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| Wednesday, 18 August 2004 |
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The case filed by NGK Spark Plug Company Ltd. of Nagoya, Japan through its lawyer D.W. Pathinayake against K.A.G. Associates Ltd.of No.10 D.W. Rupasinghe Mawatha Nugegoda for wrongful and unlawful use of the NGK trade mark on the defendant's merchandise was settled before commercial High Court judge K.T. Chitrasiri when the defendant inter alia agreed to damages in a sum of Rs. 200,000 to the plaintiff. Defendant also gave an undertaking not to import spark plugs with the mark NGK and not to stock distribute and sell or advertise or deal in any manner in spark plugs with the above mark or sign. According to the plaint: The plaintiff's Spark plugs manufactured and distributed under the aforesaid trade mark "NGK" are sold in Sri Lanka through the Plaintiff's sole local agent Aristons (Pvt) Limited of No. 36/55, Edmonton Road, Kirullapone, Colombo 05. The Plaintiff Company has effected large volume of sales of plugs under the said mark in Sri Lanka. In or about November 2000, the defendant imported from China about 27,000 spurious spark plugs with the trademark "NGK" wrongfully and unlawfully applied on them. The said spurious and/or counterfeit plugs have not been manufactured by the Plaintiff or under its licence. The defendant has imported and/or distributed and/ or sold and / or offered for sale the said spurious spark plugs with the Plaintiff's trade mark "NGK" applied on it with the same trade dress and/ or get up as that of the Plaintiff consisting of the same combination of features in the same selected colours arranged in the same manner. The trade mark "NGK" has been drawn in the same special and artistic manner in which it is depicted in the Plaintiff's said registered trade marks. (a) The origin of the spurious spark plugs imported and distributed and or sold by the defendant has been set out on the said plugs as Japan whereas the import documentation shows that the said spurious plugs are imported from China. (b) Though the spurious plugs imported and/ or distributed and / or sold by the defendant looked identical externally and similar with the Plaintiff's genuine plugs the same are of defective quality and an imitation with completely different internal structure and dimensions from that of the Plaintiff's genuine plugs. The said spurious plugs are of inferior quality not of standards maintained by the Plaintiff and would lead to various defects if used in engines. The defendant by his aforesaid conduct has reaped the benefit of the Plaintiff's registered trade mark "NGK" and the get up and trade dress, wrongfully and unlawfully gained a commercial advantage by usurping the goodwill attached to the Plaintiff's trade mark and get up and trade dress and has passed off spurious spark plugs as that of the Plaintiff. The defendant's act aforesaid is an infringement of the Plaintiff's exclusive rights on the registered trade marks Nos. 30974 and 34699 conferred by section 117 of the Code of Intellectual Property Act. The defendant by his aforesaid wrongful and unlawful conduct in importing and/or distributing and/or selling and/or offering for sale spurious spark plugs under Plaintiff's trade mark "NGK" together with Plaintiff's trade dress or get up aforesaid, has appropriated the profits due to the Plaintiff and caused grievous and irreparable loss and damage to the Plaintiff Company's trade mark rights, business, reputation and goodwill. The Plaintiff estimates the loss and damage already suffered by it at Rs. 3.5 Million. The Plaintiff values this action at Rupees 3.5 Million for the purpose of stamp duty The Plaintiff prayed inter alia for a declaration that the defendant by importing and/or distributing and/or selling and/or offering for sale spark plugs under the trade mark "NGK" has violated and infringed the exclusive rights granted to the Plaintiff by the registration of the trade mark No. 30974. It also prayed for an order directing the defendant to give a full and complete account of all transactions in respect of spark plugs imported and/or distributed and/or sold and the profits made by the defendant, by using the marks depicted. Niranjan Sinnathamby with U.A. Maujur instructed by Ms. Mala Fernando appeared for the Plaintiff Company. D. W. Pathinayake power of attorney holder on the plaintiff company was present in Court. Basheer Ahamed instructed by Kanasha Yogan appeared for the Defendant Company. Ms.D.S.Jayathilake director of the Defendant company was present in Court. |
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