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 N. Raju, Trading as S.M.Agriculture & Electronics, Bangalore


    CS No. 956 of 2005

    Decided On, 23 July 2020

    At, High Court of Judicature at Madras

    By, THE HONOURABLE MR. JUSTICE P. VELMURUGAN

    For the Plaintiffs: M/s. Gladys Daniel, Advocate. For the Respondent: No appearance - set exparte.



Judgment Text


(Prayer: Civil suit is filed under Order IV Rule 1 of OS Rules and Order VII Rule 1 of CPC read with Sections 27, 134 & 135 of the Trade Marks Act, 1999 :-

(a) granting a permanent injunction, restraining the defendants, by himself, his servants, agents, distributors, or anyone claiming through them from manufacturing, selling, offering and advertising for sale using the Trade Mark TEXMO upon all kinds of goods, HDPE Pipes, Polythene pipes & PVC pipes all used for irrigational purposes in class-17 or in any media and use the same in Invoices, letter heads and visiting cards or any other trade literature or by using any other Trade Mark which is in any way visually, phonetically or deceptively similar to the plaintiffs Registered Trade Marks TEXMO or in any manner infringing the plaintiffs Registered Trade Mark Nos.315049 (SP-I) (Sp-II) & 315050 (SP-I), (SP-II).

(b) granting a permanent injunction, restraining the defendant by himself, his servants, agents, men or anyone claiming through him from manufacturing, marketing, distributing, offering or advertising for sale of all types of all kinds of goods, HDPE Pipes, Polythene pipes & PVC pipes all used for irrigational purposes in class-17, using the Trade Mark TEXMO or similar sounding names in the course of their business and pass off their different types of all kinds of goods, HDPE Pipes, Polythene pipes & PVC pipes all used for irrigational purposes in class-17, using the Trade Mark TEXMO or with additions as and for the foods of the plaintiff or enable others to pass off.

(c) Directing the defendant to surrender to the plaintiffs all types of goods, HDPE Pipes, Polythene pipes & PVC pipes all used for irrigational purposes in class 17 containing/bearing the Trade Mark TEXMO or other deceptively similar Trade Marks.

(d) For a preliminary decree in favour of the plaintiffs, directing the defendants to render an account of profits made by him by the use of the Trade Mark TEXMO on the good referred and for a final decree in favour of the plaintiffs for the amount of the profits found to have been made by the defendants, after the defendants have rendered accounts and

(e) for costs of the suit.)

1. The civil suit is filed by the plaintiffs for permanent injuction restraining the defendants or anyone claiming through them from manufacturing, selling, offering and advertising for sale using the Trade Mark TEXMO.

2. The gist of the plaint filed by the plaintiffs is as follows :-

The plaintiffs are manufactures of different types of electrical motors and pumps, since 01.04.1974, the first plaintiff has been manufacturing and selling the following categories of pumps and motors :-

a) Phase motors, which run on single phase current with capacities ranging between HP and 1 HP.

b) Deep well jet pumps, jet monoblocks, multistage, jet pumps and monoblocks of any capacity, which run on, single phase current.

c) Centrifugal pumps and monoblocks upto and including 1 HP which run on single phase current.

d) Lateral channel pumps and lateral channel monoblocks of any capacity, which run on single phase current.

e) Submersible monoblocks of any capacity, which run on, single phase current.

f) Reciprocating pumps for domestic use, which run on single phase current.

g) Any other type of pump or monoblock including self priming centrifugal pumps and monoblocks, which run on single phase current used for domestic purposes.

h) Components and spares for the above products.

(ii) From 12.11.1982, the second plaintiff has been manufacturing and selling submersible motors, submersible pumps, submersible pumpset, components and spares for the above products. The plaintiffs become registered proprietors of the Trade Mark TEXMO in respect of the specific goods mentioned above by virtue of the order passed by the Registrar of Trade Mark on 20.04.1998. Thereafter, the plaintiffs became the exclusive proprietors of the Trade Mark TEXMO in respect of the specific goods in respect of the above goods in Trade Mark Nos.315049 SP-I and SP-II and 315050 SP-I and SP-II.

