At, High Court of Delhi
By, THE HONOURABLE MR. JUSTICE D.P. WADHWA
For the Appearing Parties : Manmohan Singh, H. P. Singh, Advocates.
The Order of the Court was as follows :
D. P. Wadhwa, J. for the The plaintiffs numbering two filed this suit for permanent injunction restraining the defendants either by themselves or through their agents, servants etc. from using the mark 'BINATONE' in respect of pressure cookers and other such goods manufactured by the defendants and further restraining the defendants from passing off their goods as that of the plaintiffs. Then, there are consequential reliefs. Plaintiffs also seek rendition of accounts. There are three defendants. Defendants 2 and 3 are stated to be partners of defendants are ex party.
2. When the suit was filed, by means of an interim ex-parte order this court appointed a local commissioner to sign the books of accounts of the defendants and to ascertain how much stock they had in their possession. By a subsequent order dated 4th April, 1988, a restraint order was passed whereby the defendants were restrained from using the trade mark 'BINATONE' in respect of pressure cookers manufactured by them. This interim order has continued since then. Report of the local commissioner has since been brought on record. Ex-parte evidence of the plaintiffs has been led by means of affidavits. In support of their case the plaintiffs have filed the affidavit of Mr. S. Raghunathan, Associate General Manager (Commercial) of the second plaintiff.
3. First plaintiff is the registered proprietor of trade mark 'BINATONE'. It is registered at No. 334121 in Class-9 in respect of electrical and electronic apparatus etc. This trade mark has been assigned by the first plaintiff to the second plaintiff since April, 1987. The assignment has been allowed by the Registrar of Trade Marks. The word 'BINATONE' is an invented word. Plaintiffs have given details about the reputation the trade mark 'BINATONE' has acquired and the popularity it enjoys in respect of the goods bearing this trade mark. Plaintiffs further say that they themselves have a scheme to enter cognate and allied goods like pressure cookers and LPG cooking range and home appliances and such like other goods. It is stated that defendants are writing the mark 'BINATONE' in English on the pressure cookers and are also using the expression export quality on the carton of pressure cookers implies that they are export quality pressure cookers. Plaintiff have complained that the use of the trade mark 'BINATONE' by the defendants is a calculated move and is intended to deceive the public at large and the defendants are trading upon the good-will name and reputation of the plaintiffs. It is stated that there is every likelihood of great confusion being exchanged where by customers buying the pressure cookers manufactured by the defendants might take the goods to have been manufactured by the plaintiffs and it is also complained that the defendants are spoiling the business of the plaintiffs by passing off their goods as those of the plaintiffs. It is stated that the pressure cooker bearing the trade mark 'BINATONE' of the defendants are of poor quality and are emanable to any mishap thus bringing bad name to the plaintiffs. Though, in the affidavit by way of evidence it has been stated that the plaintiffs have suffered damages, injury in their business, name and good-will and reputation on account of defendants' activities, the details and particulars are lacking. When the local commissioner visited the premises of the defendants he found that there were as many as 146 packed card board boxes, containing pressure cookers bearing 'BINATONE' mark and 131 pressure cookers were being found in the process of manufacture which were lying on the floor. The local commissioner also found huge number of guarantee cards and receipt books bearing 'BINATONE' pressure cooker marks. He also found 160 empty card board cartons lying there and containing mark 'BINATONE' on them.
4. From the record I am satisfied that the plaintiffs must succeed. I, therefore, decree the suit of the plaintiffs as under :
(a) Defendants are restrained by means of permanent injunction, either by themselves or through any of their agents, servants etc. from selling the pressure cookers bearing the mark 'BINATONE' either d
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irectly or indirectly and thus passing off their goods as that of the plaintiffs. (b) Defendants shall within 15 days of passing off this decree remove the mark 'BINATONE' on all their pressure cookers manufactured or in the process of being manufactured and shall further destroy all guarantee cards and other literature and empty card board boxes containing the mark 'BINATONE' pressure cookers. 5. Plaintiffs will also be entitled to costs.