1. By way of this order, I propose to decide the above mentioned pending application under Order XXXIX Rules 1 and 2 read with Section 151 CPC.
2. The plaintiff has filed the suit for permanent injunction restraining infringement of trademark, passing off, dilution, unfair competition, rendition of accounts of profits, damages and delivery up against the defendants.
3. The facts of the case as per the plaint are that the plaintiff-Company was incorporated in the year 1986 who is also the registered proprietor of the trademark SUPERFLO which is also dominant and essential part of its company name who also started using the trademark from the very inception of the company in 1986.
It is claimed that the plaintiff is engaged in the business of, inter alia, manufacturing sanitary ware accessories, bath room fittings and other allied products and it has the core competence of the plaintiff Company to manufacture products and scores of applications where control of flow of water is required, including but not limited to, high precision plastic injection mouldings of cistern fittings for the sanitary ware industry, inlet valves used in overhead tanks, water coolers for drinking water, washing machines, air coolers, water filters for drinking water and others. The plaintiff-Company also manufactures products in the nature of and including but not limited to, seat covers (soft close and as well as non-soft close) and plastic cisterns, and a range of internal mechanisms for the sanitary ware industry. It has invested roughly 5% to 7% of their turnover annually amounting to Rs.1.25 crore in research and development, to enhance its capacities and gain greater technological independence.
3.1 The plaintiff-Company employs 247 people and at regular intervals sends its employees abroad on project for learning new technologies. In order to provide effective service to its customers, the plaintiff-Company has employed a team of trained service technicians to provide timely after-sales service throughout India. It is also submitted that it has pioneered the development of several products which helps in water conservation and has worked very closely with all leading sanitary ware manufacturers in changing the pre dominantly single flush dominated market to an entirely dual flush-centric market. Few of the accolades received by the plaintiff-Company in this respect include developing the first ISI marked 'equilibrium float type inlet valve' bearing patent No. 240014, to the recent innovation of the 'Dual Flush' bearing patent Nos. 196441 and 200284, which gives a user the flexibility to dispense varying amounts of water, depending on the usage of the toilet, ultimately resulting in enormous water saving. The plaintiff-Company also has registered patents for the inventions mentioned above, apart from other inventions of similar nature like dual flush mechanism for flushing different quantities of water, plunger type inlet valve for cisterns, soft closing hinge for toilet seat cover, plunger type side inlet valve for cisterns.
3.2 Most renowned sanitary ware manufacturers such as Hindware, Cera Sanitary ware, Parry Roca, HR Johnson, Neycer India Limited and Jaquar use products of the plaintiff-Company bearing the SUPERFLO marks in their products. Further various Government and private organizations such as Public Works Department, Military Engineering Services, and Chief Works Engineer in India have also approved the products of the plaintiff-Company bearing the SUPERFLO marks. The plaintiff-Company has also received the certification from the International Association of Plumbing and Mechanical Officials, the Bureau of Indian Standards and Uniform Plumbing Code (a part of IAPMO) which is an example of the invaluable goodwill of the plaintiff Company vesting in the SUPERFLO marks.
3.3 The plaintiff also established in 2001 an Educational and Public Charitable Trust namely VIRS Educational and Training Foundation to establish and run educational institutions and training centres. One of the primary focus of this trust is underprivileged children and adolescents and to provide them training in basic and advanced engineering with specific focus on plumbing works whereupon they are absorbed in the Superflo industry as employees.
3.4 The plaintiff company was founded in the year 1986 and has a manufacturing presence in Telengana, Andhra Pradesh. Additionally the plaintiff has a supply and distribution network in 22 States throughout India as well as a distributor for UAE named Al-Salam Trading Est. based in Dubai. The plaintiff deals through its branch office in Delhi, 6 stockists / distributors namely Anand Sanitary Works (Telangana), Mathrukrupa Marketing (Karnataka), Mahavir Marketing Corporation (Bangalore), Sanisteel Pvt. Ltd (Assam), Parco Industries (West Bengal) and Parshva Impex (Maharashtra) and approximately 500 dealers. During the year 2014 the plaintiff-Company's market value share was estimated to be 80-85% of the organized market for internal mechanisms in India. The plaintiff-Company, over a period of time, has not only expanded its business and ventured into manufacturing new sanitary ware products, but has also ventured into new markets. The plaintiff-Company has been enjoying enviable goodwill, reputation and brand value in respect of the SUPERFLO marks in India and in overseas markets since many years.
3.5 The SUPERFLO marks and the trade name of the plaintiff-Company is not confined to limited geographical locations or regional marketplaces but have transcended national boundaries and have acquired a strong global presence and good reputation which is reflected in their growing sales globally over the past decade. The plaintiff-Company acquired substantial reputation because of advertising, publicity and by participating in various exhibitions conducted in India and abroad. The plaintiff-Company has incurred considerable expenditure for launching its products by way of sales promotions and advertising expenditure.
By virtue of extensive and long-standing use and vast publicity and advertisement of the trademark across India, as well as globally, the plaintiff-Company has become the sole and exclusive owner of said trademark as members of the public and trade exclusively identify and associate the SUPERFLO mark with the wide range of business and products of the plaintiff-Company.
4. The plaintiff submits that on 20th June 1995 filed an application bearing application number 669704 in class 7. The said application was withdrawn by the plaintiff-Company after the Joint Registrar, Trade Mark Registry stated that the subject trademark is descriptive of the subject goods. Based on the suggestion made by the Joint Registrar, the plaintiff-Company withdrew its application in December, 2003 and filed a fresh application in class 11 for which the trademark was registered by the Trade Mark Registry on 17th March, 2003. The plaintiff Company had also filed an application for registration of its word mark SUPERFLO in class 11 on 8th March, 2014 which is pending for registration. In addition, the plaintiff Company has valid and existing registrations for IMAGE with registration No. 1400078 from 18th November, 2005 covering goods in class 11 and IMAGE with registration No. 1183380 from 17th March, 2003 covering goods in class 11. The details of registrations obtained by the plaintiff Company for SUPERFLO marks are mentioned below:
TABLE IMAGE ?
