Weston Electronics Limited vs Rajesh And Company on 7 July, 1994

Delhi High Court Delhi High Court Weston Electronics Limited vs Rajesh And Company on 7 July, 1994 Equivalent citations: AIR 1995 Delhi 13, 1994 (2) ARBLR 249 Delhi Author: J Mehra Bench: J Mehra JUDGMENT J.K. Mehra, J. (1) In this suit, the plaintiff has complained that its trade mark 'WESTON' for electronic and electric goods is being infringed by the defendant and the defendant is passing off its goods as that those of the plaintiff. Such activity of the defendant are resulting in and/or are likely to result in confusion in the mind of the unwary purchasers.The plaintiff has also filed with its suit an application for interim injunction restraining the defendant from manufacturing, selling or offering for sale or advertising or dealing in electronic or electric goods under the impugned mark 'WESTON' or any other mark which may be deceptively similar to the trade mark 'WESTON'. (2) The plaintiff has averred that it is engaged in the business of manufacturing, selling and trading in a variety of electric and electronic goods including some reproducing equipment, radios, television sets, calculators, cassette players, stereo system, video cassette recorders, general electric fittings, stablisers, locks, plumber- ing fittings etc. for the past several decades. According to the plaintiff, they adopted the trade mark 'WESTON' in the year 1966 and ever since the trade mark has been an essential feature of the plaintiff trading style as well.The plaintiff has also claimed that the goods under the trade mark/name 'WESTON' have been continuously and widely sold in India and abroad and the plaintiffs have been advertising the said trade mark 'WESTON' on a very extensive scale and have incurred very heavy expenses in publicizing their trade mark.The statement of annual advertising expenses and sales for the past several years shows quite impressive figures. The sales and advertisement expenses for the years 1986-87ending31st December, 1987, 1988-89 ending31st March, 1989 and 1989-90 ending31st March, 1990 respectively are as under:- Year Sales Income Advertisement (including excise duty Expenses 1986-87 83,49,69,185 2,17,66,333 For the year ended on 31st Dec. 1987 1988-89 1,19,59,39.875 3,21,45,306For the period from 1st January to 31st March, 1989 1989-90 97,91,68,779 2,82,21,836 For the year ended31stMarch,1990. It is further stated that the word 'WESTON' has no meaning except that it is a very rare English surname, which is not to be found in India.The plaintiff has made a reference to the telephone directories of the four metropolitan cities in supportive this averment.Plaintiff is the registered proprietor of the trade mark 'WESTON' registered at No.284394 dated 27th November, 1972 in class 9 of Trade and Merchandise Marks Act, 1958.The trade mark 'WESTON' of the plaintiff appears in a logo script, the important feature whereof are that letter T extends from W to N and letter W appears in bold lettering whereas the remaining letters appear in small letters and the said logo script of the trade mark 'WESTON' has been registered as an original artistic work under Copy Rights Act at registration No.A- 23576 of79.The word 'WESTON' is also a prominent part of the trading style of the plaintiff. In the course of the arguments, the plaintiff's counsel drew my attention to a number of instances in the past where parties have been attempting to infringe the trade mark of the plaintiff and the plaintiff has been instituting proceedings against those parties for infringement of its trade mark and succeeding in restraining the infringers from carrying out such activity. In the present case, the plaintiff has made a grievance of the defendant indulging in sale of electric and electronic domestic appliances, namely, washing machines, electric fans, desert cooler etc. under the trade mark 'WESTON' in respect whereof propriety rights have been claimed by the plaintiff.It is stated that the plaintiff came to know of the defendant's activities when it received a notice on 4th February, 1991 calling upon the plaintiff to desist from the use of the trade mark 'WESTON' in connection with the washing machines manufactured by the plaintiff as the defendants were carrying on the business of manufacturing and selling washing machines and other electric and electronic goods under the trade mark 'WESTON.The said notice was replied to on 6th February, 1991 denying the allegations in the notice sent on behalf of the defendant.
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Weston Electronics Limited vs Rajesh And Company on 7 July, 1994

