{"id":171353,"date":"2011-10-31T00:00:00","date_gmt":"2011-10-30T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/zippo-manufacturing-company-vs-anil-moolchandani-ors-on-31-october-2011"},"modified":"2017-01-24T03:51:22","modified_gmt":"2017-01-23T22:21:22","slug":"zippo-manufacturing-company-vs-anil-moolchandani-ors-on-31-october-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/zippo-manufacturing-company-vs-anil-moolchandani-ors-on-31-october-2011","title":{"rendered":"Zippo Manufacturing Company vs Anil Moolchandani & Ors. on 31 October, 2011"},"content":{"rendered":"
Delhi High Court<\/div>\n
Zippo Manufacturing Company vs Anil Moolchandani & Ors. on 31 October, 2011<\/div>\n
Author: V. K. Jain<\/div>\n
         THE HIGH COURT OF DELHI AT NEW DELHI\n\n%                     Judgment Reserved on:   29.09.2011\n                      Judgment Pronounced on: 31.10.2011\n\n+ CS(OS) 1355\/2006\n\nZIPPO MANUFACTURING COMPANY          ..... Plaintiff\n             Through: Mr. Pravin Anand, Advocate\n             and Ms. Tanya Verma, Advocate\n\n                      versus\n\n\nANIL MOOLCHANDANI & ORS.                         ..... Defendants\n              Through: None.\nCORAM:-\nHON'BLE MR JUSTICE V.K. JAIN\n\n1.<\/pre>\n
 Whether Reporters of local papers may
\n   be allowed to see the judgment?                            Yes<\/p>\n
2. To be referred to the Reporter or not?                     Yes<\/p>\n
3. Whether the judgment should be reported                    Yes
\n   in Digest?\n<\/p>\n
V.K. JAIN, J<\/p>\n
1.          The plaintiff is a company registered in U.S.A and<\/p>\n
claims to be world leader in manufacture and trade of<\/p>\n
lighters, which it sells under its invented trademark Zippo,<\/p>\n
which is alleged to be well-known trademark. The use of the<\/p>\n
trademark Zippo extends to other products as well such as<\/p>\n
desk accessories, writing instruments, travel accessories,<\/p>\n
outdoor      products,   golf   accessories,   money   clips,    key<\/p>\n
CS(OS)No. 1355\/2006                                      Page 1 of 23<\/span>
\n holders, tape measures, shoes, belts and suspenders, etc.<\/p>\n
The design of the trademark Zippo has the lighter resting in<\/p>\n
a rectangular casing, split into two parts and the bottom<\/p>\n
part has a matching flip-top part welded into a hinge.            Both<\/p>\n
the parts are rectangular in shape with rounded edges and<\/p>\n
corners to hold the flip-top in a fully opened or shut<\/p>\n
position.        The lighter incorporates a spring and cam<\/p>\n
arrangement that enables the user to operate the top with<\/p>\n
on hand. An important feature of the lighter is the chimney<\/p>\n
or windscreen enclosing the wick with round air holes<\/p>\n
punched into its sides in horizontal rows of three-two-three<\/p>\n
formation. It is claimed that the shape of the lighter as well<\/p>\n
as well as the windscreen chimney are unique and have<\/p>\n
acquired a secondary meaning to denote the plaintiff\u201fs<\/p>\n
cigarette lighters.    It is also alleged that the plaintiff has<\/p>\n
been     manufacturing     and      selling   lighters   across     120<\/p>\n
countries       and   by   virtue    of   such    continuous        and<\/p>\n
longstanding user, the mark has acquired the status of well-<\/p>\n
known trademark. It is also alleged that the plaintiff has<\/p>\n
invested the huge sums of money in promoting and<\/p>\n
publicizing the sale of goods using the trademark Zippo. It<\/p>\n
is also alleged that the goods under the trademark Zippo<\/p>\n
CS(OS)No. 1355\/2006                                         Page 2 of 23<\/span>
\n have been available in India at duty free shops, embassies,<\/p>\n
consulates and have been regularly brought into the<\/p>\n
country      by       tourists   and   have   been   imported   under<\/p>\n
permitted baggage rules. It is claimed that the trademark<\/p>\n
Zippo is well-known to Indian consumers due to their<\/p>\n
exposure to advertisements for various products under the<\/p>\n
trademark Zippo in prominent magazines including in-flight<\/p>\n
magazines in domestic and international airlines operating<\/p>\n
in and from India. The plaintiff also claims to be the<\/p>\n
proprietor of a registration for the 3-dimensional shape of<\/p>\n
its lighters by registration No. 714368 since 10th May, 1996.<\/p>\n
2.          It is alleged that in February, 2006, it was brought<\/p>\n
to the notice of the plaintiff that defendant No. 2 was selling<\/p>\n
counterfeit Zippo lighters from its various outlets in Delhi<\/p>\n
