RIKHAB CHAND JAIN Vs. T T SILK AND SAREES
LAWS(DLH)-2007-1-142
HIGH COURT OF DELHI
Decided on January 11,2007

RIKHAB CHAND JAIN Appellant
VERSUS
T.T.SILK AND SAREES Respondents

JUDGEMENT

A.K.SIKRI, J. - (1.) THE plaintiff no.1 is the proprietor of M/s.T.T.Industries and has been carrying on business of manufacturing and marketing of all kinds of hosiery products such as vests, underwears, bras, socks, panties, threads, shirts, trousers, sarees, elastic tapes, lungies, handkerchiefs, travelling bags, socks etc. under the name and style of 'T.T. Industries'. Plaintiff no.2 is a limited company incorporated under the Indian Companies Act,1956 and the plaintiff no.1 is the Chairman and Managing Director of plaintiff no.2 company. THEse two plaintiffs had filed suit for permanent injunction restraining infringement of trade marks, copyrights, passing off, recovery of damages and delivery up alleging that the defendants are using their trade mark "T.T.". As per the averments made in the plaint, the plaintiff no.1 had adopted the trade mark "T.T." in relation to aforesaid products in the year 1968 and is, thus, the owner and proprietor of the trade mark "T.T.", which is also a House-Mark of the plaintiff no.1. Since the year 1989 goods under the trademark "T.T." had been manufactured and marketed by plaintiff no.2 which is under the control and supervision under licence from plaintiff no.1. THE artistic works comprising inter alia letters "T.T." in a variety of forms, designs,etc. have been registered before the Copyright Authority under Nos.A-6177/71, A-33834/81; A- 52733; A-52734/95; A-52732/95; A-52731/95; A-52776/95 and others. In addition, the plaintiff no.1 has applied for registration of a number of artistic works comprising letters "T.T." under the Copyright Act, 1957 and the same are pending. THE mark "T.T." stands registered in various forms in respect of hosiery goods in Class 25 in respect of threads and yarns in class 23:/ in respect of textile piece goods, suiting and shirtings, dress materials, sarees, handkerchiefs, blankets, tweeds, shawls, bed and table covers, quilts in Class- 24 and more than 60 applications for registration of the mark "T.T." in various forms, designs, get ups, etc., are pending registration. THE details of various "T.T." registrations held by the plaintiff no.1 are annexed as Annexure-A to the plaint. THE details of various pending applications for registration of trade mark "T.T." in different classes including those which have been advertised in the Trade Marks Journal are collectively annexed as Annexure-B colly to the plaint. It is also claimed that by virtue of extensive sales and wide spread publicity in all the available media viz. newspaper, television, radio, advertisements in the form of hoardings, in journals, magazines, souvenirs etc., the trade mark of the plaintiff and goods have acquired tremendous reputation in India and abroad. Statements of annual sales and publicity expenses of the trade mark 'T.T.' since 1969 duly certified by auditors are filed as Annexure-C colly. Statements of International Sales of 'T.T.' brand products are annexed as Annexure-D. A perusal of Annexure-C would show that sale of these products in the year 1969 was Rs.199743.64p and in the financial year 2000-2001 it was more than Rs.110 crores. THE International sales figures as per the said statement are shown as Rs.55,73,14,557/- in the year 1997-98 which rose to Rs.72,19,78,111/- in the year 2000-2001 but dropped to Rs.58,70,76,052/- in 2001-2002. THE plaintiff no.1 contends that he adopted the mark 'T.T.' first, honestly and bonafide, in respect of the textile piece goods and further states that the plaintiff no.1 is not only the registered proprietor of the composite trade mark/label 'T.T.', under trade mark No.266085 as of 03.08.1970 but, by virtue of origination and first publication the plaintiff no.1 is the exclusive owner of copyright in respect of the artistic work in the said label and is entitled to all reliefs, including injunction, in case of any infringement of his rights. What prompted the plaintiff to file the suit was advertisements in the Trade Marks Journal given by the defendants for registration of a logo in Class 24 and 25 respectively consisting of words/mark 'T.T. Group' which plaintiff saw in August 2001. THE plaintiff no.1 immediately filed oppositions to the said registration, notice whereof is taken by the Registrar of Trade Marks. THE matter is pending before the Registrar. However, the plaintiffs thereafter filed this suit as well for reliefs of permanent injunction etc. Summons in the suit were issued which were duly served upon the defendants. However, the defendants did not appear and, therefore, were proceeded ex-parte by this Court vide order dated 26th March,2003. THE plaintiffs were directed to file evidence by way of affidavits. THE plaintiffs