Castrol Ltd. and Another vs Gupta Trading Co. and Another

S. Ravindra Bhat, J.

I.A. No. 5024/2008

The applicant i.e. second defendant was permitted to place on the record a written statement by order dated 04th February, 2008 subject to certain conditions which included payment of costs. The time permitted was four weeks. This order is sought to be recalled by the present application. On the previous two dates of hearing, the said defendant had remained unrepresented. Today also, second defendant/applicant is unrepresented.

The averments in the application do not satisfy the Court as to the reason why the second defendant could not file the written statement in compliance with order dated 04.02.2008. Besides, the application was filed on 24.04.08, two months after the said order.

In the circumstances, IA No. 5024/2008 is dismissed.

CS (OS) 1736/2005

The Court has today dismissed the second defendant''s application for recall of the previous order dated 4.2.2008. The said defendant''s written statement has, therefore, not been taken on the record.

The plaintiffs seek a decree for permanent injunction and other consequential reliefs including damages against the defendants from using the trademark Super TT, Active and the hockey device, and the ''motor cycle rider'' device, of which the plaintiffs claim to be trademark owners. It is urged that the plaintiffs are registered trademark proprietors of the word mark Active and that in respect of the hockey device used on the label, the plaintiff is a trademark owner having continuously used it since 1988. The suit averments are to the effect that an application for trademark registration in Clause 4 in respect of said mark in the device is pending.

The plaintiffs claim to be a well known brand marketing industrial and automobile lubricants with worldwide sales. They claim that the mark CASTROL qualifies for the description of a well known mark in terms of Section 2(zg) of the Trademark Act. The plaintiffs aver to the extensive sales of their products under the CASTROL brand and various other sub-brands of which Castrol is a house. The sales figures have been mentioned in paragraph 12 of the Affidavit Evidence. It is submitted that as on December, 2003, the volume of sales has increased to Rs. 13,60,51,00,000.00. It is also averred in paragraph 14 of the same document that the plaintiff annually spends substantial sums towards advertisement and the expenditure figures have been outlined. They are as follows:

---------------------------------------------------------------- Year EXPENDITURE (RS.) ---------------------------------------------------------------- June, 1984 7,26,368.00 ---------------------------------------------------------------- June, 1985 43,61,398.00 ---------------------------------------------------------------- June, 1986 54,53,918.00 ---------------------------------------------------------------- June, 1987 90,55,319.00 ---------------------------------------------------------------- June, 1988 104,11,601.00 ---------------------------------------------------------------- June, 1989 129,15,000.00 ---------------------------------------------------------------- March, 1990 84,47,000.00 ---------------------------------------------------------------- March, 1991 182,46,000.00 ---------------------------------------------------------------- December, 1991 265, 12,000.00 ---------------------------------------------------------------- December, 1992 507,39,000.00 ---------------------------------------------------------------- December, 1993 843,33,000.00 ---------------------------------------------------------------- December, 1994 14,88,74,000.00 ---------------------------------------------------------------- December, 1995 22,40,89,000.00 ---------------------------------------------------------------- December, 1996 33,00,44,000.00 ---------------------------------------------------------------- December, 1997 42,87,00,000.00 ---------------------------------------------------------------- December, 1998 40,00,00,000.00 ---------------------------------------------------------------- December, 1999 46,00,00,000.00 ---------------------------------------------------------------- December, 2000 43,00,00,000.00 ---------------------------------------------------------------- December, 2001 53,51,00,000.00 ---------------------------------------------------------------- December, 2002 52,34,00,000.00 ---------------------------------------------------------------- December, 2003 54,33,00,000.00 ----------------------------------------------------------------

It is contended that the plaintiffs became aware sometime in November, 2009 that the defendants were manufacturing and marketing engine oils for scooters, motor cycles and other vehicles using packing material similar to that packaged by the plaintiffs and used by them i.e. in plastic containers and were also marketing them under the brand "Activ". The plaintiffs have produced copies of the defendants'' containers with the visual depiction of the ACTIV mark as well as the hockey device at page No. 24 of the list of documents filed. The plaintiffs contrast this with the photographs of its mark produced at pages 16-20 of the list of documents to show the visual similarity, capable of confusing unwary customers into believing that the goods of the defendants in fact emanate from the plaintiffs.

The plaintiffs have in support of its contentions filed the affidavit evidence of Mr. Murlidhar Balasubrimanian dated 1.3.2007. It also relies upon the affidavit of Mr. Gaurav Segan dated 7.12.2005. The said Shri Segan deposes on affidavit to having purchased sample containers marketed by the defendant at Bijnaur in Uttar Pradesh. It is stated that M/s Gupta Trading Company, the first defendant was dealing in lookalike goods of the CASTROL brand by the name Active Super 2T and the samples were purchased. The photographs of the sample - as stated earlier - have been produced. It discloses that the product was manufactured by M/s Satyam Maruti Spares & Automobiles Co., Ghansyam Pura, Garh Road, Hapur, U.P.

The first defendant was set down ex parte on 7.8.2006. The second defendant had belatedly filed written statement. Initially, it was set down ex parte but the order was recalled on the condition that the written statement was to be filed within four weeks from 4.2.2008. The written statement was in fact not filed within time and instead defendant filed the application I.A. No. 5024/2008. The said defendant/applicant did not press the said application all this while. On the previous date of hearing and today also he was not represented. Accordingly, the Court has rejected the said application today.

Having considered the circumstances, the Court is of the opinion that since the second defendant''s written statement is not on the record, this is an appropriate case whereby the power of the Court under Order 8, Rule 10 can be invoked.

Having regard to the previous discussion and materials on record, the Court is satisfied that the plaintiffs are entitled to injunctive relief claimed. Accordingly, a decree for permanent injunction in terms of paragraph 31 (i) & (ii) shall issue against the defendants.

Having regard to the circumstances, the plaintiff is entitled to a nominal cost quantified @ Rs. 30,000/-.

CS (OS) 1736/2005 is decreed in the above terms. All pending applications are also disposed of.