JUDGMENT
Sanjay Kishan Kaul, J.
1. The plaintiff is a company incorporated and registered under the Companies Act, 1956 and has filed the present suit for permanent injunction, infringement of copyright, passing off, rendition of account and delivery up whereby the defendant is alleged to be counterfeiting the product of the plaintiff being iodized salt.
2. The defendant entered appearance and filed the written statement but thereafter stopped appearing. The defendants were proceeded ex parte and affidavits of ex parte evidence have been filed by the plaintiff of Mr. Pradeep Kumar Saxena (Business Development Manager) and Mr. Girdhar Saboo, Managing Director of the plaintiff. The said two witnesses have proved various documents which have been exhibited.
3. The Exhibit P-1 is Memorandum of Articles of Association of the plaintiff and exhibit P-2 is the certified copy of the resolution of the Board of Directors dated 30.10.2004 authorising Shri Girdhar Saboo to take legal proceedings including institution of suit.
4. The plaintiff has stated that he has established business as manufacturer and seller of salt since 1989 and adopted the mark TOTA’ with the device of parrot in the year 1996. Exhibit P-3 is the specimen label of the plaintiff, having a particular colour scheme which is stated to have been designed by artist Mr. Raman Gupta. The label is in white with red lines across it, centre of the label is a yellow circle with green parrot sitting on it. The plaintiff has a registered label bearing the mark ‘TOTA’ with the device of parrot under the Copyright Act, 1956 vide registered No. A-55821/99. A copy of the said certificate has been exhibited as Exhibit P-4. The plaintiff claims to be proprietor of the trademark ‘TOTA’ with the device of parrot in application No. 727022 filed by him and which has been accepted for advertisement but is yet to be advertised in the trademark journal. A certified copy of the same is exhibited as Exhibit P-5.
5. The plaintiff claims to have huge goodwill and reputation in the market and the sales figure commencing from 1997 to 2004 have been given. The plaintiff claims to have made sales during this period of time of Rs. 11,16,69,176. The petitioner also claims to have spent substantial amount on advertisement for the said purpose. The amount spent for the advertisement is, however, not set out.
6. The plaintiff claim that he came across the defendant’s product with the same device parrot, in the same colour scheme in and about 30th July, 2004 and on enquiry found that defendant had applied for registration of its trademark TOTASHREE’ label under an application No. 1164884 claiming since 7th January, 2002 user with the disclaimer of the word ‘SHREE’. This advertisement was published in the trademark journal in October 2003 and opposition to the same is pending.
7. It is the claim of the plaintiff that the label of the defendant is an infringement of the label of the plaintiff and an attempt to pass off the goods of the defendant as that of the plaintiff. The label of the defendant has been admitted as P-8.
8. A comparison of the two labels show that both the labels are almost identical with only very minor insignificant difference. Thus, there can be no doubt, on comparison of the two labels that the defendant is seeking to pass off its goods as that of the plaintiff as the plaintiff is a prior user. It appears that defendant had obtained a copyright registration which is alleged to have been obtained my making incorrect statement, contrary to the application filed by the defendant in the Trademark Office and without informing about the plaintiffs application ‘TOTA’ with the device parrot pending. It is also stated that there are other litigations pending between the parties.
9. Learned counsel for the plaintiff states that the present situation is that after the interim orders were granted and subsequently made absolute, there is no business being carried on by the defendant. In this behalf reliance has been placed on the affidavit of Mr. Pradeep Kumar Saxena where in para 3 it has been stated that the registered office of the defendant was visited where no business activities were found. In fact the premises is now stated to be occupied by another party who is a bank employee and a different business activity is being carried on in the business premises.
10. In view of the aforesaid, the plaintiff has been able to substantiate the plea of counterfeiting and infringement of the mark and label of the plaintiff.
11. A decree of permanent injunction is thus, passed in favor of the plaintiff and against the defendant in terms of prayers (a) and (b) of the plaint as learned Counsel for the plaintiff confines the reliefs to the same.
12. The plaintiff shall also be entitled to costs.
13. Decree sheet be drawn up accordingly.