M/S.ADD PRINT ENTERPRISES Vs. M/S.MOHAN IMPRESSIONS PVT LTD.

JUDGEMENT

(1.) The plaintiff is the applicant in all the three applications. The suit is filed for injunction reliefs against act of infringement of plaintiff's registered trade mark "Sun Stamper" and design of pre-inked rubber stamp and against passing off the goods of the defendant as that of the plain-tiff by use of trade mark, which is deceptively similar to that of the plaintiff's trade mark or registered design. O.A. Nos. 635 to 637 of 2010 are filed by the plaintiff for interim injunctions in the same line of perpetual injunction reliefs sought for in the main suit.

(2.) The facts that the plaintiff and the defendant are private limited companies and have been carrying on the business of manufacturing and marketing rubber stamp and marking system, and have been doing their business within Kerala and Chennai, and Calcutta respectively under different registered trade mark "Sun Stamper" and "Presto Instanza" respectively and that box type pre-inked rubber stamp is one of the products of the plaintiff and the defendant are not seriously denied. While, according to the plain-tiff, the design of his trade mark "Sun Stamper" registered on 04-08-2005 and the particular box type pre-inked rubber stamp registered on 27-12-2006 is unique, distinct and his innovatory model and has earned large popularity and the plaintiff incurred heavy expenditure for advertising the same and the registered trade mark and design of the plaintiff is infringed by the defendant by use of deceptively similar trade name and box type pre-inked rubber stamp and the same is likely to create confusion in the mind of the consumer regarding the ownership of the products and in the event of the same is being allowed to continue, the same is likely to cause greater prejudice to the plaintiff.

(3.) The defendant has opposed the relief sought for herein by denying the innovative nature of the design and according to the defendant, the defendant had been dealing with box type pre-inked rubber stamp of various sizes since 1995 and one Japanese Company by name Yamahachi Chemical Co. Ltd., at 54-4, O-Chigara, Nishiyara-Cho, Gamagori, Aichi-4430105, Japan is already engaged in manufacture and marketing of similar type of box type pre-inked rubber stamp machine and the defendant, having come to know about the same through internet publication, imported the same from Japanese Company and introduced the same in India in or about November, 2006, that is much earlier to the date of application of the petitioner in December, 2006 for registration of design. As the design is already introduced in the market in India by the respondent and as the same much before the registration of the same in favour of the plaintiff become popular all over India, there is no novelty and innovative nature in the plaintiff's de-sign and the registration of the same in the name of the plaintiff will not confer any right upon him to claim exclusive use of the de-sign as against all others. It is further con-tended by the defendant that as both the de-signs are distinct and different no confusion or mistake regarding the source of the products will arise in the mind of the consumers so as to cause any prejudice to the applicant, as such the petitioner is disentitled to claim any injunction relief as sought for herein. It . is further contended by the defendant that as the trade mark of the plaintiff and the defendant i.e. "Sun Stamper" and "Presto Instanza" are entirely different and also the area of the operation is entirely different, no question of infringement of the registered trade mark is made out.