GEORGE LILLINGATON AND COMPANY LIMITED Vs. KESARWANI BROTHERS

JUDGEMENT

(1.) The plaintiff had filed the present suit seeking a permanent injunction to restrain the defendants for infringement of the plaintiffs registered copyright nos. A-32770/81, A-32765/81, A-32768/81, A-32766/81 by using the offending layout, design, colour scheme on the packings as the one used by the plaintiffs and restraining the defendants from using the mark SUPER SNWOCEM, which is an infringement of the plaintiffs trade mark SUPER SNOwCEM. It further seeks a permanent injunction to restrain the defendants on their behalf from using the impugned label with the mark SUPER SNOWCEM so as to pass of and enable others to pass off SUPER SNOwCEM cement paints of plaintiff's manufacture. It is prayed further that defendant should render accounts of profits earned by them from the sale of the cement paint under the said impugned mark.

(2.) The facts alleged are that plaintiff no.1, George Lillington & Co. Ltd, London is incorporated and organised under the laws of England and carrying on business, inter alia, in cement paints. It is the registered proprietor of the trade mark SNOwCEM under no. 89847 in class 2 of Schedule IV of the Trade and merchandise Marks Act, 1985. This trade mark has been renewed from time to time and subsist on the register of the trade marks. Plaintiff no.3, Snowcem India Ltd is the registered user of the trade mark SNOWCEM in India. The said paints under the trade mark SNOWCEM are manufactured and filled in jars, drums and sacks of various sizes duly marked, painted and sealed at their factory in Bombay and district Nagaur, Rajasthan besides in Tamilnadu. Plaintiff no.2, Killick Nixon Limited, is the user of the trade marks SNOwCEM. It is duly registered with the Registrar of Copyrights as proprietor of copyrights work in respect of the same vide registration nos.A-32770/81, A-32765/81, A-32768/81, A-32766/81. Plaintiff no.3 is affixing its copyright on drums and sacks in which SNOWCEM is packed. M/s Killick Nixon Ltd, Bombay is the distributor of the said Snowcem India Limited.

(3.) It is the case pleaded that the trade mark SNOWCEM is continuously and regularly being used by the plaintiff no.2 with respect to the cement paints in India for last more than 38 years. It is a very well known advertised trade mark and is world renowned trade mark. The said cement paints under the trade mark SNOWCEM is sold in every nook and corner of India. It has achieved a unique reputation, name and goodwill. The Snowcem cement paint is sold in Jars, drums and bags. The drums are painted with yellow background and the mark SNOWCEM is written conspicuously in bold letters. There are diagonal lines of blue colour. Similarly bags are affixed with the trade mark SNOwCEM along with diagonal blue lines. The containers used for SNOWCEM are special types and thus has a special get up and layout. The above said registration is existing for past 38 years.