5. It is alleged by the plaintiff in the plaint that the SUPERFLO marks enjoy all protection afforded to them by the laws of trademark and passing off including the protection conferred upon the plaintiff-Company by virtue of Section 29 (1) and 29 (4) of the Trademarks Act, 1999. Therefore, any un-authorized use of a mark, similar or identical to SUPERFLO marks in relation to any goods or products, similar or identical to goods or products of plaintiff-Company, by any person is bound to lead to deception and confusion amongst the public and the trade, as if the said goods are emanating from the plaintiff-Company and/or are associated with the plaintiff-Company. Any such unauthorized use by any person will amount to an act of infringement and passing off by that person in respect of trademark and goods or products of the plaintiff-Company. Such qualities of SUPERFLO marks as the selling power, advertising value and commercial magnetism, have always been protected by the plaintiff-Company against unauthorized use on goods and services through an action to restrain their trade mark dilution. The plaintiff-Company has opposed marks which are similar and identical to that of the plaintiff-Company's trade mark. The goodwill, reputation and the brand equity enjoyed by the plaintiff's SUPERFLO marks are an extremely valuable intellectual property right, owned and zealously guarded by the plaintiff-Company for the past decades.
The plaintiff submits that it is an honest user by virtue of the extensive, long and uninterrupted use since 1986, wide publicity, and its association with the quality products and applicability of the SUPERFLO marks. The use of similar trademark by any other unauthorized person or trader, without permission, consent or license from the plaintiff-Company, would lead to a state of confusion, dilution and deception about the source and origin of such goods and business leading to infringement and passing off by such unauthorized person or trader's goods and business, for those of the plaintiff-Company. The use of the trademark "SUPERFLO" and/ or any other mark as may be identical and/or deceptively similar thereto in respect of goods of its manufacture and sale or any other cognate and/ or allied goods or the goods of the same description or the goods which pass through the same trade channels and/or sold and/or purchased by the same class of persons, on the part of someone else without the consent of the plaintiff constitute an act of infringement of the plaintiff's registered trademark "SUPERFLO" as well as passing off in respect of the trademark "SUPERFLO" as the same is bound to cause confusion and deception in the minds of purchasing public and the members of the trade and is also bound to dilute the distinctive character of the plaintiffs trademarks and/ or is likely to be detrimental to the distinctiveness thereof. Further, the plaintiff being proprietor of the trademarks "SUPERFLO", as aforesaid, on account of priority in adoption, long, continuous and extensive use, have common law right to restrain others from committing acts of passing off or unfair trade practices. The plaintiff has taken enforcement actions against various infringers for infringing their trademark rights in India and various other parts of the world.
6. It is also alleged in the plaint that the defendant No. 1 Company, earlier known as Siddi Niddi Associates Private Limited and later changed to Sandhyamani Associates Private Limited is a private limited company incorporated under the provisions of the Companies Act 1956, on 21st March, 1997. The defendant No. 2 is one of the Directors of defendant No. 1 Company. It has come to the notice of the plaintiff in April, 2013 through several persistent and unusual complaints received from various customers and dealers with respect to damaged and/or defective sanitary ware products, being sold by the defendants under the deceptively similar and/or identical trademark Superflo. These incidents revealed that a number of customers and dealers are purchasing substandard products bearing the mark namely Superflo, but not manufactured or sold by the plaintiff-Company, under the mistaken belief that such products are manufactured and sold by the plaintiff-Company. In order to ascertain the truth, the plaintiff-Company sent their employees to the retail/wholesale outlet of the Defendant No. 1 Company and purchased the product sold by them. Consequently, two rounds of purchase were made on 3rd May, 2013 and 29th October, 2013 whereby Jaquar Bidet Set samples were purchased.
7. Thereafter, the plaintiff Company issued a cease and desist notice dated 20th December, 2013 asking the defendants to refrain from using the SUPERFLO marks in respect of goods traded by the defendants. The plaintiff-Company thereafter had a meeting with the defendant No. 2 to discuss the dispute on February 01, 2014 during which the defendant No. 2 on behalf of himself and on behalf of the defendant No. 1, assured the plaintiff-Company that the matter would be resolved. Pursuant to the meeting on 1st February, 2014 the plaintiff-Company sent an email on 24th March, 2014 recording the discussion and the terms of settlement for which no reply was sent by the defendants.
8. The plaintiff again issued a reminder notice dated 4th April, 2014 to the defendants which was replied to by the defendants vide their letter dated 16th April, 2014. The defendants in their abovementioned reply denied using the trademark SUPERFLO for the product "Heath Faucet". The defendants in their reply also stated that they are neither manufacturing nor dealing with the product "Health Faucet" with the mark of SUPERFLO, which was contrary to their earlier acceptance to refrain from using SUPERFLO Mark. However, upon conducting an investigation in the market, the plaintiff came across the product "Health Faucet" with the mark SUPERFLO which is being traded and sold by the defendants. The packaging of the impugned product carries the email address [email protected]. It is submitted that the domain name superflo.co.in.is registered in the name of the defendant no. 2.
9. It is stated in the plaint that the plaintiff Company conducted a due diligence on the defendant No. 1 Company and observed that the defendant No. 1 Company has a registered trademark under Class 6 and 7 which was applied on 23rd December, 2003 claiming usage since 16th August, 2000.
10. The plaintiff submits that the defendants obtained registration of Superflo mark in the year 2003 in Class 6 and 7, claiming usage since the year 2000 whereas the plaintiff-Company had applied in 1995 for registration of SUPERFLO mark in Class 7 claiming usage since 1986 but was made to withdraw in December, 2003. Once the plaintiff's marks were withdrawn, the defendant was granted registration on 23rd December, 2003 for "Superflo". The plaintiff instead obtained registration in Class 11 in the year 2003, claiming usage since 1986. It is submitted that the act of issuance of registration of trademark of Superflo in class 6 and 7 to the defendants by the trademark registry is contrary to the user of the plaintiff-Company who later on, on the basis of existing registration of the defendants, were to withdraw their own application number 669704 in class 7 in 1995.
11. The plaintiff submits that the defendants despite being incorporated in the year 1997 claimed usage since 2000, the plaintiff-Company has been in this business and claims usage since its inception i.e. 1986. The SUPERFLO marks are in use by the plaintiff-Company since the year 1986 which is much prior to the incorporation of the defendant No. 1 Company in 1997. The plaintiff further submits, that as per the Memorandum of Association of the defendant No. 1 Company the main objectives are "to purchase, sell, hire, to rent bulldozers earthmovers, heavy machinery and all sort of material required in infrastructural projects, to buy all kinds of plant, equipment machinery apparatus, tools utensils, commodities substances articles and things necessary or useful for infrastructural projects or other civil/mechanicals projects; to deal in all engineering construction civil contracts, through tenders, direct participation, collaboration, joint venture and all sort of project for the development of infrastructure; to buy, sell, hire to rent all kinds of generator sets, to repair maintenance manufacture all kinds of generator sets and mechanical devices for this purpose". It is submitted that the defendant No. 1 Company by virtue of the main objective provided in the memorandum of association cannot engage themselves in the business of trading sanitary ware products unless appropriate amendment to the main object is carried out following due procedure of law. The Memorandum of Association of the defendant No. 1 Company was not altered and the same was recorded in the compliance certificate issued by the defendant No. 1 company secretary and filed with the Registrar of Company.
