- (1.) In this rolled up action for infringement and passing-off, the plaintiff asserts its exclusivity over the trade mark "Arati" in respect of edible oil on the strength of the plaintiff's word mark registration in "Arati" and divers label registrations where the plaintiff claims that "Arati" is the dominant feature.
(2.) On the cause of action of infringement, the plaintiff insists that all it is required to demonstrate is that the defendants have used the plaintiff's mark as a part of their mark in relation to similar goods as those covered by the plaintiff's mark. The plaintiff says that the use of an additional word by the defendants would be of no relevance since in the defendants' "Sandhya Arati" mark it is the "Arati" word that stands out and the word "Sandhya" is an embellishment or a distraction. On the additional cause of action of passing-off, the plaintiff suggests that the defendants' coinage of their mark was with notice of the plaintiff's rights in respect of "Arati" and was calculated to cause confusion with intent to trade upon the goodwill and reputation of the plaintiff's mark and the established quality of its product.
(3.) By an agreement of October 1, 2003, the erstwhile owner of ten word and device marks agreed to assign such marks for valuable consideration to the plaintiff. The plaintiff claims that the assignment was completed upon the execution of a document in March, 2007. A copy of the relevant document of March, 2007 was made over to the defendants at the ad-interim stage. The plaintiff shows from the documents on record that the second defendant is an erstwhile director of the plaintiff and that both the defendants continue to be shareholders of the plaintiff company.;