Classic Electricals Vs. Polo Plastics Limited - Court Judgment

Excerpt:
a) the case discussed the scope of infringement of trademarks and passing off within the provisions of section 27(2) and 29 of the trade and merchandise marks act, 1958 - it was held that the infringement of trademark is an offence under section 29 of the act and the owner of the registered trademark has the right to protect his reputation and goodwill, which is earned over the years and a lot of expenditure for the same - further, the protection can be sought by a person, even if he is not a registered owner of the trademark and has been using the trademark for substantive long period of time and can be deemed to be the owner of the same - thus any person adopting or using such trademark results in committing an offence of passing off and the same is actionable under the actb) the case dealt with the suit filed for grant of permanent injunction against the act of passing off within the provisions of section 29 and 106 of the trade and merchandise marks act, 1958 - the plaintiff was the registered owner of the trademark 'polo' for certain electrical appliances since the year 1991 - it was held that the evidence on record had shown that the defendant had capriciously and fraudulently adopted the trademark similar to the trademark of the plaintiff, to create deception and confusion in the market - thus the suit was decreed in favor of the plaintiff - j.d. kapoor, j. 1. this is a suit for the relief of permanent injunction against act of passing off and damages. 2. the plaintiff is engaged in the business of manufacturing and marketing of wide range of electrical appliances & electrical accessories and fittings. the plaintiff adopted the trade mark polo label on 1st day of april, 1991 in relation to electrical appliances, electrical accessories, & sittings and has been continuously using the same since then up to the present time. the business carried on by the plaintiff is a very extensive one and the goods bearing the said trade mark have been practically distribute din major parts of the country. in order to acquire the statutory rights for the said trade mark, the plaintiff filed as many as thre applications as referred in para 5 of the plaint. trade mark polo under no. 554949-b in class-11 in relation to fans, refrigerators, coolers, airconditionsers, geysers toasters, emersion rods was registered w.e.f. 22.7.1991. 3. through this suit, plaintiff claims protection of its trade mark which has been allegedly infringed by the defendant inasmuch as defendant on 2.3.195 adopted the trade mark polo in respect of fans, coolers and other electrical appliances. it is alleged that defendant adopted the similar trade mark capriciously and fraudulently with ulterior motive and to create deception and confusion in the market and is affecting the reputation of the plaintiff. 4. despite service of summons, defendant did not put in appearance to contest the claims of the plaintiff and allowed itself to be proceeded ex-parte. 5. in order to prove its claim, the plaintiff filed affidavit by way of evidence and has proved the following documents:- 6 (i) exhibits p-1 to p-5 are the different labels of the plaintiff under the trade mark polo; (ii) exhibits p-6 & p-7 are the price list of the defendant: (iii) exhibit p-8 is the original sale bill of the plaintiff. 7. mark 'a' is the photocopy of the application no. 554951 in class 7. mark 'b' is the photocopy of application no. 554950 in class 9. mark 'c' is the photocopy of the registration certificate dated 22.7.1991 in respect of trade mark polo under no. 554949-b in class 11. 8. the affidavit of the plaintiff has proved the factum of its being the long and prior user of the trade mark polo in respect of the aforesaid items and has been trading under that name since april, 1991 and got the same registered on 22.7.1991 through registration certificate mark 'c'. 9. infringement of the trademark is an offence under section 29 of the trade marks act. any person who has registered trade mark in his name has a aright to protect its reputation and goodwill. reputation and goodwill is earned over the years and that too by expending huge sum on advertisements. even if a person is not the registered owner of the trade mark but is a prior and long user and has been using it for substantive long time, ti acquires ownership thereof. any person adopting such a trade mark commits offence of passing off. such an act is also actionable. 10. as a consequence, suit is decreed in terms of para 16(i) of the plaint only as the counsel has given up other reliefs. 11. however, the plaintiff shall file original documents within one month.