12. It is alleged by the plaintiff that the defendant No.1 Company is in no manner connected with the manufacturing of sanitary products. The defendants dishonestly adopted a similar mark in relation to the same products i.e., sanitary ware products in India with an intention to cash in the well-known reputation of the plaintiff. The plaintiff further submits that from the audited accounts of the defendant No. 1 Company are only traders of sanitary ware products in India. The products sold by the defendants are manufactured in China. The defendants in collaboration with the manufacturers are actively engaged in sale and distribution of the infringing products bearing the plaintiff Company's trade name and trademark. The defendant No. 1 through defendant No. 2 imports all goods from China on which the label of "Superflo" is affixed and traded in New Delhi. It is alleged that country like China being one of the big sanitary ware market in Asia have knowledge of the established brands in India dealing with the said products. The defendants connived with others dealing in the sanitary ware product in China with malafide intention to cash in well-known reputation of these brands and to ex-facie create confusion and deception as to the identity of the two marks, penetrated into Indian market. During the oral discussion between the plaintiff and defendants it was informed by the defendants that all the packaging and printing of the infringing products are done in China and then these products are brought into India only for sale.
13. The plaintiff submits that the malafide intention of the defendants to encash the well-known and reputed brands can be clearly seen from the registrations obtained by them in bad faith in other instances as well. On further due diligence by the plaintiff it was revealed that defendant No. 2 also has obtained trademark under Class 11 for Sanitary and bathroom fittings" vide application dated 9 September, 2002 in the name of "Bossini and "Roka", both of which are top leading international sanitary ware brands. Similarly, the defendants were also aware of plaintiff's presence in the market due to the fact that plaintiff's mark was specifically cited against theirs as an objection to the defendantstrademark filing. The defendants like cyber squatters, habitually target popular brands/marks and thereafter attempt to register the same marks or deceptively similar marks to deceive the public into believing that theirs are the genuine marks. The defendants conveniently aim to leverage their products by riding on the reputation that the original company, such as the plaintiff would have carefully built by investing huge amounts of money and skill. It is also submitted that during the meeting dated 1st February, 2014 the defendant No. 2 himself verbally disclosed to the plaintiff Company that the defendant No.1 earlier also had trademark registration in the name of Roka and Bossini both of which are phonetically identical and deceptively similar to two famous and internationally well known marks in the sanitary ware sector. In fact, Roca Sanitario S.A, the owner of internationally well known mark namely ROCA, had filed a similar suit of trademark infringement against the defendants before this Court. The matter was settled by defendant No. 2 giving an undertaking not to deal and trade in the products using the trademark Roka and surrendering the same. The settlement made by the defendants in the abovementioned case is evident from the fact that the registered trademark of "Bossini" and "Roka" expired on 9th September, 2012 and the same has not been renewed till date. However, the defendants did not refrain from using the trade mark of the plaintiff SUPERFLO, which is evident from the fact that the defendants have in fact renewed their trademark registration "Superflo" which expired in the year 2013.
14. The other two registrations namely, Roka and Bossini were obtained by defendants in Class 11 which is for sanitary ware and bathroom fittings, however the registration of Superflo trademark was obtained in Class 6 and 7. This was because the defendants were well aware of the fact that plaintiff-Company had already applied for registration in class 11 for SUPERFLO marks claiming much prior first use since 1986. The defendants clearly obtained registration of the said mark in Class 6 and 7 with the intention of misusing and leveraging the goodwill and reputation of the well-known mark SUPERFLO to trade in infringing sanitary ware products such as Health Faucets, for unlawful gains by getting the customers to buy those products through acts amounting to fraud, misrepresentation and deception.
15. It is submitted that in fact the defendant No. 2 admitted during his meeting with the representative of the plaintiff Company that he was well aware of the fact that the plaintiff Company has been manufacturing and selling sanitary ware products in the name of Superflo well before defendant No. 1 Company started to trade in the said product. Despite the knowledge of the existing SUPERFLO Marks of the plaintiff-Company, the defendants proceeded to adopt the said mark and in relation to the same products and goods.
16. It is alleged that the act of the defendants is dishonest intention and blatant attempt to misuse the mark and the goodwill associated with it. Therefore, inspite of agreeing to resolve the matter during the abovementioned meeting between plaintiff-Company and defendant No. 2, the defendants took no action to refrain from using the same and did not care to create deception and misrepresentation of SUPERFLO mark of the plaintiff.
17. The defendants have filed common written statement as well as reply of interim application under Order 39 Rule 1 and 2 CPC, 1908 on behalf of the defendant No.1 and defendant No. 2. The main defences that are raised are - 17.1 The defendant No. 1 is a private limited company and registered in 1997 under the Companies Act, 1956. The defendant No. 1 is an Exporter/ Importer/ Wholesaler/Distributor / Supplier and is engaged in the business of various kind of valves such as Ball valves, gate valves, swing/horizontal check valves, vertical check valves, butterfly valves, globe valves, pressure reducing valves, strainer, etc. in the market.
