BOROSIL GLASS WORKS LIMITED Vs. O P BATRA
LAWS(DLH)-1995-11-40
HIGH COURT OF DELHI
Decided on November 10,1995

BOROSIL GLASS WORKS LIMITED Appellant
VERSUS
O.P.BATRA Respondents


Referred Judgements :-

JOSEPH RODGERS AND SONS LTD. V. W.N. RODGERS AND CO. [REFERRED]
PARKER KNOLL LIMITED V. KNOLL INTERNATIONAL LIMITED [REFERRED]
RAWAL INDUSTRIES (P) LTD. V. DUKE ENTERPRISES AND OTHERS [REFERRED]
KAMAL TRADING CO. AND OTHERS V. GILLETTE U.K. LIMITED [REFERRED]
L.R.C. INTENTATIONAL LITNITED AND ANOTHER V. LULA EDETS SALES COMPANYLTD. [REFERRED]
AKTIESELSKAB AND ANOTHER V. LEGO M. LEMELSTRICH LTD. [REFERRED]
MIS. ATLAS CYCLE INDUSTRIES LTD. V .CEYLON CYCLES LTD. [REFERRED]
MIS. HINDUSTAN PENCILS PVT. LTD. V. MIS. INDIA STATIONERY PRODUCTS CO.AND ANOTHER,AIR [REFERRED]
POWER CONTROL APPLIANCES SUMEET RESEARCH AND HOLDINGS VS. SUMEET MACHINES PRIVATE LIMITED :SUMEET MACHINES [REFERRED]
NESTLES PRODUCTS LIMITED VS. MILKMADE CORPORATION [REFERRED]
JUGMUG ELECTRIC AND RADIO CO VS. TELERAD PRIVATE LIMITED [REFERRED]
TATA IRON AND STEEL COMPANY LIMITED VS. MAHAVIR STEELS [REFERRED 63 RPC .171]
DAIMLER BENZ AKTI VS. HYDO HINDUSTAN [REFERRED]
BAJAJ ELECTRICALS LTD VS. METALS AND ALLIED PRODUCTS BOMBAY [REFERRED]


JUDGEMENT

K.Ramamoorthy, J. - (1.)On 23.2.95 the plaint in the suit was presented praying for the following reliefs :-
"(a) For permanent injunction restraining the defendant themselves, their servants, their dealers, stockists, agents, shopkeepers and all other persons on their behalf from using the trade mark BOROSIL in respect of Mixer-cum-grinder, Juicer, Food Processor and Washing Machine and other allied and cognate goods and thereby passing off and enabling others to pass off their goods as the goods of the plaintiff. (b) For permanent injunction restraining the defendants themselves, their servants, dealers, stockists, agents, shopkeepers and all other persons on their behalf from using of the trading style Borosil Appliances in respect of their business by manufacturing Mixer-cum-grinder, Juicer, Food Processor and washing machine or any other cognate and allied goods by passing their trading style as that of the plaintiff's trade mark and corporate name or by using of any other trade mark which is identical or deceptively similar with the trade mark BOROSIL of the plaintiff. (c) For delivery upon affidavit by the defendants to the plaintiff of the impugned trade mark BOROSIL and Borosil Appliances, plates, blocks, stationery, advertising and printing material for purposes of destruction and/or obliteration as the case may he. (d) For rendition of accounts into the profits earned by the defendant in respect of the sale of their goods under the trade mark Borosil as well as trading style Borosil Appliances during the last three years and for a decree of the amount so found due. (e) For costs of the suit."

(2.)The case of the plaintiff briefly is as follows : The plaintiff has been carrying on business under the trade mark BOROSIL since 14th December, 1962. The mark is registered under the Trade Marks Act, 1958 in the following manner :-
"Trade Mark No. Class Goods 427793 21 Small domestic utensils and containers (not of precious metals or coated there with) glass ware - porcelain and earthen ware not included in other closes. 427792 16 Paper and paper articles including filter paper. 427789 9 Scientific, electrical apparatus and instrumnent teaching apparatus. 427790 10 Surgical and Medical Instruments & apparatus. 427791 11 Installations and parts thereof for lighting, heating, steam generating and cooking."
The plaintiff claims exclusive right and according to the plaintiff the trade mark has acquired a very great name in the public and the plaintiff has given the sales figures which are as follows :- JUDGEMENT_414_DLT61_1996Html1.htm The plaintiff has also given the expenses incurred for advertising from the year 1997, which are as under :- JUDGEMENT_414_DLT61_1996Html2.htm It is stated by the plaintiff in paragraph 11 that the plaintiff is an expanding company and it is planning to enter cognate and consumer products in respect of various household utensils, electrical goods, Mixer-cum-grinder, thermoware, ovens etc. It is asserted by the plaintiff that the trade name BOROSIL and the corporate name Borosil in India as well as abroad denote the goods coming from the house of the plaintiff. The plaintiff in or about May 1992 came to know about the user of the trade mark by the defendants and on 28th May 1992 a notice was issued by M/s. Crawford Bayley & Co. to the defendants. There is no reply. On 4.4.94 another notice was issued calling upon the defendants to discontinue the trade mark BOROSIL in respect of kitchenware and other goods and also use of the name Borosil. By reply dated 27th April, 1994 the defendants admitted use of the trade mark Borosil in respect of Mixer-cum-grinder, Juicer and washing machine but the defendants gave justification for use of the name. By reply dated 11.6.94 the plaintiff wrote back to the defendants in answer to then letter dated 27.4.94. On 30.6.94 the defendants sent an undertaking which was not acceptable to the plaintiff as the defendants did not agree to stop the user of the trade mark BOROSIL. Again on 24th August, 1994 the plaintiff sent a reply informing the defendants that they shall not use the trade mark BOROSIL with respect to Mixer-cum-grinder, Juicer and Food Processor and washing machine. By letter dated 16.9.94 the defendants agreed to change the name of the company Borosil Appliances and they kept on using the trade name BOROSIL in respect of the Mixer-cum-grinder, Juicer, Food Processor and Washing Machine.
(3.)The user of the trade mark by the defendant is not lawful and they arc purposely trading on the name of the plaintiff's trade mark. The goods sold by the plaintiff and the defendants belong to the same class and their use in the kitchens and, therefore, the general public would be greatly alfected by the deceptive similarity which would effect the business of the plaintiff The defendants being a competitor of the plaintiff are fully aware of goodwill and the name of the trade mark BOROSIL of the plaintiff and the conduct of the defendants is deliberate and with main fide intentions they are passing off their goods as the goods of the plaintiff. The defendants have already made huge and illegal profits by using the name of the plaintiff. On these allegations, the plaintiff has come forward with the reliefs adverted to above.
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