Sanjay Kishan Kaul, J.—The plaintiff has filed a suit for restraining infringement of trademark, passing off, damages and delivery up, etc. in respect of name INTEL. The plaintiff has sought permanent injunction in respect of the said name as a trademark, trade name, e-mail and website.
2. The plaintiff is a company incorporated under the laws of State of Delaware, USA and is aggrieved by use by the defendants of a deceptively similarly mark to its trademark INTEL in the form of ARTINTEL. The defendants are using the mark ARTINTEL as trading style in respect of computers, software development and medical prescription services. The plaintiff claims to be engaged worldwide in the business relating to the field of computers and parts thereof including semi-conductor devices, memory chips, microprocessors, Central Processing Units, etc. and have been using the mark/name as its corporate name on its products since 1968, which is the year of its incorporation.
3. The plaintiff claims to have carried out pioneering effort in computer technology and in the year 2004 spent excess of $ 48.7 billion on research and development program alone.
4. The INTEL branded products of the plaintiff are stated to be increasingly used in many consumer electronic products including household products and technologies to support new consumer usage models in the digital home.
5. In the year 1969, the plaintiff is stated to have adopted a distinctive style for representing the mark INTEL, popularly known as the INTEL ‘dropped e logo’. which has been given wide publicity. The word INTEL is written in such a manner that the alphabet ‘e’ is not in the same line as the other alphabets.
6. The plaintiff claims to have obtained registration of INTEL trademark in India in various goods in Classes 9, 18, 16, 13, 34, 15, 6, 33, 27, 5, 25 and 4.
7. The defendant No. 1 is stated to be a director of defendants 2 and 3 and all the defendants are stated to be engaged in the business of computer, computer hardware, software consultancy and also to provide medical transcription services. The plaintiff in and around September, 2000 became aware of the defendant No. 2's application filed in respect of Class 9 of goods for the mark ARTINTEL which was published in the Trademark Journal of 16.5.2000 The plaintiff is stated to have immediately initiated opposition proceedings in September, 2000 at the Trademark Registry, Mumbai and the opposition application was allowed and the application of the defendants for the mark ARTINTEL in Class 9 was dismissed. However defendants are alleged to have continued to carry on the business under the name and style of ARTINTEL.
8. The defendants were served but failed to enter appearance and were thus proceeded ex parte. The plaintiff was directed to file affidavits of evidence. Mr. Rahul Sethi has filed the affidavit of evidence on behalf of the plaintiff who had also signed and verified the plaint and instituted the suit. The said witness has proved Ex. P-1 as a copy of the power of attorney in his favour dated 19.6.2004 Certified copies of the registered certificates pertaining to the plaintiffs have been proved as Ex. P-2 and Ex. P-3 and the copy of the trademark journal where the defendants' trademark ARTINTEL was published has been exhibited as Ex. P-4. A brochure of the defendants has been exhibited as Ex. P-5. These documents have been exhibited in Court today.
9. The plaintiff's grievance is that the defendant trading style ARTINTEL includes the mark of the plaintiff INTEL. Thus the prefix in the form of ART has been affixed to the word INTEL to take advantage of the plaintiff's goodwill and reputation in the market. Not only that the pronunciation of the two marks is also stated to be such that the word ART has to be pronounced followed by the pronunciation of the word INTEL separately. The use of this mark is thus likely to mislead the customers and members of the trade into believing that the product of the defendants originates from the plaintiff especially when both the plaintiff and the defendants are in the same trade.
10. Learned Counsel for the plaintiff has referred to the judgment of the Apex Court in Laxmikant V. Patel v. Chetanbhat Shah, (2002) 3 SCC 65 : AIR 2002 SC 275 where also prefix has been added to the trademark. Business was being carried out under the name Muktajivan colour lab and the abbreviation ‘QSS’ (Quick Service Station) was added as a prefix. It was held that the same did not make difference to the trade name as QSS was merely adjective-prefix to the trade name.
11. Learned Counsel also referred to the judgment of the Learned Single Judge of this Court in Kedar Nath v. M.P & F. Mills, AIR 1974 Delhi 12 where the prefix VIJAY was added to SUDERSHAN DHOOP. The prefix was found to inconspicuous which would cause deception to the unwary purchaser.
12. The defendants have failed to appear and to point out any significance why word ARTINTEL was used for the business of the defendants. There is force jn the contention of the learned Counsel for the plaintiff that though word ARTINTEL is one word while pronouncing the same it gets broken up into two parts ART and INTEL. The mark INTEL of the plaintiff is well known and obviously the use of the word INTEL is with the object of showing some connection with the mark of the plaintiff INTEL and to take advantage of the goodwill and reputation of the plaintiff. Needless to say that the chances of such deception increase when the product range is same or similar. In view thereof, I am of the considered view that the plaintiff is entitled to a decree of permanent injunction and delivery up as prayed for in paras 48(i) to (iii) of the plaint.
13. The only other question to be examined is the claim of damages of Rs. 20 lakh made in para 48(iii) (repeated) of the plaint. In this behalf, learned Counsel has relied upon the judgments of this Court in Relaxo Rubber Limited & Anr.Plaintiffs; v. Selection Footwear & Anrdefendants., 1999 PTC (19) 578; Hindustan Machinesplaintiff; v. Royal Electrical Appliances.Defendant., 1999 PTC (19) 685; and CS (OS) 2711/1999, L.T Overseas Ltd.…Plaintiff; v. Guruji Trading Co. & Anr.…Defendants., 123 (2005) DLT 503 decided on 7.9.2003 In all these cases, damages of Rs. 3 lakh were awarded in favour of the plaintiff. In Time Incorporated…Plaintiff; v. Lokesh Srivastava & Anr.…Defendants Ex Parte., 2005 (30) PTC 3 (Del) apart from compensatory damages even punitive damages were awarded to discourage and dishearten law breakers who indulge in violation with impunity. In a recent judgment in Hero Honda Motors Ltd…Plaintiff; v. Shree Assuramji Scooters…Defendant., 125 (2005) DLT 504 this Court has taken the view that damages in such a case should be awarded against defendants who chose to stay away from proceedings of the Court and they should not be permitted to enjoy the benefits of evasion of Court proceedings. The rationale for the same is that while defendants who appear in Court may be burdened with damages while defendants who chose to stay away from the Court would escape such damages. The actions of the defendants result in affecting the reputation of the plaintiff and every endeavour should be made for a larger public purpose to discourage such parties from indulging in acts of deception.
14. A further aspect which has been emphasised in Time Incorporated case (supra) is also material that the object is also to relieve pressure on the overloaded system of criminal justice by providing civil alternative to criminal prosecution of minor crimes. The result of the actions of defendants is that plaintiffs, instead of putting its energy for expansion of its business and sale of products, has to use its resources to be spread over a number of litigations to bring to book the offending traders in the market. Both these aspects have also been discussed in CS(OS) No. 1182/2005 titled Asian Paints (India) Ltd. v. Balaji Paints and Chemicals decided on 10.3.2006 In view of the aforesaid, I am of the considered view that the plaintiff would also be entitled to damages which are quantified at Rs. 3 lakh.
15. A decree is thus passed in favour of the plaintiff and against the defendants in terms of the paras 48(i) to 48(iii) of the plaint and the plaintiff is also entitled to a decree for damages for a sum of Rs. 3 lakh against the defendants jointly and severally.
16. The plaintiff shall also be entitled to costs.
17. Decree sheet be drawn up accordingly.
Suit decreed.