Raymond Limited vs Hemant Khandelwal and Others

S.J. Kathawalla, J—The suit has been instituted before this Court to seek relief/s against the Defendants who are infringing the trade marks, copyrights and are committing the tort of passing off their goods as the goods of the Plaintiffs. The Plaintiff states that it is engaged, inter alia, in the manufacture and marketing of textiles, readymade garments, textile piece goods, woolen yarn, threads etc. since more than 80 years. The Plaintiff belongs to one of the most reputed and oldest industrial house - Raymond Group of Companies. The Plaintiff is a leading textile and garment company in India and a market leader in the field.

According to the Plaintiffs, the Defendant Nos. 1 and 2 are the partners of Defendant No. 3. It is submitted that the Defendants are violating the intellectual property rights of the Plaintiffs by using the Plaintiff''s well known trademark Raymond (including the stylized manner in which the same is written in which copyrights are owned by the Plaintiff) inter alia on their sign board, visiting cards, cash invoices and carry bags and in advertisements of Defendant No. 3.

It is submitted the Plaintiff is the proprietor of the mark "RAYMOND" which mark was adopted by the Plaintiff and has been extensively used by them for more than 75 years.

The Plaintiff is the registered proprietor of the mark Raymond in class 24 dated November 13, 1959 bearing registration No. 193273 and in class 25 dated June 27, 1983 bearing registration No. 407166. The Plaintiff has also created a stylized representation of its mark Raymond which uses a distinctive design and color scheme which also qualifies as an artistic work and in which copyrights subsist and are owned by the Plaintiff. The Plaintiffs own a copyright registration bearing No. A-52427/1993 dated December 20, 1993

It is submitted that RAYMOND also constitutes the essential feature of the corporate name of the Plaintiff since about 1925 and has over the years become a famous/well known household mark with tremendous reputation and goodwill. The Plaintiff''s goods bearing the trade mark "RAYMOND" are sold extensively all over India and in many other countries of the world. According to the Plaintiffs, the products manufactured by the Plaintiff are well known for their superior and high quality and technical excellence internationally. The Plaintiffs have also produced their sales figures and promotional expenditure as a part of the plaint.

It is stated that in or about April 2006, the Plaintiffs came across the unauthorised use of the mark Raymond by the Defendants. It is submitted that the Defendants are misrepresenting that they are the authorized dealer of the Plaintiff and are displaying the mark Raymond (in the same stylized manner as that of the Plaintiff) inter alia on their signage, boards, facade and in their advertisements. It is submitted that such unauthorised use amounts to infringement of its registered trademarks, infringement of copyrights and passing off.

Since none appear on behalf of the Defendant inspite of service of writ of summons and no written statement is filed on behalf of the Defendants the matter stood transferred to the list of undefended suits. The Plaintiffs have accordingly filed their compilation of documents along with an affidavit in lieu of examination in chief of Mr. Zameer Nathani being Director Legal and Authorized Signatory. He confirms the correctness of the contents of the affidavit. The affidavit deals with the documents produced by the Plaintiff and it is also clarified in the affidavit that the deponent has produced a compilation containing original evidence to the extent available and photocopies of certain documents which are derived from the originals which originals are not presently traceable after the filing of the suit. The documents tendered by the Plaintiff are taken on record and marked as Exhibit "X" collectively. The said documents comprise of original certified copies of the entries made in the Register of Trade Marks for use in legal proceedings in respect of the aforesaid trademark registrations bearing Nos. 193273 and 407166, an original extract from the Register of Copyrights pertaining to the copyright registration bearing No. A-52427/93, Auditors Certificates certifying the sales figures since the year 1993 and promotional expenditure since the year 1989 in respect of the mark Raymond, original Plaintiff''s pricelists and print outs of the Plaintiff''s web pages, some original and some copies of photographs of the Defendants'' signboard, some originals and some copies of advertisements issued by the defendant, office copy of a notice dated April 11, 2006 issued by the Plaintiffs to the Defendants and the envelopes with respect to the same. The affidavit of evidence in addition to deposing with regard to the existence, veracity of the aforementioned documents and the contents thereof also sets out the sales figures of the Plaintiffs in respect of the business carried on under the trademark Raymond since the year 1957. I have perused the affidavit as well as the documents which have been filed.

The Plaintiffs have filed the present suit for infringement of its trade marks, copyrights and passing off, having come to know that the Defendants are using Plaintiff''s mark RAYMOND written in the stylized manner, unauthorisedly. It is the Plaintiffs'' case that the Defendants are not franchisees, authorized dealers and/or stockists appointed by the Plaintiff.

