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Larsen and Toubro Limited Versus Lachmi Narain Trades and Ors.

2008 (2) TMI 931 - DELHI HIGH COURT

FAO(OS) 601/2006 - Dated:- 8-2-2008 - T.S. Thakur and Veena Birbal For the Appellant/Petitioner/plaintiff: A.S. Chandhiok, Sr. Adv., Sharukh Kanthawala, Purnima Sethi, Ashish Wad, Neeraj Kumar and Chirag Dave, Advs For the Respondents/Defendant: Neeraj K. Kaul, Sr. Adv., Rishi Aggarwal and Akshay Ringe, Advs. JUDGMENT T.S. Thakur, J. 1. This appeal arises out of an order dated 28th July, 2006 passed by a learned Single Judge of this Court whereby an ad interim order of injunction earlier issued .....

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nd use of the trade mark 'LNT' by it is malafide and intended to take advantage of the tremendous reputation which the plaintiff-appellant has earned in the commercial world. The controversy arises in the following backdrop: 2. The appellant Larsen and Toubro Ltd. for short 'LandT' is engaged in diverse business activities including transportation and infrastructural development, finance, information technology within and outside this country. Nearly a dozen subsidiary companies .....

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d visual media. The publicity expenditure, has according to the plaintiff-appellant, gone up from ₹ 7 crores in 1991-1992 to ₹ 53 crores in 2001-2002. Suffice it to say that according to the averments made in the plaint, the words/abbreviation 'LandT' has acquired a secondary meaning associating the same exclusively with the plaintiff which abbreviated or stylised form has been used by the appellant exclusively and extensively for considerable length of time stretching over n .....

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wary customers. The plaintiff's case, as set out in the plaint, was that the use of name/abbreviation 'LNT' by the defendant was intended to capitalize on the goodwill of the plaintiff, for otherwise there was no reason for the defendant to adopt such a name and abbreviation. It was also alleged that the defendant/respondent had applied for registration of the trade mark 'LNT' under Section 18 of the Trade and Merchandise Marks Act before the trade marks authority. Pending th .....

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ndants, their servants, agents etc. from using the marks/names/words/abbreviation LNT/ELENTE and any other deceptively similar name in relation to any of the goods being marketed by the defendants. 5. The defendants contested the suit in the written statement filed by them inter alias alleging that the name LNT/ELENTE was not similar to the trade mark and trade name used by the plaintiff. It was alleged that while the plaintiff was using the letters L and T for its products in conjunction with o .....

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ty in the year 1952 followed by certain other firms in the name of Lachmi Narain Electricals, Lachmi Narain Trades, Lachmi Narain Cables and Lachmi Narain Manas Export Oriented unit. It was further alleged that the defendants have been trading in electric miniature circuit breakers, electric rotary switches, electric PVC insulating tape, electric fluorescent chokes under the trade name LNT and that the plaintiff was aware of the business carried on by them. There was, according to the defendant, .....

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leader in respect of its goods. 2) The abbreviation LandT used by the plaintiff-appellant are well-known and are identified with the goods manufactured and marketed by the plaintiff. 3) The abbreviation LandT has acquired a secondary meaning inasmuch as the moment the words L and T appear on a product, the consumer associates the same with the plaintiff. 4) The adoption of abbreviation LNT by the defendant does not appear to be bonafide inasmuch as even when the defendants have been in business .....

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. 7. Having said so, the Court adverted to a suggestion made by the defendants and their willingness to use the trade name on the products in the following form: LNT/ELENTE-Lachmi Narain Traders 8. That suggestion found favor with the learned Single Judge, who felt that the user of the trade name in the manner indicated above was bound to rule out any confusion in the minds of the customers with the product being purchased by them for that of the plaintiff. The ex parte injunction earlier issued .....

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udge having found on a question of fact that the use of trademark/logo LNT by the defendants was likely to create confusion and that the adoption of the said trademark/logo was not bonafide, there was no room for allowing the defendants to continue using the same in an extended form. The appellant had, according to the learned Counsel, no objection to the use of the full form of 'Lachmi Narain Trades' by the defendants-respondents herein so long as the defendants did not use the abbrevia .....

