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2006 DIGILAW 119 (DEL)

HINDUSTAN PENCILS LTD v. ASHIRWAD ENTERPRISES

2006-01-17

SANJAY KISHAN KAUL

body2006
SANJAY KISHAN KAUL, J. ( 1 ) THE plaintiff has filed the suit for permanent injunction, infringement of copyright, passing off, delivery up, rendition of accounts and damages. ( 2 ) IT is stated in the plaint that the plaintiff has engaged in the business of manufacture of pencils and other items of stationery since 1957. The plaintiff in the year 1961 adopted the trademark NATARAJ with the device NATARAJ and is also the registered proprietor of the copyright in respect of the carton of nataraj. ( 3 ) THE plaintiff claims to have vast sales throughout the country and the distinctive colour scheme and get-up of the cartons of the plaintiff is widely accepted as identification of the goods of the plaintiff. ( 4 ) THE grievance of the plaintiff is in respect of the carton of the defendant, which is having the same kind of packaging of red colour with black lines in almost similar connotations on the carton with the words bonded Lead HB written at the same place. The placement of the words for Clear and Smooth writing is also at the same place and it is stated that the attempt of the defendant is to pass off its goods as that of the plaintiff. The plaintiff claims exclusive right in the colour scheme, get up and layout. The trademark under which the defendant is selling is PANKAJ WRITING PENCILS, but the suit is in respect of the colourable imitation or reproduction of the packing material. ( 5 ) THE defendant was served, but failed to appear and was, thus, proceeded ex- parte on 19. 04. 2005. ( 6 ) THE plaintiff has filed the affidavit of evidence of Mr. P. N. Thanawala, constituted Attorney, who had signed and verified the plaint and instituted the suit. The said witness has proved the resolution dated 31. 05. 2000 authorising him to institute the suit as Exhibit P - 1. The witness has also proved as exhibit P - 2 the registration of the packaging under the Copyright Act, 1957 as also the packing material of the plaintiff and the defendant as Exhibit P - 3 and Exhibit P - 4 respectively. The deposition affirms to the averments in the plaint. The witness is also present in Court. The witness has also proved as exhibit P - 2 the registration of the packaging under the Copyright Act, 1957 as also the packing material of the plaintiff and the defendant as Exhibit P - 3 and Exhibit P - 4 respectively. The deposition affirms to the averments in the plaint. The witness is also present in Court. ( 7 ) A perusal of the facts set out herein-above and the documents show that the plaintiff has the exclusive rights in the packaging Exhibit P - 3 in view of the registration as per Exhibit P - 2. The only question to be examined is whether the packaging of the plaintiff and the defendant are deceptively similar and an attempt on the part of the defendant to pass off its goods as that of the plaintiff by adopting the packaging. A perusal of Exhibits P - 3 and P - 4 shows that the averments and the grievances made by the plaintiff are correct. The issue is not of the trademark, but the packaging. The colour scheme and get up is identical. The placement of certain words is also in the same place and it appears that the defendant is seeking to slavishly copy the packaging of the plaintiff in order to take advantage of the goodwill of the plaintiff in the business. ( 8 ) IN view of the aforesaid position, a decree of permanent injunction is passed in favour of the plaintiff and against the defendant restraining the defendant from selling pencils in the packaging deceptively similar to that of the plaintiff, the packaging being Annexure P - 3 and Annexure P - 4 of the plaintiff and the defendant respectively. The defendant is further restrained from adopting a deceptively similar packaging material with the similar get-up, arrangement of features, lay-out and colour scheme as that of the plaintiff. The plaintiff shall also be entitled to costs. Decree-sheet be drawn up accordingly. ( 9 ) A perusal of the plaint shows that the plaint has been deficiently stamped for the purposes of court fee in view of the judgment of this Court in CS (OS) No. 1165/2001 titled pfizer Products, Inc. v. B. L. and Co. and Ors. and Connected matters decided on 03. 10. 2005. Decree-sheet be drawn up accordingly. ( 9 ) A perusal of the plaint shows that the plaint has been deficiently stamped for the purposes of court fee in view of the judgment of this Court in CS (OS) No. 1165/2001 titled pfizer Products, Inc. v. B. L. and Co. and Ors. and Connected matters decided on 03. 10. 2005. Learned counsel for the plaintiff undertakes to make up the deficiency of court fee within 15 days and the decree-sheet shall be drawn up only thereafter. .