w w w . L a w y e r S e r v i c e s . i n



Aqua Pump Industries, Rep by its Managing Partner, Ramaswamy Kumaravelu & Another v/s Ashok Kumar Jaiswal C/o Arryan Future Aqua Engineering Pvt. Ltd., Madhyapradesh & Another

    C.S. No. 299 of 2020 & O.A. Nos. 564 & 565 of 2020 & A. No. 2603 of 2020

    Decided On, 25 October 2021

    At, High Court of Judicature at Madras

    By, THE HONOURABLE DR. JUSTICE G. JAYACHANDRAN

    For the Plaintiffs: M/s. Gladys Daniel, Advocate. For the Respondents: --------



Judgment Text

(Prayer: Civil Suit has been filed under Order IV, Rule 1 O.S. Rules and Order VII, Rule 1 of the C.P.C., read with Sections 27, 134 and 135 of the Trade Marks Act, 1999, praying to pass a judgment and decree for:-

(a). granting a permanent injunction, restraining the Defendants, by itself, their servants, agents, distributors, or anyone claiming through them from manufacturing, selling, advertising and offering for sale using the marks AQUA GROUP INDUSTRIES or any other mark identical or deceptively similar to the Plaintiffs registered Trade Marks “IMAGE”, AQUATEX, AQUASUB, AQUASUB ENGINEERING, AQUAPUMP & AQUAPUMP INDUSTRIES, AQUA GROUP INDUSTRIES as such or prefix or suffix in Submersible Pumps, Electric Motors or any other pumps or motors and its spares or in any other goods manufactured and sold by the Defendants or its trading style or in any media and use the same in invoices, letter heads and visiting cards or by using any other trade mark which is in any way visually, phonetically and deceptively similar to the Plaintiffs’ registered Trade Marks “IMAGE” AQUATEX, AQUASUB, AQUASUB ENGINEERING, AQUAPUMP & AQUAPUMP INDUSTRIES., AQUA GROUP INDUSTRIES or in any manner infringing the Plaintiffs Registered Trade Mark Nos. 1285017, 1285018 in Class 37 and 3811351 in class 35 and other AQUATEX (word) and (device) registrations, AQUA SUB ENGINEERING and AQUA PUMP INDUSTRIES and AQUA GROUP registrations as set out in paragraph 10 of the plaint.

(b) Granting a permanent injunction, restraining the Defendants, by itself, their servants, agents, distributors, or anyone claiming through them from manufacturing, selling, advertising and offering for sale using the marks AQUA GROUP INDUSTRIES or any other mark identical or deceptively similar to the Plaintiffs Trade Marks “IMAGE”, AQUATEX, AQUASUB, AQUASUB ENGINEERING, AQUAPUMP & AQUAPUMP INDUSTRIES,AQUA GROUP INDUSTRIES as such or with prefix or suffix in Submersible Pumps , Electric Motors or any other pumps and motors and its spares or in any other goods manufactured and sold by the Defendants and its trading style or in any media and use the same in invoices, letter heads and visiting cards or by using any other trade mark which is in any way visually, phonetically and deceptively similar to the Plaintiffs Trade Marks “IMAGE”, AQUATEX, AQUASUB, AQUASUB ENGINEERING, AQUAPUMP & AQUAPUMP INDUSTRIES, AQUA GROUP INDUSTRIES or in any manner pass off the Plaintiffs’ goods.

(c) Directing the Defendants to surrender to the Plaintiffs all the goods, packing materials, cartons, advertisement materials and hoardings, letter-heads, visiting cards, office stationery and all other materials containing/bearing the Trade Mark AQUA GROUP INDUSTRIES or other deceptively similar to the Plaintiffs’ registered Trademarks “IMAGE”, AQUATEX, AQUASUB, AQUASUB ENGINEERING, AQUAPUMP & AQUAPUMP INDUSTRIES.

(d). Directing the defendants to render an account of profits made by them by the use of the impugned trademark AQUA GROUP INDUSTRIES on the goods pumps and motors and decree the suit for the profits found to have been made by the defendants, after the defendants have rendered accounts;

(e). directing the defendants to pay to the plaintiffs the costs of the suit.)

(This case has been heard through video conferencing)

1. The case of the plaintiffs is that, the plaintiffs are the manufacturers of different types of Electrical Motors and Pumps. They are trading as “IMAGE” ‘AQUATEX’, ‘AQUASUB’, ‘AQUASUB ENGINEERING’ & ‘AQUAPUMP INDUSTRIES’. Plaintiffs 1 and 2 were started business in the year 1974 and 1982 respectively as joint proprietors in respect of trademark for domestic and agricultural pumps including bore well submersibles, open-well submersibles, domestic pumps, jet pumps, agricultural mono blocks and electric motors. The plaintiffs are also registered Proprietors of the mark "AQUATEX" and the device “IMAGE”

They marketed their products under two Trademarks Registrations, which is extracted as below:-

(i) The expression “TEXMO” and “IMAGE” impressed on an inverted triangle.