17.2 The defendant No. 1 is a lawful and true owner of trademark SUPERFLO vide application No. 1255583 in class 6 of the Trade Marks Act, 1999 and also under No.1257071 in Class 7. The details of registration are given below:-
| S.No | Sub. | Defendants |
| 1. | Trademark and goods | SUPERFLO in class 6 vide Application No. 1255583 dated 16/12/2003 claimed used since 2000 for METAL BUILDING MATERIALS, PIPES AND TUBES OF METAL HARD WIRES, WIRE NAILS, STEEL NAILS, BRASS NAILS, NOTCHED NAIL CRAMPS, WIRE AND WIRE NETTING, NUTS, BOLTS, HINGES, BALL CATCHES, HANDLES, ALDROP, HOOKS, SCREWS WINDOW ADJUSTERS, BATHROOM LATCHES, DOOR CLOSERS, LOCKS, KNOBS AND OTHER BUILDING MATERIALS MADE FROM EXTRUDED SECTION BALL VALVES AND ALL KINDS OF VALVES, GAN METAL PIPE FITTINGS, M.S.E.R.W. PIPES, BLACK AND GALVANIZED PIPES, API LINES PIPES SEAMLESS CASING PIPES, RIGID PVC PIPE AND PIPE FITTINGS AND SINKS. SUPERFLO in class 7 vide Application No. 1257071 dated 23/12/2003 in class 7 claimed used since 16/08/2000 for FLUID LEVEL SENSING RESERVOIRS, BRAKE CONTROL VALVES, PRESSURE RELIEF AND SHUTTLE VALVES HAND PUMPS, BUTTERFLY VALVES, CHECK VALVES, GLOBE VALVES, ANGLE VALVES, BALL VALVES, GATE VALVES, CLAMP VALVES, CONTROL VALVES FOR USE, TEMPERATURES AND PRESSURES RESISTANCE TO THE ACTION OF VARIOUS FLUIDS, SAW BLADES, PLANNER BLADES, CIRCULAR SAWS BLADES AND BLADES GOODS EXCEPT INLET VALVES AND OUTFLOW VALVES OF CISTERN. |
17.4 The plaintiff is guilty of delay, latches and acquiescence and as such, the plaintiff is disentitled to any relief of injunction, as the plaintiff has approached this Court after 14 years of delay when first time in 2000, the defendants had used the trademark SUPERFLO for the goods which falls in classes 6 and 7 and granted the trademark registration vide registration No.1255583 dated 21st November, 2005 and 1257071 dated 19th November, 2005 for the same. The plaintiff is guilty of its own inaction and thus on the basis of waiver, acquiescence, delay and latches, the plaintiff becomes disentitled to any relief, which is even fatal to grant of injunction and damages. It is denied that the plaintiff had purchased any infringed products from the defendant. The plaintiff has failed to disclose the fact that the said infringed products had been purchased by him from different traders, from different places and not from the defendants.
18. The replication to the written statement of the defendant Nos. 1 and 2 has been filed by the plaintiff. The plaintiff has denied each and every averments made in the written statement.
19. It is denied that the plaintiff is guilty of delay and latches and acquiescence and as such the plaintiff is disentitled to get any relief. It is vehemently denied that the plaintiff has approached this Court after 14 years. It is submitted that the cause of action for institution of the present suit arose on 30th April, 2013 when the plaintiff first became aware through complaints and upon investigation that the defendant was dealing in similar goods with an identical mark. The cause of action further arose in November 2013 when the cease and desist notice was served to defendants. The cause of action further arose in April, 2014 when the plaintiff was served the legal reply filed by the defendant. The cause of action for instituting the present suit further arose in April, 2014 when plaintiff found the use of the trademark SUPERFLO by the defendants upon the health faucet product from Delhi.
The defendant No.1 himself admitted during the proceedings before the Legal Metrology Department on 10th October, 2014 that he was conducting business of distribution of bathroom fittings and sanitary ware products under the name of SUPERFLO and had launched a new series under the joint name of SUPERFLO and ARKAY.
20. The plaintiff in order to show earlier user, filed the following documents along with the list of documents dated 18th September, 2014:
| S.No | Particulars |
| 1. | Copy of incorporation certificate of plaintiff dated 12th February, 1986. |
| 2. | Original copy of the board resolution of plaintiff dated 1st September, 2014. |
| 3. | List of Plaintiff's trademark. |
| 4. | Comparative Chart of Trademarks of plaintiff and defendants. |
| 5. | List of range of products, applications and internal mechanisms manufactured by the plaintiff Company, and marketed, distributed, supplied or sold, as the case may be, by the plaintiff Company. |
| 6. | Photographs of plaintiff's products and packaging with trademarks. |
| 7. | List of patents for inventions issued to plaintiff along with certificates starting from 1985 . |
| 8. | Certificates issued by various government and private organizations in respect of plaintiff. |
| 9. | List of Awards given to plaintiff company by various organization along with photographs. |
| 10. | List of plaintiff's Customers along with invoices. |
| 11. | Photographs of Foundation Stone laying ceremony of Superflo Pvt. Ltd in 1988. |
| 12. | Catalogues and Advertisements of the plaintiff Company. |
| 13. | List of exhibitions of plaintiff's products along with photographs and certificates. |
| 14. | Photographs of instructions being given at VIRS Educational and Training Foundation to underprivileged children adolescents to provide them training in basic and advanced engineering with specific focus on plumbing works whereupon they are absorbed in the Superflo industry as employees. |
| 15. | Audited accounts of plaintiff. |
| 16. | Complaints received by the plaintiff Company. |
| 17. | The impugned products of defendant No.1 and packaging carrying the email address [email protected]. |
| 18. | Documents showing that the domain name Superflo.co.in is registered in the name of the defendant no. 2. |
| 19. | Website printouts of the information that the defendant are dealing with Faucets, sanitary ware, bathroom fittings as their products. |
| 20. | Prints of the trademark registrations and applications obtained by defendant. |
| 21. | Memorandum of Association of defendant. |
| 22. | Compliance certificate and Audited accounts of the defendant No. 1 Company. |
| 23. | Trade mark filed by defendant under Class 11 for "Sanitary and bathroom fittings" vide application dated 9th September, 2002 in the name of "Bossini" and "Roka". |
| 24. | Website printouts showing Original Roca, Bossini and Jaquar products. |
| 25. | Order in case of Trademark infringement against the Defendants before the Hon'ble Court with Defendant giving an undertaking not to deal and trade in the products using the trade mark "Roka". |
| 26. | Cease and desist notice issued by plaintiff Company dated 20th December, 2013. |
| 27. | Follow up email of plaintiff dated 24th March, 2014. |
| 28. | Reminder notice dated 4th April, 2014 to the defendants. |
| 29. | Defendants' reply dated 16th April, 2014. |
| 30. | Affidavit of Mr. Sunil Kumar Rai, employee of Plaintiff Company. |
| 31. | Impugned products of Defendants with packaging carrying both SUPERFLO and ARKAY trademarks, admitted by Defendant in the Legal Metrology Department proceedings on 10th October, 2014. |
| 32. | Affidavit of Mr. Srivastav, customer of Plaintiff Company. |
| S.No | Particulars |
| 1. | Original copy of incorporation certificate of defendant dated 3rd March, 1998. |
| 2. | Original Copy of the board resolution of the defendant. |
| 3. | Comparative chart of Trade Marks of defendants and plaintiff. |
| 4. | List of range products, applications and internal mechanism manufactured by the defendants company and marketed, sell by the same. |
| 5. | Photographs of defendant's products and packaging with trademarks. |
| 6. | Certificate of Importer and Exporter. |
| 7. | Central Sales tax Registration No. LC/51/0100255154/0802. |
| 8. | Delhi Sale Tax Registration |
| 9. | Certificate of Conformity (CE) No. 901512008570 Dated 31st July, 2008. |
| 10. | Verification of Compliance No. EC.1282.0D141027.SAQU03 dated 27th October, 2014. |
| 11. | Certificate of Registration of ISO 9001:2008 No. JAS/0813 A/4464 dated 17th August, 2013. |
| . | Test Report. |
| 13. | Audited accounts of defendant for the ending year as 31st March, 2011 and 3rd March, 2013. |
| 14. | Defendants trademark registration certificates in class 6 and 7 along with renewal certificates and legal certificates. |
| 15. | Memorandum of Association of Defendant Company. |
| 16. | Cease and desist notice issued by the plaintiff company dated 20th December, 2014. |
| 17. | Reminder notice dated 4th April, 2014 to the defendants. |
| 18. | Defendants reply of notice dated 16th April, 2014. |
| 19. | Follow-up email of plaintiff-defendant on various dates. |
| 20. | Newspapers cautions notice dated 23rd April, 2014. |
23. As far as use of the mark Superflo by the plaintiff is concerned, it is clear from the record that the plaintiff has coined/adopted the mark Superflo in the year 1988. Its company was incorporated in the said year. The material placed on record would show that the plaintiff undisputedly has been using the mark Superflo from the year 1988. It has acquired unique goodwill and reputation in the field of the said business. It is a famous/ well-known trademark. No other person has a right to use the same mark either identical or allied and cognate goods otherwise, as it would amount to passing off the business as that of the plaintiffs.
