S. Mukerjee, J.— The Plaintiff is a partnership firm consisting of two partners viz. Shri Pradeep Kumar Rastogi and Shri Pramod Kumar Rastogi trading jointly as M/s. Hind Cutlery House at Amroha Gate, Moradabad (U.P).

2. Since the year 1979, the plaintiff's firm has been carrying on the business of manufacturing and marketing of “CUTLERY GOODS”, using the trade mark “V.I.P” for their aforesaid products.

3. The said trade mark “V.I.P” is duly registered under No. 398540 in Class 8 dated 7.12.1982, which was renewed in 1989 and the same is stated to be valid and subsisting as on date.

4. The certificate issued by Trade Mark Registry is exhibited as Exhibit D.

5. The plaintiff has been using cartons for the marketing of their products since the year 1979. The salient features of the Plaintiff's said carton are as under:

“The carton is artistic and mainly has a silver colour base. In the centre of the same, “V.I.P” “Classic” is printed. Words “Stainless Steel Table Cutlery” are printed in golden colour on a thin black strip below the word “Classic”. The right side portion of the box has combination of colours (Cream, Dark Yellow, Red and Black) in an artistic manner. The trade mark “V.I.P” with ‘Classic’ word, alongwith the whole box, gives a good aesthetic impression. The Plaintiff is holding copyright in the said carton design. A specimen of the Plaintiff's label/cardboard box/carton is exhibited as Exhibit-‘A’.”

6. The Plaintiff has reportedly given wide publicity to the trade mark “V.I.P” and the artistic design on its carton, titled “V.I.P” and the products under the said trade mark, connotes and denotes the goods and merchandise of Plaintiff's origin and of none else. The sales of the Plaintiff's aforesaid goods under the trade mark “V.I.P” run into several lakhs of rupees. The original sale bill books of the Plaintiff's Company are exhibited as Exhibits-‘B1’ to ‘B9’ (Colly). The advertisement of the plaintiff is Exh. ‘E’.

7. On account of the superior quality of the said goods of the plaintiff, and due to continuous use of the trade mark and carton/label/box with the trade mark of “V.I.P” thereon for the last more than 20 years, the Plaintiff's trade mark and carton/label/card board box, have allegedly acquired unique reputation and goodwill amongst the public and the trade.

8. The defendants had started the manufacturing and marketing of cutlery goods under absolutely identical and/or deceptively similar trade mark, “V.L.P”.

9. The use and adoption of the trade mark, “V.L.P” by the defendants amounts to infringement of Plaintiff's well known and registered trade mark “V.I.P”. The lettering, style, colour combination and design of both the marks are absolutely and confusingly similar. A specimen of the cardboard box/wrapper/carton of the Defendant, is exhibited as Exhibit-‘C’.

10. The defendants having adopted absolutely identical and/or deceptively similar cardboard box/carton/label having similar colour scheme, get up, layout, writing style and arrangement of words as of the Plaintiff's cardboard box/carton, the said impugned acts of the defendants, it is stated, amounts to infringement of Plaintiff's vested and legal copyright in the artistic work of the cardboard box/carton of the Plaintiff.

11. The defendant's card board box/carton/label of the Plaintiff is having only a very minor difference inasmuch as compared to “V.I.P” of the Plaintiff, the defendant is utilizing the deceptively similar mark “V.L.P” i.e simply substituting the middle letter ‘I’ in the Plaintiff's trade mark, by alphabet ‘L’ used by the Defendants in their trade mark.

12. A bare look at the two cardboard boxes/cartons/labels will show that the Defendant's cardboard box/wrapper/carton/label, could not have been designed by the designer unless the wrapper of the Plaintiff, was placed before him to copy.

13. Thus, the defendant has no right or justification to adopt or use the said registered trade mark for its cardboard box/carton, which is deceptively similar to the Plaintiff's trade mark and artistic cardboard box/carton. The Defendants have also used the word ‘R’ which stands for registered trade mark, to suggest as if the mark of the defendant is a registered mark.

14. These acts of the Defendant are tantamounting to clear and flagrant violation of the Plaintiff's right in the registered trade mark, as well as in the artistic cardboard box/carton used by the plaintiff for the past so many years in respect of its products in the sphere of cutlery goods etc.

15. The Defendants it appears, are aware about the Plaintiff's well-known registered trade mark “V.I.P” and they have deliberately, and with dishonest and mala fide intention, adopted the plaintiff's registered trade mark and carton/cardboard box, only to trade upon the Plaintiff's hard-earned reputation and to earn easy profits in an illegal manner, to which they are otherwise not entitled.