and those lighters not only bore the word mark Zippo, but<\/p>\n
also constituted infringement of plaintiff\u201fs shape mark and<\/p>\n
were in fact verbatim imitation of the product of the<\/p>\n
plaintiff. In reply to a notice sent to it by the plaintiff,<\/p>\n
defendant No. 1 gave a categorical undertaking to remove<\/p>\n
the infringing stock from all shops and not to sell any<\/p>\n
objectionable counterfeit Zippo lighters in future. However,<\/p>\n
in first week of June, 2006, the plaintiff discovered that the<\/p>\n
CS(OS)No. 1355\/2006                                         Page 3 of 23<\/span>
\n defendants were continuing to sell the counterfeit products.<\/p>\n
Such       counterfeit       lighters     were   purchased      by      the<\/p>\n
representative of the plaintiff from defendants No. 3 and 4.<\/p>\n
It is alleged that the activities of the defendants, besides<\/p>\n
infringing the registered trademark of the plaintiff, also<\/p>\n
amount to passing off their cheap quality lighters as those<\/p>\n
of the plaintiff and sale of such counterfeit product has<\/p>\n
already caused unquantifiable losses to the plaintiff. The<\/p>\n
plaintiff has accordingly sought injunction, restraining the<\/p>\n
defendants from manufacturing, selling, offering for sale or<\/p>\n
advertising lighters which are deceptively similar to that of<\/p>\n
the plaintiff and thereby infringing its registered shape mark<\/p>\n
under registration No. 714368.\n<\/p>\n
3.          During the pendency of the suit, the suit was<\/p>\n
decreed against defendants No. 1 and 2 on 8th December,<\/p>\n
2008 in terms of their compromise with the plaintiff and<\/p>\n
they were restrained from (i) importing, marketing, selling or<\/p>\n
offering for sale or using the plaintiff\u201fs registered trademark<\/p>\n
ZIPPO in an unauthorized manner on the product or the<\/p>\n
casing, or in any other manner in the course of trade,<\/p>\n
amounting             to   infringement     of   plaintiff\u201fs   registered<\/p>\n
trademark under No. 562866; (ii) importing, marketing,<\/p>\n
CS(OS)No. 1355\/2006                                            Page 4 of 23<\/span>
\n selling or offering for sale cigarette lighters infringing the<\/p>\n
plaintiff\u201fs registered shape mark under No. 714368; (iii)<\/p>\n
using the logo of the plaintiff in an unauthorized manner on<\/p>\n
the product or in any other manner amounting to passing<\/p>\n
off;\n<\/p>\n
4.          The suit against defendant No. 3 was also disposed<\/p>\n
of in terms of its settlement with the plaintiff contained in IA<\/p>\n
No. 9109\/2009. Under this settlement, defendant No. 3<\/p>\n
undertook not to purchase ZIPPO lighters from any other<\/p>\n
person other than official distributor of plaintiff in India and<\/p>\n
not to file any application for registration of the trademark<\/p>\n
ZIPPO or any other mark similar to the aforesaid mark of<\/p>\n
the plaintiff.\n<\/p>\n
5.          The plaintiff has examined two witnesses by way of<\/p>\n
ex parte evidence. PW-1 Mark Paup, is the Vice-President<\/p>\n
(Sales and Marketing) of the plaintiff-company. He has<\/p>\n
supported, on oath, the case setup in the plaint and has<\/p>\n
stated that goods under the trademark ZIPPO have been<\/p>\n
available in India at duty free shops, embassies and<\/p>\n
consulates and        have been brought into the country<\/p>\n
regularly by tourists or have been imported under permitted<\/p>\n
baggage rules. He has further stated that the goods of the<\/p>\n
CS(OS)No. 1355\/2006                                   Page 5 of 23<\/span>
\n plaintiff are available in India at a number of retail outlets<\/p>\n
in major cities. PW-2 J.P. Sharma has stated that he was<\/p>\n
employed by the plaintiffs to investigate whether defendant<\/p>\n
No. 4 was dealing in counterfeit ZIPPO lighters and in June,<\/p>\n
2006, he visited the premises of defendant No. 4 and<\/p>\n
purchased lighters bearing the trademark ZIPPO against<\/p>\n
cash memo, copy of which is annexure \u201eB\u201f to his affidavit.<\/p>\n
The copy of the photographs of that product is Annexure \u201eA\u201f<\/p>\n
to the affidavit of the witness. A perusal of the legal<\/p>\n
proceedings certificates (Ex. PW-1\/21) filed by the plaintiff<\/p>\n
company would show that the trademark ZIPPO (word<\/p>\n
mark) is registered in favour of the plaintiff Company in<\/p>\n
respect of cigarette lighters since 29.11.1991 vide Certificate<\/p>\n
No. 219509.           The registration is valid upto 29.11.2015.<\/p>\n
These documents also show that the device appearing on<\/p>\n
