MARS INCORPORATED v. MARES CONFECTIONERIES P. LTD

2. The parties are referred to as per their rankings in thesuit.3. The appellant/plaintiff filed the suit for granting (i) aperpetual order and injunction restraining the defendant, theirservants, agents, representatives and assigns from infringingplaintiff trade mark "MARS" by use of trade mark "MARES" or anymark similar to plaintiff's trade mark "MARS", (ii) a perpetualorder and injunction restraining the defendant, their servants,agents and assigns from passing off the defendant's goods andbusiness as and for the plaintiff's goods and business by use of"MARES' as a trade mark and/or as part of corporate name andtrading style by the defendant or by use of any word similar to theplaintiff's trade mark "MARS" as a trade mark and/or as part oftrading style by the defendant or in any other manner whatsoever,(iii) a preliminary decree in directing the defendant to renderaccount of profits made by it by the use of "MARES' or any wordsimilar to "MARS' as a trade mark and/or as part of trading styleand (iv) directing the defendant to surrender to the plaintiff fordestruction of all goods, cartoons, labels, containers, blocks,dies, moulds bearing the word "MARES" or any word similar to "MARS"as a trade mark and/or part of trading style and corporate name bythe defendant.4. As per the plaint averment, the case of theappellant/plaintiff is that the plaintiff is a renownedmanufacturer and merchant in various types of foodstuff includingnon-medicated confectionery, chocolates and snack foods.Plaintiff is a world leader in branded snack foods, petcareproducts, main meal foods, electronic payment systems and drinksvending. Snack foods, and in particular confectionery was theplaintiff's first business from 1911. Plaintiff's snack foods areenjoyed in over one hundred countries including India. Plaintiffis the registered proprietor in India of the following among othertrade marks:-TRADE MARKNUMBERCLASSGOODSMARS368530ChocolatesMARS(STYLISED)40561630Confectionery, biscuits andchocolatesMARS(STYLISED)40565630Confectionery, biscuits andchocolatesPlaintiff owns the world's four biggest confectionery brands, ofwhich one is the trade mark "MARS". The goods under the trade mark"MARS" as well as the plaintiff's other products are widelyadvertised in magazines and newspapers, many of which are sold andread in India, on radio and on television. Plaintiff promotes its https://hcservices.ecourts.gov.in/hcservices/ products by an extensive involvement in sports. It was theofficial sponsor of the Barcelona Olympics in 1992 and "MARS" wasthe official snack food at the 1990 World Cup in Italy and all thesaid sporting events received wide television coverage in India andwere viewed by millions of viewers in all parts of the country.The goods bearing the trade mark "MARS" have been sellingextensively in Indian Sub-continent countries as well as in otherSouth-East Asian countries, such as China, Hong Kong, Japan, SouthKorea, Thailand, Indonesia, the Philippines, Singapore, Malaysiaand Taiwan. Goods under the trade mark "MARS" are available inIndia in duty free shops at the international airports, in shopslocated in the Haryana State Tourist Complexes and in shops in andalong routes visited foreign tourists and in cities of touristinterest all over the country and direct sales have also been madethrough "grey channels" in India. By virtue of the excellentquality of the goods sold thereunder, the trade mark "MARS" hasbecome exclusively identified with the plaintiff and its goodsworldwide. Plaintiff has established a very wide reputation amongthe Indian Public. It is further stated that on 11.1.1989, therespondent/defendant, filed an application with the Registrar ofTrade Marks for registration of the trade mark "JOOCY BURST" in itsname in respect of chewing gum, bubble gum and confectionery (non-medicated). The application was numbered 503728 in class 30. Thesaid application was advertised in the Trade Marks Journal No.1056dated 1.6.1993. Plaintiff filed a notice of opposition against thedefendant's aforesaid application under Section 21 of the Trade andMerchandise Marks Act, 1958 inter alia on the ground that the trademark "JOOCY BURST" in respect of which the defendant was seekingregistration was deceptively similar to the plaintiff's registeredtrade mark "STARBURST". The said opposition was taken on recordand numbered Mas-2924 in the office of the Registrar of Trade Marksat Madras. On 28.1.1994, the plaintiff by its attorneysMessrs.Lall Lahiri & Salhotra sent a notice to the defendantcalling upon the defendant to cease and desist from using MARES aspart of its trading style and/or as a trade mark and to withdrawits application number 503728 for the trade mark "JOOCY BURST".Since no reply was received, the attorney of the plaintiff sent areminder to the defendant. On 7.4.1994, the plaintiff's attorneyreceived a letter from the defendant through their advocates, inwhich all the allegations made in the plaintiff's letter dated28.1.1994 were denied. Defendant also refused to withdraw itsapplication for registration of the trade mark JOOCY BURST orchange its trading style to remove the word MARES therefrom or toconfirm that MARES would not be used as a trade mark on foodstuffssuch as non-medicated confectionery or similar goods. On19.8.1994, plaintiff's attorney received an order dated 10.8.1994of the Assistant Registrar of Trade Marks in the said oppositionNo.MAS-2924 whereby it was stated that "that the applicants havingdesired to withdraw their application through their counsel's https://hcservices.ecourts.gov.in/hcservices/ letter dated 27th July, 1994; IT IS HEREBY ORDERED THAT ApplicationNo.503728 shall be treated as withdrawn and the opposition theretobearing No.2924 therefore abates." Plaintiff was also awardedcosts of Rs.250.00. 