Bhaskar Bhattacharya, J. - (1.) This first miscellaneous appeal is at the instance of a plaintiff in a suit for declaration and injunction alleging violation of registered trade mark and complaining "passing off and is directed against Order No.17 dated January 10, 2005 passed by the learned Judge, 7th Bench, City Civil Court at Calcutta in Title Suit No. 258 of 2004 thereby rejecting an application under Order 39 Rules 1 and 2 of the Code of Civil Procedure filed by the appellant for restraining the respondents from committing breach of trade mark and passing off its goods as that of appellant.
(2.) The appellant filed the aforesaid suit in the City Civil Court at Calcutta thereby praying for the following relief: (i) Declaration that the plaintiff alone is entitled to use the trade mark/ word CENTURY in its business of plywood, block board and allied products; Declaration that the defendant shall have no right to use the word CENTURY and/or the word/name CENTURIAN being a derivative and deceptively similar word/mark with CENTURY, in any manner and form whatsoever in relation to plywood, block boards and/or allied products in the course of business, in infringement of the plaintiffs registered trade mark; (ii) Decree of perpetual injunction restraining the defendant by their proprietor, partners, officers, servants, agents, dealers, stockists, vendors, assigns and each of them from in any way infringing the plaintiffs registered trade mark CENTURY and/or any deceptively similar mark, visually or phonetically or any colorable imitation thereof, in any manner whatsoever by using, advertising, selling, offering for sale, exhibiting for sale plywood, block boards, and/or any goods allied thereto; (iii) Decree for perpetual injunction restraining the defendant by their proprietor, partners, officers, servants, agents, dealers, stockists, vendors, assigns and each of them from using the word CENTURIAN, and/or logo CENTURIAN, as represented in Annexure 'F' hereto, and/or any deceptively similar mark or any colorable imitation thereof, in any manner whatsoever by affixing, labelling, packaging such mark or marks in respect of plywood, block boards and/or any goods allied thereto with any such mark or marks and taking undue and unfair advantage of the reputation of, or is detrimental to the plaintiffs registered trade mark CENTURY and its distinctive character; (iv) Decree of perpetual injunction restraining the defendant by their proprietor, partners, officers, servants, agents, dealers, stockists, employees, vendors, assigns and each of them or otherwise howsoever from passing off or attempting to pass off or enabling others to pass off plywood, block boards or allied goods by the use of the mark, word CENTURIAN and/or the logo CENTURIAN or any name/mark/logo confusingly and/or deceptively similar to the mark/logo CENTURY; (v) Decree of permanent injunction restraining the defendant by their proprietor, partners, officers, servants, agents, dealers, stockists, vendors, assigns and each of them from in any way infringing the plaintiffs copyright involving the logo/artistic work CENTURY mentioned in paragraph 10, and annexed as 'A' to the plaint; (vi) Accounts of the profits made by the defendant by selling/distributing and/or otherwise dealing in plywood, block boards and allied goods bearing the impugned mark CENTURIAN by way of infringement/ passing off; (vii) Delivery up to the plaintiff by the defendant of affidavit of all goods bearing the impugned mark CENTURIAN in the possession and control of the defendant and all price-lists, copies of invoices and other incriminating documents and advertisements, blocks, dies, stencils, cartons, containers of the impugned goods in possession and control of the defendant and in the possession and control of each of their partner, proprietor, person-in-charge, officers, agents, servants, employees, for destruction; (viii) Leave under Order 2 Rule 2 of the Code of Civil Procedure; (ix) An enquiry into damages suffered by the plaintiff and a decree in favour of the plaintiff for such sum as may be found due upon such enquiry; (x) Such other injunction as would afford adequate relief to the plaintiff; (xi) Receiver; (xii) Attachment; (xiii) Costs; (xiv) Further or other reliefs."