the Registration No.714368           (Ex. PW-1\/22) issued on<\/p>\n
13.12.2005, is also registered in the name of the plaintiff<\/p>\n
Company since 10.5.2006, in respect of cigarette lighter<\/p>\n
falling in Class 34.            The registration is valid upto<\/p>\n
10.05.2016.\n<\/p>\n
6.          The plaintiff-company also holds a number of other<\/p>\n
registration of the mark ZIPPO in its favour, in respect of<\/p>\n
CS(OS)No. 1355\/2006                                    Page 6 of 23<\/span>
\n products other than cigarette lighters such as lighter fluid,<\/p>\n
flints and wicks, writing instruments viz. mechanical<\/p>\n
pencils and ball point pens, wearables viz. Tee-shirts, sports<\/p>\n
shirts, sweat shirts and sweaters, flash lighters and<\/p>\n
fragrances for personal use.\n<\/p>\n
7.          In his affidavit by way of evidence, Mr Mark Paup,<\/p>\n
vice-president        (Sales   and   Marketing)    of    the   plaintiff-<\/p>\n
company has stated that the plaintiff-company is a world<\/p>\n
leader in manufacturing and trade of lighters under the<\/p>\n
invented and well-known trademark ZIPPO.                  According to<\/p>\n
him, these lighters are windproof and are sold with a<\/p>\n
lifetime guarantee to repair them free of charge, regardless<\/p>\n
of age and condition of the lighter. According to him, the<\/p>\n
plaintiff has extended use of its well-known trademark<\/p>\n
ZIPPO to various other products, including desk accessories<\/p>\n
(letter openers), writing instruments (turtle point pens,<\/p>\n
Tionesta),       travel   accessories,   outdoor        products,      golf<\/p>\n
accessories, money clips, key holders, watches (human<\/p>\n
flame), sunglasses (Zippo Italia), Flashlights, women\u201fs and<\/p>\n
men\u201fs begs, men\u201fs accessories such as wallets, etc.). He has<\/p>\n
claimed that lighters under the trademark ZIPPO are being<\/p>\n
sold by the plaintiff-company in 160 countries and this<\/p>\n
CS(OS)No. 1355\/2006                                            Page 7 of 23<\/span>
\n trademark came to be coined by Mr George G. Blaisdell,<\/p>\n
founder of the company. He has further stated that goods<\/p>\n
under the trademark ZIPPO have been available in India at<\/p>\n
duty free shops, embassies, consulates and have been<\/p>\n
regularly brought into the country by tourists and have<\/p>\n
been imported under permitted baggage rules.         He has<\/p>\n
further claimed that the trademark ZIPPO is well-known to<\/p>\n
Indians and global consumers due to the exposure to<\/p>\n
advertisements of products sold under the trademark<\/p>\n
ZIPPO, in various prominent magazines, including in-flight<\/p>\n
magazines and that the goods of the plaintiff-company are<\/p>\n
available in India in a number of outlets in most major<\/p>\n
cities.\n<\/p>\n
8.          In his affidavit, Mr J.P. Sharma, Investigator,<\/p>\n
whom the plaintiff-company had deployed to verify whether<\/p>\n
defendant No. 4 was engaged in dealing in counterfeit ZIPPO<\/p>\n
products or not, has stated that in June, 2006, he visited<\/p>\n
the premises of Archie\u201fs Gallery and purchased lighters vide<\/p>\n
invoice, copy of which has been annexure B to his affidavit<\/p>\n
Annexure A to his affidavit is the photograph purchased by<\/p>\n
him from Archie\u201fs Gallery at D-851, New Friends Colony. It<\/p>\n
would thus be seen that the plaintiff is the registered owner<\/p>\n
CS(OS)No. 1355\/2006                                Page 8 of 23<\/span>
\n of the mark ZIPPO in India in respect of cigarettes lighters.<\/p>\n
The plaintiff-company also holds a registration of the device<\/p>\n
of a lighter in India vide Registration No. 714368. Section<\/p>\n
2(m) of Trademarks Act, 1999 defines the mark to include a<\/p>\n
device and shape of goods.         Normally, device would mean<\/p>\n
pictorial representation of a product which is used either on<\/p>\n
the product or on its packaging. However, considering the<\/p>\n
nature of the product in respect of which the device has<\/p>\n
been registered in favour of the plaintiff-company vide<\/p>\n
Registration No. 714368, it appears to me that this is<\/p>\n
nothing, but registration of the shape of a cigarette lighter.<\/p>\n
Though it has been described as a device in the registration,<\/p>\n
it is difficult to say that by registering this device vide<\/p>\n
Registration No. 714368, the Registrar of Trade Marks was<\/p>\n
registering only a pictorial representation of the lighter<\/p>\n
shown in the device. Considering the nature of the product<\/p>\n