5. It is further stated in the plaint that the word "MARES"which forms the most prominent and distinctive portion of thedefendant's trading style and corporate name is deceptively similarto the plaintiff's trade mark and trading style "MARS". Defendantis trading in the same goods as those in which the plaintiff'strade mark and trading style "MARS" has acquired a world widereputation. The use of the trade mark "MARES" by the defendant aspart of its trading style is likely to cause confusion anddeception amongst the trade and the public that the defendant is insome manner connected with the plaintiff. The use of the word"MARES" by the defendant amounts to infringement of the plaintiff'sregistered trade mark "MARS". By using "MARES" as its tradingstyle, the defendant is seeking to pass off its goods as and forthe goods of the plaintiff. Defendant is carrying on businessunder the name and style of "MARES CONFECTIONERIES P. LTD. inMadras within the jurisdiction of this Court. The damages to theplaintiff's goodwill and reputation caused by the use of theirtrade mark by the defendant cannot be measured in terms of money.For the aforesaid reasons, the plaintiff filed the suit for therelief stated above.6. Defendant in its written statement has stated that thedefendant is unaware about the alleged popularity of the plaintiffall over the world including India. As far as India is concernedthe plaintiff is practically unknown and the Director of thedefendant had heard of the plaintiff only at the commencement ofthe present dispute. Defendant's company was incorporated underthe Indian Companies Act, 1956 on 26.5.1982 with the certificate ofincorporation bearing No.9403 of 1982. Defendant's organizationhad been created for the purpose of market research activities andthe name also was taken therefrom, viz., "MARES" (the letters "MA"to indicate the word "Market" and the letters "RES" to indicateword "Research"). "MARES" was initially a partnership firm havingits office at No.13-A, Sriram Nagar West, Madras-600 018 and theabove firm was carrying on business in the manufacture and sale,import, etc., of Lollipops, Chocolates, etc. and had also beengranted an Import licence under the Government of India, Ministryof Commerce and Industry Order No.17/55 dated 7.12.1955, assubsequently amendment issued under the Imports and Exports(Central) Act 1947 (XVIII of 1947). The partnership firm MARESsubsequently became a Private Limited company, with the name "MARESCONFECTIONERIES PRIVATE LIMITED. Clause III(A) of the Memorandumof Association of MARES CONFECTIONERIES PRIVATE LIMITED, indicatesthe main objects of Company as follows:- https://hcservices.ecourts.gov.in/hcservices/ (1) To manufacture, buy, sell, import and deal Lollipops,Chocolates Toffee and all confectioneries and other bye productsand ingredients generally used in those preparations, includingChewing Gums, Bubble Gum, gum base, medicated or otherwise.(2) To act as manufacturer's representations, distributions,stockiest, in all types of goods and merchandise of which thecompany is authorised to carry on and(3) To undertake and transact every kind of agency businessand to engage in export promotions.The items of confectionery manufactured by the defendant aremarketed only under the trade mark belonging to Parry'sConfectionery Limited, viz., "PARRYS". Several agreements havebeen executed between Parry's Confectionery Limited and thedefendant, indicating the above arrangement over the last decade.Those agreements will reveal that from 1.11.1982 onwards, till thedate of filing the written statement (28.1.1997), the property ofthe defendant has been marketed under the trade name of "ParrysConfectionery Limited(hereinafter referred to "PCL") having theirregistered office at "Parry House", Second Line Beach, Madras-600001. The agreement also indicates that PCL have been providing thedefendant the basic recipe and the process of manufacture relatingto the products to be manufactured and in consideration of PCLpermitting the defendant to use their trade mark, the defendanthas been paying PCL, royalty as agreed upon between them. Theseagreements cover all the products of the defendant includingLollipops, Cool Mints, Vox, Mari stick, etc. Defendant manufactureconfectioneries, which are then marketed by Parry's ConfectioneryLtd., under their trade name and brand name "Parrys". The wrapperscontaining the product will indicate that the product in questiondoes not carry the defendant's name as its brand name, but onlyindicate the name of the manufacturer as the defendant, which is astatutory requirement. Therefore, MARES CONFECTIONERIES PRIVATELIMITED is not a trade mark or a trade name, but is a Companyregistered under the Indian Companies Act 1956 and consequentlythere is no question of the defendant copying the plaintiff's trademark "MARS" or infringing upon it. 7. It is further stated in the written statement that thewithdrawal of application No.503728 will not in any mannerstrengthen the plaintiff's case. The present issue is totallydifferent. As already mentioned MARES CONFECTIONERIES PRIVATELIMITED is not a brand name or trade name and no item ofConfectioneries, Chocolates, Bubble gum, Chewing etc., are marketedunder that trade mark. That being so, the question of anyconfusion being caused does not arise. The product of the https://hcservices.ecourts.gov.in/hcservices/ plaintiff is not used in Madras City, much less in Tamil Nadu orthe rest of India. The averments in the plaint that the goodsunder the trade mark "MARS" are available in India in duty freeshops at International Airports and in shops in and along routesvisited by Foreign Tourists as also in shops located in the HaryanaState Tourist Complex besides in Cities of Tourists interest allover the country and direct sales had been made through "GreyChannels" in India, will not in any way help the plaintiff's case.Continuing its manufacturing operation by the defendant, noprejudice or loss will be caused to the plaintiff. Plaintiff maybe very famous in the rest of the world, but the plaintiff has notmade any impact either in Madras or the rest of India. Plaintiffacquired the trade mark "MARS" only in May 1983, while thedefendant had been registered under the Indian Companies Act evenprior to the above date. Plaintiff cannot prevent the defendantfrom functioning under the Corporate name MARES CONFECTIONERIESPRIVATE LIMITED, especially as the same had been incorporated underthe Indian Companies Act, 1956, even before the plaintiff hadacquired the trade mark MARS. Hence, he prays dismissal of thesuit.8. On the basis of the above pleadings, the following issueswere framed on 10.2.1997 for consideration:- (1) Whether the goods bearing the TradeMark MARS have been selling extensively in theIndian Sub-continent?(2) Whether the plaintiff has establisheda very wide reputation among the Indian Public?(3) Whether the word MARES used by thedefendant is deceptively similar to theplaintiff's trade mark MARS? (4) Whether using the word amounts toinfringement of the plaintiff's Trade Mark MARSand causing confusion and deception among thetrade and public?(5) Whether the plaintiff is a RegisteredProprietor of the Trade Mark MARS underNos.3685, 405616 and 405656?9. The following additional issues were also framed on29.3.2001 for consideration, 10 days before the pronouncement ofthe judgment:- https://hcservices.ecourts.gov.in/hcservices/ (1) Whether the power of attorney executedin favour of the applicant is valid and issubsisting?