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TMI Blog2014 (11) TMI 1219X X X X Extracts X X X X X X X X Extracts X X X X ..... ord "LIPU". The defendant is also an importer and seller of these machines. He also uses the mark "LIPU". The dispute in this case is with regard to the trade mark "LIPU" used by the parties on these cutting machines. These machines, are imported from China. They are manufactured in its economic development zone. According to the plaintiffs they are using this mark from 1994, having adopted it in the same year. It is stated in paragraph-4 of the petition that this trade mark is printed on the packaging of the goods as well as on the invoices, challans, bills and other relevant documents. Now, the first question which arises for consideration is that if according to the case run by the plaintiffs, the sewing machines were imported by them from China, the mark on the machines or in any packaging material relating to them, would normally be the mark of the exporter or manufacturer. And as rightly pointed out by Mr. Jishnu Saha learned senior counsel for the defendant, an importer cannot normally claim proprietorship over the mark of an exporter or manufacturer, according to the Court of Appeal of England and Wales in Registered Trade Marks of the Apollinaris Company, Limited reporte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e mark has become inextricably connected with him in the eyes of the public. Only then he can claim proprietorship rights. This weakness in the case of the plaintiffs was sought to be overcome by them in the affidavit-in-reply. In Paragraph-11 of it, they averred that the machines were manufactured in China on the instruction of the plaintiffs. It was sought to be suggested in argument that the mark "LIPU" was imprinted on the machines, on the instructions of the plaintiffs. Mr. Chatterjee, learned senior advocate for the plaintiffs showed me a consignor copy of the consignment note dated 21st June, 2004 , being annexure 'C' at Page -9 of the supplementary-affidavit wherein it was stated that the plaintiffs were sending sewing machines to a consignee in Agra. He also relied upon an invoice dated 21st May, 2004 being annexure-B page 23 of the petition raised on the same consignee, wherein the sewing machine was specifically described us "LIPU". According to Mr.Chatterjee the above consignment note related to this invoice. He relied on an even earlier invoice dated 02nd March, 1996 being annexure-B at page 7 of the said supplementary Affidavit. This invoice revealed that one ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Division Bench judgment of the Bombay High Court in the case of Zee Telefilms Ltd. & Anr. Vs. Sundial Communications Pvt. Ltd. & Ors. reported in 2003 (27) PTC (Bom) (DB) PTC 457. The concept of reverse passing off was discussed in Bristol Conservatories Ltd. Vs. Conservatories Custom Built Ltd. reported in 1989 RPC 455 . It was a decision of the Court of Appeal of England and Walls. A particular agency had designed and constructed some conservatories. The defendants misrepresented to the public that they would supply the work of this agency. They would induce purchasers to purchase conservatories, believing them to have been designed and constructed by that agency but were in fact to be supplied by the defendants. If the above set of facts was proved then the tort of reverse passing off was deemed to have committed by the defendants, as held in that decision. In the facts of that case the appeal was allowed. The Court of Appeal of the Republic of Singapore in John Robert Powers School Inc. and Others Vs. Denyse Bernadette Tessensohn reported in Fleet Street Report 1995 at page 69 referred to this as inverse passing off. The judgment said : Inverse passing off occurs when one tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , challans, bills and other documents. Particular regard may be had of paragraphs 2 and 4 of the petition. Thereafter in paragraph 11 of the Affidavit- in-reply the plaintiffs tried to suggest that the mark "LIPU" was affixed by the manufacturer at the instance of the plaintiffs. Having regard to the fact that the invoices were raised by the Chinese manufacturers and that the manufacturing activity had taken place in China, it is very difficult to believe that the trade mark "LIPU" was coined by the plaintiffs and supplied by them to the manufacturers who affixed it on the goods. Particularly when the documents of the plaintiffs depict the plaintiffs to be ordinary retailers in the Central Kolkata District. The brand "LIPU", if it is to belong to anyone belongs to the Chinese exporter and manufacturer and certainly not to the plaintiffs or the defendant Upto now the plaintiffs have been able to show nothing to establish that the mark has become so identified with them in this country that the people of this country identify it as belonging to them and not to the Chinese manufacturer. Prima facie the case of "reverse passing off" has been made out by the defendant. Moreover, the p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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