24. The plaintiff started using the trademark from the very inception of the company in 1986 and named the company accordingly. In fact the plaintiff Company was incorporated by using the very word SUPERFLO so that the products which they intended to manufacture could carry SUPERFLO as the trade name in and people could associate the products with the company name and trade name. As such, the SUPERFLO Mark forms an essential, inalienable and integral part of the plaintiff's business and trading name. The trade mark SUPERFLO is being used extensively and continuously since 1986 to designate and promote the products offered by virtue of extensive and long-standing use and vast publicity and advertisement of the trademark across India, as well as globally. From the material placed on record, it is apparent that the plaintiff Company is the owner of said trademark as members of the public and trade exclusively identify and associate the SUPERFLO mark with the wide range of business and products of the plaintiff-Company. The list of local and global consumers, industrial and individual, whose needs are catered by the plaintiff-Company. The defendant No. 1 Company has merely obtained the registered trade mark under Class 6 and 7 which was applied on 23rd December, 2003. No continuous evidence has been produced in the Court by the defendants in this regard. The defendants are only doing trading business as per the Memorandum of Association of the defendant No. 1 Company. The main objectives are "to purchase, sell, hire, to rent bulldozers earthmovers, heavy machinery and all sort of material required in infrastructural projects, to buy all kinds of plant, equipment machinery apparatus, tools utensils, commodities substances articles and things necessary or useful for infrastructural projects or other civil/mechanicals projects; to deal in all engineering construction civil contracts, through tenders, direct participation, collaboration, joint venture and all sort of project for the development of infrastructure; to buy, sell, hire to rent all kind of generator sets, to repair maintenance manufacture all kind of generator sets and mechanical devices for this purpose". It is submitted that the defendant No. 1 Company by virtue of the main objective provided in the Memorandum of Association cannot engage themselves in the business of trading sanitary ware products unless appropriate amendment to the main object is carried out following due procedure of law.
25. The Memorandum of Association of the defendant No. 1 Company was not altered and the same was recorded in the compliance certificate issued by the defendant No. 1 company secretary and filed with the Registrar of Company. It is pertinent to note that the defendant is in no manner connected with the manufacturing of sanitary products. The defendants dishonestly adopted a similar mark in relation to the same products i.e., sanitary ware products in India with an intention to encash in the well-known reputation of the plaintiff.
26. As regards the defendantsuser is concerned, it appears from the documents filed that no doubt that the defendants were trading its business in the description of goods falling in class 6 and 7 since the year 2002. They have also the registration of the trademark Superflo obtained in the year 2002 as copyright registration, but nothing is placed on record to show that the said trading business was under the trademark Superflo. No cogent evidence is filed except one certificate of registration dated 27th November, 2014 about standard and a cutting of a newspaper dated 23rd April, 2014.
27. No invoices, orders placed by customers, advertisements material, post-card or any nature of evidence is produced to show prima facie that they after registration the defendants have been using the mark Superflo continuously or otherwise bearing mark Superflo. Further, it would appear from e-mails on various dates in the year 2014 that they wanted to settle the disputes with the plaintiff. From the conduct of the defendants and the material available on record pertaining to the mark Superflo, the defendants wanted to negotiate with the plaintiff after registration. Unless conclusive or cogent evidence is provided, bare statement at the time of hearing cannot be accepted. Thus, the question of concurrent-user does not arise. Even otherwise there is no honesty on the part of the defendants when the mark was adopted. On the date of adoption, the plaintiff was already in the market.
28. Therefore, the defendants cannot derive any benefits if registrations obtained in absence of any use claimed by the plaintiff. Merely obtaining the license, certificates from different departments in the name of defendant No.1 and without any user of the mark would not help the case of the defendants. The defendants are entitled to use any other mark for the same set of business for which the plaintiff has no objections.
29. In the case of B.K. Engineering Co. vs. Ubhi Enterprises, 1985 (5) PTC 1, the Court in paras 49, 51 and 52 held as under :
49. A fair and honest trader will not give misleading name to his product to the continuing detriment of a plaintiff who has built up his goodwill in the business after years of hard work for example, 13 or 14 years, as in this case. It is this intangible right to property which the law seeks to protect.
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51. The modernisation of the tort of passing off lies in this that what was previously a misrepresentation of goods has now become a misappropriation of another man's property in the business or goodwill, or misappropriation of another's personality. You cannot make use of the plaintiff's expensive labour and effort. You cannot deliberately reap where you have not sown. You cannot filch a rival's trade. Passing off is thus a remedy for injury to goodwill.