(iii) The plaintiffs have been extensively using the Trade Mark TEXMO as registered all over India continuously and substantially in respect of the goods allotted to them from the respective dates of the formation of the firms. The plaintiffs have acquired enormous goodwill in respect of the goods on which TEXMO trade marks are affixed. If any person uses the same mark/similar mark in respect of those goods or other related goods, the public will be confused regarding the identity of the goods. The plaintiffs are spending substantial amount for advertisement and for promotional purposes in respect of Trade Mark TEXMO. The plaintiffs have received several prestigious awards on account of the superior quality of their goods and export business. The turnover for the first plaintiff during 2002-2003 is Rs.34,75,68,733. The turnover for the second plaintiff during 2003 to January 2004 is Rs.121,44,42,000/-.

(iv) The plaintiffs came to know that the Trade Mark Journal No.1327 (S) 4 dated 24.01.2005 that the defendant filed a Trade Mark application for the registration of the Trade Mark TEXMO and claim proprietory right to use the mark TEXMO for all types of HDPE pipes, polythene pipes & PVC pipes used for irrigational purposes included in class 17. The plaintiffs filed objections to the said applications for registration of the Trade Mark. The objections are pending disposal before the Trade Mark Registry, Chennai.

(v) The defendant has adopted the identical Trade Mark TEXMO solely for the purpose of exploiting the commercial goodwill attached to the mark TEXMO for pipes, polythene pipes and PVC pipes used for all irrigational purposes. The defendant knows very well the quality pumps and motor manufactured and marketed by the plaintiffs using the Trade Mark TEXMO for irrigational purposes and adopted the Trade Mark with respect to the same goods that are sold for the similar purposes. The defendant knowingly exploiting this commercial goodwill attached to the plaintiffs Trade Mark TEXMO. The plaintiffs and the defendant’s goods are being used for irrigational purposes, it is calculated attempt to infriminge the Registered Trade Mark of the plaintiffs and passing off the defendants goods as the goods of the plaintiffs. The plaintiffs acquired a tremendous goodwill and reputation for the Trade Mark TEXMO with respect to Electrical pumps and Motors used for irrigational purposes. If any one uses the same Trade Mark TEXMO with respect to the same or similar purposes it will cause confusion and deception in the market. Further, as per the Trade Marks Act, 1999 the use of the identical or deceptively similar Trade Mark even with respect to goods for which it is not registered amounts to an infringement of Registered Trade Mark. The use of Trade Mark TEXMO in the course of the business in relation to irrigational purposes by the defendant amounts to infringement and passing off. The illegal use of the Trade Mark TEXMO came to the light only after the impugned mark TEXMO was advertised in the Trade Mark Journal No.1327 (S) 4 in the month of July 2005.

(vi) The plaintiffs have built up goodwill with respect to their goods by the use of their Trade Mark TEXMO will be snatched away illegally by the defendant if he is allowed to use the mark TEXMO continuously. The goodwill built up by the plaintiffs in the Trade Mark is in danger of being exploited by the defendants whose mark TEXMO is identical to that of the plaintiffs, which would result in irreparable loss to the plaintiffs business and reputation. In this situation plaintiffs are entitled under the Act to seek the relief of permanent injunction against the defendant on account of infringement of the plaintiffs registered Trade Mark. The grant of permanent injunction will not prevent the defendant from manufacturing and selling the goods for which he has applied for registration but will only prevent them from using the Trade Mark TEXMO or similar sounding expressions of TEXMO. If the defendant is not stopped by an order of injunction, then the defendant may expand his business and this will lead to irreparable loss and hardship to the plaintiff. The distinctive mark will loose its distinctiveness. The loss cannot be measured in terms of money. Therefore, the plaintiffs are constrained to file this suit for infringement of their registered Trade Mark TEXMO. Hence, the plaintiff filed the present suit for the relief as prayed for.

