CS(OS)--2335/2014. Case: GLOSSY COLOR & PAINTS PVT LTD & ANR. Vs. MONA AGGARWAL & ORS. High Court of Delhi (India)
| Case Number | CS(OS)--2335/2014 |
| Citation | NA |
| Judgement Date | September 09, 2015 |
| Court | High Court of Delhi (India) |
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment pronounced on: 9th September, 2015
+ I.A. No.14572/2014 in CS (OS) 2335/2014
GLOSSY COLOR & PAINTS PVT LTD & ANR .
Through Mr. Sagar Chandra, Adv. with
Ms. Surabhi Iyer, Ms. Ishani Chandra and Mr. Ankit Rastogi, Adv.
versus
MONA AGGARWAL & ORS ..... Defendants
Through Mr. Mohan Vidhani, Adv. with
Mr. Rahul Vidhani, Mr. Ashish Singh and Ms.Purva Chugh, Adv. for D-1 and 2.
Ms. Vidhya Gudwani, Adv. with Ms. Sadhna Singh, Adv. for D-
CORAM:
HON'BLE MR.JUSTICE MANMOHAN SINGH
MANMOHAN SINGH, J.
1. The plaintiffs have filed the present suit for injunction restraining infringement of trademark, copyright, off, dilution, delivery up, rendition of accounts of profits, etc. against the defendants.
2. The plaintiff No.1 is a private limited company engaged manufacture and sale of paints, varnishes, polishes and other similar products. Plaintiff No. 2 is the Licensee and sister concern of No. 1 operating in the same business.
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3. The plaintiffs for the past 65 years are in the field of business. They provide paints that are tailor-made to the requirement. They have a distribution network of over 400 dealers Delhi itself and about 60-70 dealers outside Delhi to reach nook and corner of the Indian market. They and their sister are ISO: 9001:2000 and ISO: 1400: 2008 certified and many plaintiffs' products are ISI Marked. The plaintiffs' main commitment quality products and manufacturing excellence.
4. The plaintiffs' business grew over the time and many have been introduced by plaintiff No. 1 namely "1001" Zinc "1001" Acrylic Emulsion, "1001" Rakshak, Weathergold, Tuff Home Care Luxury Sheen Emulsion, "1001" Acrylic Distemper, "1001" Clear Varnish, Weatherite Acrylic Exterior "1001" Exterior Enamel, "1001" Epoxy Paint etc. Many other have also been introduced by the sister concern of plaintiff plaintiff No. 2 namely Auto King, Infinity, Lotus, Shehnai.
5. It is claimed by the plaintiffs that the trademark "1001"
used and registered in the year 1946. All the rights in the family of marks along with the goodwill and reputation transferred to the plaintiffs pursuant to a consent award passed by an Arbitrator in a family settlement through which the trademark registration including all variants of the said trademarks transferred to the plaintiffs. The above-mentioned award validated by this Court vide order dated 3rd April, 1995 pursuant which the said trademarks were transmitted and awarded to
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plaintiffs along with all reputation and goodwill accruing thereto thus the plaintiffs are the proprietor of the said trademarks.
6. The plaintiff is the statutory owner of rights in the provided below:
MARK REGN. NO. CLASS STATUS
1001 124357 2 Registered 1001 Superior
Label
1106468 2 Registered
1001 340853 2 Registered 10001 1319467 2 Registered
7. It is submitted by the plaintiffs that from the date of the transfer, the plaintiffs have been using the “1001” family of continuously, extensively and uninterruptedly for almost two and hence by virtue of such use, enormous goodwill and has accrued to the “1001” family of marks. It is further submitted that due to such long, continuous and uninterrupted use, the public associates the marks solely and exclusively with the and with no other party.
8. In view of the priority in adoption and extensive, uninterrupted and continuous use of the trademark “1001” by the predecessor interest of the plaintiffs prior to 1995 and by the plaintiffs thereafter, has resulted in a secondary significance/meaning accruing to the trademark “1001” in favor of the plaintiffs entitling the
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307527 2 Registered
1001 423202 2 Registered 1001 Superior 512980 2 Registered 1001 Acrylic
Washable Distemper
to common law rights apart from the statutory rights in the family of marks.