(3) The case of the plaintiff is that the defendant's use of the trade' mark 'WESTON' in respect of the electric and electronic goods is resulting in immense deception and confusion and that such user by the defendant is leading to passing off the inferior qualities of the defendants for those of the plaintiff. It is alleged that the class of customers buying the goods of the defendant include unwary customers, housewives and other semiliterate or illiterate in habitants of semirural or rural areas.There are also certain shops in all cities where goods of the plaintiff and those of the defendants are sold across the same counters and the trading channels for goods such as washing machines of both plaintiff and the defendants are the same.lt is in the light of these allegations that the plaintiff has asked for the relief of injunction. (4) The defendants have resisted the claim of the plaintiff primarily on the ground that they have been using the trade mark since 1970 which is prior to the registration of the plaintiff's trade markand, therefore, their mark is entitled to protection under Section 33 of the Trade and Merchandise Marks Act.Further that the plaintiff has had its office at Jalandhar for 15 years and as such, are fully aware of the use of the impugned mark by the defendant.Therefore, the action of the plaintiff is barred under the principles of waiver, acquiscence, estoppel and delay. They have also claimed registration under the Copy Rights Act. (5) I have heard the detailed arguments of both the parties.At the time of arguments, the counsel for defendants did not lay any stress on the pica under Section 33, which really relates to the registration of the trade mark.ln that also, the benefit of Section 33 may not be available to the defendant on account of the plaintiff being the prior user of the trade mark 'WESTON' even on the defendants own showing. On record, I have not come across any document which could show adoption or use of the impugned mark by the defendants prior to the registration of the plaintiff's mark in 1972.Although the defendant has claimed user since 1970, no document or material has been placed on record or brought to my notice establishing the user from the year 1970 could be as certained.In fact even the statements of sales and expenses on publicity filed by the defendant go back to only the year 1976-77. Assuming those' to be correct, it shows that the adoption/user by defendants was clearly subsequent to the date of the registration of the plaintiff's mark. Assuch, the plea under section 33 of Trade and Merchandise Marks Act is not available to the defendants. (6) The only other plea that was raised by the counsel for defendant was that they have been in this business for considerable length of time and that they are dealing with the products such as washing machines and electric iron/presses etc., which are not being manufactured by theplaintiff.Counsel for the defendants has placed reliance on the case of Rolls. RazorLimited Vs. Rolls Lighters Limited and Others, 1966R.P.C. 299 where the Court of Appeal after comparison and considering the goods came to the conclusion that there was no possibility of any confusion resulting because the plaintiffs were manufacturers razors only, while the defendants were manufacturing and selling lighters and while plaintiffs were marking their goods as Rolls Razor, the defendants were selling their lighters as Rolls lighters.The further discussion in that case shows that the considerations, which weighed with the Court in that case are totally absent in the present case.In fact in a case of similar nature, in M/s Lug mug Electric and Radio Co. Vs. M/y Telerad private limited, reported, as 2nd 1978 (1) Delhi 667, when the Court compared the mark Telerad with the one adopted by the appellant, it came to the conclusion that there is a real tangible danger of confusion if the trade mark of the appellant is continued to remain on the Register.lt was observed in that case that certain well known firms like C.E.C., Tele Funken, Philips and Siemens etc. manufactured both the Radios as well as domestic appliances, the impression carried by customers would be that such big firms are capable of manufacturing both the kinds of goods.The respondent being such a firm, the customers could have the same impression about it.The first source of confusion or deception which was held in that case as not only likely, but very probable. The Court, while deciding that case, held taking due note of the fact that the goods of both the parties are sold through the same trade channels and the proximity of goods of one party with those of the opposite party was taken due note of while reaching a conclusion of a possibility of confusion or deception resulting.ln the present case also, the use of the mark 'WESTON' by the defendant is likely to result in defendant's goods being passed of as those of the plaintiff and at least the possibility of confusion or deception resulting or arising in the mind of unwary purchasers with imperfect memory cannot be ruled out.
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Weston Electronics Limited vs Rajesh And Company on 7 July, 1994

(7) The defendants have not made any effort to explain as to how did they adopt the trade mark 'WESTON' in the first place.Assuming that the defendants started the use of the mark at a very small scale as shown from the statements in the year 1976-77, the possibility of defendants having done that with the intention of trading upon the goodwill of the plaintiff in the trademark 'WESTON' could not be ruled out because the plaintiff by that time had already been using the trade mark 'WESTON' for about ten years and considerable advertisement had already been effected by the plaintiff.It could not be said nor has it been said that the defendant at the time of adoption of the trade mark 'WESTON' was not aware of its user by the plaintiff. In another case of Bata India Limited Vs. M/a Pyare Lal and Company, , the Allahabad High Court after discussing the goods had reached the conclusion that the use of the word 'Bata' in Bata foam could cause deception in the mind of ordinary customers and injury to Bata Company also could be caused.In the case of Ellora industries Vs. Banarsi Dass, , it was observed, "confusing customers as to source, as in this case, is an invasion of another's property rights.The unfairness arises from the fact that the purchasing public are likely to be misled.The protection is afforded not for the deceived customers, but the rival trader.lt is to prevent dishonest trading." (8) The unauthorised adoption of a mark identical with or deceptively similar to the mark of another trade would amount to wrongful appropriation of the other trader's business reputation and would amount to an injury itself. (9) In the present case, I find that the mark adopted by the defendants is identical with tend deceptively similar to the trade mark 'WESTON' of the- plaintiff. (10) Mr. Bhalerao further pointed out that the defendants are not manufacturing T.V.srts for which the plaintiffs are rvputed. As already observed hereinabove that the plaintiffs have been manufacturing not only T.V. ssets, but other electronic and electric goods as well.Therefore, this argument is also absolutely without any merit.In this behalf, a reference be made to the case of Creative Handicrafts Vs. sedana Electric Company and Another, report3ed as 1988 (2) Arbitration Law reporter 297 wherein a Bench of this Court had after considering such arguments come to the conclusion that electric appliances sold by defendants are likely to be passed off as goods manufactured by the plaintiff as a T.V. set was also a domestic electric appliance and amounted to infringement of the plaintiff's trade mark.In that caase, the plaintiff's trade mark was not even registered.In the present case, however, the plaitiff's mark is duly registered as a Trade Mark under Trade and Merchandise Marks Act apart from its label being registered under Copy Rights Act. Registration of a mark under Trade and Merchandise Marks Act gives to the owner of the said mark exclusive right of user. (11) As a result of the above discussion, I am not satisfied about the merit of the defendant's case and prime facie, I find that the plaintiff has established the case for grant of ad-interim injunction.Accordingly, I grant ad-interim injunction restraining the defendant, its partners or proprietor, as the case may be,.servants and agents from manufacturing, selling, offering for sale, advertising, directly or indirectly dealing in electric and electronic goods including washing machines, fans, electric machines including Machines etc. under the impugned mark 'WESTON' till the disposal of the suit. The above shall, however, not constitute an expression or opinion on the merits of the parties' case in suit, which shall be considered on its own merits.ln the circumstances of the case, there will be no order as to costs.I.A. is disposed of in the above terms.

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