After going though the documents, plaint and hearing the submissions advanced by the learned advocate of the Plaintiffs, I am satisfied that the unauthorized use of mark RAYMOND written in a stylized manner, by Defendants, violates the Plaintiff''s intellectual property rights as pleaded in the Plaint. I am of the view that the Defendants have infringed the Plaintiffs'' well known and registered trade mark RAYMOND as set out in the Plaint. I am also of the opinion that the Defendants are infringing the Plaintiff''s copyright in the artistic work i.e. the stylized representation of the mark Raymond which has been reproduced and used by the Defendant without the permission of the Plaintiffs. The Plaintiffs have produced sufficient evidence to prove that the mark RAYMOND has been extensively and continuously used and that they have acquired valuable reputation and goodwill and are entitled to protection as a well-known mark. I am satisfied that by the unauthorised use of the mark RAYMOND, the Defendants are misrepresenting their goods as those of the Plaintiffs and/or misrepresenting that their business have some connection with the Plaintiffs causing damage to the Plaintiffs and to the goodwill and reputation of the Plaintiffs'' business. Such unauthorised use by the Defendants is likely to cause confusion. I am satisfied that the Defendant''s use of the mark RAYMOND written in stylized manner, inter alia, on its sign board, visiting card, cash invoices and carry bags, advertisements or in any manner in connection with their business or goods or services, amounts to passing off their business, goods/services as those of the Plaintiff and results in unfair competition and is actionable as a civil wrong.

The Defendants have remained absent despite service of writ of summons by the Plaintiffs. There is nothing on record that militates against anything that has been averred in the Plaint and deposed by the witness produced by the Plaintiff. The case and evidence of the plaintiff is uncontroverted.

In the circumstances, the suit is decreed in terms of prayer clauses (a) to (e) which are reproduced hereunder:

"(a) that the Defendants by themselves, their servants, agents and employees be restrained by a perpetual order and injunction of this Court from in any manner manufacturing, marketing, selling, offering for sale, supplying, advertising or using in any manner or otherwise howsoever dealing in relation to the word/mark "Raymond" described at Exhibit E hereto or any other mark/logo device/get up identical with or deceptively similar to the Plaintiff''s trademarks including registered marks bearing Nos. 193273 and 407166 (Exhibit B and C hereto), so as to infringe the same;

(b) that the Defendants by themselves, their servants, agents and employees be restrained by a perpetual order and injunction of this Court from in any manner selling or exposing for sale or offering for sale any goods or advertising any goods in relation to the word/mark "Raymond" described at Exhibit E hereto or any other mark/logo device/get up identical with or deceptively similar to the Plaintiff''s trademarks including registered marks bearing Nos. 193273 and 407166 (Exhibit B and C hereto), so as to infringe the same;

(c) that the Defendants by themselves, their servants, agents and employees be restrained by an order and injunction of this Court from in any manner selling or exposing for sale or offering for sale any goods or advertising any goods in relation to the word/mark "Raymond" described at Exhibit E hereto or any other mark/logo device/get up identical with or deceptively similar to the Plaintiff''s copyrights including the mark described at Exhibit D hereto, so as to infringe the Plaintiff''s copyright in the original artistic work;

(d) that the Defendants by themselves, their servants, agents and employees be restrained by a perpetual order and injunction of this Court from in any manner using in relation to the word/mark "Raymond" described at Exhibit E hereto or any other mark/logo device/get up identical with or deceptively similar to the Plaintiff''s trademarks including registered marks bearing Nos. 193273 and 407166 (Exhibit B and C hereto), so as to pass off the Defendant''s goods as and for the goods of the Plaintiff;

(e) that the Defendants by themselves, their servants, agents and employees be restrained by a perpetual order and injunction of this Court from in any manner manufacturing, marketing, selling, offering for sale, supplying, advertising or using in any manner or otherwise howsoever dealing in relation to the Housemark "Raymond", so as to infringe the same."

Considering the facts and circumstances of the present case and with a view to deter others from indulging into such activities it is imperative that some punitive damages are awarded to the Plaintiffs. I, therefore award punitive damages amounting to Rs. 1,00,000/- to the Plaintiffs against the Defendants.

The Court Receiver shall stand discharged without passing of accounts subject to payment of his costs, charges and expenses by the Advocate for the Plaintiffs. The Plaintiffs shall have the liberty to destroy the products seized by the Court Receiver which are lying in the possession of the Plaintiffs. With regard to the products retained with the office of the court receiver as recorded in the court receivers report dated April 30, 2008 the same shall be handed over to the representatives of the Plaintiff for destruction.

The office shall return the original documents to the Advocate for the Plaintiffs upon the Advocate for the Plaintiffs handing over Photocopies of the said documents duly certified as true copies.