TMI Blog2013 (4) TMI 506X X X X Extracts X X X X X X X X Extracts X X X X ..... in their minds especially when both trademarks look exactly similar. Further the plaintiffs have been able to prove that they have attained good reputation in the market. Thus, with regard to the trademark KIDCO, I find that the defendants‟ acts constitute passing off - This provision makes it very clear that infringement of trademark can only be attributed to those marks which are registered. But this does not preclude a person from protecting his unregistered trademark under the act of passing off. Thus, since the mark KIDCO has not been registered as yet, I do not find the defendants‟ acts to be one of infringement. Order of permanent injunction passed, restraining the defendants from importing their products under the trademark KIDCO and from selling and manufacturing their products under the same mark within the territory of India. - C. S (O.S) 473/2005 - - - Dated:- 2-4-2013 - M. L. Mehta,J. Ms. Bitika Sharma with Ms. Chandrika Gupta, Advs. Nemo. JUDGMENT 1. This is a suit filed by the plaintiffs for permanent injunction, passing off, rendition of accounts, delivery-up and damages, with respect to the plaintiffs‟ marks KIDO and KI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n selling the products of defendant no.2 in India. The defendants deny the averments made in the plaint and submit that they have been using the said mark KIDCO since the year 1993. They subsequently got the trademark registered in Pakistan in the year 1996. Owing to this fact, the defendants contend that it is the plaintiffs who are copying their trademark. As regards the registration of the plaintiffs‟ trademark KIDO, the defendants submit that they have filed a rectification before the Intellectual Property Appellate Board in order to oppose the using of deceptively similar and identical trademark KIDO, by the plaintiffs. 5. On the first date of hearing, a Local Commissioner was appointed to visit the premises of the defendant no.1 and to prepare an inventory of the goods bearing the mark KIDCO upon confectionery, candies, wafers, biscuits and other allied goods as well as in regard to packing material, dyes, brochures etc. The Local Commissioner visited the premises of defendant no.1 and prepared an inventory of the infringing products. Photographs of the infringing products were also taken by the representative of the plaintiff and are on record. 6. The Court framed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icate for registration of the mark KIDCO under the Copyright Act. 9. The second witness Sh. Satwant Singh Dang deposed on behalf of his wife, Mrs. Paramjeet Kaur, sole proprietress of plaintiff no.2. In his affidavit of evidence, he stated that the plaintiff no.1 had given permission to plaintiff no.2 in 2003 to use the mark KIDO and to manufacture under the same name. He also restated all the averments of the plaint. 10. Out of the seven issues framed, one is to be proved by the defendants and the rest six are to be proved by the plaintiffs. 11. The first issue is whether the plaintiffs are the registered proprietors and owners of the trademarks KIDO and KIDCO. It is seen that the originals of two trademark certificates have been placed on record. One trademark registration number 1038080 is registered under class 30 goods with respect to biscuits, bread and namkeen. The second trademark registration number 967051 is registered again under class 30 goods, qua biscuits and confectionery. Both the above mentioned certificates are for the registration of the trademark KIDO. Thus, it is amply clear that the plaintiff is the registered proprietor and owner of the trademark KIDO. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were in fact the ones infringing on their trademark. Although the defendants have contended this submission in their written statement, they have not proved the same. For want of proof, the fourth issue stands decided against the defendants. 15. The second and third issues can be dealt with together. The issue here is whether the acts of the defendants constitute infringement and passing off. The defendant no.2 is a Pakistan based company, which imports its products to India through defendant no.1. From the report of the Local Commissioner, it is seen that the defendant no.2 intends to start selling its products in India. The mark used on the defendants‟ products is KIDCO, written exactly in the same manner as that of the plaintiffs‟ trademark KIDCO, with the figure of a child in place of the letter I‟. Further, the class of goods in which the defendants are trying to sell their products is the same as that of the plaintiffs‟. Owing to the fact that the class of goods is confectionery, the majority of customers would be children. There can be no doubt that there would be confusion in their minds especially when both trademarks look exactly similar. Furthe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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