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2004 DIGILAW 240 (DEL)

FENNER (INDIA) LTD. v. FARMS AND FARMS (I) LTD.

2004-03-26

H.R.MALHOTRA

body2004
H. R. Malhotra, J. ( 1 ) THIS is a suit brought by the plaintiff seeking a decree for perpetual injunction against defendant for infringement of their trade mark, copyright and also seeking decree for passing of and rendition of accounts. Brief facts as stated ir the plaint are as under: ( 2 ) THE case of the plaintiffs as averred in the plaint is that the plaintiff is a company incorporated under the provisions of the Indian Companies Act, 1958, having its registered office at Madurai. It is further averred in the plaint that plaintiff is one of the leading manufacturers in India of Oil Seals and sealing rings, rings made of rubbers, synthetic or plastic, for sealing purposes, auto belts, V. Belts and other transmission belts, in particular, raw edge cogged auto power transmission belts and other automobile components. The products of the plaintiffs are marketed under the trade mark "fenner" which is the registered trade mark of J. H. Fenner and Co. Ltd. British Company, Marfleet, North Humberside, HU9 5ra, England. ( 3 ) IT is stated in the plaint that the plaintiff is the registered user of the trade mark "fenner" in India which is being used as a distinctive trade mark along with the logo Fandf since 1958. The said logo was originally conceived, designed and honestly adopted by the plaintiff since 1983 and from the said date has been continuously and regularly using the mark in respect of all kinds of products of its manufacture with or without the housemark "fenner". It is averred in the plaint that substantial and valuable goodwill has been generated by and has come to be associated with the said distinctive logo mark which are immensely valuable assets of the plaintiffs business. Plaintiffs also claimed that the mark "f and F inverted in square" logo has over the years acquired tremendous reputation amongst the general public and has been exclusively used and advertised for a long time, as a result of extensive advertisement and publicity, the various products bearing the said mark have built up a large and important sale. Plaintiffs also claimed that the mark "f and F inverted in square" logo has over the years acquired tremendous reputation amongst the general public and has been exclusively used and advertised for a long time, as a result of extensive advertisement and publicity, the various products bearing the said mark have built up a large and important sale. ( 4 ) IT is the case of the plaintiffs that in the beginning of March, 1997, the plaintiff has come across an advertisement in the English daily, "the Times of India" circulating in New Delhi, released by the defendants stating that the defendants were marketing farm lands and private orchards, with the mark F and F inverted in square. ( 5 ) ACCORDING to the plaintiffs, the defendants have copied all the distinctive and essential features of the plaintiffs logo mark without the permission, licence or consent of the plaintiffs and the adoption and use of the said logo mark is identical with the plaintiffs mark and that the wrongful acts of the defendants have caused grave injury to the plaintiffs reputation, name and goodwill and a confusion has arisen in the market, by adoption and use of the said logo the defendants have made a misrepresentation to the purchasing public and the trade that their goods are those of the plaintiffs or are associated with the plaintiffs insome manner or the other. The defendants trade activities are solely intended to earn illegal profits by passing off their goods as and for the goods and business of the plaintiffs. ( 6 ) SUMMONS of the suit were sent to the defendants. Though they appeared but sought time repeatedly for filing written statement but did not do so and finally abstained and thus were proceeded ex parte on 14. 5. 1998. The plaintiffs were called upon to prove their case to which the plaintiffs filed affidavit of Mr. C. Nagasubramaniam, General Manager of the plaintiffs company, he being the constituted attorney of the plaintiffs company. I have perused the affidavit filed by the authorised attorney of the plaintiffs company. His affidavit is in line with the averments made in the plaint. The plaintiffs were called upon to prove their case to which the plaintiffs filed affidavit of Mr. C. Nagasubramaniam, General Manager of the plaintiffs company, he being the constituted attorney of the plaintiffs company. I have perused the affidavit filed by the authorised attorney of the plaintiffs company. His affidavit is in line with the averments made in the plaint. This witness has testified in his affidavit that the plaintif fs company has been vising logo of "f and F inverted in square" on their various products like fan belts, V-belts, auto belts, in a distinctive designed layout, trade mark and that monogram "f and F gives distinctive appearance and colour schemes. It is further stated in the affidavit that the "f and F inverted in square" was designed and honestly adopted by the plaintiffs in 1983 and has been continuously using the same since then. The affidavit further speaks to the fact that the mark "f and F inverted in square" over the years acquired tremendous reputation amongst the general public and has been exclusively used and advertised for a long time and as such, various products of the plaintiffs bearing the said logo mark have built up a large and exclusive sale and that the turnover for the last five years has been indicated in annexure c . The plaintiffs have also filed their sale promotional expenses to indicate the amount spent by them in order to promote the sales of their products under the said logo. ( 7 ) AS regards the infringement of the logo by the defendants the plaintiffs have deposed in their affidavit that they came across an advertisement in English daily, "the Times of India" in the month of March, 1997 showing that the defendants marketing farm lands and private orchards, with the mark "f and F inverted in square" exactly similar as that of the plaintiffs logo and that the defendants copied all the distinctive and essential features of the plaintiffs logo mark including get-up, layout and design. Such adoption by the defendants, according to the plaintiffs speaks for mala fides of the defendants with a view to encroach upon the reputed logo of the plaintiffs with which they have been associated for quite long. Such adoption by the defendants, according to the plaintiffs speaks for mala fides of the defendants with a view to encroach upon the reputed logo of the plaintiffs with which they have been associated for quite long. ( 8 ) I have heard learned Counsel for the plaintiffs and have also perused the affidavit including the documents filed by the plaintiffs showing their long user in respect of logo "f and F" and also the huge amount spent by them on advertisements. I have also made comparison of the two logos, one of the plaintiffs and another of the defendants, having seen these two logos through legal eye and having made judicial scrutiny, I am of the firm view that the two logos are substantially identical and that the defendants have dishonestly adopted the plaintiffs logo with a view to give an impression to men of ordinary prudence that goods being sold by the defendants are in fact the goods of the plaintiffs and I am further of the considered opinion that unwary purchaser is bound to be misled that he was purchasing the goods of the plaintiffs whereas in actuality goods of the defendants were being purchased under the falsified belief that such goods actually belonged to the plaintiffs. There is no iota of doubt in my mind that such adoption by the defendants is with a view to encroach upon the trade activities of the plaintiffs which they have built over a number of years by spending huge amount in order to build up the reputation of their trade mark as also goods bearing the trade mark "f and F inverted in square". ( 9 ) CONSEQUENTLY, the plaintiffs have become entitled to the decree as claimed in the plaint as the plaintiffs have been able to prove their case in entirety and there is no assail to the claim of the plaintiffs, defendants being ex-parte. ( 10 ) ACCORDINGLY a decree for perpetual injunction is hereby passed in favour of the plaintiff and against the defendants retraining them from infringement of copyright Fandf as indicated in the plaint. ( 10 ) ACCORDINGLY a decree for perpetual injunction is hereby passed in favour of the plaintiff and against the defendants retraining them from infringement of copyright Fandf as indicated in the plaint. Defendants themselves, their servants, agents, and all other persons are restrained from dealing with the defendant s properties and products and marketing and advertising them, issuing the "f and F inverted in square" logo mark, design, lay-out arrangement as that of the plaintiffs logo marks or any other mark which is deceptively similar or an imitation of the plaintiffs mark. ( 11 ) PLAINTIFF is however, not entitled for rendition of accounts as no evidence has been led by the plaintiff. Therefore, this claim is dismissed for lack of evidence. ( 12 ) DECREE sheet be prepared accordingly. Suit decreed.