Passing off by using the words LION

Suffice it to observe that as the adoption of trademark and name by the Defendants is not honest and bona fide as has been found earlier, the argument of delay and latches pressed into service by the Defendants does not take the matter any further. Taking overall view of the matter therefore, I have no hesitation in answering the issue on passing off case in favor of the Plaintiffs. In fact, the Plaintiffs have made out strong and formidable prima facie case.

That takes me to the issue of balance of convenience. In my opinion, the Plaintiffs ought to succeed even on this issue in relation to the ground pressed into service either one of infringement of trade mark or passing off action or for that matter infringement of copyright of the Plaintiffs. In any case, the Plaintiffs ought to succeed in relation to the grievance of the Plaintiffs that the Defendants are unscrupulously issuing publication so as to sully the huge reputation of the Plaintiffs. The Plaintiffs having made out case of infringement of trademark, injunction would ordinarily follow as the Defendants have not been able to discharge their burden. In fact, the defense of the Defendants is more of peripheral issues than of substance. The substance of the matter is that the Defendants have fraudulently and dishonestly adopted the trademark, name and emblem of the Plaintiffs. Suffice it to observe that even the issue of balance of convenience deserves to be answered in favor of the Plaintiffs. Insofar as the issue of irreparable loss or injury is concerned, it is held by the Apex Court in the case of Ramdev Food Products (supra) that when a prima facie case is made out and balance of convenience is in favor of the Plaintiffs, it is not necessary to show more than loss of good will and reputation to fulfill the condition of irreparable injury. It is further observed that in fact if the first two pre-requisites are fulfilled, in trademark actions irreparable loss can be presumed to have taken place. It is further held that the expression “irreparable injury” in that sense would have established injury which the plaintiff is likely to suffer. Accordingly, even this issue will have to be answered in favor of the Plaintiffs.

For the reasons mentioned in the earlier part of this Judgment, the Plaintiffs, in my opinion, are entitled for interim relief of injunction in terms of prayer clauses (a) to (e) and (g) and (h). The Plaintiffs have asked for other relief of appointing Court Receiver to seize the infringing articles referred to in the prayer clause (f). However, in view of the order of injunction of trademark passed, it may not be necessary to appoint Court Receiver. At the same time it is made clear that I am not dwelling upon the question whether it is just and proper to appoint Court Receiver in the fact situation of the present case. Instead, that question is left open to be considered on its own merits in the event the Plaintiffs take recourse to application praying for that relief by pointing out the necessity of doing so in case of any further development. Suffice it to observe that for the time being, order of injunction would sub serve the interest of justice.

Accordingly, this Motion is made absolute in terms of prayer clause (a) to (e), (g) and (h) with costs. The above said prayer clauses read thus: ” that pending the hearing and final disposal of the suit the Defendants by themselves, their Office bearers, servants,

agents and Associate Clubs be restrained by an Order and interim injunction of this Hon’ble Court from, directly or indirectly, using in any manner in relation to goods and/or services or as a name or part of trade name or Club name, or organization name, covered by the Plaintiffs’ registered trademarks, such as, “LIONS” “LIONS INTERNATIONAL”, “LIONS CLUB INTERNATIONAL”, “LEO”, “LEO CLUBS”, device of “LIONS” and all other trademarks and/or service marks particularized in Exhibit “G” and Exhibits “F-1 to F-68” to the Plaint and/or from using the impugned label being Exhibit “EE” and Exhibit “FF” to the Plaint or any other deceptively similar label or emblem and/or device of “LION” or word “LION” or “LIONS” so as to infringe the Plaintiffs’ registered trademarks particularized in Exhibits “F-1 to F-68” and Exhibit “G” to the Plaint.

