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Judgment
MANMOHAN, J: (Oral)
1.Present suit has been filed for permanent injunction restraining infringement of trade mark, copyright, passing off, trade name, damages, delivery up
etc. The prayer clause in the suit is reproduced hereinbelow:-
“32. It is therefore, prayed that this Hon‟ble Court may be pleased to grant the following reliefs:
 “a. An Order for permanent injunction restraining the Defendant, its officers, as the case may be, its servants, agents, dealers, distributors and all
others acting for and on its behalf form manufacturing, exporting, selling, offering for sale, exhibiting, advertising, directly or indirectly dealing with
Mixer Grinders, Electronic Palm Grinders, Grinders, Mixers, Washing Machines and other cognate/allied goods under the trade mark SUMEET or any
other identical/deceptively similar mark to the Plaintiff‟s trade mark SUMEET TRADITIONAL amounting to infringement of registered trade mark
No. 819556 in class 7.
b. An Order for permanent injunction restraining the Defendant, its officers, as the case may be, its servants, agents, dealers, distributors and all
others, acting for and on its behalf from manufacturing, exporting, selling, offering for sale, exhibiting, advertising, directly or indirectly dealing with
Mixer Grinders, Electronic Palm Grinders, Grinders, Mixers, or other Electrical Home Appliances and other cognate/allied goods under the trade mark
SUMEET or SUMEET TRADITIONAL or any other identical/deceptively similar trade mark to the plaintiff‟s mark or from doing any other thing as
is likely to lead to confusion or deception thereby resulting in passing off the Defendant‟s goods as those of the Plaintiff.
c. An Order for permanent injunction restraining the Defendant, its officers, as the case may be, its servants, agents, dealers, distributors and all others
acting for and on its behalf from manufacturing, exporting, selling, offering for sale, exhibiting, advertising, directly or indirectly dealing in Mixer
Grinders, Electronic Palm Grinders, Grinders, Mixers, or other Electrical Home Appliances and other cognate/allied goods under the trade mark
SUMEET or SUMEET TRADITIONAL or any other identical/deceptively similar trade mark which is in violation of rights of the Plaintiff acquired
by the first adoption of word SUMEET as part of trading name/corporate name.
d. For an Order of permanent injunction restraining the Defendant, its officers, as the case may be, its servants, agents, dealers, distributors and all
others acting for and on its behalf from manufacturing, exporting, selling, offering for sale, exhibiting, advertising, directly or indirectly dealing in Mixer
Grinders, Electronic Palm Grinders, Grinders, Mixers, or other Electrical Home Appliances and other cognate/allied goods under the trade mark
SUMEET or SUMEET TRADITIONAL or any other identical/deceptively similar trade mark to the Plaintiff‟s mark or for infringement of Copyright
in the artistic work titled as
SUMEET TRADITIONAL.
e. An Order for delivery up of all material including labels, blocks, dies, strips, cartons, stationery, literature or any other printed matter bearing the
impugned mark for the purpose of destruction and /or erasure.
f. For an Order of Damages caused to reputation and goodwill of the Plaintiff on account of use of the Trade Marks SUMEET&SUMEET
TRADITIONAL by the Defendant. Any further Order/Orders as this Hon‟ble Court may deem fit and proper in the facts and circumstances of the
present case may also be passed in favour of the plaintiffs and against the defendant.â€
At the outset, learned counsel for plaintiffs gives up para 32 (e) and (f) of the prayer clause to the suit. The statement made by learned counsel for
plaintiffs is accepted by this Court and plaintiffs are held bound by the same.
Vide order dated 09th July, 2015 this Court granted an ex-parte ad interim injunction in favour of the plaintiffs and against the defendant. The
relevant portion of the ex-parte injunction order is reproduced hereinbelow:-
 “…Accordingly, till the next date of hearing, defendant is restrained from the using the plaintiffs‟ trade mark „Sumeet‟ or „Sumeet
Traditional‟ or any other deceptively similar trade mark as that of plaintiffs.â€
The defendant entered appearance and filed its written statement. However, as none had been appearing on behalf of defendant since 21st
October, 2016, the defendant was proceeded ex-parte on 12th July, 2017.
The relevant facts of the present case are that the plaintiff no.1 is a company incorporated in 1980 and the word SUMEET has been an essential
and integral ingredient of its corporate name since inception. It is stated that the plaintiff no. 2 is the dealer of the plaintiff no. 1 in New Delhi.
It is stated that the plaintiff no. 1’s mark SUMEET has been used for power operated kitchen mixies for domestic use since 1963 by Mrs.
Madhuri Mathur, mother of the director of plaintiff no.1 company. It is stated that the trade mark SUMEET was originally registered in 1970 under
Class 7 of the Trade and Merchandise Marks Act,1958, in the name of Mrs. Madhuri Mathur and was assigned on 01st January, 1981 to the plaintiff
no. 1 company. It is stated that vide order dated 08th February, 1992, the Apex Court in Power Control Appliance Co. & Ors. vs. Sumeet Machines
Pvt. Ltd, 1994 (2) SCC 448 held that the plaintiff no. 1 is the registered owner of the trade mark SUMEET.
It is stated that the plaintiff no. 1 is also the registered owner of the trade mark SUMEET TRADITIONAL under Class 7 of the Trade and
Merchandise Marks Act, 1958 for mixer grinders and inter alia other household electrical appliances. It is stated that the plaintiffs registrations are
valid and subsisting. Â
It is stated that by virtue of continuous and extensive use, the word SUMEET is associated with the plaintiff no. 1 company as the trade mark
SUMEET TRADITIONAL is distinctive of and identified exclusively with the goods of the plaintiff no. 1.