(2) Whether the suit is maintainable?10. Before the trial Court, C.K.Virmani, Power of Attorneyfor the plaintiff was examined as P.W.1. One Boota Singh Dhillon,Finance Manager of Masterfood Middle East FZE was examined asP.W.2. Exs.P-1 to P-24 were marked on the side of the plaintiff.One S.Ram Kumar, a Director of the defendant company was examinedas D.W.1 and marked Exs.D-1 to D-18 on behalf of the defendant.11. Considering the above pleadings and also the oral anddocumentary evidence, the learned trial Judge came to conclusionthat the plaintiff's goods having the trade mark 'MARS' have notbeen selling extensively in the Indian Sub-continent and theplaintiff has not established a very wide reputation among theIndian public, that the word "MARES" used by the defendant isdeceptively similar to the plaintiff's trade mark "MARS", thatusing the word "MARES" by the defendant company amounts toinfringement of the plaintiff's trade mark "MARS" and causingconfusion and deception among the trade and public and that theplaintiff is a registered proprietor of trade mark "MARS" underNo.3685 only. It also held that the power of attorney executed infavour of Virmani, who had signed the plaint, is not valid and notsubsisting and hence the suit is not maintainable. Accordingly,the trial Court answered the issue Nos.1 and 2 and the additionalissue Nos.1 and 2 against the plaintiff, while the issue Nos.3 and4 are found in favour of the plaintiff and issue No.5 partly foundin favour of plaintiff. Though issue Nos.3 and 4 are found infavour of the plaintiff and issue No.5 partly in favour ofplaintiff, the trial Judge dismissed the suit, in view of thefinding in respect of the additional issues 1 and 2 that the powerof attorney given in favour of Virmani is not valid and notsubsisting and the suit is not maintainable. Against the saidJudgment, the plaintiff preferred this Original Suit Appeal. 12. The crux of the finding of the learned single Judge,which is relevant, is as follows:- "12....... Mr.C.K.Virmani is theconstituted attorney of the board and dulyauthorised to sign and verify the plaint. Thesaid Virmani examined as P.W.1 has stated inthe chief examination that he was the power ofattorney for the plaintiff company; that Ex.P1was the xerox copy of the deed of power ofattorney executed by the plaintiff in his https://hcservices.ecourts.gov.in/hcservices/ favour; that it was still subsisting and wasnot revoked at any point of time; that as perclauses 1 and 2 of Ex.P1, he was authorized tosign, verify and carry on any plaint or suitand he has signed the plaint and his signaturein Ex.P1 was attested by a notary public; thathe has signed and verified the same asplaintiff's constituted attorney. ......... Aperusal of Ex.P1 would reveal that the same wasexecuted by R.A.Steele, Assistant Secretary ofthe plaintiff company. P.W.1 has categoricallystated that he was not aware whether a boardresolution was passed authorizing R.A.Steele toexecute a power of attorney. No Boardresolution authorizing R.A.Steele to executethe power of attorney has been filed by theplaintiff's side. It is a matter of surpriseto see that P.W.1 has stated that in the year1995 he signed the plaint without knowingwhether the power under Ex.P1 has been revokedor not, as he did not receive any notice ofrevocation. Though P.W.1 who has verified andsigned the plaint was examined by theplaintiff's side, he has not spoken to aboutanyone of the facts in the plaint.13. The plaintiff has examined P.W.2 oneMr.Boota Singh Dhillon, the Finance Manager,who was based at Dubai and who was working withdifferent subsidiaries of the plaintiffcompany. According to P.W.2, the plaintiffcompany has executed the deed of power ofattorney under Ex.P1 in favour of VirmaniP.W.1 and it was signed by R.A.Steele, theAssistant Secretary of the plaintiff company.She has signed in the last page of Ex.P1. Thesignature in the last page of Ex.P1 has beennotarized by a notary public in Sydney,Australia because R.A.Steele was working inSidney, Australia for the plaintiff company.R.A.Steele was authorized to sign on behalf ofthe plaintiff and Ex.P1a is the certificategiven by the notary public while Ex.P1b is thecertificate issued by Almaza Shenouda of theDepartment of Foreign Affairs and Tradeidentifying the signature of N.B.Pappas.Ex.P1c is the attestation by the Vice Consul,Consulate General of India, Sydney. A perusalof Ex.P1 would clearly reveal that by the said https://hcservices.ecourts.gov.in/hcservices/ document AMAR RAJ RAJ LALL, ANURADHA SALHOTRA,CHAMUPATI KUMAR VIRMANI AND CHANDER MOHAN LALLwere appointed as Attorneys jointly andseverally in the name and on behalf of theplaintiff company and it was executed byR.A.Steele, the Assistant Secretary, MarsIncorporated. As seen from the document, shewas only an Assistant Secretary of theplaintiff company on 22.6.93 when Ex.P1 wasexecuted by her. No material is placed by theplaintiff to show that the said AssistantSecretary R.A.Steele was authorized to sign onbehalf of the plaintiff company. It iscontended by the plaintiff's side that the suitwas filed in 1995 by the duly constitutedattorney of the plaintiff viz., P.W.1 underEx.P1 deed duly executed and attested known tolaw and especially under the provisions ofPowers of Attorney Act. P.W.1 through whomEx.P1 was marked has deposed that the plaintiffcompany is incorporated in U.S.A., but Ex.P1was sworn to by a notary public in Australiaand he has also added that he could not explainhow Ex.P1 though executed by a company inU.S.A. was sworn to by a notary in Australia.It is pertinent to point out that the witnesshas also added that he did not know whetherthere was any board resolution authorizingR.A.Steele to execute the power of attorney.Curious enough that P.W.1 has stated that inthe year 1995, he gave instructions to thecounsel to prepare the plaint, but withoutknowing whether the power under Ex.P1 wasrevoked or not. Thus it would be clear thatthe plaintiff has not proved that the AssistantSecretary R.A.Steele was duly authorized by theplaintiff company to execute a power deed asfound under Ex.P1. In the absence of the same,it cannot be held that Ex.P1 was a valid one inthe eye of law. The plaintiff is unable toexplain how Ex.P1 was sworn to by a notary inAustralia while the plaintiff company isincorporated in U.S.A. It is contended by theplaintiff's side that P.W.1 was examined forthe limited purpose of marking the documentunder Ex.P1 and identifying him as the poweragent who filed the suit. Though Ex.P1document is marked through P.W.1, he is unableto say that the said power was in force at the https://hcservices.ecourts.gov.in/hcservices/ time of the institution of the suit. WhileP.W.1 has not spoken any one of the facts