, 5 and 7 are interdependent and interconnected issues and are being taken up together.
7. Since defendants have taken the defense under Section 33 of the Trade and Merchandise Marks Act, 1958 on the premise that the use of the trade mark by the defendant is much prior to the date of registration by the plaintiff, the plaintiff has to show that he has been using the trademark `Anuradha’ much prior to the date of registration. In case the plaintiff succeeds in proving this fact, the defendants right to have protection under Section 33 will stand forfeited . In other words if the plaintiff claims protection against infringement of trade mark from the date of registration, the defendant has to prove the use of the infringed trade mark prior to the date of registration. In case the plaintiff seeks protection of this trade mark on the premise that he has been a continuous user much prior to the date of registration, defendant has to establish the user of the trade mark by it prior to the said claim of the plaintiff.
8. In the instant case the plaintiff has produced large number of invoices, bills, packing/label which go to show that plaintiff has been selling its goods under the trade mark `Anuradha’ from 1984 or so. It is the admitted case that the defendant has been using the trade mark `Anuradha’ though with little distinctive characters since January, 1988. In such a situation, the date of registration by the plaintiff in 1988 become irrelevant as the defendant has to establish that it has been using the alleged infringed trade mark prior to the date of registration. Having failed in proving this fact, the plaintiff has become entitled to protect its trade mark `Anuradha’ from being either passing off or infringed on account of trade mark of the defendant being identical and resembling with the trade mark of the plaintiff in relation to same goods.
9. The very fact that the name of both the trade marks sounds similar though their look may be little different and is identical so far as words is concerned shows that both the trade marks are not only identical but deceptively similar. It is either phoenetical similarity or visible similarity of the trade mark which is the determing criteria. Merely because the plaintiff is using the word `A’ in capital in the trade mark `Anuradha’ and the defendant is using all the letters in small does not take away the sting from the similarity in sound and looks. The word is same and so does it spell. All letters are similarly styled except that starting letter `A’ used by the plaintiff is in capital while that being used by the defendant is in small. There cannot be any better case of deceptive similarity or identical similarities or akinness of two trade marks.
10. Trade mark has immense commercial value as its reputation and goodwill is established at huge expense of advertisement and maintaining the quality. No competitor can be permitted to encash upon the goodwill or reputation of an already established trademark by adopting distinctive features including similarity or deceptive similarity in its name, sound or looks.
11. In view of the foregoing reasons, the findings in respect of issue No. 1 goes against the defendant whereas the findings in respect of issue Nos. 3,4,5 and 7 go in favor of the plaintiff. Plaintiff is entitled to the discretionary relief of injunction against the defendants from using the trade mark `Anuradha” on account of his being prior user.
Issue No. 2.
12. Plaintiff carries its business in Bombay. Defendant No. 1 has its establishment in Bhilwara. Both the parties sell their goods in Delhi and other parts of the country. Unless and until the defendants establish the knowledge about the use of the identical trade mark by the plaintiff from particular day, date or year and shows inaction on the part of plaintiff to injunct the defendant for years together, the plaintiff cannot be ousted on account of delay, laches and acquiescence. It is not a case of the defendant through out that the plaintiff has since 1988 been in the knowledge that the defendant has been using the trade mark ‘anuradha’ in the manufacturing and selling the textile material from Bhilwara.
13. In view of the long distance of manufacturing and business places of the parties, plaintiff cannot be accused of delayed action nor can it be expected to have such a knowledge unless and until sale was being effected in Bombay. According to the plaintiff it came to its knowledge some time in the year 1994 when the goods of the defendants were sold to its representative against cash memo. There is no tangible document produced by the defendants from the evidence from which inference of delay, laches and acquiescence may be deduced. In the result, finding of issue goes against defendants.
Issue No. 6
14. It is not pressed by the counsel for the plaintiff and as such has become infructuous.
15. In view of the findings on the aforesaid issues, plaintiff has succeeded in establishing its case for injuncting the defendants from using the trade mark `Anuradha’. In the result, suit is decreed in terms of prayers (i), (ii) and (iii) of the plaint. Decree sheet be drawn up accordingly.