Symphony Ltd. v. Thermo King India Pvt Ltd

1. Symphony Ltd. (hereinafter, ‘Plaintiff’) has filed the present suit for permanent injunction restraining infringement of its registered designs and for damages. The Plaintiff is a company, which is engaged in the business of manufacturing and selling of consumer home appliances including air coolers. The design for the model Symphony Storm 70i was registered on 14th March, 2011 under Classification 23-04 (Air Cooler) bearing Design Registration No. 235189.

2. Copies of the the representation sheets and registration certificates for each of the models have been filed on record and have been exhibited as Ex. PW-1/8. The design is registered under the Designs Act, 2000 and is valid.

3. The design was registered in the name of Mr. Achal Anil Bakeri, who is one of the promoters and founder of Symphony Limited. Vide assignment 2019:DHC:1385 deed dated 30th October, 2013 (Ex. PW- 1/9), the design has been assigned by Mr. Bakeri to the Plaintiff company, which is promoted by him. Pursuant to the said assignment, the company has since been registered as the subsequent proprietor of the design.

4. The suit has been filed against Thermoking India Private Limited on the premise that the Defendant commenced manufacturing and selling of air coolers, which are a replica of the Plaintiff‟s design. The suit was listed on 11th June, 2014 and an ad-interim injunction was granted in the following terms.

5. Thereafter, the Defendant has entered appearance and has filed its written statement. The case of the Defendant in its written statement is that the Plaintiff‟s design is prior published. The Defendant has placed on record the advertisements of the Plaintiff‟s products dating back to March, 2010 wherein the Plaintiff had advertised various models of air coolers. The Defendant has also relied upon a trademark application filed by the Plaintiff for registration of the mark „SYMPHONY STORM‟ in class-11 bearing application no. 2111571 dated 8th March, 2011. Further, the Defendant pleaded that its design is different from Plaintiff‟s registered designs.

6. In its replication, the Plaintiff avers that filing of trademark applications does not show that air coolers, bearing the registered designs, were launched at the time when the trademark applications were filed. In fact, it was only after 14th March, 2011 that the Symphony Storm 70i air cooler was launched.

7. The Defendant initially appeared in the matter, however, since October, 2015, the Defendant stopped appearing. On 27th April, 2017, the Defendant was proceeded ex-parte. The Plaintiff has led evidence of its witness Shri Avshesh Sharma as PW-1. Statement of the said witness has also been recorded. The witness has relied upon the various exhibits which are as under:  Ex. PW-1/1 - Certified copy of the Board Resolution  Ex. PW-1/2 – Copy of Written Statement and Reply filed by Defendant  Ex. PW-1/3 – Photocopy of Civil Suit for permanent injunction against design infringement and recovery of damages filed by Plaintiff  Ex. PW-1/4 – Plaintiff‟s catalogue of air cooler products  Ex. PW-1/5 – Chartered Accountant‟s certificate for Statement of Annual Turnover of Plaintiff from 1991 to 2013.  Ex. PW-1/6 – Chartered Accountant‟s certificate for Statement of Sales Promotion and Advertisement Expenses of Plaintiff from 1991 to 2013  Ex. PW-1/7 – Chartered Accountant‟s certificate for Statement Research and Development Expenses of Plaintiff from 2009 to 2013.  Ex. PW-1/8 – Copy of Registration Application and Certificate of Registration of Design No. 235189 (Symphony Storm 70)  Ex. PW-1/9 – Assignment Deed of Designs dated 30th October, 2013  Ex. PW-1/10 – Copy of Patent Office letter effecting change of name of proprietor in the Register of Designs  Ex. PW-1/11 – Original Thermoking brochure of air cooler products

8. A perusal of the two brochures i.e. Plaintiff‟s and Defendant‟s brochures show that the Defendant‟s products of air coolers with the model name “Thermoking Typhoon”, in two variations namely “With Blower” and “With Fan”, are a substantial imitation of the Plaintiff‟s model Symphony Storm 70i. Design registrations placed on record show that this is a design which has been in use for a substantial period of time. The case of the Defendant is that it launched the alleged design bearing the mark Thermoking Typhoon, however the written statement does not specify the date or year of adoption of the said design. Thus, the Defendant has not argued or claimed that it was a prior user of the design.

9. A perusal of the registered design revealed that Design No. 235189, Model No. Symphony Storm 70i was registered on 14th March, 2011 under Classification 23-04 (Air Cooler). The air cooler as compared with the Defendant‟s model by the name Thermoking Typhoon is substantially identical. The brochures of the Plaintiff and the Defendant are on record as Ex. PW-1/4 and Ex. PW-1/11.

10. Sales figures of the Plaintiff are substantial as is evident from the chartered accountant‟s certificate which shows the annual turnover (Ex. PW 1/5) to be and as also sales promotion expenses (Ex. PW-1/6) and research and development expenses (Ex. PW-1/7). The sales turnover of the Plaintiff for the financial year ending 30th June 2013 is to the tune of more than Rs. 300 crores and the expenditure on sales promotion and advertisement for the same financial year is approximately Rs. 14 crores. However, the sales of the specific product have not been certified by the Chartered Accountant. There is however no doubt that the Defendant has obviously imitated the Plaintiff‟s designs. Under the law of designs, it is the settled principle that overall look of the product is to be seen and the same is to be judged with the naked eye. An intricate examination of the design is not to be done. Under Section 22 of the Designs Act, 2000 the use of any design, which is an obvious imitation of a registered design, constitutes piracy of the registered design. The case of the Defendant, that the design is prior published, is merely based upon the advertisements and trademark application of the Plaintiff, both of which have been duly explained by the Plaintiff. The design, which is registered and sold by the Plaintiff under the mark Symphony Storm 70i, is not identical to the designs contained in the advertisement. Further, the application for trademark registration does not constitute prior publication of the designs, as the same only contains the model names but does not contain photographs of the product. The Defendant being ex-parte has chosen not to contest the case and has also not discharged the burden of showing that the design is prior published

11. Under these circumstances, there is no reason to disbelieve the Plaintiff‟s case and the evidence put up by the Plaintiff. The suit is, accordingly, decreed in terms of the prayer (a) of the prayer clause. Since the Defendant contested the matter for some time, at least until 2015, and thereafter chose to remain absent, damages of Rs.[1] lakh are awarded in favour of the Plaintiff. Under the facts and circumstances of the case, the Plaintiff is also entitled to actual costs. Let the bill of costs be submitted by the Plaintiff. Decree sheet be drawn up.

12. Suit is decreed in the above terms.

PRATHIBA M. SINGH JUDGE FEBRUARY 28, 2019