orallegations found in the plaint, P.W.2Mr.Dhillon, Finance Manager based at Dubai hasbeen examined. From his evidence, as narratedabove, it would be clear that he is not thecompetent witness to speak anything abouteither Ex.P1 document or it was in force at thetime of the institution of the suit. It issurprising to note that he has sworn to anaffidavit in Dubai in December 1999 to summonP.W.1 Virmani under application No.123/2000.Though it is contended by the plaintiff's sidethat the power that was executed in favour ofVirmani was cancelled in 1999, there is nodocument of revocation or cancellation placedbefore the Court. As stated above, the suitwas filed by P.W.1 stating that he was theconstituted attorney of the plaintiff and dulyauthorized to sign and verify the plaint. Onlyon that undertaking the suit was taken on file,and he has filed an affidavit in that regardalso. But he is not aware whether the powerexecuted in his favour was in force at thetime of the institution of the suit and he hasnot spoken to anyone of the facts found in theplaint. Thus it would be crystal clear that hedoes not know whether Ex.P1 document is inforce or not. P.W.2 is not a competent personto speak about Ex.P1 document since he wasneither connected to nor concerned with thedocument.14. As stated above, Ex.P1 document wasnot an outcome of the resolution of the Boardof Directors of the plaintiff company.Admittedly the said document was executed byone Assistant Secretary R.A.Steela. Noresolution of the Board of Directorsauthorizing R.A.Steele to execute the power ofattorney in favour of P.W.1 is placed by theplaintiff's side. The plaintiff company isincorporated in U.S.A. and Ex.P1 was sworn toby a notary public in Australia. Without anyhesitation it has to be stated that Ex.P1document is not a properly executed or validdocument in the eye of law. The learnedcounsel appearing for the plaintiff would urgethat it was a matter of internal management of https://hcservices.ecourts.gov.in/hcservices/ the company and at the time of the institutionof the suit, P.W.1 has a valid power underEx.P1 document. This contention cannot beaccepted. The Court is of the view that in theabsence of the resolution of the Board ofDirectors empowering P.W.1 directly or givingnecessary powers to the Assistant SecretaryR.A.Steele to execute such a power, the suitfiled by P.W.1 was not competent. The initialinfirmity what is noticed by the Court withregard to the maintainability of the suit wasincurable. During the pendency of the suit, anapplication was filed by the plaintiff's sidefor issue of commission to examineMr.C.K.Virmani at Delhi. When the saidapplication was opposed by the defendant, anadditional affidavit was filed by Mr.ArulSelvan, stating that he was the dulyconstituted power of attorney of the plaintiffand C.K.Virmani was no longer connected withthe plaintiff and that in 1999, the plaintiffceased to retain M/s.Lall Lahiri and Salhotrain which office C.K.Virmani was working. It ispertinent to note that no document was producedevidencing the appointment of Mr.Arul Selvan asthe constituted attorney of the plaintiff.After the dismissal of the commissionapplication, P.W.1 was examined by theplaintiff. But he has not stated anythingabout the contents in the plaint. Evenaccording to the plaintiff, the power executedin favour of P.W.1 was cancelled in 1999 andthe power was given to one Mr.Arul Selvan andhence it would be abundantly clear that Ex.P1even according to the plaintiff was no longervalid and in subsistence. Though it wascontended by the plaintiff's side that one ArulSelvan was appointed as power holder, noapplication for substitution was filed either,or no power document was filed before thecourt. According to the plaintiff, at the timeof institution of the suit in 1995, P.W.1 washolding the power and was conversant with thefacts of the case. When the suit was taken upfor trial that was on 10.8.2000, C.K.Virmanithough examined as P.W.1 had no power in hisfavour. His evidence (P.W.1) would indicatethat he was not aware of the fact whether thepower executed in his favour was in force and https://hcservices.ecourts.gov.in/hcservices/ apart from that he has not deposed anythingabout the plaintiff's case. The contention ofthe plaintiff that the removal of the attorneyduring the pendency of the suit shall notrender the suit invalid can hold good in a casewhen properly constituted attorney issubstituted in the place of the earlierattorney. The further contention of theplaintiff's side that P.W.1 was examined forthe limited purpose of marking the documentunder Ex.P1 and identifying him as power agentwho filed the suit and in his place P.W.2 whois equally competent was examined to prove thecase, cannot be accepted. A perusal of hisevidence would clearly show that he was allalong in foreign countries and has beennarrating all the things what has happened inand around the State of Madras.15. After hearing the arguments, the casewas suo motto reopened and aforestated twoadditional issues were framed and when thematter was posted for the evidence, if any, onthe additional issues, an affidavit of Mr.ArulSelvan, a resident of Madras accompanied by aPhotostat copy of a power of attorney wasfiled. But the said document was not marked inevidence and hence the court need not look intothe same. The said Arul Selvan in whose favourthe power of attorney was allegedly executedwas not examined. Since the said Arul Selvanwas not examined, the defendant was deprived ofthe right of cross examination and hence thecontention of the plaintiff that the power ofattorney executed in favour of the said ArulSelvan on the revocation of Ex.P1 power in 1999is filed and hence it has got to be taken asthe power subsisting has to be rejected asdevoid of merits. It remains to be stated thatEx.P1 document has not been shown to be aproperly executed document in the eye of law,that there was no substitution of the powerwhen it was revoked by the company and thus thesaid power was not subsisting and the filing ofan affidavit with a Photostat copy of a powerof attorney without examining any witnesses toprove the same and mark the document cannotcure the defect. For all the reasons it has tobe necessarily found that the initial infirmity https://hcservices.ecourts.gov.in/hcservices/ which continued till the end of the trail withregard to the maintainability of the suit wasincurable and hence on that ground it has to beheld that the suit is not maintainable." 