Devinder Gupta, J. - (1.)The plaintiff in the suit has claimed a decree for injunction against the defendants restraining them from manufacturing, selling, offering for sale, advertising directly or indirectly, dealing in suitings shirtings and safaris under the trade mark WALKMAN or any other trade mark deceptively similar to the plaintiff's trade mark WALKMAN logo and from doing any act as is likely to cause confusion and deception and from passing off their goods and business as and for the goods and business of the plaintiff. In addition decree for rendition of accounts has also been prayed on account of the alleged acts of the defendants in having indulged in the activity of infringing the plaintiff's trade mark.
(2.)The suit is founded on the allegation that the plaintiff is engaged in the business of manufacturing suitings and shirtings since 1983. The plaintiff is the proprietor of the trade mark WALKMAN logo in respect of textile goods, namely, suitings and shirtings. The plaintiff has been using the mark in a distinctive get up, make up and lettering style with monogram W.M. inside an oval circle. The plaintiff claimed that it adopted the trade mark WALKMAN logo on 1st October, 1983 and has continuously been using the same since then till date. The business is very extensive one and the goods bearing trade mark have practically been distributed throughout the length and breadth of the country. The plaintiff appointed distributors in different parts of the country for promoting sales of its goods. In order to acquire statutory rights for the said trade mark, an application was moved for registration for suitings and shirtings falling under clause 24 of the 4th Schedule of the Trade and Merchandise Marks Act, 1958. The application was filed on 30th April, 1984. The same was converted into one for registration in part B of the register vide Order No.TLA- SUB/838 dated 26th May,1987 and the same has been advertised in Trade Mark Journal No.933 dated 16th April, 1988 at page 101. The plaintiff claims to be the proprietor of the trade mark on account of its prior adoption and continuous user. The plaintiff states that trade mark WALKMAN logo has already become distinctive and associated with the plaintiff's goods on account of its long, continuous, extensive and exclusive under. The plaintiff has widely advertised the trade mark through different media and distribution of trade literature and display boards, leaflets, gifts, calendars and also by exhibitions in five different Star Hotels of the country by spending considerable amount. The plaintiff's business has acquired goodwill and reputation. Its sales are running into lakhs of rupees every year since its inception and adoption in the year 1983. In 1983-84, its sales were to the tune of Rs.3,55,385.81 and for the year 1987- 88 its sales increased to Rs.1,53,35,057.40.
(3.)It is further alleged that defendant No.1 is claiming to be the manufacturer and dealer in suitings and shirtings carrying on its business under the trade mark WALKMAN with defendant No.2 as one of its disbtributors. On 20th April, 1988, an advertisement was got inserted by defendant No.1 in Indian Express inviting applications for appointment of agents for sale of its product. It is claimed that defendant No.1 filed an application seeking registration of trade mark WALKMAN under application No.416323 in class 24 for suitings and shirttings and the mark WALKMAN of the defendant under the said application was also advertised in Trade Mark Journal No.930 dated 1st March, 1988 at page 928, to which the plaintiff has also filed objections against its registration. It is claimed that defendant No.1 is not the proprietor of trademark WALKMAN in respect of suitings and shirtings. Defendant No.1 adopted trade mark out of greed, with a view to take an advantage and cash upon the reputation of the plaintiff and further with a view to cause deception and confusion in the markets and to pass off his spurious goods as that of the plaintiff. The trade mark WALKMAN adopted by defendant No.1 is identical with and deceptively similar to the plaintiff's trade mark WALKMAN logo. The unwary purchasers are bound to be deceived in purchasing the goods under the impression that it is emanating from the plaintiff's source. The defendant has no right to adopt the confusingly similar trade mark WALKMAN to that of plaintiff's trade mark WALKMAN logo. It is alleged that defendant No.1 is dishonestly and fraudulently claiming false user since 1st November, 1979. On coming to know of the illegal acts of the defendant, a legal notice dated 16th October, 1987 was got served upon the defendant No.2 but defendant No.2 neglected even to reply to the said legal notice and thus necessity arose to claim a decree for injunction and since defendants work for gain in Delhi, the said acts of infringment and passing off are also being carried on in Delhi; this Court has jurisdiction to entertain and adjudicate upon the suit. The suit was instituted on 29th April, 1988. Alongwith the suit an application (IA 2742/88) was moved seeking an order of restraint for the duration of suit against the defendants.