in respect of which registration has been obtained, no useful<\/p>\n
purpose is served from obtaining registration of a pictorial<\/p>\n
representation of a lighter.        I am in agreement with the<\/p>\n
learned      counsel   for   the   plaintiff   that   while     seeking<\/p>\n
registration granted by Registration No. 714368, the plaintiff<\/p>\n
was seeking registration of the shape of the lighter, as<\/p>\n
CS(OS)No. 1355\/2006                                           Page 9 of 23<\/span>
\n shown in the pictorial representation of the product which<\/p>\n
appears on the Certificate of Registration to describe it as a<\/p>\n
device, appears to me an inadvertent error on the part of<\/p>\n
Trade Mark Registry. I agree with him that it is meaningless<\/p>\n
to obtain registration of a pictorial representation of the<\/p>\n
lighter if the shape of the lighter is not the subject matter of<\/p>\n
registration. Vide his affidavit dated 20 th September, 2011,<\/p>\n
Col. J.K. Sharma, constitute attorney of the plaintiffs, has<\/p>\n
stated that defendant No. 4, which is a franchise of<\/p>\n
defendant No. 2, is owned and managed by Mr Vinod<\/p>\n
Sachdeva along with his son Mr Vineet Sachdeva and has<\/p>\n
since shifted its operations from D-851, New Friends Colony<\/p>\n
to Shop No. 134-A, Taimoor Nagar, New Friends Colony. He<\/p>\n
has further stated that telephone No. 26840507 which<\/p>\n
appears on the invoice, issued by defendant No. 4 and<\/p>\n
telephone No. 26840506 which appears on the visiting card<\/p>\n
of Mr Vineet Sachdeva, are registered in the name of Mr<\/p>\n
Vinod Sachdeva. It would thus be seen that the plaintiff-<\/p>\n
company is the exclusive owner       of the word mark ZIPPO<\/p>\n
and it also holds trademark in respect of the shape of the<\/p>\n
lighters being sold by it under the trademark ZIPPO. The<\/p>\n
affidavit of Mr J.P. Sharma shows that the defendant sold a<\/p>\n
CS(OS)No. 1355\/2006                                   Page 10 of 23<\/span>
\n lighter bearing the trademark ZIPPO to him vide invoice,<\/p>\n
copy of which is annexure B to his affidavit. A perusal of<\/p>\n
the photograph of the product, which Mr J.P. Sharma<\/p>\n
purchased from defendant No. 4, would show that the<\/p>\n
defendant has been using the trademark ZIPPO on the<\/p>\n
lighters sold by him. A comparison of the photograph of the<\/p>\n
product of the plaintiff with the photograph of the product<\/p>\n
purchased by Mr J.P. Sharma from defendant No. 4 shows<\/p>\n
that the name on and shape of the lighter which Mr.<\/p>\n
J.P.Sharma purchased from defendant No.4 is exactly the<\/p>\n
same which the plaintiff-company has been using its<\/p>\n
lighters and which is the registered trademark of the<\/p>\n
plaintiff-company. Therefore, by using the word mark ZIPPO<\/p>\n
and the shape of the product of the plaintiff-company,<\/p>\n
defendant No. 4 infringed the registered trademarks of the<\/p>\n
plaintiff-company.\n<\/p>\n
9.          In M.R.F.Limited versus Metro Tyres Limited,<\/p>\n
1990-PTC-101, the plaintiff sought an injunction restraining<\/p>\n
the    defendant      from   selling   autorikshaw   tyres   having<\/p>\n
prominent features of the tread pattern similar to that of the<\/p>\n
tread pattern of the autorikshaw tyres of the plaintiff. While<\/p>\n
granting injunction to the plaintiff, the Court observed that<\/p>\n
CS(OS)No. 1355\/2006                                      Page 11 of 23<\/span>
\n in India, all the tyres are black and circular, the prominent<\/p>\n
distinguishing feature being the tread pattern and other<\/p>\n
features of arrangement.     The Court felt that tread is an<\/p>\n
essential and integral part of the tyre itself performing<\/p>\n
purely a functional and utilitarian role. The Court was of<\/p>\n
the view that unlike a wrapper, a label or a container, the<\/p>\n
tread was not something external to the tyre but it was an<\/p>\n
indivisible part. It was also observed that when a purchaser<\/p>\n
goes to purchase a scooter tyre manufactured by the<\/p>\n
plaintiff and that tyre is not available whereas the tyre of the<\/p>\n
defendant is available, the shopkeeper may point out the<\/p>\n
tread pattern in the tyre of the defendant and the purchaser<\/p>\n
may purchase the tyre having regard to the similarity of the<\/p>\n
tread pattern irrespective of the manufacturers. The Court<\/p>\n
felt that similarity of the tread pattern may also raise a<\/p>\n
presumption of common origin or close business association<\/p>\n
between the plaintiff and the defendant. The Court was of<\/p>\n
