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2002 DIGILAW 1833 (DEL)

Hindustan Pencils Limited v. Rakesh Kalra

2002-12-10

JIWAN DASS KAPOOR

body2002
JUDGMENT : J.D. Kapoor, J. This is a suit seeking permanent injunction against the infringement of the trademark NATARAJ and passing off of the same and rendition of accounts. The matter has been compromised with defendant No, 2. Defendant No. 1 has been proceeded ex parte. 2. The plaintiff claims proprietorship of following trademarks; (a) Trade Mark NATARAJ with the device of Nataraj under No. 225923 as of 14.12.64 claiming user since 22.7.1961 in respect of writing pencils. (b) Trade Mark NATARAJ with the device of Nataraj under No. 260466 dated 6.11.1969 claiming user since 22.7.1961 in respect of pencils, refills for propelling pens and pencils, pencils sharpeners, pens, fountain pens, erasers and pins, clips and staples included in Class-16. (c) Device of NATARAJ with the Trade Mark Nataraj under No. 283730 as of 27.10.1972 in Class 16 claiming user since the year 1961 in respect of pencils of all kinds, erasers, refills for propelling pens, pencils, pencil sharpeners, pens fountain pens, pins, clips and wire staples for stapling presses. (d) Trade Mark No. 182026 as of 29.1.1957 in respect of pencils of all kinds in class 16 pertaining to the device of a sitting baby. 3. It is averred that in the 1st week of July 1990, it came to the notice of plaintiffs that the defendants introduced into the market pencils under the trade mark NATARAJ with the device of Nataraj in a carton/cartons Annexure "Z". It is further averred that the defendants have slavishly copied the plaintiffs carton in which they are selling their pencils under the trade mark NATARAJ. The defendants' carton also has the same colour scheme, get up and arrangement and the same size in which the plaintiffs are selling their pencils. The defendants have copied the whole carton of the plaintiffs carton in all respect which is an infringement of the plaintiffs registered trade mark Nos. 225923, 260466 and 283730. They have also used the device of a sitting baby on their carton which is an infringement of the plaintiffs Trade Mark No. 182026. 4. In support of the aforesaid averments the defendant has produced evidence by way of affidavit and proved following documents. 5. Ex. P1 which is in respect of Trade Mark NATARAJ with the device of NATARAJ under No. 225923 as of 14.12.64 claiming user since 22.7.1961 in respect of writing pencils. 6. Ex. 4. In support of the aforesaid averments the defendant has produced evidence by way of affidavit and proved following documents. 5. Ex. P1 which is in respect of Trade Mark NATARAJ with the device of NATARAJ under No. 225923 as of 14.12.64 claiming user since 22.7.1961 in respect of writing pencils. 6. Ex. P2 which is in respect of Trade Mark NATARAJ with the device of NATARAJ under No. 260466 dated 6.11.1969 claiming user since 22.7.1961 in respect of pencils, refills for propelling pens, and pencils, pencils, sharpeners, pens, fountain pens, erasers and pins, clips and staples included in Class 16. 7. Ex. P3 which is in respect of Device of NATARAJ with the trade mark NATARAJ under No. 283730 as of 27.10.1972 in Class 16 claiming user since the year 1961 in respect of pencils of all kinds, erasers, refills for propelling pens, pencils, pencil sharpeners, pens, fountain pens, pins, clips and wire staples for stippling presses. 8. It is apparent from the averments of the plaintiff and the evidence in support thereof that the adoption and/or use of the trade mark NATARAJ and device of Nataraj and carton "Z" consisting of the Trade Mark NATARAJ with the device of Nataraj and its colour scheme; on the part of the defendants is dishonest, mala fide, tainted and solely with a view to trade upon the goodwill and reputation of the plaintiffs. Defendants have entirely copied the carton of the plaintiffs in all respect in order to pass off its spurious and inferior quality goods as genuine and high quality products of the plaintiffs and that the defendants have designed their carton "z" in such a way that the pencils in the said carton have become an instrument of fraud in the hands of unscrupulous dealers and sellers. 9. Accordingly, the suit is decreed in terms of prayer (a) as the prayer (b) has been given up by the plaintiff.