52. .......The modern character of the tort of passing off was clearly brought out in Cadbury (supra). At p. 218 Lord Searman said:
"THE tort is no longer anchored, as in its early nineteenth century formulation, to the name or trade-mark of a product or business. It is wide enough to encompass other descriptive material, such as slogans or visual images which radio, television or newspaper advertising campaigns can lead the market to associate with the plaintiff's product, provided always such descriptive material has become part of the goodwill of the product. And the test is whether the product has derived from the advertising a distinctive character which the market recognoises."
30. In the case of Century Traders v. Roshan Lal Duggar Co., AIR 1978 Delhi 250, the Court held as under:
14. Thus, the law is pretty well-settled that in order to succeed at this stage the appellant had to establish user of the aforesaid mark prior in point of time than the impugned user by the respondents. The registration of the said mark or similar mark prior in point of time to user by the appellant is irrelevant in an action passing off and the mere presence of the mark in the register maintained by the trade mark registry did not prove its user by the persons in whose names the mark was registered and was irrelevant for the purposes of deciding the application for interim injunction unless evidence had been led or was available of user of the registered trademarks. In our opinion, these clear rules of law were not kept in view by the learned Single Judge and led him to commit an error. ?
31. One of the essential ingredients is goodwill. The classic case of passing off as it existed since its genesis always insist the existence of goodwill of a merchant in order to give him a locally enforceable right to sue for passing off.
32. It has also been explained by Kerly's in his book called Law of Trade Marks and Trade Names (Fourteenth Edition) (South Asian Edition 2007), wherein the concept of goodwill has always been categorized as local in character and the learned author observed thus as under:-
Since an essential ingredient of passing off is damage (or prospective damage) to goodwill, he (the Plaintiff) must show that he had, at the date when the Defendants started up, in this country not merely a reputation but a goodwill capable of being damaged. Goodwill, however, is local; it is situated where the business is. Thus a foreign claimant may have a reputation in this country-from travellers or periodicals of international circulation or, increasingly, from exposure on the Internet-yet still fail in an action for passing off because he has here no business and so no goodwill. Such cases have been not uncommon in recent years, and have caused considerable difficulty. Where there is a substantial reputation here, our courts will often accept minimal evidence that a business exists here, but there has to be some ?.
33. In Cadbury UK Limited (supra) in para 33 of the said decision, the following principles have been summarized:
Legal principles summarized
33. The position, therefore, that emerges from the above case law is:
(a) The concept of goodwill is derived from reputation but the reputation need not be necessarily a local reputation. It can even be a spill over in India of the international reputation enjoyed by the Plaintiff's mark.
(b) It is not necessary for the Plaintiff to actually show the presence of or sale of its products in India as long as it is able to establish that it enjoys a spill over reputation in India. In other words, the reputation of a product may precede its introduction and may exist without trade of the product in the country.
(c) The proof of reputation can be in the form of advertisements in the media and general awareness which in the modern day context would include advertisements or display on the internet and social media. The reputation must be shown to exist at the time the Defendant enters the market.
(d) A mechanical incantation of reputation is not sufficient. There must be some material that the product is known to the Indian consumer. The material will be scrutinised by the Court from many relevant perspectives including the class of consumers likely to buy the product (See the decision dated 15th March 2010 of this Court in CS (OS) 626 of 2006 Roca Sanitario S.A. v. Naresh Kumar Gupta).
(e) Although in the internationalisation of trade there could be a possible confusion with the domestic trader bona fide adopting business names similar to names legitimately used elsewhere, a dishonest adoption or use of a mark similar to one having a reputation in the market, with a view to causing deception or confusion in the mind of the average consumer, may invite an injunction including the class of consumers likely to buy the product (See the decision dated 15th March 2010 of this Court in CS (OS) 626 of 2006 Roca Sanitario S.A. v. Naresh Kumar Gupta).
(f) Although in the internationalisation of trade there could be a possible confusion with the domestic trader bona fide adopting business names similar to names legitimately used elsewhere, a dishonest adoption or use of a mark similar to one having a reputation in the market, with a view to causing deception or confusion in the mind of the average consumer, may invite an injunction. ?
Passing Off
34. Even the test of confusion and deception in order to prove the case of passing off has been very well discussed in the case of Laxmikant V. Patel v. Chetanbhat Shah and Another, reported in (2002) 3 SCC 65, wherein the Supreme Court while considering a plea of passing off and grant of ad interim injunction held in no uncertain terms that a person may sell his goods or deliver his services under a trading name or style which, with the passage of time, may acquire a reputation or goodwill and may become a property to be protected by the Courts. It was held that a competitor initiating sale of goods or services in the same name or by imitating that name causes injury to the business of one who has the property in that name. It was held that honesty and fair play are and ought to be the basic policy in the world of business and when a person adopts or intends to adopt a name which already belongs to someone else, it results in confusion, has the propensity of diverting the customers and clients of someone else to himself and thereby resulting in injury.
35. It was also held in Laxmikant v. Patel (supra) that the principles which apply to trademark are applicable to trade name also. Para 10 of the aforesaid judgment reads as under:-
The law does not permit any one to carry on his business in such a way as would persuade the customers or clients in believing that his goods or services belonging to someone else are his or are associated therewith. It does not matter whether the latter person does so fraudulently or otherwise. The reasons are two. Firstly, honesty and fair play are, and ought to be, the basic policies in the world of business. Secondly, when a person adopts or intends to adopt a name in connection with his business or services which already belongs to someone else it results in confusion and has propensity of diverting the customers and clients of someone else to himself and thereby resulting in injury. ?
In this case, the Supreme Court further observed that:
Where there is probability of confusion in business, an injunction will be granted even though the defendants adopted the name innocently. ?
Prior User vs. Registered Proprietor
36. As far as prior user is concerned, in the very recent judgment delivered by the Supreme Court in the case of Neon Laboratories Ltd. v. Medical Technologies Ltd. and Ors., 2015(64) PTC 225 (SC). The same aspect has been dealt with wherein by referring the another decision of the Supreme Court in S. Syed Mohideen v. P. Sulochana Bai 2015 (7) SCALE 136 prior to the Neon's case (supra) wherein it was held as under :
The 'first in the market' test has always enjoyed pre-eminence. We shall not burden this judgment by referring to the several precedents that can be found apposite to the subject. In the interest of prolixity we may mention only N.R. Dongre v. Whirlpool Corporation (1996) 5 SCC 714 : 1996(16) PTC 583 (SC) and Milmet Oftho Industries v. Allergan Inc. (2004) 12 SCC 624. In Whirlpool, the worldwide prior user was given preference nay predominance over the registered trademark in India of the defendant. In Milmet, the marks of pharmaceutical preparation were similar but the prior user worldwide had not registered its mark in India whereas its adversary had done so. This Court approved the grant of an injunction in favour of the prior user. Additionally, in the recent decision in S. Syed Mohiden v. P. Sulochana Bai (2015) 7 SCALE 136, this Court has pithily underscored that the rights in a passing-off action emanate from common law and not from statutory provisions, nevertheless the prior user's rights will override those of a subsequent user even though it had been accorded registration of its trademark. Learned Counsel for the Defendant-Appellant has endeavoured to minimize the relevance of Whirlpool as well as Milmet by drawing the distinction that those trademarks had attained worldwide reputation.