the view that merely because the plaintiff had not secured<\/p>\n
registration of the design under the Designs Act or under<\/p>\n
the Patent Act, it cannot be said that the tread pattern of<\/p>\n
the plaintiff\u201fs tyres could be copied by the defendant.<\/p>\n
       In the case before this Court, even if defendant No.4<\/p>\n
CS(OS)No. 1355\/2006                                   Page 12 of 23<\/span>
\n        does not use the word mark \u201eZIPPO\u201f but continues to<\/p>\n
       use the shape of the lighter of the plaintiff, the<\/p>\n
       customer on account of unique shape of the lighter,<\/p>\n
       may presume that it is Zippo lighter which the plaintiff<\/p>\n
       company          sells      almost    through    the        world    and,<\/p>\n
       therefore, may believe that the lighter which defendant<\/p>\n
       No.4 is offering to him has been either manufactured<\/p>\n
       by    the       plaintiff    company    itself   or    it    has    been<\/p>\n
       manufactured in collaboration with and\/or                           under<\/p>\n
       licence from the plaintiff company and that is why, it<\/p>\n
       has a shape identical to that of the lighters of the<\/p>\n
       plaintiff company.\n<\/p>\n
            In        Gorbatschow           Wodka   KG       versus        John<\/p>\n
Distilleries Limited, 2011 (47) PTC 100(Bom), the plaintiff<\/p>\n
claimed that the shape of its bottles of Vodka was distinctive<\/p>\n
and formed an intrinsic part of its goodwill and reputation.<\/p>\n
The bottle which the defendant had adopted was alleged to<\/p>\n
be deceptively similar to that of the plaintiff. The plaintiff,<\/p>\n
on account of similarity in the shape of the bottles, claimed<\/p>\n
a dilution of the distinctive shape under which Vodka<\/p>\n
bottles of the plaintiff are marketed and sold, a dilution of<\/p>\n
the goodwill and reputation of the plaintiff in relation to the<\/p>\n
CS(OS)No. 1355\/2006                                                  Page 13 of 23<\/span>
\n distinctive shape of the bottle, passing off at common law,<\/p>\n
unfair competition and a mushrooming effect in that unless<\/p>\n
the defendant were to be stopped other potential infringers<\/p>\n
may be emboldened to encroach upon the rights of the<\/p>\n
plaintiff.       The defendant in that case had obtained<\/p>\n
registration of its shape under the Designs Act, 2000. The<\/p>\n
contention of the plaintiff was that registration under<\/p>\n
Designs Act was no defence to an action for passing off<\/p>\n
since there was no procedure in the Act for advertising and<\/p>\n
for receipt of oppositions.      Granting injunction to the<\/p>\n
plaintiff, the Court, inter alia, observed as under:-<\/p>\n
       “The action before the Court is a quia timet
\n       action which seeks to injunct the defendant
\n       from launching its product in India. The basis
\n       and foundation of the action is that the
\n       defendant has adopted a bottle for the sales of
\n       its product which in its shape bears a striking
\n       resemblance to the bottle of the plaintiff.
\n       Under the Trade Marks Act, 1999, the shape of
\n       goods is now statutorily recognized as being
\n       constituent element of a trade mark.\n<\/p><\/blockquote>\n
       Section2(zb) of the Trade Marks Act, 1999
\n       defines the expression \u201etrade mark\u201f to mean “a
\n       mark capable of being represented graphically
\n       and which is capable of distinguishing the
\n       goods or services of one person from those of
\n       others” and to include the “shape of goods,
\n       their packaging and combination of colours”.\n<\/p><\/blockquote>\n
       Parliament     has,     therefore,   statutorily
\n       recognized that the shape in which goods are
\n       marketed, their packaging and combination of
\n       colours for part of what is described as the<\/p>\n
CS(OS)No. 1355\/2006                                     Page 14 of 23<\/span>
\n        trade dress. A manufacturer who markets a
\n       product may assert the distinctive nature of
\n       the goods sold in terms of the unique shape
\n       through which the goods are offered for sale.”<\/p>\n
       “The shape of the bottle which the plaintiff has
\n       adopted has no functional relationship with
\n       the nature of the product or the quality
\n       required of the container in which Vodka has
\n       to be sold. The shape, to use the language of a
\n       leading authority on the subject, is capricious.