12(a). As regards the issue Nos.1 and 2, the learned singleJudge considering the documentary and oral evidence came to theconclusion that the plaintiff has not established its case that thegoods were sold extensively in India and that the plaintiff's goodshad a very wide reputation in India. Plaintiff had failed toprove the case by adducing satisfactory evidence.12(b). On Issue Nos.3 and 4, the learned single Judge in paras17 and 18 of the judgment held as follows:-"17. Regarding the case of the plaintiffthat the word MARES used by the defendant isdeceptively similar to plaintiff's trademarkMARS and the use of the same amounts to theinfringement of the plaintiff's trademark MARSand causing confusion and deception among thetrade and public. The plaintiff has relied onthe evidence of P.W.2 and number of documentsfiled. It is not in controversy that theplaintiff is a registered proprietor in Indiawith the trademark MARS with registrationNo.3685 as found under Ex.P3 and theregistration has also been renewed and is validand subsisting. From the documentary evidenceadduced by the plaintiff's side, the word MARSforms most distinct and significant feature ofthe plaintiff's trade name and trading style.As rightly contended by the plaintiff's side,the word MARES used by the defendant isphonetically and visually similar to theplaintiff's registered trademark MARS and thedefendant has merely added the vowel "E" to theplaintiff's trademark MARS. Ex.P12 series arethe product wrappers of the MARS products andit is not disputed that they belong to theplaintiff. When Ex.P12 series are comparedwith Ex.D9 a letterhead of the defendant, itwould be very clear that the defendant's MARESis deceptively similar to the trademark of theplaintiff, viz., MARS. Hence the contention ofthe defendant's side that both oral anddocumentary evidence would indicate that theword MARES used by the defendant is not at allsimilar to the plaintiff's trademark MARS https://hcservices.ecourts.gov.in/hcservices/ cannot be accepted. No doubt, using the wordMARES by the defendant would cause confusionand deception in the mind of the trade andpublic. Pointing to S.29 of the Trade andMerchandise Marks Act, 1958, the learnedcounsel for the defendant would submit that theregistered trademark would be infringed by aperson who not being the registered proprietorof the trademark or a registered user thereofusing in the course of a trade a mark which isidentical or deceptively similar to a trademarkin relation to any goods in respect of which atrademark is registered. But in the presentcase MARES viz., the defendant is not atrademark or a trade name." "18........ It remains to be stated thatthe plaintiff viz., Mars Incorporated is shownas a corporation under the laws of the State ofDelaware, U.S.A. and it is a registeredproprietor in India with the trademark MARSwith registration number 3685 which is validand subsisting and thus the plaintiff companyhas registered its name MARS as its trade markin India. It is admitted by the defendant thatMARES was initially a partnership firm andsubsequently became a private limited companywith the name MARES Confectionery Pvt. Ltd., acompany incorporated under the Indian CompaniesAct. D.W.1 has admitted that afterincorporation of the defendant company, theystarted manufacturing Lollipops. In theinstant case, the plaintiff has registered itstrademark in India as MARS and the defendantare manufacturing those products with itscompany name MARES Confectionery Pvt. Ltd.Although the plaintiff's products bear thetrademark MARS and the defendant ismanufacturing its products and releasing themwith its company name MARES Confectionery Pvt.Ltd., in view of the similarity involved, thereis all likelihood of misleading the public intothe belief that the defendant company isconnected with the plaintiff company. Undersuch circumstances, without any hesitation theCourt has to hold that there is an infringementof the statutory right of the plaintiff byusing a similar name." https://hcservices.ecourts.gov.in/hcservices/ 12(c). As regards the additional issue Nos.1 and 2, thefinding of the learned single Judge in paragraphs 20 and 21 is asfollows:-"20. In view of the reasons stated anddiscussions made above, the Court is of theconsidered view that the plaintiff's goodshaving the trade mark MARS have not beenselling extensively in the Indian Sub-continentand the plaintiff has not established a verywide reputation among the Indian public. TheCourt is of the further view that the wordMARES used by the defendant is deceptivelysimilar to the plaintiff's trade mark MARS,that using the word MARES by the defendantcompany amounts to infringement of theplaintiff's trade mark MARS and causingconfusion and deception among the trade andpublic; and that the plaintiff is a registeredproprietor of trade mark MARS under No.3685only. In the light of the discussions madeabove the Court has to hold that power ofattorney executed in favour of the applicantVirmani is not valid and not subsisting andhence the suit is not maintainable. Thereforethe issues 1 and 2 and the additional issues 1and 2 are found against the plaintiff, whileissues 3 and 4 are found in plaintiff's favour.Issue No.5 is answered accordingly. Though theissues 3 and 4 are found in favour of theplaintiff and issue No.5 partly found inplaintiff's favour, the plaintiff cannot begiven any relief in this suit, in view of thefinding of this Court that the suit is notmaintainable.21. In the result, this suit is dismissedas one not maintainable, in view of the findingthat the power of attorney given in favour ofVirmani is not valid and not subsisting. Underthe stated circumstances, there shall be noorder as to the costs."13. Though on merit of the case relating to claim ofinfringement of the plaintiff's trade mark “Mars” has been found infavour of the plaintiff, the present appeal has been filed only onthe ground that by virtue of the additional issues 1 and 2 framedby the Court, the suit itself has been dismissed as notmaintainable for the reasons set out above. https://hcservices.ecourts.gov.in/hcservices/

