Mahinder Narain ORDER
1. I have heard the counsel for the defendant in extenso. Counsel for the defendant has referred to a large number of cases as to why the injunction should be refused in this case.
2. The mark and word in the instant case is "Benz" and "Three Pointed Human Being in a Ring".
3. The word "Benz" has been associated with a Car ever since I remember. This car had a device upon it; a three pointed star in a circle/ring. Both, the name and the device, have always, in my memory, been inextricably linked. I am unable to ignore this connection.
4. It was, however, registered in India in 1951. It is one of the most famous marks of the world.
5. I think it will be a great perversion of the law relating to Trade Marks and Designs, if a mark of the order of the "Mercedes Benz", its symbol, a three pointed star, is humbled by indiscriminate colourable imitation by all or anyone; whether they are persons, who make undergarments like the defendant, or any one else. Such a mark is not up for grabs -- not available to any person to apply upon anything or goods. That name which is well known in India and world wide, with respect to cars, as is its symbol a three pointed star.
6. In any case, as long as I remember, "Mercedes" has been a status car, which very few of the car owners are able to afford to have today, or at any time. "Benz" happens to be a surname of a German. It does not exist as a surname in this country, and no Indian persona has been pointed out by counsel for the defendant during the course of arguments, having that name as an Indian, in India.
7. I see no reason why any trader in India should adopt the name "Benz", which is, as stated above, associated with one of the finest engineered cars in the world, and use the same name with respect to ordinary goods, in this case undergarments, particularly underwears.
8. It is pleaded by counsel for the defendant that "Mercedes" is a city in South America. Most people have not heard of it. When I asked the counsel as to when he heard of it, he reflected, and said he was ignorant of it till just prior to filing of the written statement. I was unaware of it till I read the written statement.
9. One reason which is given by the counsel for the defendant for denying the injunction to the plaintiff, is that there is a great deal of delay in approaching this Court for injunction. The cases which are cited are AIR 1992 Del 302, in which three years' delay with respect to a mark called "Doctor" was stated to be sufficient to disentitle a person from getting injunction. "Doctor" is a word of ordinary parlance. Very large number of doctors exist in this country, and commonly, almost every one knows what a doctor means, what he does. This case cannot have a parallel with respect to word like "Benz" for the reason explained above.
10. The next case relied upon by Counsel is 1980 Rajdhani LR 263. This case relates to the word "Matador". The word "Matador" is English version, (of perhaps) a Spanish word. Matadors are persons who fight bulls. Bull fighting is a sport in Spain. The word "Matador" has no Indian implication. It was used upon certain type of combs. Those were imported in India. Most people did not use this type of comb. It was like other combs. It certainly did not have the same kind of repute as is enjoyed by "Mercedes Benz" car. I do not think that reputation of Mercedes Benz Car can be compared with the reputation "Matador", which may have existed with respect to something like a hair comb. The principle of delay which disentitled the relief in the Matador case, could not, and ought not be applied to a well known mark like "Mercedes".
11. Another case relied upon by counsel for the defendant is MANU/SC/0256/1962 : [1963]2SCR484 (Amritdhara Pharmacy v. Satya Deo Gupta). This was the case of mark "Amritdhara" v. the mark "Laxmandhara". This case primarily turned upon the "honest concurrent user". The Supreme Court carved out an area where the mark "Laxmandhara" was being honestly and concurrently used, and, Therefore, the injunction was not grante........