\n       It is capricious in the sense that it is novel and
\n       originated in the ingenuity and imagination of
\n       the plaintiff. Prima facie, a comparison of the
\n       shape of the bottle which has been adopted by
\n       the defendant with the bottle of the plaintiff
\n       would show a striking similarity. As a matter
\n       of fact, counsel appearing on behalf of the
\n       defendant did, during the course of the
\n       submission,       concede    that     there     are
\n       similarities.”\n<\/p><\/blockquote>\n
            In Reckitt & Colman Products Limited versus<\/p>\n
       Bordeen Inc. and Others [1990] RPC 341, [1988] FSR<\/p>\n
       601, the plaintiff was selling the lemon juice since<\/p>\n
       1956 in a plastic container under the name JIF. The<\/p>\n
       defendants who also were selling lemon juice, in bottle<\/p>\n
       sought to introduce lemon shape container, which was<\/p>\n
       challenged by the plaintiff alleging passing off.        The<\/p>\n
       trial Judge held that passing off had been established.<\/p>\n
       The defendants filed an appeal against the order of the<\/p>\n
       trial Judge. While dismissing the appeal, the Court of<\/p>\n
       Appeal observed that even assuming that the colour<\/p>\n
CS(OS)No. 1355\/2006                                     Page 15 of 23<\/span>
\n        and shape of the container were to be regarded as<\/p>\n
       having a function to perform (by indicating its<\/p>\n
       contents) that does not preclude the plaintiff from<\/p>\n
       having acquired the exclusive right to the particular<\/p>\n
       get up of their JIF lemons, including their colour and<\/p>\n
       shape.\n<\/p><\/blockquote>\n
             In Yale & Towne Mfg. Co. vs. Alder, 1907 US<\/p>\n
       Appeals Lexies 4499, it was found that the defendant<\/p>\n
       had     copied,   manufactured   and   sold   a    padlock<\/p>\n
       marketed by the plaintiff.   Though many features of<\/p>\n
       plaintiff\u201fs padlock were not original and subject to<\/p>\n
       appropriation, the defendant was the first to assemble<\/p>\n
       them in a form in which its padlock was substantially<\/p>\n
       identical with that of the plaintiff. The Court felt that<\/p>\n
       this would lead customers into believing that they were<\/p>\n
       buying plaintiff\u201fs padlock and, therefore, defendant\u201fs<\/p>\n
       apparent purpose was to intentionally and deliberately<\/p>\n
       extend his trade with retail dealers at the expense of<\/p>\n
       plaintiff\u201fs trade by furnishing them with a padlock at<\/p>\n
       a lower price which could be sold to the customers as<\/p>\n
       plaintiff\u201fs padlock. In the case before this Court, the<\/p>\n
       lighter which defendant No.4 sold to the investigator<\/p>\n
CS(OS)No. 1355\/2006                                      Page 16 of 23<\/span>
\n        appointed by the plaintiff company appears to be<\/p>\n
       identical to that of the plaintiff having no visible<\/p>\n
       distinguishing    feature   in   its   shape   or     design.<\/p>\n
       Therefore, the case of the plaintiff company stands on<\/p>\n
       a stronger footing.\n<\/p><\/blockquote>\n
             In George G. Fox Company versus Charles F.<\/p>\n
       Hathaway & Another, 1908 Mass Lexis 791, the<\/p>\n
       plaintiff\u201fs loaves of bread were of a size, shape, colour<\/p>\n
       and condition of surface that gave them a peculiar<\/p>\n
       visible appearance which had come to be recognized by<\/p>\n
       customers in connection with the name, as indicating<\/p>\n
       the     place of manufacturing and the quality of the<\/p>\n
       bread. The defendant began to manufacture and sell<\/p>\n
       bread in loaves of the same size, shape, colour and<\/p>\n
       general visual appearance as of the plaintiff.         It was<\/p>\n
       held that the defendant intended to take advantage of<\/p>\n
       the reputation which the plaintiff had built up, by<\/p>\n
       selling an imitation of its loaves.\n<\/p><\/blockquote>\n
10.          It has come in evidence that the plaintiff-company<\/p>\n
has been selling lighters bearing the trademark ZIPPO and<\/p>\n
having a unique 3-dimensional shape in India through<\/p>\n
various channels. The plaintiff-company has been selling<\/p>\n
CS(OS)No. 1355\/2006                                        Page 17 of 23<\/span>
\n this lighter in India through various authorized retailers.<\/p>\n
The plaintiff-company has also been advertizing its lighters<\/p>\n
in India in various magazines and has been incurring<\/p>\n