3. The defendant in the suit has not chosen to appear before the Court and file the written statement and remained exparte.

4. After completion of pleadings, during trial, on the side of the plaintiff PW1 was examined and marked Exs.P1 to P9. The defendant was set exparte.

5. Heard the submissions on the side of the plaintiffs and perused the material records.

6. The case of the Plaintiffs is that they are the manufacturers of different types of electrical motors and pumps, since 01.04.1974. The first plaintiff has been manufacturing and selling various categories of pumps and motors as mentioned in the Plaint and from 12.11.1982, the second plaintiff has been manufacturing and selling submersible motors, submersible pumps, submersible pumpset, components and spares for the above products. The plaintiffs become registered proprietors of the Trade Mark TEXMO in respect of the specific goods mentioned above by virtue of the order passed by the Registrar of Trade Mark on 20.04.1998. Thereafter, the plaintiffs became the exclusive proprietors of the Trade Mark TEXMO in respect of the specific goods in respect of the above goods in Trade Mark Nos.315049 SP-I and SP-II and 315050 SP-I and SP-II. The plaintiffs have been extensively using the Trade Mark TEXMO as registered all over India continuously and substantially in respect of the goods allotted to them from the respective dates of the formation of the firms. The plaintiffs have acquired enormous goodwill in respect of the goods on which TEXMO trade marks are affixed. If any person uses the same mark/similar mark in respect of those goods or other related goods, the public will be confused regarding the identity of the goods. The plaintiffs are spending substantial amount for advertisement and for promotional purposes in respect of Trade Mark TEXMO. The plaintiffs have received several prestigious awards on account of the superior quality of their goods and export business. The turnover for the first plaintiff during 2002-2003 is Rs.34,75,68,733. The turnover for the second plaintiff during 2003 to January 2004 is Rs.121,44,42,000/-. Subsequently, plaintiffs came to know that the Trade Mark Journal No.1327 (S) 4 dated 24.01.2005 that the defendant filed a Trade Mark application for the registration of the Trade Mark TEXMO and claim proprietory right to use the mark TEXMO for all types of HDPE pipes, polythene pipes & PVC pipes used for irrigational purposes included in class 17. The plaintiffs filed objections to the said applications for registration of the Trade Mark. The objections are pending disposal before the Trade Mark Registry, Chennai. The defendant has adopted the identical Trade Mark TEXMO solely for the purpose of exploiting the commercial goodwill attached to the mark TEXMO for pipes, polythene pipes and PVC pipes used for all irrigational purposes. The defendant knowingly exploiting this commercial goodwill attached to the plaintiffs Trade Mark TEXMO. The plaintiffs and the defendant’s goods are being used for irrigational purposes and the defendant is attempting to infringe the Registered Trade Mark of the plaintiffs and passing off the defendant’s goods as the goods of the plaintiffs. The plaintiffs acquired a tremendous goodwill and reputation for the Trade Mark TEXMO with respect to Electrical pumps and Motors used for irrigational purposes. If any one uses the same Trade Mark TEXMO with respect to the same or similar purposes it will cause confusion and deception in the market. Further, as per the Trade Marks Act, 1999 the use of the identical or deceptively similar Trade Mark even with respect to goods for which it is not registered amounts to an infringement of Registered Trade Mark. The use of Trade Mark TEXMO in the course of the business in relation to irrigational purposes by the defendant amounts to infringement and passing off. The illegal use of the Trade Mark TEXMO came to the light only after the impugned mark TEXMO was advertised in the Trade Mark Journal No.1327 (S) 4 in the month of July 2005. The plaintiffs are entitled under the Act to seek the relief of permanent injunction against the defendant on account of infringement of the plaintiffs registered Trade Mark. The grant of permanent injunction will not prevent the defendant from manufacturing and selling the goods for which he has applied for registration but will only prevent them from using the Trade Mark TEXMO or similar sounding expressions of TEXMO. If the defendant is not stopped by an order of injunction, then the defendant may expand his business and this will lead to irreparable loss and hardship to the plaintiff. The distinctive mark will loose its distinctiveness. The loss cannot be measured in terms of money. Therefore, the plaintiffs are constrained to file the present suit seeking for the aforesaid reliefs.

