At, High Court of Judicature at Bombay
By, THE HONOURABLE MR. JUSTICE S.J. KATHAWALLA
For the Plaintiff: Himanshu Kane a/w Ashutosh Kane, Hiren Kamod, Ms. Aditi Kulkarni, Advocates. For the Defendant: None.
1. This is an action for infringement of trade mark and passing off committed by the Defendant by using almost identical and/or similar trade mark EASY WASH upon and in relation to liquid detergent. The Plaintiff is a company established under the Companies Act, 1956 and is the present (subsequent) proprietor of the trade mark EZEE registered under the Trade and Merchandise Marks Act, 1958 under Nos.410491 and 513930 both in class 03 in respect of detergents in liquid form for laundry use and soaps, detergents, toilet preparations and scouring powder.
2. The Defendant is a private limited company, having its office at Doshi Gardens, D Block, 3 & 4, 2nd Floor, 74, Arcot Road, Vadapalani, Chennai – 600 026. The Plaintiffs further claims that the Defendant also carries on the business inter alia as manufacturer of and/or trading in detergents including liquid detergent, cosmetics and the like goods under the impugned trade mark EASY WASH and is committing the wrongful acts of infringement of the Plaintiff’s trade mark EZEE and passing off.
3. The Plaintiff, through Mr. Mandar Chadrachud, Constituted Attorney of the Plaintiff has led the evidence by filing his Affidavit in lieu of Examination-in-Chief. He confirms the correctness of the contents of the Affidavit. The Affidavit, inter alia, reiterates what is stated in the Plaint. Through the said evidence, the documents are tendered in the Court which are taken on record and marked Exhibit-X collectively. The said documents inter alia include the original Power of Attorney dated 26th July 2012 executed by the Plaintiff in favor of the said Mr. Mandar Chandrachud, original certified copies of the entries made in the Register of Trade Marks in respect of suit trade mark EZEE bearing registration Nos.410491 and 513930 both in class 03 for use in legal proceedings, original statement of annual sales and annual advertisement and sales promotion expenses from the year 1999-2000 to 2009-2010 of the Plaintiff’s goods bearing trade mark EZEE duly certified by the Plaintiff’s Chartered Accountant, original advertisement of the Plaintiff’s trade mark EZEE published in the January 2013 issue of the magazine Marie Claire, original article from Economic Times dated 22.11.2006 placing the Plaintiff’s 'EZEE' brand in the list of Superbrands, original advertisement of the Defendant’s liquid detergent bearing the impugned trade mark 'EASY WASH' in the Times of India, Mumbai Edition, dated 15.10.2006.
4. Mr. Kane, Learned Advocate appearing for the Plaintiff states that the Plaintiff is the registered proprietor of the trade mark EZEE and that the Plaintiff has been continuously, openly and extensively using the said trade mark EZEE upon in respect of the said goods since December, 1983 and the same has become distinctive with the Plaintiff’s goods. I am satisfied with the said contentions, as the Affidavit along with the documents tendered by the Plaintiff sufficiently prove that the Plaintiff is the registered proprietor of the said trade mark EZEE under Nos.410491 and 513930 both in class 03 and that the Plaintiff has been using the said trade mark EZEE continuously, openly and extensively. The Plaintiff’s use of the said trade mark EZEE is evident from the Plaintiff’s sales which rose from Rs.2036.04 Lakhs in the year 1999-2000 up to Rs.5278.16 Lakhs in the year 2009-2010. The said trade mark has therefore acquired reputation and goodwill which deserves to be protected.
5. Having learnt that the Defendant was manufacturing and/or selling liquid detergent bearing trade mark similar to that of the Plaintiff’s said trade mark, the present suit was filed for infringement of trade mark and passing off. The impugned trade mark EASY WASH is closely and deceptively similar to the Plaintiff’s prior used and registered trade mark EZEE. In fact the rival trade marks are aurally almost identical.
6. There is nothing on record that militates against anything that has been averred in the Plaint and deposed to by the witness.
7. After going through the original documents, Plaint and hearing the submissions of Learned Advocate for the Plaintiff, I find that the Defendant has copied the Plaintiff’s trade mark. The Defendant’s mark is closely and deceptively similar to Plaintiff’s trade mark and by the use of the impugned trade mark the Defendant is infringing the Plaintiff’s trade mark and is passing off its products as that of the Plaintiff’s products.
8. The Defendant has remained absent despite service of writ of summons by the Plaintiff. The evidence of the witness is uncontroverted. The Plaintiff is not pressing for damages other than punitive damages.
9. In the circumstances, suit is decreed in terms of Prayer Clauses (a) and (b). Costs t
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o be quantified as per rules. 10. Considering the nature of infringement and with a view to dissuade others from indulging into such activities it is imperative that some punitive damages are awarded to the Plaintiff. I, therefore award punitive damages amounting to Rs.50,000/- to the Plaintiff and against Defendant. 11. The office shall return the original documents to the Advocate for the Plaintiff upon the Advocate for the Plaintiff handing over Photostat copies of the said documents duly certified by him as true copies.