However, we think that as world shrinks almost to global village, the relevance of the transnational nature of a trademark will progressively diminish into insignificance. In other words, the attainment of valuable goodwill will have ever increasing importance. At the present stage, the argument in favour of the Defendant-Appellant that we find holds more water is that in both Milmet and Whirlpool, as distinct from the case before us, the prior user of the successful party predated the date of application for registration of the competing party.
The question to examine, then, would be whether prior user would have to be anterior to the date of application or prior to the user by the Defendant-Appellant. In other words, the question before the Court would remain whether the situation on the date of application for registration alone would be relevant, or whether the developments in the period between this date and the date of grant of registration would have any bearing on the rights of the parties. All these considerations will be cast into a curial cauldron to be appreciated by the Court before which the suit is being contested. In these premises, we cannot conclude that a prima facie case has not been disclosed by the Plaintiff-Respondents. ?
Allied and Cognate goods
37. In the case of Essel Packaging Ltd. v. Essel Tea Exports Ltd., 1999 PTC (19) 521, the High Court of Bombay held that common field of activity is not conclusive for deciding whether there can be passing off action, although at one point of time the said test was treated as conclusive. It was held that with the passage of time the law of requirement of common field of activity in a passing off action has undergone a radical change and as such there was no requirement for a common field of activity to found a claim on passing off action, because the real question in each of such cases is, whether there is, as a result of mis-representation, a real likelihood of confusion or deception of the public and consequent damage to the plaintiff is likely to be caused and if that is taken to be the test then the focus is shifted from the external objective test of making comparison of activities of the parties, to the state of mind of public, in deciding whether it will be confused.
What is the relevant Date of Adoption
38. If the entire object of the Trade Law is examined, it is obvious that the date of adoption of the mark of a party is the relevant date. In case on the date of adoption, it is found, he was aware about the mark of the rightful owner, the using of the mark and filing of application in the Trade Marks office is fraudulent. As dishonesty starts from the beginning itself the subsequent user is to be considered as tainted, as the party was aware that the mark actually belongs to other party and he is not the owner of the same. It is totally immaterial if the registration is objected of a copied mark of a party who adopted and used the mark in earlier point of time. There is not much difference, if the registration is obtained on the basis of non-filing of opposition. The main reason is that it is for the Court to decide the common law remedy wherein the interim order can be passed. The Trade Marks Registry or the Appellant Board are not empowered to pass the interim order against the party who has appropriated the mark deliberately. The party who has stolen the mark cannot claim the benefit of concurrent user because the governing principle of concurrent user lies on account of honesty. It is also immaterial if the defendant has filed the application prior in time or owner of the mark has claimed user as proposed to be used if the mark is already known and used in overseas countries.
Domain Name
39. Domain names are entitled to the same protection as a trademark and the trademark law applies to the activities on internet. The mere fact that plaintiff has no registered domain name by itself may not stand in the way of a passing off action. The defendant has obtained the domain name as per plaintiff after filing of the suit. The following are the decisions in which the domain name is protected by the Courts:
a) In Marks and Spencer v. One in a Million, (1998) FSR 265, it was held that any person who deliberately registers a domain name on account of its similarity to the name, brand name or trademark of an unconnected commercial organization must expect to find himself on the receiving end of an injunction to restrain the threat of passing off, and the injunction will be in terms which will make the name commercially useless to the dealer. It was held in that decision that the name MARKS and SPENCER could not have been chosen for any other reasons than that it was associated with the well known retailing group. The decision further goes on to say that when the value of the name consists solely in its resemblance to the name or trademark of another enterprise, the court will normally assume that the public is likely to be deceived, for why else would the defendants choose it It was also stated that someone seeking or coming upon a website called http://marksandspencer.co.uk would naturally assume that it was that of the plaintiffs.
b) In Acqua Minerals Ltd. v. Pramod Borse and Another, 2001 (21) PTC 619 (Del), while considering an injunction sought to restrain the defendants from using the mark BISLERI or BISLERI.COM the court observed that so far as the Registering Authority of the domain name is concerned it agrees for registration of domain name only to one person. That is on first come first serve basis. If any person gets the domain name registered with the Registering Authority which appears to be the trade name of some other person, the Registering Authority has no mechanism to inquire whether the domain name sought to be registered is in prior existence and belongs to another person. The court referring to Rule 4 of the Domain Name Registration Policy observed thus as under:-
Unless and until a person has a credible explanation as to why did he choose a particular name for registration as a domain name or for that purpose as a trade name which was already in long and prior existence and has established its goodwill and reputation there is no other inference to be drawn than that the said person wanted to trade in the name of the trade name he has picked up for registration or as a domain name because of its being an established name with widespread reputation and goodwill achieved at huge cost and expenses involved in the advertisement. ?
c) In Rediff Communication Ltd. vs. Cyberbooth, 2000(20) PTC 209, the Bombay High Court, while granting an injunction restraining the defendants from using the mark/domain name RADIFF or any other similar name, it was held that when two similar domain names are considered there is every possibility of internet user being confused and deceived in believing that both domain names belong to one common source and connection although the two belong to two different persons. Once the intention to deceive is established, the Court should not make further enquiry about the likelihood of confusion. If it is found that a man's object in doing that which he did was to deceive, that he had an intention to deceive the Court, will very much infer that his object has been achieved, if the facts tend to show that, that is the case and to say that his intention to deceive ripening into receipt gives ground for an injunction.
d) In Living Media India Ltd. v. Jitender V. Jain and Anr., 2002 (25) PTC 61 (Del) the plaintiff was a producer of a news program under the name and style AAJ TAK while the defendant's adopted the name KHABAREIN AAJ TAK in respect of newspapers. The mark of the defendants was an exact reproduction of the plaintiff's mark. The Court observed that while the words Aaj and Tak may be individually descriptive and may not be monopolized by any person, but their combination does provide protection as a trade name if it has been in long, prior and continuous user and it gets identified with such persons.