filed the affidavit and on 13th August,2003 it was directed that matter be renotified for exhibition of documents on 18.11.2003 before the Joint Registrar. However, in the meantime, the defendants appeared and filed application under Order IX Rule 7 CPC for setting-aside ex-parte proceedings which was allowed vide order dated 4th November,2003. THE defendants also filed written statement. However, counsel for the plaintiffs submitted that this written statement was not filed within statutory period. On this objection, the defendants filed application for condonation of delay in filing the written statement. Though this application was initially dismissed in default, thereafter the defendants appeared and this application was restored and allowed vide order dated 7th October,2004 and written statement taken on record subject to payment of Rs.3,000/- as costs. THE plaintiffs filed replication. Matter was listed before the Joint Registrar for admission/denial of documents on 18th August,2005 and on that date the defendants did not appear again. THE defendants had not filed documents as well. Matter was accordingly placed before the Court on 23rd September,2005. On that date also nobody appeared for defendants. THE defendants were again proceeded against ex-parte. THEreafter, the witness filed the affidavit and documents were accepted and arguments heard. It is clear from the above that the defendants have remained ex-parte. In the affidavit filed by the plaintiffs the averments made in the plaint are reiterated and various documents proved. Certified copy of the Board Resolution of plaintiff no.2 is exhibited as PW.1/1. Statement of various Registered Trade Marks which are owned by the plaintiffs are exhibited as PW.1/2. THE statement containing details of various pending applications for registration of trade mark T.T. is exhibited as Ex.PW.1/3. Certified copies of the trademark registrations are exhibited as Ex.PW.1/4 to Ex.PW.1/7. Annual Sales since 1969 certified by auditors are filed as Ex.PW.1/8, Ex.1/9 and Ex.PW.1/10. Copy of the extracts from the register of copyright is marked as Mark'A'. Copies of the advertisements appearing bearing trademark T.T. are marked as Mark 'B'. THE copy of Trade Mark Journal in which advertisement of defendant appeared are marked as mark 'C' and opposition of the said registration filed by the plaintiff is marked as Mark 'D'. It is clear from the above unrebutted testimony that the plaintiffs are a long established user of the trade mark 'T.T.' in respect of various goods including hosiery products. Most of these products with the said trade mark 'T.T.' are registered trademarks. THE sales figures which have gone up by several 100 times since the use of these products and the amounts spent on publicity clearly establish the claim of the plaintiffs that the aforesaid trade mark 'T.T.' in respect of these products is well established and associated with the plaintiffs. THEre are overseas sales also of more than Rs.55 crores every year in last 5 years. THE plaintiffs have also been able to establish the artistic work comprising inter alia letters "T.T." in a variety of forms, designs etc and registration thereof with the copyright authority. It is claimed that such extensive user with voluminous sale has created a lasting impression amongst the consumers and the trade in general and they associate the said mark/brand/logo/monogram/house mark/principal mark with the products of the plaintiffs and that the goods under the mark "T.T." are readily available in the remotest part of the country. THE plaintiffs, therefore, are the owner of trademark "T.T." and are also having copyright therein. THE adoption of the trademark "T.T." by the defendants in respect of silk and sarees amounts to not only infringing the plaintiffs' trademark and copyright but may cause confusion in the mind of public that these goods are that of the plaintiffs. No doubt the adoption of the word T.T. by the defendants is in respect of silk and sarees whereas the plaintiffs are dealing with hosiery products. However, apart from the fact that both are textile items, this much difference in the products would be totally insignificant and irrelevant in view of the test laid down by this Court in the case of DAIMLER BENZ AKTIEGESELL SCHAFT VS. HYBO HINDUSTAN AIR 1994 Delhi 239. THE suit of the plaintiff is accordingly decreed in the following terms: Decree in terms of prayers a to c. Insofar as prayer of damages is concerned, the plaintiffs have not produced any material on record to substantiate this except making a bald averment that plaintiffs established damages caused to them to the tune of Rs.20,05,000/-. THErefore, prayer of damages is rejected. THE plaintiffs shall also be entitled to cost. Decree be prepared accordingly. This suit stands disposed of.;


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