substantial expenditure on advertising its product in India.<\/p>\n
Defendant No. 4, obviously, wants to encash upon the<\/p>\n
goodwill which the lighters of the plaintiff-company enjoy in<\/p>\n
the market by copying not only the word mark ZIPPO, but<\/p>\n
also the shape of the product of the plaintiff-company.<\/p>\n
Defendant No. 4 has no right to use the trademark ZIPPO<\/p>\n
and\/or the 3-dimensional shape of the lighter of the<\/p>\n
plaintiff-company. By using the name ZIPPO and\/or the 3-<\/p>\n
dimensional shape of the lighter of the plaintiff-company,<\/p>\n
defendant No.4 is trying to pass off his goods as those of the<\/p>\n
plaintiff. If defendant No. 4 is not restrained from using the<\/p>\n
word mark ZIPPO and the 3-dimensional shape of the<\/p>\n
lighter of the plaintiff-company, the customer may purchase<\/p>\n
the product of defendant No. 4 under a mistaken belief that<\/p>\n
he was purchasing the reputed product of the plaintiff-<\/p>\n
company. On seeing a lighter bearing the trademark ZIPPO<\/p>\n
and\/or on having a 3-dimensional shape identical to that of<\/p>\n
the product of the plaintiff-company, the customer may<\/p>\n
form a bona fide impression that either this is the genuine<\/p>\n
CS(OS)No. 1355\/2006                                 Page 18 of 23<\/span>
\n product       of      the     plaintiff-company     or   it   has     been<\/p>\n
manufactured in collaboration and\/or under licence from it<\/p>\n
and, therefore, was likely to be a quality product, for which<\/p>\n
he was paying a premium price.                    If the quality of the<\/p>\n
product of defendant No. 4 is not found to be as good as the<\/p>\n
quality     of     the      product   of   the   plaintiff-company,     the<\/p>\n
customer, who purchases the product of defendant No. 4,<\/p>\n
may form an impression that the quality of the lighters of<\/p>\n
the plaintiff-company has gone down and is no more the<\/p>\n
quality for which the lighters of the plaintiff-company is<\/p>\n
known.       If it so happens, that may not only prejudicially<\/p>\n
affect the financial interest of the plaintiff-company, but<\/p>\n
may also tarnish the reputation which the brand ZIPPO<\/p>\n
enjoys in the market, particularly in respect of cigarettes<\/p>\n
lighters.     The sale of an inferior product under the brand<\/p>\n
name ZIPPO and\/or having a 3-dimensional shape identical<\/p>\n
to that of the lighter of the plaintiff-company may also harm<\/p>\n
the interest of the consumer who may be paying a higher<\/p>\n
price for the premium product of the plaintiff-company and<\/p>\n
who despite paying that premium price, may be saddled<\/p>\n
with an inferior product.\n<\/p>\n
11.         The plaintiff has thus been able to make out a case<\/p>\n
CS(OS)No. 1355\/2006                                            Page 19 of 23<\/span>
\n of infringement as well as passing off. Even if I proceed on<\/p>\n
the assumption that registration of the three dimensional<\/p>\n
device vide registration No.714368 is not the registration of<\/p>\n
the shape of the lighter depicted on the certificate but is<\/p>\n
registration only of its pictorial representation, it would still<\/p>\n
be a case of infringement on account of use of the word<\/p>\n
mark ZIPPO on the lighter which defendant No.4 sold to<\/p>\n
Mr.J.P.Sharma and will also be a case of passing off on<\/p>\n
account of the shape of the product which defendant No.4<\/p>\n
sold to Mr. J.P.Sharma being identical to the unique shape<\/p>\n
of the lighters being sold by the plaintiff company almost<\/p>\n
throughout the world including India.\n<\/p>\n
12.             For         the    reasons    given      in    the    preceding\n\nparagraphs,           the    plaintiff   is   entitled    to    a    permanent\n\n<\/pre>\n
injunction from selling, distributing or marketing the lighter<\/p>\n
under the trademark ZIPPO and\/or having a 3-dimensional<\/p>\n
shape identical or similar that of the lighter of the plaintiff-<\/p>\n
company,         as     is        depicted    on   the    Registration         No.<\/p>\n
714368, issued by Registrar of Trademarks to the plaintiff-<\/p>\n
company.\n<\/p>\n
13.         Coming to damages, though plaintiff has not<\/p>\n
proved the actual damages suffered by it on account of sale<\/p>\n
CS(OS)No. 1355\/2006                                                   Page 20 of 23<\/span>
\n of lighters by defendant No. 4 under the brand name ZIPPO<\/p>\n
and\/or having the 3-dimensional shape identical to that of<\/p>\n
the product of the plaintiff-company, it is definitely open to<\/p>\n
this Court to award punitive damages.\n<\/p>\n
            As observed by this Court in Time Incorporated v.<\/p>\n