e) In Satyam Infoway Ltd. v. Sifynet Solutions Pvt. Ltd. (2004) 6 SCC 145, where the domain names www.sifynet, www.sifymall.com, www.sifyrealestate.com of the appellant; and www. siffynet net and www.siffynet.com of the respondent were in question, it was observed by the Supreme Court as under:
16. The use of the same or similar domain name may lead to a diversion of users which could result from such users mistakenly accessing one domain name instead of another. This may occur in e- commerce with its rapid progress and instant (and theoretically limitless) accessibility to users and potential customers and particularly so in areas of specific overlap. Ordinary consumers/users seeking to locate the functions available under one domain name may be confused if they accidentally arrived at a different but similar web site which offers no such services. Such users could well conclude that the first domain name owner had mis-represented its goods or services through its promotional activities and the first domain owner would thereby lose their custom. It is apparent therefore that a domain name may have all the characteristics of a trademark and could found an action for passing off. ?
29. Apart from the close visual similarity between 'Sify' and 'Siffy', there is phonetic similarity between the two names. The addition of 'net' to 'Siffy' does not detract from this similarity. ?
31. What is also important is that the respondent admittedly adopted the mark after the appellant. The appellant is the prior user and has the right to debar the respondent from eating into the goodwill it may have built up in connection with the name. ?
f) In Yahoo!, Inc. v. Akash Arora and Anr., 78 (1999) DLT 285, it was observed as under:
11. In Marks and Spencer Vs. One-in-a-Million; reported in 1998 FSR 265, it was held that any person who deliberately registers a domain name on account of its similarity to the name, brand name or trademark of an unconnected commercial organisation must expect to find himself on the receiving end of an injunction to restrain the threat of passing off, and the injunction will be in terms which will make the name commercially useless to the dealer. It was held in the said decision that the name 'marks and spencer' could not have been chosen for any other reason than that it was associated with the well-known retailing group. The decision further goes on to say that where the value of a name consists solely in its resemblance to the name or trade mark of another enterprise, the Court will normally assume that the public is likely to be deceived, for why else would the defendants choose it? It was also said that someone seeking or coming upon a website called http:// marksandspencer.co.uk would naturally assume that it was that of the plaintiffs. Thus, it is seen that although the word 'services' may not find place in the expression used in Sections 27 and 29 of the Trade and Merchandise Marks Act, services rendered have come to be recognised for an action of passing off. Thus law of passing off is an action under the common law which also is given a statutory recognition in the Trade Mark Act. Thus in the context and light of the aforesaid decisions and the development in the concept of law of passing off, it is too late in the day to submit that passing off action cannot be maintained as against services as it could be maintained for goods.
12. The services of the plaintiff under the trademark/domain name 'Yahoo!' have been widely publicised and written about globally. In an Internet service, a particular Internet site could be reached by anyone anywhere in the world who proposes to visit the said Internet site. With the advancement and progress in technology, services rendered in the Internet has also come to be recognised and accepted and are being given protection so as to protect such provider of service from passing off the services rendered by others as that of the Plaintiff. As a matter of fact in a matter where services rendered through the domain name in the Internet, a very alert vigil is necessary and a strict view is to be taken for its easy access and reach by anyone from any corner of the globe. There can be no two opinions that the two marks/domain names 'Yahoo!' of the plaintiff and 'Yahooindia' of the defendant are almost similar except for use of the suffix 'India' in the latter. The degree of the similarity of the marks usually is vitally important and significant in an action for passing off for in such a case there is every possibility and likelihood of confusion and deception being caused. When both the domain names are considered, it is crystal clear that the two names being almost identical or similar in nature, there is every possibility of an Internet user being confused and deceived in believing that both the domain names belong to one common source and connection, although the two belong to two different concerns. ?
40. In view of above referred decisions and settled law, it is evident that if a party has adopted and used the mark prior in time, the other party, who is the subsequent adopter and user, cannot allege that it is entitled to use the mark on the basis of domain name obtained by it prior to the domain name of the owner who had used famous trade mark prior to the use of domain name by any third party. Thus, the contention of the defendants are wholly failed as the plaintiff in any case is prior adopter and user of the mark SUPERFLO which is coined by the plaintiff.
41. The issue of delay in an action of passing off has been discussed by the Supreme Court in the case of M/s. Bengal Waterproof Ltd. Vs. M/s. Bombay Waterproof Manufacturing Co., AIR 1997 SC 1398 wherein it was held as under:
20. ..It is now well settled that an action for passing off is a common law remedy being an action in substance of deceit under the Law of Torts. Wherever and whenever fresh deceitful act is committed the person deceived would naturally have a fresh cause of action in his favour. Thus every time when a person passes off his goods as those of another he commits the act of such deceit. Similarly whenever and wherever a person commits breach of a registered trade mark of another he commits a recurring act of breach or infringement of such trade mark giving a recurring and fresh cause of action at each time of such infringement to the party aggrieved. It is difficult to agree how in such a case when in historical past earlier suit was disposed of as technically not maintainable in absence of proper relief, for all times to come in future defendant of such a suit should be armed with a license to go on committing fresh acts of infringement and passing off with impunity without being subjected to any legal action against such future acts. ?
The ratio of the aforesaid decisions is squarely applicable to the facts of the present case. Thus, injunction cannot be refused on account of delay if the plaintiff has made a strong case on merit.
42. Under these circumstances, the plaintiff has made out a strong prima-facie case for the grant of ad-interim injunction, as the defendants have adopted and used the said trademark in relation to the identical or allied and cognate goods. The balance of convenience also lies in favour of the plaintiff and against the defendants, as the trademark used by the defendants is identical. In case the interim order is not passed, the plaintiff will suffer an irreparable loss and injury.
43. Hence, till the final disposal of the suit, the defendants are restrained from using the plaintiff's mark SUPERFLO or any other mark deceptively similar to the mark SUPERFLO in respect of any services, in the course of business or otherwise, either personally or through its agents, representatives, employees, servants, agents, assigns etc. in any manner whatsoever directly or indirectly. The application being I.A. No.20568/2014 is disposed of.
44. No order as to costs.
45. The findings arrived at are tentative and prima facie in the nature which shall have no bearing when the suit is decided at final stage after recording the evidence.
CS(OS) 3210/2014
46. List the matter before Joint Registrar on 8th February, 2016 for further proceedings.