7. In order to substantiate their claim, one Mr.T.Narendran, Vice President of the Plaintiffs Firm, who was authorized by the Managing Partner of the Plaintiffs firm has been examined as P.W.1 and the authorization letter to P.W.1 has been marked as Ex.P1 series. He filed the proof affidavit reiterating the averments made in the plaint and also marked nine documents viz., Exs. P1 to P9. During examination, he deposed that the Plaintiffs have filed the suit with the prayer for grant of permanent injunction restraining the defendants and their men from manufacturing, selling, offering and advertising for sale using the trademark TEXMO upon all kinds of goods, HDPE pipes, polythene pipes and PVC pipes all used for irrigational purpose in class 17 or in any media and use the same in invoices, letter heads and visiting cards or any other trade literature or by using another trademark which is in any way visually, phonetically or deceptively similar to the Plaintiffs’ registered trademark TEXMO or in any manner infringing the plaintiffs registered trademark nos.315049 (SP-I, SP-II) and 315050(SP-I, SPII); granting permanent injunction restraining the defendant and their men, from manufacturing, marketing, distributing, offering or advertising for sale of all kinds of goods, HDPE pipes, polythene pipes and PVC pipes all used for irrigational purposes in class 17 containing/bearing the trademark TEXMO or other deceptively similar trademarks; for grant of preliminary decree in favour of the plaintiff; directing the defendant to render an account of profits made by him by use of trademark TEXMO on the good referred and for a final decree in favour of the plaintiffs and also for costs. In order to prove the case of the Plaintiffs, the copy of the legal use certificate of the trademark nos. 2702778, 2702779, 2702780, 2702781 in favour of the plaintiffs has been marked as Ex.P2. The photocopy of the awards obtained by the plaintiff dated 24.12.2003, the copy of publication daily in Thinathanthi informing the plaintiffs fourth consecutive winner of the best export award given by Government of India dated 26.02.2005 have been marked as Ex.P3. The photocopy of the advertisement in Dhinamalar dated 07.07.1992, copy of the advertisement through plaintiffs dealer Murugesan & Co, dated 07.08.1992, copy of advertisement in Dhinamalar by plaintiffs dealer dated 08.08.1992 have been marked as Ex.P4 series. The photocopies of advertisements published on different dates have

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been marked as Ex.P5 series. The photocopies of the advertisements published in different newspapers and magazines have been marked as Ex.P6 series. The photocopies of the advertisements published in different newspapers and magazine on different dates have been marked as Ex.P7 series. The copy of the Journal advertisement of the trademark no.931043 along with the copy of the CD have been marked as Ex.P8 series. The copy of the opposition dated 21.07.2005 filed by the plaintiffs against the defendant’s trademark has been marked as Ex.P9. 8. Despite the suit summons being served on the defendant, he did not appear before this Court and file written statement and remained exparte. 9. On a perusal of the averments made in the Plaint and also the examination of P.W.1 as well as the documents filed on the side of the plaintiffs, it is clear that the plaintiffs are manufacturing different types of electrical motors and pumps and registered Trade mark TEXMO as discussed above. The defendant filed a Trade Mark application for the registration of the Trade Mark TEXMO before the Registrar of Trademark and the same is pending. The Plaintiffs are maintaining very good reputation and goodwill with respect to their goods and if the defendant is allowed to use the mark TEXMO, it will ultimately affect the goodwill and reputation of the Plaintiffs. 10. Considering the aforesaid circumstances, this Court is of the view that the Plaintiffs are entitled to get decree as prayed for. However, the Plaintiffs are at liberty to file application for final decree for amount of the profits found to have been made by the defendants, after defendants have rendered accounts. 11. In the result, preliminary decree is passed as prayed for with costs.
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