That pending the hearing and final disposal of the suit the Defendants by themselves, their Office bearers, servants, agents and Associate Clubs be restrained by an Order and interim injunction of this Hon’ble Court from using in any manner the word “LION” or “LIONS” or “LEO” or “LEOS” or “LIYOS”, “LIONESS” or “BHARATIYA LIONS” or “INDIAN LIONS” or “LIONS INDIA” or “NATIONAL LIONS” or “SEVA LIONS” or “LIONSANSKRUTI” or any other trademark or service mark or Association name which is identical with or deceptively similar to or a deceptive variation of the Plaintiffs trademarks and names, Association name, trade name or trademark or service mark such as LION, LIONS, LEO, LIONESS and the like and/or from using the impugned emblem or device as depicted in Exhibit “EE” and Exhibit “FF” to the Plaint or any device of a “LION” or “LIONESS” or any other device or emblem which is identical with or deceptively similar to the Plaintiffs emblem or device as set out in para 28 and Exhibit “K” to the Plaint, so as to pass off or likely to pass off and/or enable others to pass off the Associations or Clubs or Organizations of Defendants and/or their Associate Clubs or activities, their services and business of the Defendants as and for that of the Plaintiffs or Plaintiffs Chartered Clubs or as in some ways connected with the Plaintiffs. That pending the hearing and final disposal of the suit the Defendants by themselves, their Office bearers, servants, agents and Associate Clubs be restrained by an Order and interim injunction of this Hon’ble Court from using, directly or indirectly the word “LION and/or “LIONS”, “LEO” and/or “LEOS”, “LIYO” and/or “LIYOS” and/or LIONESS and/or the combination of the words “BHARATIYA LIONS” and/or “INDIAN LIONS” and/or “LIONS INDIA” and/or “NATIONAL LIONS” and/or “SEVA LIONS” and/or “LIONSANSKRUTI” or any other trademark of the Plaintiffs as their e-mail address or part of their e-mail address and/or their domain name and/or part of their domain name or in any way be inserted in any of the websites so as to pass off or likely to pass off and/or enable others to pass off the Association of the Defendants and/or their Associate Clubs and/or the activities, services and business of the Defendants and/or their Associate Clubs as and for that of the Plaintiffs or Plaintiffs’ Chartered Clubs or in some way connected with the Plaintiffs; and be ordered forthwith to take all necessary steps to have the registration of the e-mail address being lionsanskruti@yahoo.co.in of their head office at Jabalpur or and other e-mail address and/or any of the sites of the Defendants having the deceptively similar name to the Plaintiffs cancelled forthwith by the concerned Authorities;

That pending the hearing of trademark cases and final disposal of the suit the Defendants by themselves, their Office bearers, servants, agents and Associate Clubs be restrained by an Order and interim injunction of this Hon’ble Court from reproducing the original artistic work of the Plaintiffs as depicted in Exhibit “K” to the Plaint in any material form and/or communicating the work to the public and/or issuing copies of the work to the public and/or from substantially reproducing the artistic works as has been done by the Defendants as depicted in Exhibit “EE” and Exhibit “FF” to the Plaint or in any other form depicting the logo of the LION or the like species so as to infringe the copyright the Plaintiffs have in the said original artistic work as depicted in Exhibit “K” to the Plaint. That the Defendants by themselves, their office bearers, servants, agents and Associate Clubs be restrained by an Order and perpetual injunction of trademark of this Hon’ble Court from reproducing the literary work the Plaintiffs have in their Purposes and Objectives of their Constitution and By Laws as depicted in Exhibit “B” and “B-1” to the Plaint or in any material form and/or communicating the work to the public and/or issuing copies of the work to the public and/or from substantially reproducing the literary work of the Plaintiffs as well as the Club names of the Plaintiffs as has been done by the Defendants as depicted in Exhibit “S” and Exhibit “U” to the Plaint so as to infringe the copyright the Plaintiffs have in the said literary work as depicted in Exhibit “B” and “B-1” to the Plaint.

That pending the hearing and final disposal of the suit the Defendants by themselves, their Office bearers, servants, agents and Associate Clubs be restrained by an Order and interim injunction from using a confusingly similar Organization name and misrepresenting to the public that they are “LIONS” or “INDIAN LIONS” or “BHARTIYA LIONS” and by such misrepresentations raising funds for their own benefits and also attracting members by such misrepresentations and furthermore hindering the Plaintiffs benevolent activities on account of the negative propaganda publicized by the Defendants about the Plaintiffs Clubs and their services. That pending the hearing and final disposal of the suit the Defendants by themselves, their Office bearers, servants, agents and Associate Clubs be restrained by an Order and interim injunction from defaming and sullying the impeccable reputation earned by the Plaintiffs by making speeches and publishing articles insinuating that there is flight of substantial amount of Indian money being transmitted from India to the Head Quarters in USA by the Plaintiffs, when in reality it is a nominal amount, and furthermore from publishing defamatory Articles in Newspapers and Circulars and other material without just cause or excuse, thereby subjecting the Plaintiffs to hatred, ridicule and contempt and/or likely to subject the Plaintiffs to hatred, ridicule and contempt, without any lawful justification or excuse and further prejudicing the Plaintiffs of trademark in the way of their social service activities and furthermore indulging in such acts of character assassination of the Plaintiffs.