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2013 (8) TMI 352 - DELHI HIGH COURTProprietor of Trademark – Passing off of Goods - Whether the plaintiff was the proprietor of the trademark FENA, if so to what effect - Whether the user of trade mark/ trade name FINAby the defendant in relation to toiletries, cosmetic, detergents, cleaning and polishing preparations, lubricants or any other goods under the trade mark FINA was likely to cause confusion or deception amounting to passing off – Held that:- There can be no concern of confusion with regard to goods and services of the plaintiff outside of Class 3 - Decided in favour of the plaintiff only to the extent of Class 3 goods and services, and against the plaintiff with regards to goods and services outside Class 3. There were no factors of confusion existing between the businesses of the rival parties - Mahendra & Mahendra Paper Mills Ltd. v. Mahindra Mahindra Ltd.[2001 (11) TMI 978 - SUPREME COURT] - The market, trade channels, course of trade and most importantly, the class customers of either parties were entirely different - it was the admitted position that the plaintiff was a household name regarding detergent powder and soaps under the name FENA – They also hold valid trade mark with respect to Class 3 goods in India - Meanwhile, the defendant also holds worldwide - reputation in the petrochemical market and enjoys trans-border reputation in the relevant market –, the defendants goods primarily belong to Class 4 of the Classification of Goods and Services under the Trade Mark Act. Territorial Jurisdiction - Whether this Court has jurisdiction to entertain and try the present suit - Held that:- The issue was in favor of the plaintiff - The plaintiff had placed on record the invoice for purchase of the goods bearing the impugned trade mark - By virtue of the admission and in accordance with Sec. 58 of the Indian Evidence Act, 1872, the plaintiff was not required to prove any further - the sale of goods carrying the trade mark within the territorial limits of the Court’s jurisdiction Damages - Permanent Injunction - Whether the plaintiff was entitled to rendition of accounts, profits and/or damages, if so, how much - Held that:- The plaintiff was entitled to a permanent injunction restraining the defendants from using the impugned trade mark FINA’ with respect to goods and services under Class 3 - The plaintiff had been able to establish that it enjoyed strong goodwill and reputation with respect to soaps and detergents within India - the plaintiff had not been able to prove pecuniary loss thus it was not entitled to either damages or rendition of accounts – Decided in favor of Petitioner.
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