14. The main contention of the appellant/plaintiff in thegrounds of appeal is as follows:-“(5) Having found all the major issues infavour of the appellant/plaintiff, the learnedJudge erred in dismissing the suit on atechnical point which has not been pleaded inthe written statement and no issues were framedoriginally on this point;(6) The lower court ought not to haveframed the additional issues after hearing thearguments of both sides and posting the suitfor pronouncing of judgment suo moto,especially when the respondent/defendant hadnot taken this plea in the written statement; (7) The additional issue No.1 suo motoframed by the lower court, whether the power ofattorney executed in favour of the applicant isvalid and is subsisting itself is erroneous;”In support of this contention, the learned counsel appearing forthe appellant/plaintiff would submit that the reason for thelearned single Judge to hold that the power of attorney was notvalid at the time when the said suit was filed and taken up fortrial and P.W.1 was not competent to depose before the Court, wasnot correct. Primarily, it was contended by the counsel for theappellant/plaintiff that the power of attorney is a valid one, onthe basis of which, the plaintiff/P.W.1 signed on the plaint andsubsequently, the suit was prosecuted and the person who wasdeposed before the Court was also competent to depose about thesuit claim. But, learned single Judge having held issue Nos.3 and4 in favour of the plaintiff on merits of the case, has erroneouslydismissed the suit as not maintainable only on procedural infirmitywhich the appellant/plaintiff do not admit.15. Order XIV Rule (1) C.P.C., relating to settlement ofissues and determination of suit on issues of law or on issuesagreed upon, is as follows:-“1. Framing of issues:-(1) Issues arisewhen a material proposition of fact or law isaffirmed by the one party and denied by theother,(2) Material propositions are thosepropositions of law or fact which a plaintiffmust allege in order to show a right to sue or https://hcservices.ecourts.gov.in/hcservices/ a defendant must allege in order to constitutehis defence.(3) Each material proposition affirmed byone party and denied by the other shall formthe subject of a distinct issue.(4) Issues are of two kinds:-(a) issues of fact,(b) issues of law(5) At the first hearing of the suit theCourt shall, after reading the plaint and thewritten statements, if any, and afterexamination under Rule 2 of Order X and afterhearing the parties or their pleaders,ascertain upon what material propositions offact or of law the parties are at variance, andshall thereupon proceed to frame and record theissues on which the right decision of the caseappears to depend.(6) Nothing in this rule requires theCourt to frame and record issues where thedefendant at the first hearing of the suitmakes no defence.”16. It is the specific plea of the appellant/plaintiff thatthe additional issues 1 and 2 are not issues relating to fact orlaw. Further, additional issues 1 and 2 were not raised by therespondent/defendant. The original power of attorney Ex.P-1 hasbeen executed by a person duly authorized to execute the same.Further, relying upon certain documents, it is contended that thepower of attorney has been attested before the Consulate General ofIndia, Sydney. Therefore, it is a validly executed document,which cannot be rejected or disputed. 17. As regards the validity of Ex.P-1 which was doubted bythe learned single Judge as to its execution at a country outsideIndia, the learned counsel for the plaintiff drawing the attentionof the Court to Sections 57 and 85 of the Indian Evidence Act,submitted that the document executed before the Consulate Generalof India, Sydney, should be accepted as valid. The presumptionshould be in favour of the plaintiff. He would rely upon thedecision reported in AIR 1989 Delhi 144 (Rajesh Wadhwa v. SushmaGovil) Paras 13, 14 and 15. Learned counsel further relied uponAIR 2004 Punjab and Haryana 121(Chanan Kaur v. Pakhar Singh),particularly to paras 9 and 10. Section 85 of the Evidence Actreads as follows:- https://hcservices.ecourts.gov.in/hcservices/ “85. Presumption as to powers ofattorney.- The Court shall presume that everydocument purporting to be a power of attorney,and to have been executed before, andauthenticated by, a Notary Public, or anyCourt, Judge, Magistrate (Indian) Consul orVice-Consul, or representative of the (CentralGovernment), was so executed andauthenticated.”Learned counsel for the petitioner, therefore contended that theCourt should presume that the power of attorney Ex.P-1 executedbefore the Indian Consulate General, Sydney, is validlyexecuted and an authentic document. In the aforesaid decision,the validity of power of attorney executed outside India, wasunder challenge and relying upon the decision of the SupremeCourt, it was held that the presumption should be in favour ofthe execution of the document. 18. Therefore, the learned counsel for theappellant/plaintiff relying upon the documents, viz., Ex.P1,photo copy of deed of power of attorney, executed by mars, Inc. infavour of Mr.C.K.Virmani; Ex.P1-a, photo copy of certificate givenby Nicholas B.Pappas, Notary Public, Sydney NSW AUSTRALIA, toR.A.Steele, Assistant Secretary; Ex.P1-b, photo copy of certificateissued by Almaza Shenouda of the Department of Foreign Affairs &Trade, identifying the signature of Nicholas Basil Pappas, NotaryPublic, Sydney, New South Wales, Australia; and Ex.P1-c, photo copyof attestation by the Vice Consul, Consulate General of India,Sydney on Ex.P1-b and Ex,P20, photo copy of the certificate issuedby the plaintiff's company at the Board of Directors Meeting heldon 16.4.1999 appointing R.A.Steele an Assistant Secretary andauthorizing her to execute power of attorney on behalf of theplaintiff corporation, to file and prosecute trademark suit andother intellectual property cases; would state that thesedocuments clearly establish that the document Ex.P1 was a validlyissued document and on the basis of the power of attorney, theplaintiff had signed the plaint. Therefore, the power of attorneyEx.P-1 cannot be rejected. 19. The learned counsel for the appellant/plaintiff submittedthat the Court below having held in favour of the plaintiff on themain issues on merits of the case of the plaintiff, erred indismissing the suit, as not maintainable on a technical plea thatthe power of attorney Ex.P-1 was not valid at the time of the trialof the suit, overlooking other factual aspects relating to theprosecution of the suit by persons concerned with the plaintiff'scompany. The learned counsel relied upon the decision reported in https://hcservices.ecourts.gov.in/hcservices/ A.I.R. 1997 Supreme Court 3 (United Bank of India –vs.