16. The purchasers and intending purchasers of the said goods, viz., cutlery goods, are ladies, housewives, servants etc. who, plaintiff claims, belong to an unwary class of purchasers, who invariably demand and recognize the Plaintiff's products by the registered trade mark and colour scheme of the carton/cardboard box, and therefore, would be misled by the deceptive similarity and confusing likeness.

17. It is also alleged that the defendants are guilty of passing off their inferior and sub-standard products as those of and for the established good and superior quality of the plaintiff's products.

18. On account of Defendant's unlawful and unjust trade activities, the Plaintiff has suffered damage to its well-known and established trade and reputation. It is urged that further damage to the trade and reputation is inevitable, unless the Defendants are restrained immediately by an order of permanent injunction from infringing the Plaintiff's registered trade mark and copyright.

19. It is also contended that the pecuniary compensation will not afford the Plaintiff adequate relief.

20. The present suit has been instituted on the basis of the cause of action accruing in favour of the Plaintiff and against the Defendant in the month of March, 1996, when the Plaintiff came to know about the manufacture and sale of the said goods, i.e, cutlery goods, under the carton/cardboard box/wrapper/packing and trade mark, “V.L.P”. The cause of action is stated to be continuous from day to day, until the Defendants are restrained from dealing in the said goods, viz. cutlery goods, under the infringing/offending trade mark and cartons/cardboard box/packing titled, V.L.P”

21. The defendants were duly served and entered appearance through Counsel and even filed their written statement. Thereafter, the matter was fixed for admission and denial of documents. This Court imposed cost of Rs. 1,000/- vide orders dated 26.2.98, which cost was not paid by the defendant even after grant of further time vide order dated 4.5.1998 Thereafter, thrice the Counsel for defendant got the matter deferred but did not appear or carry out admission/denial of documents. Ultimately, vide order dated 9.9.1999, the defence of the defendant was struck off for non-payment of cost and the defendant was also proceeded against ex-parte. The Plaintiff was thereupon directed to file the ex-parte evidence by way of affidavit, which requirement has been duly complied with.

22. It may be pertinent to mention that this Court had issued ad-interim injunction on 29.3.96 restraining the Defendant from using the offending carton titled, “V.L.F” or any other carton, identical and/or deceptively similar to the Applicant's mark and carton “V.I.P”. The absence of contest by the defendants assumes special significance in the light of the prevailing injunction order against them.

23. On the basis of the unrebutted evidence of the plaintiff and the pleadings which are on record, the plaintiff has duly established its rights in relation to the registered trade mark “V.I.P” and also to the copyright in relation to the carton. As explained in the foregoing paras, I am satisfied that the defendants have dishonestly adopted a made and carton deceptively similar to the trade mark and copyright of the plaintiff and/or having confusing likeness thereto.

24. I, therefore, hold that the Plaintiff having duly established all the ingredients for grant of the relief claimed for, is entitled to a decree of perpetual injunction restraining the defendants, their servants, agents, representatives, dealers and all other persons on their behalf from manufacturing, settling or otherwise dealing in their substandard goods or any other cutlery goods under the trade mark, “V.L.P” or any other trade mark identical and/or deceptively similar to the Plaintiff's registered trade mark “V.I.P” having registration No. 398540 in Class 8 dated 7.12.82 under the provisions of the Trade & Merchandise Marks Act, 1958.

25. I also find the plaintiff entitled to a decree of perpetual injunction restraining the Defendants, their servants, agents, representatives, dealers and all other persons on their behalf, from infringing the plaintiffs copyrights by way of printing, publishing, reproducing or otherwise dealing in the artistic carton/cardboard box/label/wrapper, all titled “V.L.P” or any other carton/wrapper identical and/or deceptively similar to the plaintiff's artistic carton/cardboard box/packing/label “V.I.P”.

26. I find that the plaintiff has duly established its right to the relief of rendition of accounts, and accordingly grant a preliminary decree in favour of the plaintiff for rendition of accounts of profits earned by the defendants on the sales of the cutlery goods etc., under the offending/infringing trade mark, “V.L.P” and/or artistic carton/cardboard box/label/wrappers titled, “V.L.P” and appoint Shri Pankaj Aggarwal, Advocate of this Court as the Commissioner to take accounts. His fee is fixed at Rs. 15,000/- to be paid by the plaintiff in the first instance. He will submit his report after taking evidence, within a period of six months from the date of this judgment, on completion of which period, the matter will be listed before the Joint Registrar for verifying compliance and related orders.

27. I find that the plaintiff is entitled to its costs in the present proceedings.

28. In view of the above, the suit is decreed with costs in relation to the relief of permanent injunction as detailed above and preliminary decree for rendition of accounts is passed in favour of the plaintiff with directions for the Commissioner to go into accounts in relation to the relief of rendition of accounts. Decree sheet be drawn up accordingly. No order as to costs.

Suit decreed with costs.