9. It is further submitted that the plaintiffs have also been unique and distinctive label for the “1001” family of marks on products. The label for “1001” has unique features which uses color combination of red, white and yellow in which the words ACRYLIC are written in white and the words “washable are written in yellow on a red background. Further, the material used an eye design in the middle of 0 to depict “1001” i artistic manner. Further, the label also uses a speech bubble pointed edges (also called as “scream speech bubble”) in which words “with latex satin silk” are written. The said “1001” Label subject of trademark registration bearing No. 1106468. They been using a unique and distinctive eye device incorporated “1001” label wherein the shape of an eye is drawn inside each of the numeric 0 along with the distinct shape of a pupil drawn inside eye (hereinafter referred to the “eye device”).
10. It is alleged that the entire label of the plaintiffs including eye device (hereinafter referred to as “1001” label) comprising color combination, lay out, get up and artistic manner of “1001” is also a trademark which is being used by the continuously, extensively and without any interruption for a long at least since 1st July, 2001. In view of such long and extensive use, substantial amount of goodwill and reputation has also accrued to the “1001” label of the plaintiffs. The scanned copy of the p
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products using the trademark “1001” and the “1001” label have filed.
11. It is stated later on that at the time of filing the suit, the document of use available with the plaintiff was of the year Therefore, the plaintiff averred in the plaint that it has been “1001” label along with the eye device and the color combination red, white and yellow at least since 2001, however, during the course of the proceedings, the plaintiffs were able to obtain an advertisement of the plaintiffs’ products in the Mayapuri Magazine in the year using the color combination of red, white and yellow and the was taken on the record. The counsel has referred the case of Anglo-Dutch Paint, Colour and Varnish Works Pvt. Ltd. v. India Trading House, AIR 1977 DELHI 41 who was assignor numeral 1001.
12. It is submitted that the plaintiffs trademarks are distinctive, due to being an arbitrary combination of numbers,
lay out and getup. Due to its prior and extensive use, an amount of goodwill accrues to the plaintiffs. Thus, these have acquired a secondary meaning and the consuming public the trade channels associate the plaintiffs trademarks including "1001" family of marks and the "1001" label and the eye device solely and exclusively with the plaintiffs.
13. The defendant No. 1 is the proprietor of Multi Group Suppliers being defendant No.2. Defendant Nos.1 and 2 are out their business using the name “6004” (Label) which is deceptively
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similar and a substantial reproduction of the “1001” label of plaintiffs. The defendant No. 3 is K K Komponents, who is engaged in the manufacture of labels/printed containers/plastic buckets of defendant Nos. 1 and 2.
14. It is the case of the plaintiffs that the defendants have the trademark “6004” along with the “6004” Label which is identical to the “1001” Label of the plaintiff including the eye and the color combination of red, white and yellow for products.
Defendants' Case
15. It is the case of the defendants that the colour combination being used by the defendant No.1 since long in her business the name and style of M/s. S.S. Traders in respect of her wax business under the trademark AXEL since 1976. Even the suit filed against her being CS (OS) No. 80/1992 in this Court colour scheme has been mentioned. Besides the husband of defendant No.1 was also using the similar colour scheme for polish. He was also party to the said suit being CS (OS) No. 80/1992 and he used the trademark AXO.
16. The present business regarding distemper, paints etc. is conducted by the defendant since 1999 and for this she has using the trademarks MULTY, MULTY PLUS, MULTY CAPITAL STAR and the said colour scheme is part of the record from the year 2006 in various judicial proceedings.
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defendant has also filed the application for the registration of trademark (label) with the same colour scheme under No. claiming user since 1st January, 1999. The defendant has advertising the products with the colour scheme.
17. So far as the present impugned label is concerned which been impugned by the plaintiffs, the trademark 6004 is being used by the defendant since the year 2011 and defendant adopted colour scheme which the defendant has been using in production/packaging of MULTI, MULTY PLUS, MULTY CAPITAL STAR.
18. The defendants adopted the numerals 6004 by taking from ISI Licenses. It is submitted that reason of the said adoption has also been explained in a suit filed by the defendants against a party namely Ms. Sandhya Gupta who was using the 4006. The trademarks 1001 and 6004 are entirely different. same cannot cause any confusion and deception in the minds public.
19. The eye device used by the defendant has been deleted which the statement was made in the Court and the fresh without eye has been filed by the...
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