ORDER
A.K. Sikri, J.
1. The plaintiffs have filed the suit for permanent injunction, passing of, infringement of trade mark and rendition of accounts etc.
2. It is stated in the plaint that the plaintiff No.1 is a company incorporated under the laws of the State of Delaware. United Stated of America and is carrying on its business at the address given in the plaint. Plaintiff No.2 is a company incorporated under the laws of switzerland and it is carrying on business at the address given in the plaint. It is a wholly owned company of the plaintiff No.1.
3. The basic averments on the basis of which present suit is filed are that the plaintiffs are the registered proprietor of the trade mark ‘JONTUE’ in respect of cosmetics, perfumes etc. having registered the same in various countries of the world. The word ‘JONTUE’ is an invented word coined by the plaintiff and is not a dictionary word or a word that is used in common parlance. The said trade mark has also been duly registered in India by the plaintiffs’ predecessor under the provisions of the Trade and merchandise Marks Act. 1958. The particulars of such registrations are given below:-
Trade Mark Class Goods No. Date of Dates of
Regn. Renewal
Jontue 3 perfumes & 306483 25.6.1975 25.6.1989
(Script) Cosmetics
Jontue 3 Perfumes & 445998 25.11.1985 25.11.1992
(script) cosmetics
toiletries including
talcum and face powder
hair lotion, antipersp-
irants & cleansing
preparations and
moisturisers.
4. The above said trade mark registrations have been duly renewed from time to time and are presently validly subsisting on the Register of Trade Marks. At the time of institution of the suit the mark Jontue had been registered in India under No.306483, and Application No.445998 was pending. During the pendency of these proceedings the application No.445998 has also been registered. Apart from the two aforesaid registered marks, the plaintiffs’ predecessor had also applied for registration of the mark Jontue rendered in specialised script under No.441238 dated 6th August, 1985. The plaintiffs and/or their predecessors have extensively advertised their products sold under the registered trade mark Jontue. Between 1975 and 1985 alone the plaintiffs spent about U.S. Dollars 36 million towards world-wide advertisement costs of Jontue branded products manufactured and sold by it. the advertisements were carried out in various communication dedia including Radio, Television, advertisements in well known magazines with national and international circulation. These magazines are available in India (especially in the metropolitan towns) having been legally imported.
5. The cause for filing the present suit arose when the plaintiff came to know in the last week of June,1988 from the daily newspaper ‘Hindu’ dated Sunday 26,1988 wherein defendant No.1 had given an advertisement of Jontue Talcum powder. On enquiry plaintiff came to know that said Talcum powder is manufactured by defendant No.1 and marketed by defendants 1,2 and 3 and is being sold in New Delhi. The grievance of the plaintiff is that defendants’ use of trade mark Jontue is an infringement of plaintiffs registered trade mark. The said use of this mark by the defendants is, therefore, illegal and the same has been done by the defendants with the sole intention of deceiving and/or misleading the trade and members of the public and further cause them to believe that the said Talcum powder bearing the name of Jontue is of the plaintiffs’ manufacture and/or the plaintiffs are associated with the same and/or the same is a product of the House of Revlon. The defendants have fraudulently and with the intention to deceive the trade and members of public copied the word Jontue from the plaintiffs’ trade mark Jontue in the same stylised form as used by the plaintiffs. therefore, the present suit has been filed with the following prayers:
“It is humbly prayed that a decree may be passed in favor of the plaintiffs and against the defendants to the following effects:-
(a) for permanent injunction and order of this Hon’ble Court retraining the defendants, their agents, servants, and all other persons on their behalf from manufacturing, selling, offering for sale & distributing talcum powders to other cosmetics, perfumes, toiletries, etc, goods falling in class 3 and thereby infringing plaintiffs registered trade mark Jontue or any mark deceptively similar to the plaintiff No.2’s registered trade mark.
(b) for permanent injunction and order of this Hon’ble Court restraining the defendants by themselves, their agents, servants and all other persons on their behalf from using the offending mark Jontue on talcum powder and on other cosmetics, perfumeries, toiletries, etc. in any manner or form whatsoever so as to pass off their goods as those of the plaintiffs’ manufacture.