(ii)”TEXMO”word per se.

2. The trademark “TEXMO” with its device “IMAGE”is used by the plaintiffs since 1974. For specific goods, Registration of trademark has been obtained as below:-

“IMAGE”

Among the plaintiffs, the categories of pumps and motors are identified and they are manufacturing and marketing their respective allotted types of pumps and motors. The mark ‘AQUA GROUP’ written inside a red bubble has been adopted and used by the first plaintiff from the year 1974 and the second plaintiff from the year 1982.

3. While so, the defendants, in order to exploit the goodwill and reputation of the plaintiffs, had started using the mark ‘AQUA GROUP INDUSTRIES’ for their product. The defendants are manufacturing, selling and distributing Submersible Pumps, Electric Motors, its spares and other similar products under the impugned trade mark ‘AQUA GROUP’ and they are trading the same under the name ‘AQUA GROUP INDUSTRIES’. The plaintiffs haveno objection for the defendants used the trade mark ‘AQUA MARSHAL’, but the use of the trade name ‘AQUA GROUP INDUSTRIES’ is in violation of the registered trademark of the plaintiffs. The defendants have adopted the impugned mark to deceive and confuse the consumers. Being an infringement of the intellectual property rights, injunction is sought against the use of the mark ‘AQUA GROUP INDUSTRIES’ by the defendants, which is phonetically and deceptively similar to the plaintiffs’ registered trade mark ‘AQUA SUB’, ‘AQUASUB ENGINEERING’, ‘AQUAPUMP’ AND ‘AQUAPUMP INDUSTRIES’ AND ‘AQUATEX’.

4. At the time of admission, this Court, on considering the description of the defendants name boards, had granted exparte interim injunction on 05.11.2020. Suit summon was served on the defendants on 25.02.2021. Since there was no representation on behalf of the defendants, this Court called them absent and set exparte vide, order dated 23.09.2021. The plaintiffs were directed to marshell their evidence. Accordingly, the Additional Master No.II has recorded the evidence of the plaintiffs.

5. PW-1- Mr.R.Prasanna Raghavan, Branch Manager of the second plaintiff company has filed his proof affidavit in lieu of chief examination. Eight exhibits were marked in respect of the plaintiffs’ case. Ex.P2 is the legal use certificate issued in favour of the plaintiffs. These exhibits clearly show that the plaintiffs are the proprietors of the trademark ‘AQUA SUB, AQUASUB ENGINEERING, AQUAPUMP & AQUAPUMP INDUSTRIES AND AQUATEX’ etc. The defendants had applied for registration of the trademark ‘AQUA GROUP INDUSTRIES’. The same has been objected by the plaintiffs and the application is pending before the Registrar of Trademark at Mumbai.

6. The name board of the defendants is marked as Ex.P7, which is extracted as below:-

“IMAGE”

7. The plaintiffs do not claim any right over the defendants’ use of the mark ‘AQUA MARSHALL’, but it is concerned with the use of the trade name ‘AQUA GROUP INDUSTRIES’ which likely to resemble the plaintiffs trade house and deceptively pass off as the products of the plaintiffs. The word ‘AQUA GROUP’ is identified with the plaintiffs trade house and turnover of the plaintiffs’ firm besides expenses incurred for publicity indicates that, the plaintiffs’ trademark has gained secondary meaning associated with them. Therefore, the use of the word ‘AQUA GROUP INDUSTRIES’ by the defendants will diminish the goodwill of the plaintiffs.

8. Therefore, this Court is of the view that, the defendants are to be restrained from infringing the plaintiffs mark ‘AQUA GROUP’. The relief of permanent injunction sought against the defendants in prayer (a) and (b) is granted. If the defendants are in possession of any goods, packing materials, cartons

Please Login To View The Full Judgment!

, advertisement materials and hoardings, letter-heads, visiting cards, office stationery and all other materials containing/bearing the trademark ‘AQUA GROUP INDUSTRIES’ or other deceptively similar to the plaintiffs’ registered trade mark ‘AQUA GROUP’, ‘AQUATEX’, ‘AQUASUB’, ‘AQUASUB ENGINEERING’, ‘AQUAPUMP’ AND ‘AQUAPUMP INDUSTRIES’, the same shall be surrendered to the plaintiffs, within a period of 30 days from the date of this judgment. Accordingly, prayer (c) is granted. Since there is no evidence to show that the defendants are benefited or profited by the alleged infringement, the prayer for rendering account is dismissed. 10. In the result, The relief sought under prayer (a), (b) and (c) is granted. The relief sought under prayer (d) is declined. Accordingly, this Civil Suit is partly allowed with costs. Consequently, connected applications are closed.
O R