Shekhar B.Saraf,J. - (1.) This suit has been filed by plaintiffs wherein the plaintiff No. 1 is a registered partnership firm incorporated under the Indian Partnership Act, 1932, carrying on business from 4, N.S.C. Bose Road, Malancha (Mahinagar), Kolkata - 700072 and also from 29/1B, Chandni Chowk Street, Kolkata - 700072 of which plaintiff No. 2 and 3 namely Mr. Rajeev Jain and Mr. Sanjay Dugar are partners engaged in the business of dealing in various types of speakers, parts and components thereof. The plaintiff no.4 is a limited liability partnership of which plaintiff No. 5 and 6 namely Mr. Vinod Kumar Jain and Mr. Rahul Agarwal are the partners and carrying on business from 85, N.S. Road, Kolkata - 700146 against the defendant Mr. Ramesh Jain carrying on business under the name of M/s. G.K. Electricals, as a sole proprietor from 45/5A/1, Main Road, East Azad Nagar, Near Agarwal Sweets, Delhi -110051 [hereinafter referred to as 'said defendant'] for the infringement of the registered trade mark "SWETON" by the said defendant.
(2.) Plaintiff no. 1 carries on business under the trade mark "SWETON" represented in a composite label. The plaintiff no. 4 is the licensee of the plaintiff no. 1 and has been permitted to use the said trade mark "SWETON" [hereinafter referred to as 'said trade mark'] in respect of speakers, parts and components thereof [hereinafter referred to as 'said goods'].
(3.) The chronological facts of the instant case are as follows: a. Mr. Vinod Kumar Jain trading as Veekay Electronics adopted the trademark "SWETON" for the purpose of using the same in respect of various types of speakers, parts and components thereof. The trademark was also used as a label in a composite manner consisting of the word "SWETON" in respect of the said goods and started using the same since 1982 without any interruption. b. Mr. Vinod Kumar Jain applied for the registration of the artistic getup of the label including the distinctive part of the mark "SWETON" as a mark on 26th August, 1996 in respect of speakers of all kinds, parts and components thereof, electrical and electronic goods, which was duly registered on 31st December, 2002 being trade mark no. 725349B in Class - 9 under the Trade Marks Act, 1999 having a retrospective effect from the date of application that is from 26th August, 1996. c. Mr. Vinod Kumar Jain in order to get the exclusive right over the use of the said mark filed an application on 20th August, 1996 for registration of the same in respect of the said goods. The trademark was registered on 2nd January, 2004 being trade mark no. 725063 in Class - 9 under the Trade Marks Act, 1999 with retrospective effect from the date of application that is from 20th August, 1996. d. On 5th June, 2000 Mr. Vinod Kumar Jain by way of a Deed of Assignment assigned the said trade mark having registration Nos. 725349B and 725063 in favour of the plaintiff no. 1. Upon such assignment plaintiff no.1 became the exclusive owner of the said trade mark. e. On 16th April, 2014 plaintiff no. 1 by way of a license granted plaintiff no. 4 to use the said mark having registration no. 725349 with respect to speakers only. f. In the month of January, 2016 plaintiffs came to know that the speakers which are not being manufactured by the plaintiffs are being sold in the market under the mark "SWEETON" having a similar label that of the plaintiffs registered trade mark. g. The plaintiffs then purchased few pieces of speakers on 11th January, 2016 from the defendant which was sold by the defendant under the mark "SWEETON" having a similar label to that of the plaintiffs registered trade mark. ;