(c) for delivery upon affidavit by the defendants to the plaintiffs all offending talcum powder, stationary, wrappers, containers, cartons and other materials including printed blocks bearing the offending trade mark Jontue for the purpose of destruction and/or obliteration is possible, as the case may be.
(d) for rendition of accounts into the profits made by the defendants since the adoption of the offending mark Jontue and for the past three years on the sale of Jontue spray talcum powder, perfumery, toiletries and other such goods falling in class 3 and a decree for the amount so found due to the plaintiffs.
(e) for costs of the suit.
(f) such other and further order or orders may also be passed as this Hon’ble Court deems fit and proper, in the facts and circumstances of this case.
It is prayed accordingly”.
6. Along with the suit plaintiffs had filed IA.9377 of 1988 under order XXXIX Rules 1 and 2 CPC for ex-parte injunction. An ex-parte injunction order was granted in this application. The said ex-parte order was ordered to be confirmed on 24th July, 1990.
7. The issues were framed on 18th July, 1990. By the order dated 23rd September, 1994 passed by this Court direction was given to the plaintiff to produce evidence by way of affidavits. The plaintiff filed the affidavit of Mr.Sudhir D.Ahuja. Thereafter during the pendency of the suit the name of the plaintiff was changed and an application under order VI Rule 17 was filed being IA.No.10062/95. The said application was allowed by the court by order dated 30th September, 1997. No evidence has been produced by the defendants inspire of the court’s order dated 23rd September, 1994. Thereafter also the case was fixed from time to time but neither the defendants appeared nor led any evidence and, therefore, matter was fixed for arguments.
8. Shri Sudhir D.Ahuja has affirmed on oath the various averments made in the plaint and noted above. The deposition refers to and proves on record various documents. The evidence on record sufficiently and clearly establishes that: (a) the plaintiff is the registered proprietor of the trademark “Jontue” having first coined it, used it in the course of trade and registered it as a trademark since last many years and in various countries of the world: (b) the sales figures illustrate the extent and kind of popularity, reputation and goodwill that the plaintiffs “Jontue” brand product enjoy world-wide; (c) the plaintiffs “Jontue” brand products have been available in India having been imported and sold therein pursuant to valid import permits granted by the Reserve Bank; and (d) the Defendants have been manufacturing and selling talcum powder, spray talc, ayurvedic medicines under the trademark “Jontue” and have not given any valid or reasonable explanation as to how they came to adopt the same.
9. It is also proved that plaintiffs are the registered proprietor of the trade mark Jontue in various countries including in India. They have, therefore, exclusive statutory right to use the said registered trade mark and the use of this trade mark by the defendants amounts to infringement of the plaintiffs trade mark. The adoption of the mark “Jontue” is clearly dishonest and motivated with a view to benefit from the reputation and goodwill attached to it and with intention to deceive the innocent public into falsely believing that defendants products are that of plaintiffs or have been manufactured under same collaboration with the plaintiffs. The plaintiffs are accordingly entitled to the decree, as prayed. Following decree is accordingly passed:
10. Decree for permanent injunction in favor of the plaintiffs and against the defendants thereby restraining the defendants, their agents, servants, and all other persons on their behalf from manufacturing, selling, offering for sale & distributing talcum powders to other cosmetics, perfumes, toiletries, etc. goods falling in class 3 and thereby infringing plaintiffs registered trade mark Jontue or any mark deceptively similar to the plaintiff No.2’s registered trade mark as also restraining the defendants by themselves, their agents, servants and all other persons on their behalf from using the offending mark Jontue on talcum powder and on other cosmetics, perfumeries, toiletries, etc. in any manner or form whatsoever so as to pass off their goods as those of the plaintiffs’ manufacture.
11. The defendants are also directed to deliver, if in their possession, all offending talcum powder, stationary, wrappers, containers, cartons and other materials including printed blocks bearing the offending trade mark JONTUE for the purpose of destruction and/or obliteration is possible, as the case may be.
12. Decree for rendition of accounts is also passed in favor of the plaintiffs and against the defendants thereby directing the defendants to render the account for a period of three years prior to the date of filling of the suit till 24th July,1990 when the ex-parte injunction was passed. Plaintiffs shall also be entitled to costs. Decree sheet be prepared accordingly.
13. suit stands disposed of.