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2002 DIGILAW 46 (DEL)

HINDUSTAN PENCILS LIMITED v. SMAMI DAYAL SHARMA

2002-01-11

MUKUNDAKAM SHARMA

body2002
MUKUNDAKAM SHARMA ( 1 ) THIS is a suit filed by the plaintiff seeking for a decree of permanent injunction restraining the defendants, their servants, agents, stockists and all other persons acting on their behalf from using, the offending trade mark NATARAJ and device of NATARAJ, trade mark APSARA BEAUTY of the plaintiff or from using any other trade mark, which is deceptively similar to the plaintiff s aforesaid registered trade marks and also from using the firm name of M/s. Hindustan Pencil factory and Nataraj Pencil Industries. The plaintiff has also sought for a decree of rendition of accounts. ( 2 ) SUMMONS were issued to the defendants and an ad interim injunction was granted in favour of the plaintiff and against the defendants restraining them, their agents and servants from selling and marketing their goods under the name of apsara BEAUTY and NATARAJ along with the device of nataraj and cartons like Annexure-Y Or any carton or label which is deceptively similar to the registered carton and label of the plaintiff. The defendants were also restrained from copying the trading style and name of the plaintiff i. e. M/s. Hindustan Pencil Factory and Nataraj Pencil industries. ( 3 ) DEFENDANTS 1 and 2 entered appearance and filed their written statement whereas defendants 3 and 4 entered appearance but did not file any written statement. However, subsequently, all the defendants defaulted in appearance in the court and accordingly, vide order dt. 7. 12. 2000 it was ordered that the suit would proceed ex parte as against the defendants and the plaintiff was allowed to lead evidence by filing an affidavit by way of evidence. ( 4 ) PURSUANT to the said order, an affidavit by way of evidence is filed by Sh. P. N. Thanawala, the Constituted Attorney of the plaintiff. It is stated in the aforesaid affidavit filed by way of evidence that Sh. Thanawala is the Constituted attorney of the plaintiff company and that he is authorised to depose on behalf of the plaintiff. It is also stated in the said affidavit that the plaint was signed by Sh. B. J. Sanghvi, Director of the plaintiff company, whose signature was identified by the deponent. A copy of the power of attorney executed in favour of the deponent is placed on record. It is also stated in the said affidavit that the plaint was signed by Sh. B. J. Sanghvi, Director of the plaintiff company, whose signature was identified by the deponent. A copy of the power of attorney executed in favour of the deponent is placed on record. In paragraphs 2 and 4 of the said affidavit the plaintiff has set out the various trade marks of the plaintiff, in respect of which it is a registered proprietor. It is also stated in the affidavit that the plaintiff s sale of pencils and other stationery goods, under the registered trade mark NATARAJ with the device of nataraj AND APASARA BEAUTY is substantial and their goods are sold in every nook and corner of India. The sale figures of the plaintiff in respect of the aforesaid trade mark have been furnished and exhibited as Annexures C and D to the plaint. It is also stated on oath that the plaintiff is spending large amount of money on the sale promotion and advertisement through various media of advertisement such as television, newspapers, magazines etc. and the details of the amounts so spent are given in Annexure-D filed along with the plaint. It is, stated on evidence that the defendants adopted the trading style M/s. Hindustan pencil Factory and M/s. Nataraj Pencils Industries, which are deceptively similar with the name of the plaintiff company, namely, M/s. Hindustan Pencils limited and the trade mark NATARAJ of the plaintiff. It is stated that defendants 3 and 4 are are selling pencils bearing the trade mark NATARAJ and device of NATARAJ in the same packing material like Annexure B and the samples of APSARA BEAUTY pencils packed in polypack packets as well as cartons used by defendants 3 and 4, which are exhibited as Annexures X and Y. It is also stated that by the aforesaid action, the defendants are not only infringing the registered trade mark of the plaintiff but are also passing off their goods as goods of the plaintiff. ( 5 ) THE aforesaid evidence placed on record go unrebutted and unchallenged and thus, it is established and proved that the defendants for ulterior motives are using the aforesaid trade mark nataraj and device of NATARAJ as well as are using the trade mark APSARA BEAUTY of the plaintiff in respect of pencils. ( 5 ) THE aforesaid evidence placed on record go unrebutted and unchallenged and thus, it is established and proved that the defendants for ulterior motives are using the aforesaid trade mark nataraj and device of NATARAJ as well as are using the trade mark APSARA BEAUTY of the plaintiff in respect of pencils. On the basis of the evidence placed on record, I am satisfied that the plaintiff has been able to establish its claim, made in the plaint. Accordingly, a decree is granted in favour of the plaintiff and against the defendants restraining the defendants, their servants, agents, stockists and all other persons acting on their behalf from using the offending trade mark nataraj and device of NATARAJ, trade mark APSARA beauty of the plaintiff or from using any other trade mark which is deceptively similar to the plaintiff s aforesaid registered trade mark. The defendants, their agents, servants, stockists and ail other persons acting on their behalf are also restrained from using the firm name of M/s. Hindustan Pencil Factory and Nataraj Pencil industries. ( 6 ) AS a decree to the aforesaid extent is granted in favour of the plaintiff and against the defendants, counsel appearing for the plaintiff has fairly; stated that he is not pressing for the relief of rendition of accounts, as claimed in the plaint. The relief sought for by the plaintiff to the aforesaid extent stands rejected. The suit stands decreed to the aforesaid extent. Parties shall bear their own costs.