Lokesh Srivastava & Anr.,<\/a> 2005 (30) PTC 3 (Del), punitive<\/p>\n
damages are founded on the philosophy of corrective justice<\/p>\n
and are meant to send signal to the wrong doers that the<\/p>\n
law does not take a breach by them as a matter between<\/p>\n
rival parties but is also concerned about those also who are<\/p>\n
not party to the lis but suffer on account of the breach of<\/p>\n
law on the part of wrong doer.      As held by this Court in<\/p>\n
Hero Honda Motors Ltd. V. Shree Assuramji Scooters,<\/a><\/p>\n
2006 (32) PTC 117 (Del), this Court noticing that in a case<\/p>\n
where the defendant chooses to stay away from the<\/p>\n
proceedings of the Court, punitive damages need to be<\/p>\n
awarded, since otherwise the defendant, who appears in the<\/p>\n
Court and submits its account books would be liable for<\/p>\n
damages whereas a party which chooses to stay away from<\/p>\n
the Court proceedings would escape the liability on account<\/p>\n
of the failure of the availability of account books. In fact,<\/p>\n
punitive damages are appropriate relief where on account of<\/p>\n
CS(OS)No. 1355\/2006                                 Page 21 of 23<\/span>
\n absence of the defendant exact figure of the sale made and<\/p>\n
profit earned by him by infringing the trademark of the<\/p>\n
plaintiff and\/or passing off his goods as those of the plaintiff<\/p>\n
cannot      be    ascertained.    The    Courts   also     take     into<\/p>\n
consideration the fact that a lot of time and money is spent<\/p>\n
by trademark owners in litigation against those who infringe<\/p>\n
the trademark and try to encash upon the goodwill and<\/p>\n
reputation of other brands by passing off their goods and<\/p>\n
services as those of others.       Award of punitive damages,<\/p>\n
therefore, describes dishonesty and curbs tendency to gain<\/p>\n
an unfair advantage by infringement of the legal rights of<\/p>\n
others. Failure of the Court to award punitive damages is<\/p>\n
likely to encourage unscrupulous persons actuated by<\/p>\n
dishonest intention, to use the trademarks of others and<\/p>\n
encash upon their goodwill and reputation which they have<\/p>\n
built with years of hard work and labour.                I, therefore,<\/p>\n
award punitive damages amounting to Rs 5 lakh in favour<\/p>\n
of the plaintiff-company and against defendant No. 4.<\/p>\n
                                 ORDER<\/p>\n
            A decree for permanent injunction is hereby<\/p>\n
passed restraining defendant No.4 – Vinod Sachdeva from<\/p>\n
selling, distributing or marketing lighters under the trade<\/p>\n
CS(OS)No. 1355\/2006                                         Page 22 of 23<\/span>
\n mark “ZIPPO” and\/or having a three dimensional shape<\/p>\n
identical or similar to that of the lighter of the plaintiff<\/p>\n
company as is depicted on the registration certificate<\/p>\n
No.486145, issued by Registrar of Trade Mark, to the<\/p>\n
plaintiff company. A decree for recovery of Rs.5 lacs is also<\/p>\n
passed in favour of the plaintiff and against defendant No.4.<\/p>\n
The plaintiff will be entitled to pendente lite and future<\/p>\n
interest at the rate of 6% per annum on the amount of<\/p>\n
damages. The plaintiff will also be entitled to proportionate<\/p>\n
cost of the suit. In the facts and circumstances of the case,<\/p>\n
there shall be no order as to costs.\n<\/p>\n
            Decree sheet be drawn accordingly.\n<\/p>\n<\/p>\n
                                           (V.K. JAIN)
\n                                             JUDGE
\nOCTOBER 31, 2011
\nbg\/vn\/’sn’<\/p>\n
CS(OS)No. 1355\/2006                                 Page 23 of 23<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Delhi High Court Zippo Manufacturing Company vs Anil Moolchandani & Ors. on 31 October, 2011 Author: V. K. Jain THE HIGH COURT OF DELHI AT NEW DELHI % Judgment Reserved on: 29.09.2011 Judgment Pronounced on: 31.10.2011 + CS(OS) 1355\/2006 ZIPPO MANUFACTURING COMPANY ….. Plaintiff Through: Mr. Pravin Anand, Advocate and Ms. Tanya Verma, Advocate versus […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[14,8],"tags":[],"class_list":["post-171353","post","type-post","status-publish","format-standard","hentry","category-delhi-high-court","category-high-court"],"yoast_head":"\nZippo Manufacturing Company vs Anil Moolchandani & Ors. on 31 October, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/zippo-manufacturing-company-vs-anil-moolchandani-ors-on-31-october-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Zippo Manufacturing Company vs Anil Moolchandani & Ors. on 31 October, 2011 - 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