Manmohan, J. (ORAL):— Present suit has been filed for injunction restraining infringement of registered trade marks, passing off, unfair competition and damages.
2. However, learned counsel for plaintiff fairly states that she is only pressing prayer ‘A’ and not prayers ‘B to D’.
3. The relevant facts of the present case are that in 1988, plaintiff commenced its business as a partnership firm under the name and style of M/S. AGARWAL PACKERS & MOVERS. Subsequently, in 1991, the partners of M/S. AGARWAL PACKERS & MOVERS formed the plaintiff company and merged their partnership firm with the company.
4. It is stated in the plaint that plaintiff company is today a leading packaging, moving and logistics service provider engaged inter alia in the business of providing public carriers and carriers of goods, passengers, merchandise, commodities and other products and transportation of goods and luggage of all kind and description in any part of India and elsewhere by any mode of transport.
5. It is also stated in the plaint that the mark AGARWAL PACKERS & MOVERS is registered in plaintiffs favour in Classes 16, 17 and 39. The said certificates have been exhibited.
6. Copies of balance sheets showing turnover and expenditure of the plaintiff on advertising have been placed on record. Letters of appreciation from various eminent personalities for services rendered by the plaintiff have also been exhibited.
7. It is stated in the plaint that in and around April, 2008, plaintiff came across a newspaper advertisement of the defendants wherein the defendants described themselves as “AGARWAL's PACKER AND MOVERS”. Since the defendants' mark was deceptively and confusingly similar to the plaintiffs registered trade mark/trade name, plaintiff instituted the present suit.
8. On 02nd June, 2008, this Court granted an ex parte ad interim injunction against the defendants.
9. In October, 2008, defendants filed their written statement. On 04th November, 2008, learned counsel for defendants stated that defendants have changed their name from AGARWAL PACKERS AND MOVERS to YASH AGARWAL PACKERS AND MOVERS and defendants are willing to settle the matter with the plaintiff. On the said date of hearing, the ad interim order was made absolute by this Court.
10. Learned counsel for plaintiff clarifies that the settlement proposal mooted by the defendants was not acceptable to the plaintiff.
11. Moreover, as the defendants did not pay costs, the Joint Registrar on 09th January, 2009 struck off the written statement from the record.
12. On 12th March, 2009, defendants were proceeded ex parte and the plaintiff was directed to file its evidence by way of affidavits.
13. Learned. counsel for plaintiff points out that this Court has restrained many other infringers from using the plaintiff trade mark in CS(OS) Nos. 2053/2006, 576/2008 and 834/2008.
14. Having heard learned counsel for the plaintiff and perused the ex parte evidence as well as documents placed on record, this Court is of the opinion that plaintiff has in fact proved the facts stated in the plaint and has also exhibited the relevant documents in support of its case. Since the plaintiffs evidence has gone unrebutted, said evidence is accepted as true and correct. This Court is of the view that triple identity test namely, identical goods/services, identical trade mark and identical trade channel is satisfied in the present case.. Further, this Court is of the view that the defendants in adopting the plaintiffs mark have attempted to ride upon the goodwill and reputation of the plaintiff amongst members of trade and public desirous of availing of the services of the nature provided by the plaintiff.
15. This Court is also of the opinion that there is enough material on record to show that the trade mark AGARWAL PACKERS & MOVERS is a well known trade mark in India. Accordingly, use of the plaintiffs mark by the defendants besides constituting infringement and passing off as well as unfair trade competition also amounts to dilution of the mark.
16. Consequently, the defendants, their partners, officers, employees, agents, distributors, franchisees, representatives and assigns are restrained by way of permanent injunction from using AGARWAL and/or AGARWAL's PACKER and/or AGARWAL's PACKER & MOVERS or any other trade mark or name similar to the plaintiffs registered trade mark AGARWAL PACKERS & MOVERS or any other trade mark either as a trade mark or part of the trade mark, trade name or corporate name or as part of a trade or corporate name or in any other manner whatsoever so as to infringe the registered trade marks of the plaintiff or to pass off their services or business as and for the services or business of the plaintiff or from using any other indicia whatsoever to show any association or affiliation or connection of the defendants or their services with the plaintiff or its services.
Registry is directed to prepare decree sheet accordingly.