Appeal from Order No. 111 of 2015. Case: Swami Samarth Agencies and Ors. Vs Mauli Chemicals Industries. High Court of Bombay (India)
| Case Number | Appeal from Order No. 111 of 2015 |
| Counsel | For Appellant: R.R. Mantri, Advocate holding for Pawan K. Lakhotiya, Advocate and For Respondents: A.P. Bhandari, Advocate |
| Judges | T. V. Nalawade, J. |
| Issue | Trade Marks Act, 1999 - Sections 134(2), 2(h), 21, 27, 27(1), 28, 28(1), 29, 29(1), 29(2) |
| Judgement Date | February 08, 2016 |
| Court | High Court of Bombay (India) |
Judgment:
T. V. Nalawade, J.
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Appeal is admitted. Notice after admission, made returnable forthwith. By consent, heard for final disposal.
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The appeal is filed against the order made on Exhibit 5 by District Judge-1 Newasa, District Ahmednagar in Trade Mark Suit No. 1/2015. In the suit filed by the present respondent, Chemical Industry, against the appellants, order of temporary injunction of following nature is made:-
"The defendants are hereby restrained, by themselves or through their servants, agents or through anybody else on their behalf, from using the trade mark "JAL DROP" or any other trade mark identical or deceptively similar to the plaintiff's registered trade mark "JEEVAN DROP" till final decision of the suit."
Initially ex-parte order of temporary injunction was made and it is confirmed on merits, after hearing both sides.
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The suit is filed by present respondent under section 134(2) of the Trade Marks Act 1999 (hereinafter referred to as "the Act"). The plaintiff is a manufacturer of chemical substance, Sodium Hypochlorite Solution. This substance can be used as drinking water disinfectant. It is the case of the plaintiff that it is in the business of manufacturing and marketing of this substance for more than two decades. It is contended that in the month of August 1996 the plaintiff conceptualized and adopted the trade mark "JEEVANDROP". It is contended that application for registration of the trade mark was made on 30-8-1996 in Class 5 of the goods of the Act and the trade mark has been registered.
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It is the case of the plaintiff that it has been using the word "JEEVANDROP" as trade mark and it is also using artistic logo having this word. The plaintiff has given the picture of logo in the plaint. It is the case of the plaintiff that it has been selling the aforesaid product in bottles in Maharashtra, Gujarat and Goa since more than 2 decades.
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It is the case of the plaintiff that under the agreement deed dated 29-5-2012 it had appointed defendant No. 2, Shri. Swami Samarth Agencies, as its sole distributor for Maharashtra region. It is contended that this agreement came to an end on 29-5-2014. It is contended that the plaintiff has spent huge amount on the publicity of the aforesaid brand name. It is the case of the plaintiff that defendants have no right to use the aforesaid trade mark or similar trade mark in view of the reputation and good will earned by the plaintiff.
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It is the case of the plaintiff that in the month of October 2014 the plaintiff came across an application made by the wife of defendant No. 2, Smt. Jyoti Wani for registration of trade mark "JALDROP" in class 5 and so the plaintiff took objection to the registration and gave notice to the said lady about the objection. It is contended that initially Smt. Jyoti contended that logo was created by her and it was her design but subsequently she withdrew the application.
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It is the case of the plaintiff that in the month of March 2015 it came across a product of defendant No. 1 in the market by name "JALDROP" and he noticed that the label of the bottle was similar to the label of the plaintiff 's brand "JEEWANDROP". It is contended that as per information of the plaintiff, defendant No. 3 has applied for registration of trade mark "JALDROP" in Class 5 and this trade mark is deceptively similar to the trade mark "JEEVANDROP" of the plaintiff. It is contended that the defendant Nos. 2 and 3 are marketing the product "JALDROP" of defendant No. 1 and they are acting together. Defendant No. 2 Ratnakar is said to be a cousin brother of defendant No. 3 Smt. Seema.
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With the plaint, plaintiff has produced specimen labels of his own product and the product of defendant No. 1. It is the case of the plaintiff that there is infringement of his trade mark "JEEVANDROP" due to the use of trade mark "JALDROP" and it is substantially similar to the trade mark of plaintiff. It is contended that by adopting the trade mark "JALDROP" with dishonest intention defendants want to deceive the people and they want to make the people believe that "JALDROP" product is also a product of plaintiff. It is contended that the defendants are trying to trade upon the reputation and good will of plaintiff by using such deceptive trade mark.
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It is the case of the plaintiff that in the past, defendant No. 2 was distributor of the plaintiff and he has misused his position by passing off the product "JALDROP" as the product of the plaintiff. It is the case of the plaintiff that he has not consented for using trade mark "JALDROP" by the defendants. In the suit, relief of injunction is claimed on the basis of registration of trade mark "JEEVANDROP" and another relief is claimed to prevent the defendants from passing off their goods as that of the plaintiff. Damages of rupees one lac are also claimed.
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Defendant Nos. 1 to 3 filed joint written statement. Amongst other contentions they have made following specific contentions in the written statement and also in the say offered to Exhibit 5:-
(I) That, the word "JEEVAN" used by the plaintiff is descriptive in nature and it has dictionary meaning and it is the word used for water disinfectant. That, the word "DROP" is used as drops of chemical which act as disinfectant and the name and description signifies the purpose for which the product is to be used.
(II) That, till the year 2004 the plaintiff had not used this trade mark and that can be seen from the journal published in the year 2004 where the plaintiff has mentioned that it proposes to use the aforesaid trade mark.
(III) that the word "JEEWANDROP" does not involve innovation and it is combination of dictionary words.
(IV) That, only the word "JEEWANDROP" is registered as trade mark and no artistic logo as such or device of drop in the background is registered as trade mark and so the trade mark of the defendants is distinctively different.
(V) That the defendant No. 3 has applied for registration of trade mark "JALDROP" both as word and also device with two different logos. Two different logos having such word marks are submitted for registration and those marks are assigned to defendant No. 2 by defendant No. 3 under a deed of assignment dated 4-8-2012 and the Deeds are submitted in the office of the Registrar under the Act. Thus the words and the logos are not similar to the registered trade mark of the plaintiff and they are not likely to create confusion in the minds of purchasers of any kind.
(VI) that due to difference in the trade marks and also other things about the goods of defendant there is no question of passing off the goods...
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