- NareshKumar) to contend that the suit ought not to have been so dismissedon a mere technical plea.20. Learned single Judge has held in para 12 of the judgmentthat "No Board resolution authorizing R.A.Steele to execute thepower of attorney has been filed by the plaintiff's side". Inpara 13, it has been stated once again that "No material is placedby the plaintiff to show that the said Assistant SecretaryR.A.Steele was authorized to sign on behalf of the plaintiffcompany". Further, in the very same paragraph, it has been held bythe learned single Judge that "the plaintiff company isincorporated in U.S.A., but Ex.P1 was sworn to by a notary publicin Australia" that "P.W.1 could not explain how Ex.P1 thoughexecuted by a company in U.S.A. was sworn to by a notary inAustralia". Further, the learned single Judge holds that "theplaintiff has not proved that the Assistant Secretary R.A.Steelewas duly authorized by the plaintiff company to execute a powerdeed as found under Ex.P1. In the absence of the same, it cannotbe held that Ex.P1 was a valid one in the eye of law". In para 14of the judgment, it has been held that "Ex.P1 document was not anoutcome of the resolution of the Board of Directors of theplaintiff company". In conclusion in para 14 of the judgment, thelearned single Judge once again holds that "The plaintiff companyis incorporated in U.S.A. and Ex.P1 was sworn to by a notary publicin Australia. Without any hesitation it has to be stated thatEx.P1 document is not a properly executed or valid document in theeye of law". It is also held that "The initial infirmity what isnoticed by the Court with regard to the maintainability of the suitwas incurable". The findings of the learned single Judge arecontrary to the plaintiff's document relating to execution of thepower of attorney Ex.P-1. Ex.P-20 is the photo copy of thecertificate issued by the plaintiff's company at the Board ofDirectors Meeting held on 16.4.1999 appointing R.A.Steele anAssistant Secretary and authorizing her to execute power ofattorney on behalf of the plaintiff corporation. It is on thebasis of this document (Ex.P-20), Ex.P-1 was executed by the saidR.A.Steele, at Australia.21. Admittedly, the power of attorney Ex.P-1 had beenexecuted in Sydney NSW Australia before the Indian Vice Consul,Consulate General of India, Sydney. Therefore, the finding of thelearned single Judge that Ex.P-1 is not a valid document in the eyeof law cannot be accepted. The finding of the learned singleJudge that P.W.1 had not explained how the power of attorney wasexecuted in Australia when the appellant/plaintiff's company wasincorporated in U.S.A. is totally on a misconception of documentsEx.P1, Ex.P1-a, Ex.P1-b, Ex.P1-c and Ex.P20. Further, theexecution of document before the Consulate General, the Indian High https://hcservices.ecourts.gov.in/hcservices/ Commissioner cannot be disputed. Ex.P-20 is the authorizationissued in favour of R.A.Steele to execute a power of attorney andthis was not considered by the learned single Judge and therefore,the learned single Judge has come to the conclusion that Ex.P1 wasnot validly executed. The evidence of P.W.1 C.K.Virmani, will notbe relevant in the facts and circumstances of the case as he isnot the person who can speak about the execution of the document atSydney NSW Australia. Therefore, his evidence does not in any waydisprove the document in issue. The specific reason given by theCourt to hold that the suit filed by P.W.1 cannot be accepted, isonly on the ground that the resolution of the Board of Directors,empowering P.W.1 directly or giving necessary powers to AssistantSecretary, R.A.Steele to execute such power, was not available.Therefore, the initial infirmity as noticed by the Court is notcorrect. It is not the case of the plaintiff that P.W.1 wasdirectly empowered by the Board of Directors. However, thedocument, viz., Ex.P-20, which has been lost site of by the Courtclearly authorises R.A.Steele to execute such power in favour ofP.W.1. The non-consideration of Ex.P-20 was a reason for the Courtto hold as above. The learned single Judge has failed toappreciate Ex.P-20 which is supported by Ex.P1-a, Ex.P1-b andEx.P1-c making it amply clear that the power of attorney was avalidly executed document. In such view of the matter, the basison which the learned single Judge came to the conclusion that Ex.P-1 was an invalid document cannot be accepted and such finding hasto be set aside. The evidence of P.W.2 cannot be the basis to cometo conclusion about the nature of the document Ex.P-1. P.W.2 wasnot there at that time. The fact that R.A.Steela, executed thedocument before the Vice Consul, Consulate General of India, Sydneyis not disputed by anybody. When P.W.2 was not present at the timeof execution of the document, it is obvious that he is notcompetent person to state about the execution of the document.The presumption of the execution of the document has to beaccepted, in view of the provisions of law as has been extracted inthe decision cited above by the counsel for theappellant/plaintiff. P.W.1 has signed and verified the plaintbased on the power of attorney. It is of course true that thepower of attorney was revoked subsequently, after filing of thesuit. But, that by itself cannot make the suit as not validlyinstituted. It is not a case where the learned single Judge hasdiscarded the case of the plaintiff on account of lack of evidenceor on account of the fact that the persons who had deposed had noknowledge in the matter. Learned single Judge had dismissed thesuit only on a technical view doubting the validity of the powerof attorney. In our opinion, such conclusion of the learned singleJudge cannot be accepted in view of Section 85 of the Evidence Act.Therefore, we hold that the suit was validly instituted and thereasons given by the learned single Judge is unacceptable.Consequently, Additional issues 1 and 2 have to be held in favour https://hcservices.ecourts.gov.in/hcservices/ of the appellant/plaintiff. 22. The learned single Judge while considering theadditional issues 1 and 2 in paragraphs 14 and 15 of the judgment,referred to the affidavit of Sri Arul Selvan and the power ofattorney issued in his favour consequent to the revocation of Ex.P-1 power of attorney issued to Sri C.K.Virmani. The learned singleJudge rejected the subsequent power granted in favour of Sri ArulSelvan to come to conclusion that the suit was not properly laid.As regards the prosecution of the suit and the subsequent power ofattorney in favour of Mr.Arul Selvan, the following grounds hasbeen taken by the appellant/plaintiff:-"27. The learned Judge erred in holdingthat no proper document was produced evidencingthe appointment of Mr.Arulselvan as theconstituted attorney of the plaintiff. Theoriginal power of attorney as well as acertified true copy of the power executed bythe plaintiff to and in favour of Mr.Arulselvanwas produced before the learned Judge and whenthe additional issues were framed. On aperusal and comparison of the original power ofattorney with the attested true copy, theoriginal power of attorney was returned to thecounsel for plaintiff. The learned judge hasignored the power of attorney filed by theplaintiff to and in favour of Mr.Arulselvan,the constituted attorney.""34. The learned Judge erred in holdingthat a Photostat copy of power of attorney infavour of Mr.Arulselvan was filed. The learnedJudge has ignored the fact that the