Atlas Paint and Coatings enjoined from using Atlas metal filler trademark

By T. Farook Thajudeen

 Colombo Commercial High Court enjoined Atlas Paint and Coatings (Pvt.) Limited of Grandpass Road, Colombo 14 from distributing products to the market which holds a similar symbol owned by the plaintiff, Eadrien Joseph Croos Machado of Thimbirigasyaya, Colombo 5.

Commercial High Court Judge E. A .G. R. Amarasekera made this order on the defendant on considering the documents filed in court and the submissions of Senior Counsel Ian J. F. Fernando who appeared with Saman Liyanage as instructed by S. Bagirathan on behalf of the plaintiff.

The counsel said that despite notification to the defendant on 18 October 2012 by the plaintiff’s lawyer Derric Fernando, asking the plaintiff to not to use the symbol, and the paper publication on 3 November 2012  in the Ceylon Daily News, the symbol of the plaintiff had been used by Atlas Coating (Pvt.) Limited  and was distributed to the market.

The Counsel submitted that his client is the owner of the trademarks registered under numbers 150368, 15386 and 150387 and is called ‘Atlas Metal Filler,’ ‘Atlas Super Cut’ and ‘EZ Cut.’ Fernando said that the defendant was distributing products that are similar in appearance, thus causing an irreparable loss to the plaintiff if the defendant was not enjoined by the court.  

He contended that his client, by agreement No. 4086 attested by Notary Public S. Bagirathan on 5 October2012, had given the right to Buddhika Brushes (Pvt.) Ltd., Panagoda to use the symbols. However, the defendant had directly or indirectly infringed the rights of the plaint by using the words ‘instant repair paste for vehicles’ body work’ and the words ‘light weight metal filler,’ which are similar in appearance to the two products. The getup of the two labels is similar in colour, thus misleading the public, said the Counsel

He also contended that there has been a good demand for his products in the market for over 45 years and if the action of the defendant is not restrained from the first instance, an irreparable loss would be caused to the plaintiff.

The judge, on considering the submissions, issued an enjoining order stating that in terms of Para (c) of the plaint, that the defendant is enjoined from distributing products to the market which hold similar symbols owned by the plaintiff. The judge also issued notice of interim injunction returnable on 28 November.