SUNSTAR LUBRICANTS LIMITED Vs. FEDERAL CHEMICAL INDUSTRIES
HIGH COURT OF DELHI
SUNSTAR LUBRICANTS LIMITED
FEDERAL CHEMICAL INDUSTRIES
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K. Ramamoorthy, J. -
(1.)The plaintiffs claim to the trade mark GOLDEN CRUISER 1200. The defendants claim the trade mark SUN CRUISER 2001. -
(2.)The plaintiffs and defendants are engaged in the same business of manufacturing and selling automobile coolant and other attendant products. The suit was instituted by the plaintiffs on 28.8.1990. In the original plaint, the plaintiffs claimed the relief of injunction on the ground of passing off. On 7.1.1991 the plaintiffs filed IA. 210/91 for amendment of the plaint claiming the relief of infringement of trade mark on the ground that the-trade mark claimed by the plaintiffs have been registered by the Registrar under the Trade Marks Act, 1958 and, therefore, they are entitled to the injunction on the ground of infringement of trade mark also. The following are the reliefs claimed in the amended plaint:
"(aa) An order for permanent injunction restraining the defendants, their officers, servants and agents from manufacturing, selling, offering for sale, advertising, directly or indirectly dealing in automobile coolants under the trade mark SUN CRUISER 2001 or any other mark as is identical to or deceptively similar with the plaintiffs' trade mark GOLDEN CRUISER 1200 or from doing any other thing amounting to infringement of registered Trade Mark No. 455304 of the plaintiffs.
(a) An order for permanent injunction restraining the defendants, their officers, servants and agents from manufacturing, selling, offering for sale, advertising, directly or indirectly dealing in automobile coolant and brake and clutch fluids or any other cognate or allied goods under the trade mark or trade name SUN CRUISER 2001 or any other mark or name as is identical toor deceptively similar with the plaintiffs' trade mark GOLDEN CRUISER 1200 or from doing any other thing as is likely to leading to passing off of the defendants' goods or business as the goods and business of the plaintiffs.
(b) An order for rendition of accounts of profits illegally earned by the defendants and a decree be passed in the amount so ascertained.
(e) An order for delivery up of all infringing materials including unused containers, blocks, dies etc. for purposes of destruction and/or erasure.
(d) An order for costs in the proceedings."
(3.)After the amendment of the plaint the plaintiffs filed IA. 8594/91 for injunction on the basis of the averments in the amended plaint. The case of the plaintiffs tersely stated is this :
The first plaintiff Sunstar Lubricants Limited is registered under the Indian Companies Act having its registered office at Suite 2,10, Hailey Road, New Delhi. The second defendant Livingpoint Sales Pvt. Ltd. is a Company having its registered Office at 203, Defence Colony Flyover Market, New Delhi. Plaintiff No. 2 commenced business of manufacturing and selling of automobile coolants since May 1986 under the trade mark GOLDEN CRUISER 1200. The word "Cruiser" means a worship of high speed and medium armament and it was chosen by the second plaintiff being a fancy trade mark in relation to automobile coolants. By deed of assignment dated 25.8.1989 the second plaintiff transferred the right, title and interest in the trade mark to plaintiff No. 1. The trade mark was registered under Registration No. 455304. Though the Registrar of Trade Marks issued a Certificate of Registration on the 15th day of November, 1990, the plaintiffs do not say in the amended plaint the date on which the Registrar issued the order. Perhaps the attempt was from reading of the plaint one should get the impression that even before the date of plaint the reader should get the impression that it was registered. The mark GOLDEN CRUISER 1200 has been extensively advertised and a lot of money has been spent by the plaintiffs. Another point to be noted is there has been a disclaimer to the following effects before the Registrar :
"Registration of this Trade Mark shall give no right to the exclusive use of the numeral "200"."
This disclaimer is also not mentioned in the plaint.
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