Today Tea Ltd. vs Binod Kumar Goel

Rajiv Sahai Endlaw, J.—The suit for injunction and ancillary relief is instituted in relation to the trademark TODAY registered with respect to the goods in class 30 and the copyright in respect of the distinctive artistic work wherein TODAY is written in a distinguished manner. Vide ex parte order dated 2nd June, 2006 the defendant who had applied for registration of the identical trademark TODAY, also in relation to the goods falling in class 30, was restrained from using the word TODAY in any writing in respect of the products falling in class 30.

The defendant failed to appear in spite of being served by publication in "Statesman" Calcutta Edition and was vide order dated 18th September, 2007 proceeded against ex parte, the ex parte order was made absolute during the pendency of the suit and the plaintiff directed to lead ex parte evidence.

The plaintiff has tendered evidence of its Manager Mr L.D. Tignatia. The plaintiff has proved as Exhibits PW1/2, PW1/3 and PW1/4 the registration with respect to the trademark TODAY with TODAY written in a distinctive manner with respect to the goods falling in class 30, class 23 and class 31 respectively and as exhibit PW1/6 the registration of copyright of the artistic work with respect to the carton wherein TEA under the trademark TODAY is sold by the plaintiff. The witness of the plaintiff has also proved the volume of sales affected by the plaintiff under the said trademark since the year 2000-2001 and the expenses incurred by the plaintiff in advertisement and promoting the trademark. The witness of the plaintiff has proved as Exhibit PW1/12 the publication in the trademark journal wherein the defendant had advertised its intent for registration of the same trademark TODAY in relation to spices and masalas of all kinds. The evidence of the witness of the plaintiff remains unrebutted.

A perusal of the advertisement, before acceptance, got published by the defendant in the Trade Mark Journal shows that the defendant''s attempted to adopt not only the same trademark as of the plaintiff and in relation to the same class of goods but the manner in which the defendant has written TODAY is also identical to the manner in which the plaintiff has been writing TODAY and which is an infringement of the artistic work registered as a copyright of the plaintiff. The publication of the defendant appeared in the Journal dated 15th December, 2005 and the action of the defendant of adopting the same trademark and the same unique style of writing TODAY, in which the plaintiff has a registered copyright, leads to the conclusion that the defendant''s adoption of the trademark and the artistic work of writing TODAY in the same manner as that of the plaintiff is in an attempt to deceive the customers into believing that the product of the defendant is the product of the plaintiff. If the defendant is permitted to use the said trademark not only would the distinctiveness of the trademark of the plaintiff be diluted but it is also likely to cause confusion amongst the purchasers. The goods presently being marketed by the plaintiff under the said trademark, namely, tea and the goods with respect to which the defendant intends to use the said trademark i.e., spices and masalas of all kinds are available in the same shops/counters.

A clear case of infringement of registered trademark and copyright of the plaintiff is made out and the plaintiff has become entitled to the relief of injunction claimed. Though the defendant has not contested the suit but from the aforesaid it is clear that the defendant has acted with dishonest intentions. It has now been held in several dictas of this Court that such flagrancy of the defendant''s conduct is strictly deprecatory and those who recklessly indulge in such shenanigans must do so at their own peril. I find the present case a fit one to award punitive damages to the plaintiff against the defendant which I assess at Rs. 1 lac.

Accordingly, a decree for permanent injunction is passed in favour of the plaintiff and against the defendant restraining the defendant, its agents, servants, dealers, stockists from manufacturing, selling, advertising or displaying directly or indirectly dealing in spices, masalas or any other allied and cognate goods under the impugned trademark TODAY and or any other trademark deceptively similar thereto. The defendant, its agents, servants, dealers, stockists further restrained from manufacturing, selling, advertising or dealing in spices products or any other allied or cognate products under the impugned copyright of writing word TODAY on its label, pouches, cartons, bags in a manner similar or deceptively similar to the copyright of the plaintiff.

A decree for recovery of sum of Rs. 1 lac as punitive damages is also passed in favour of the plaintiff and against the defendant. The plaintiff shall also be entitled to costs of the suit from the defendant.

The decree sheet be prepared accordingly.