originalpower of attorney was filed before the learnedJudge along with an attested copy of the powerof attorney. The original power of attorneywas compared and verified with the attestedcopy and then the original power was returnedto the counsel for plaintiff. The power ofattorney in favour of Arulselvan was not markedas it was filed after completion of argumentsby counsel for both sides.""35. The learned Judge erred in holdingthat the power of attorney executed in favourof Arulselvan is subsisting, has to be rejectedas devoid of merits. The learned Judge hasfailed to appreciate that the power of attorney https://hcservices.ecourts.gov.in/hcservices/ in favour of Arulselvan was filed only to provethat even after the revocation of the power ofattorney Ex.P1, executed in favour of P.W.1, afresh power was executed by the plaintiff toand in favour of Arulselvarn. In any event,P.W.2, an employee of the plaintiff hasappeared on behalf of the plaintiff with aproper authorization letter, produced beforethis Hon'ble Court. In the circumstances, theentire discussion on the power of attorneyexecuted in favour of Arulselvan is not germaneto the issues involved in the case and notrelevant."The counsel for the appellant/plaintiff relied upon Ex.P-24 dated30.7.1999, letter of authority issued in favour of Boota SinghDillon, P.W.2 to state that the evidence was tendered by acompetent person and a person concerned with the plaintiffcorporation. It was therefore, contended that at the time of thetrial of the suit, in the absence of a valid power of attorney infavour of P.W.1, P.W.2 was authorized under Ex.P-24, to speakabout the suit claim. In paras 17 and 18 of the judgment, whileholding in favour of the appellant/plaintiff, the Court reliedupon the evidence of P.W.2 and the documents filed in the plaint tocome to conclusion that the plaintiff's trademark "MARS" had beeninfringed by the defendant. Further in paragraph 14 of thejudgment, the learned single Judge held that P.W.2 is notcompetent to speak about the business of the plaintiff in India.When the Court accepts the case of the plaintiff based on theevidence of P.W.2 and on the basis of the documents filed insupport of the plaint, it is not clear how the place of residenceof P.W.2 will be relevant for the purpose of tendering evidence inthe suit. It is not disputed that P.W.2 has been authorised togive evidence in terms of Ex.P-24. Such document also is not indispute. In this background of the case as to what is the effectof the power of attorney granted in favour of Arul Selvan andwhether it is necessary for the purpose of concluding the suitproceedings is a question which should have been considered in thelight of the documentary evidence and the evidence of P.W.2. Thelearned single Judge while dealing with the case of the plaintiffon additional issues 1 and 2, has observed that the power ofattorney granted in favour of Sri Arul Selvan was not marked andhe was not examined as witness and therefore, the Court came tohold that there was no valid power at the time of filing the suitand thereafter. To such contention, the plaintiff/appellant hasraised the plea in ground Nos.27 and 34, which have been extractedabove. Since the evidence of P.Ws.1 and 2 were already on recordsupported by the documents filed and the plaintiff had proved thecase on merits, there was no need to record the evidence of Sri https://hcservices.ecourts.gov.in/hcservices/ Arul Selvan at all. The power of attorney was taken in his favouronly to show that at the time of conclusion of the suitproceedings, there was a valid power of attorney in favour of aperson and the plaintiff is represented. As regards the evidenceof P.W.2, he is a competent person as is evident from Ex.P-24,which has not been controverted by the defendant. In any eventMr.Arul Selvan also had the power of attorney executed in hisfavour and the same was before the Court. Therefore, theconclusion of the learned single Judge that there was no validpower of attorney to file and prosecute the suit is totallyerroneous. In any event we have for reasons aforesaid heldAdditional issues 1 and 2 in favour of plaintiff and therefore, thesubsequent events and discussions regarding the power of attorneyin favour of Mr.Arul Selvan becomes academic. Once it is foundthat the plaintiff was the Proprietor of the trademark MARS and thedefendant infringed the trademark and that action of the defendantwas causing confusion and deception among the trade and public, thesuit is bound to be decreed. The finding with regard to thevalidity of the power of attorney is rejected and we have nohesitation to hold that the suit was properly instituted andprosecuted. 23. On issue Nos.3 and 4, the learned single Judge held infavour of the plaintiff/appellant, which is the sum and substanceof the case of the plaintiff/appellant. The suit should not havebeen dismissed on the ground that on the date on which the trialproceeded and evidence recorded, there was no power of attorneyin favour of P.W.1. Such contention cannot be accepted in view ofEx.P-24 and specific plea of the plaintiff/appellant that thevalid power of attorney was executed in favour of Mr.Arul Selvan.Therefore, the plaintiff was duly represented at the time offiling of the suit and at the time of trial as well. In any event,the defendant had not raised the plea in the written statement andthere was no occasion for the Court to frame the additional issues1 and 2. 24. At the time of hearing of the appeal, the learned counselfor the plaintiff/appellant submit that they are not pursuing therelief as sought for in paras 30(c) and 30(d) of the plaint.25. For the aforesaid reasons, we are unable to accept theultimate conclusion of the learned single Judge and such judgmentis liable to be reversed and the suit is decreed.26. In the result, the appeal is allowed setting aside thejudgment and decree of the learned single Judge made in C.S.No.220of 1995 dated 9.4.2001 with regard to additional issue Nos.1 and 2and in other respects, the finding of the learned single Judge isconfirmed. Accordingly, the suit is decreed as prayed for with https://hcservices.ecourts.gov.in/hcservices/ regard to prayer in paras 30(a) and (b) of the plaint anddismissed with regard to prayer in paras 30(c) and (d) of theplaint, as not pressed. In the facts and circumstances of thecase, there will be no order as to costs. Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.ts. To1. The Sub-Assistant Registrar, Original Side, High Court, Madras.2. The Sub Assistant Registrar,Judicial Department,High Court, Madras.1 cc to Mr. Ashok Menon, Advocate, sr. 88711 cc to Mr.A.A. Mohan, advocate, sr. 7968O.S.A.No.194 of 2001BV (CO)kk 5/3