(3.) The case made out by the plaintiff is as follows: (a) The plaintiff is a company incorporated under the Companies Act, 1956 and carrying on business of manufacturing and trading plywood and block boards, particle boards, decorative plywood, decorative laminates, laminates of various kinds and boards, plywood products of different natures in the name of CENTURY which has been derived from the initial of the plaintiffs corporate name and is exclusively associated with the plaintiff company. (b) The plaintiff in order to identify and distinguish its products from the similar products of other manufacturers and traders, in the course of business, conceived of, originated and got designed a unique mark, to wit, the word 'CENTURY' written horizontally inside two concentric circles in a particular novel artistic manner and has been using the same mark, as a logo/ house mark on every products of the plaintiffs manufacture and marketing since 1993. (c) By reason of aggressive marketing strategy, making excellent quality of the products through continuous research to upgrade the nature of goods, the plaintiff has been able to create a lasting impression for the principal mark/house mark/trade mark CENTURY in the minds of consumers, in the last 11 years and the name CENTURY has been considered as most prominent and leading mark in India by plywood and allied industries. (d) By virtue of very extensive use, the same name/mark/logo CENTURY has become denotative and connotative of the plaintiffs business and a precious property of the plaintiff. The plaintiff has also made extensive advertisements and spent several millions of rupees in sales promotion and/or popularizing the trade mark CENTURY in the Indian markets. Reputed personalities like Nawab of Pataudi and others have been employed for sales promotion. (e) By reason of vast and voluminous use of the word/name/mark CENTURY for over 11 years, uninterruptedly in relation to plywood, block boards products, boards of various kinds, veneers coupled with widespread publicities given to make known and popularise the said mark and logo, and its products thereunder amongst the trade and the public, a common law right has been created in favour of the plaintiff. The plaintiff is, thus, the proprietor of the said trade mark CENTURY and the logo/monogram and is entitled to prevent any person or persons from subsequently using the same and/or any deceptively similar trade mark having close nexuy with the plaintiffs well known mark CENTURY and/or logo in respect of same and/or similar description of goods and also from selling or offering for sale such kind of nexus having well known mark CENTURY. (f) To get statutory protection of the mark and/or logo CENTURY, the plaintiff duly applied for various registrations and has obtained the registration certificates from the Trade Marks Authority, Government of India, after complying with all necessary formalities under the Trade Marks Act, 1999 and the Rules thereunder. (g) The plaintiff is, thus, vested with the statutory right conferred upon them under section 28 of the Trade Marks Act, 1999 and entitled to the relief as provided in section 135 of the said Act, in case of any infringement of their statutory right and/or for passing off of their trade mark/logo CENTURY. (h) The tremendous goodwill and reputation of the business of the plaintiff earned by using the said mark/logo CENTURY in relation to its plywood products, block boards, Veneer etc. ever since the year 1993 is evident. From the fact that in the last 10 years the sales effected by the plaintiffs plywood/block boards products and laminates with the mark CENTURY has gone up to the tune of Rs. 630 crore while the publicity expenses incurred to the extent of Rs. 23 crore is indicative of the popularity and the acceptability of the plaintiffs registered and established trade mark/logo CENTURY in the Indian markets. (i) The plaintiff recently received complaints from the markets, consumers, traders that inferior quality of plywood and block board products, very similar with the mark/logo CENTURY are being sold in the market and as a result, there is large scale confusion among the consumers and traders had arisen. (j) On enquiry the plaintiff came to know on 13th November, 2003 that the respondent through their various dealers, stockist had been pushing plywood and block boards product in the market, marked with the name/ brand CENTURIAN in identical form, get up and design in different outlets of various parts of the country including those in Calcutta, Delhi and adjoining areas. (k) It is apparent that the respondent mischievously copied the plaintiffs well known and registered trade mark CENTURY in every details, including the style of presentation in the logo, in order to come close to the plaintiffs reputed trade mark/logo and has been trying to cash in the enviable reputation in the fields of plywood and block boards products. In view of such fact, the plaintiff served a notice upon the respondent by letter dated 14th November, 2003 through its Trade Mark Attorneys asking them to forthwith cease and desist from selling, exposing for sale, possessing for sale, exhibiting for sale, enabling others for sale the plywood, block board products with the logo/name/ mark CENTURIAN in falsification, infringement of the plaintiffs original trade mark CENTURY. (1) In reply to the said registered notice, the respondent through its partner sent a reply on 25th November, 2003 denying all averments and contentions of the plaintiffs letter. In the said letter respondent admitted that they were using the word CENTURIAN as a trade mark, but refused to comply with the requisitions asked for by the plaintiff. Hence the suit.;