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laced by Mr.Chandhiok upon the following passage of the order passed by the learned Single Judge: 12. In so far as reputation acquired by the plaintiff in respect of its goods is concerned, it hardly needs elaborate discussion. From the documents on record, sales figures and amounts spent on advertisements etc., it is clearly established that the plaintiff is a market leader in respect of its goods are well known. It can safely be said that these words are identified with the goods manufactured .....

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aintiffs. His attempt was to show distinguishing features between the two trade marks. 10. There is in our opinion considerable merit in the submissions made by Mr. Chandhiok. Once the learned Single Judge came to the conclusion that the words 'LandT' or ELENTE are associated with the plaintiff's goods and have acquired a definite and distinct reputation amongst the buyers, there was no justification for allowing the defendant to make use of the said words or any word or words phonet .....

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n Trades and the alphabet LNT are the abbreviation of this name. 11. In the light of the findings of fact recorded by the learned Single Judge which are, in our opinion, perfectly justified in the facts and circumstances of the case, there was no justification for allowing the defendants-respondents herein to use the very same trademark/logo with or without the extended full form of the abbreviation Lachmi Narain Trades. If use of 'LNT/ELENTE' was not permissible for the reasons given by .....

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rketed by the defendants under the trademark/logo LNT/ELENTE are not even manufactured or marketed by the plaintiff-appellant herein there was no justification for restraining the use of the said trademark or logo vis a vis such products. We do not think so. As rightly held by the learned Single Judge the test of 'field of activity' is no more valid. The question really is one of real likelihood of confusion or deception among the consumers and the resultant damage to the plaintiff. The .....

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nection between them still there was a likelihood of deception or confusion. The court observed: On the facts of this case, we have no hesitation in holding that a large number of persons, if they see or hear about the mark 'Caltex' in connection with watches, would be led to think that the watches were in some way connected with the opponents, or they would at least wonder whether they were in any way connected with the opponents. Persons seeing the mark attached to watches, which is a .....

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n the market, the Court observed: This argument loses sight of an important feature viz., how would a lay customer know in the first place that the plaintiff was not producing foam or foam material? How would the customers know that Bata were not producing foam? It is well known that the name represented makers of shoes and analogous products, but a question would also arise in the mind of the lay customers whether Bata were also producing foam. Who is going to answer this question? Does an ordi .....

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rket their foam with a view to gain some advantage in a competitive market. As seen earlier, there is no plausible Explanation as to why the name 'Bata' was being used by them. A passing off action would lie even if the defendants were not manufacturing or producing any goods similar to that of the plaintiff. A passing off action would lie where a misrepresentation is likely to be caused or a wrong impression created, as if the product was of some one else. 15. In Daimler Benz Aktiegesel .....

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bled by indiscriminate colourable imitation by all or anyone; whether they are persons, who make undergarments like the defendant, or any one else. Such a mark is not up for grabs? not available to any person to apply upon anything or goods. That name which is well known in India and world wide, with respect to cars, as is its symbol a three pointed star. 16. In Kiriloskar Diesel Recon (P) Ltd. v. Kirloskar Proprietary Ltd. AIR1996Bom149 , Bombay High Court while dealing with a similar contentio .....

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g off has been extensively criticised by Manning J. in the case of Henderson v. Radio Corporation Pty. reported in (1969) RPC 218 holding that it would be unsafe to adopt the view expressed in McCulloch v. Mary that what has been called a common field of activity must be established in every case to entitle the plaintiff to succeed. He further held that it is going too far to say that the absence of this so-called common field of activity necessarily bars a plaintiff from relief. With the passag .....

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ikelihood of confusion or deception of the public and consequent damage to the plaintiff. The focus is shifted from the external objective test of making comparison of activities of parties to the state of mind of public in deciding whether it will be confused. 17. The Bombay High Court after observing that with the passage of time and reputation acquired, the trade mark 'Kirloskar' has acquired the secondary meaning and has become almost the household word laid down the following propos .....

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ctivities. 18. In Mahendra and Mahendra Paper Mills Ltd. v. Mahindra Mahindra Ltd. AIR2002SC117 , the Apex Court after extensively quoting with approval from the above judgments summed up the principles applicable in deciding an application for interim injunction as follows: Without intending to be exhaustive some of the principles which are accepted as well settled may be stated thus: that whether there is a likelihood of deception or confusion arising is a matter for decision by the court, and .....

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