It is stated that the plaintiff no. 1 also owns copyright in the label titled as SUMEET TRADITIONAL as the same constitutes an original artistic
work with the meaning Section 2(c) of the Copyright Act, 1957. 10.It is stated that vide Memorandum of Understanding dated 01stDecember, 2014,
the plaintiff no. 1 licensed the mark SUMEET TRADITIONAL to M/s Soni Steel and Appliances Pvt. Ltd. and its concerns/companies M/s Siddhesh
Industries, M/s Aishwariya Industries and M/s Parishram Home Appliances for the purposes of manufacture of various household appliances
including mixers.
It is stated that the sales figures of the plaintiff no. 1 company and its licensees from January to May 2015 was Rs. 78,05,413/-.
Learned Counsel for the plaintiffs states that the defendant company i.e. M/s Sipra Appliances is unauthorisedly selling identical mixies with the
trade mark SUMEET and SUMEET TRADITIONAL.
He states that the plaintiff no. 1 company had entered into an Agreement for Subcontract dated 12thApril, 2013 with the defendant for manufacture of
two specific models of mixies. Since the defendant was violating the Agreement by selling goods under the mark SUMEET TRADITIONAL, the said
Agreement was terminated vide notice dated 05th June, 2013 and Letter of Termination dated 06th July, 2013.
Learned counsel for the plaintiffs states the use the expression SUMEET or SUMEET TRADITIONAL by the defendant, post termination of the
contract is likely to cause confusion and deception amongst the purchasing public. He states the defendant has unauthorisedly adopted the marks
SUMEET and SUMEET TRADITIONAL with the mala fide intent to ride upon the goodwill and reputation of the plaintiffs.
The plaintiffs have filed their ex parte evidence by way of affidavit of Shri Mukesh Gupta (PW1), manager of the plaintiff no. 1 company. The
plaintiffs have also examined Shri Yoginder Pal Dawar (PW2), partner of the plaintiff no. 2.
The plaintiffs’ witness (PW1) has proved registration of plaintiff’s marks SUMEET and SUMEET TRADITIONAL as Exhibit PW1/6
and Exhibit PW1/7. The plaintiff’s witness has also proved the Memorandum of Understanding dated 01st December, 2014, entered into between
the plaintiff no. 1 and M/S Soni Steel Appliances (P) Ltd, as Exhibit PW1/8 and copies of invoices of the plaintiff no.1 and its licensees M/s Siddhesh
Industries and M/s Soni Steel and Appliances Pvt. Ltd. as Exhibit PW1/9 and Exhibit PW 1/10. PW-1 has proved the Agreement for Subcontract
dated 12th April, 2013, entered into between the plaintiff no. 1 and the defendant as Exhibit PW1/11, a copy of the official Notice dated 05th June,
2013 as Exhibit PW1/12 and a copy of the letter of termination dated 06th July, 2013 as Exhibit PW1/13. The plaintiffs’ witness has also proved
letter dated 11th March, 2015 issued by the plaintiff no. 2 as a dealer of the plaintiff no. 1 as Exhibit PW1/14, establishing the jurisdiction of the this
Court.
The plaintiffs’ witness (PW2) has proved Partnership Deed dated 17th June, 2009 of plaintiff no. 2 with the plaintiff no. 1 as Exhibit PW2/1
and copes of invoices pertaining to the trade mark SUMEET as Exhibit PW2/2. PW2 has also proved photographs of the plaintiffs’ and
defendant’s products as Exhibit PW2/3 and Exhibit PW2/4.
Having heard learned counsel for plaintiffs as well as having perused the papers, this Court is of the view that due to extensive use over
substantial period of time, the plaintiffs’ marks SUMEET AND SUMEET TRADITIONAL have acquired reputation and goodwill in the marks in
India.
In the opinion of this Court, the triple identity test is satisfied as the defendant has made use of an identical/deceptively similar trademark in relation
to identical goods having an identical trade channel (products sold vide same trading channels).
From the evidence on record, it is apparent that despite termination notice dated 05th June, 2013 and letter of termination dated 06th July, 2013, the
defendant had malafidely continued to affix the plaintiffs’ trademarks on their products.
Further, as the plaintiff’s evidence has gone unrebutted, said evidence is accepted as true and correct. The Supreme Court in Ramesh Chand
Ardawatiya Vs. Anil Panjwani, AIR 2003 SC 2508 has held as under:-
.........In the absence of denial of plaint averments the burden of proof on the plaintiff is not very heavy. A prima facie proof of the relevant facts
constituting the cause of action would suffice and the court would grant the plaintiff such relief as to which he may in law be found entitled. In a case
which has proceeded ex parte the court is not bound to frame issues under Order 14 and deliver the judgment on every issue as required by Order 20
Rule 5. Yet the trial court should scrutinize the available pleadings and documents, consider the evidence adduced, and would do well to frame the
“points for determination†and proceed to construct the ex parte judgment dealing with the points at issue one by one. Merely because the
defendant is absent the court shall not admit evidence the admissibility whereof is excluded by law nor permit its decision being influenced by
irrelevant or inadmissible evidence.
Consequently, the allegation that the trademark, SUMEET AND SUMEET TRADITIONAL used by defendant amounts to infringement of
plaintiffs’ trademark is correct. The use of the impugned mark by the defendant was bound to cause incalculable losses, harm and injury to the
plaintiffs.
Accordingly, present suit is decreed in accordance with the paragraph 32 (a) to (d) of the plaint along with the actual costs incurred by the
plaintiffs. The cost shall amongst others include the lawyers’ fees, as well as the amounts spent on purchasing the court fees. Registry is directed
to prepare a decree sheet accordingly.