Delhi High Court - Orders
Spykar Lifestyles Private Limited vs Deepak Singhal Trading As Shyam Plastic ... on 13 October, 2023
Author: Prathiba M. Singh
Bench: Prathiba M. Singh
$~10 & 11
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ C.O. (COMM.IPD-TM) 224/2023
SPYKAR LIFESTYLES PRIVATE LIMITED ..... Petitioner
Through: Mr. Jayant Mehta, Senior Advocate
with Mr. Manu Nair, Mr. J.V. Abhay,
Ms. Henal Vakharia, Mr. Manik
Sachdeva, Mr. Dhruv Grover, Mr.
Abhineet Kalia, Mr. Akshat Agarwal,
Advocates.
versus
DEEPAK SINGHAL TRADING AS
SHYAM PLASTIC INDUSTRIES ..... Respondent
Through: Mr. Umesh Singjal, Ms.Asmita
Duggal, Ms. Bhumika Bhardwaj &
Ms. Akshita Khasia, Advocates (M-
9811156111)
AND
+ CS(COMM) 545/2023, I.A. 14910/2023, 14911/2023, 14912/2023,
20356/2023
SPYKAR LIFESTYLES PRIVATE LTD ..... Plaintiff
Through: Mr. Jayant Mehta, Senior Advocate
with Mr. Manu Nair, Mr. J.V. Abhay,
Ms. Henal Vakharia, Mr. Manik
Sachdeva, Mr. Dhruv Grover, Mr.
Abhineet Kalia, Mr. Akshat Agarwal,
Advocates.
versus
SHYAM PLASTIC INDUSTRIES & ORS. ..... Defendants
Through: Mr. Umesh Singjal, Ms.Asmita
Duggal, Ms. Bhumika Bhardwaj &
Ms. Akshita Khasia, Advocates
CORAM:
JUSTICE PRATHIBA M. SINGH
ORDER
% 13.10.2023
1. This hearing has been done through hybrid mode.
C.O. (COMM.IPD-TM) 224/2023 & CS(COMM) 545/2023 Page 1 of 7This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 19/10/2023 at 20:45:00 CS(COMM) 545/2023 & I.A. 14910/2023 (under Order XXXIX Rule 1&2 CPC)
2. The present suit has been filed by the Plaintiff- Spykar Lifestyles Pvt. Ltd. under Section 134 & 135 of the Trade Marks Act, 1999 seeking injunction against trade mark infringement, passing off, misrepresentation, dilution, unfair competition etc. The suit relates to the mark 'SPYKAR'.
3. The case of the Plaintiff is that it adopted the mark 'SPYKAR' in the year 1992. It claims to be using the mark 'SPYKAR' in respect of various apparels, footwear, accessories, etc. The mark 'SPYKAR' is registered by the Plaintiff in various logo forms and devices in classes 25, 18, 27, 25, 35, etc.
4. Vide order dated 18th August 2023, this Court while considering the application I.A. 14910/2023 directed as following:
"10. Considering that there is a factual dispute between the parties in respect of whether the Defendants are even using the mark, the Defendants shall place on record the following:
i. An affidavit giving details of use of the mark 'SPYKAR' along with any advertising in publicly available print media or press clippings relating to the use of the mark on footwear.
ii. Any documents to support the argument that the Defendants have been using the mark 'SPYKAR'. Such documents may include advertisement, press clippings, invoices, audited balance sheets, exhibition photographs, etc.
11. Let the affidavit and the documents be filed within two weeks. Rejoinder be filed within two weeks, thereafter.
12. The Plaintiff is given liberty to approach this Court if it comes across any use of the mark 'SPYKAR' by the Defendants hereinafter."C.O. (COMM.IPD-TM) 224/2023 & CS(COMM) 545/2023 Page 2 of 7
This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 19/10/2023 at 20:45:00
5. An affidavit has been filed by the Defendants' counsel in terms of the previous order, but the same has been returned under objections.
6. A copy of the affidavit handed over to the ld. Counsel for the Plaintiff has also been given to the Court. The affidavit reveals a procedural defect as also a disturbing feature in respect of notarisation. The affidavit has an opening statement to the following effect:
"We. Shyam Plastic Industries, having office at J-4, Udyog Nagar, Rohtak Road, New Delhi-110041. (Defendant No. 1). Shyam Foot Tech Private Limited having office at BP-6. Shalimar Bagh. New Delhi- 110088 (Defendant No. 2) and Deepak Singhal, s/o Sh. Ram Kishan Singhal, having office at J-4, Udyog Nagar, Rohtak Road, New Delhi-110041, (Defendant No. 3), collectively may be called "the defendants. do hereby solemnly affirm, declare and submit as under:"
7. The affidavit does not mention clearly the name of the deponent for Defendant No. 1-Shyam Plastic Industries. The age of the deponent is not mentioned and neither the residential address is mentioned. The deponent ought to be signing on two places, but in the copy of the affidavit, the deponent is mentioned only below the verification.
8. The most surprising aspect is that the affidavit bears the seal of the notary dated 10th October, 2023, but it does not bear the signatures of the deponent at all.
9. The Court has also given an opportunity to ld. Counsel for the Defendants to check and place a signed copy before the Court. However, the ld. Counsel for the Defendant does not have a signed copy, but only has a notarized copy of the affidavit.
10. Notarization of any document which does not bear the signature of the C.O. (COMM.IPD-TM) 224/2023 & CS(COMM) 545/2023 Page 3 of 7 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 19/10/2023 at 20:45:00 person is completely contrary to provisions of the Notaries Act, 1952. In V.R. Kamath v. Divisional Controller (AIR 1997 Kant 275), the Court observed that when an affidavit is presented in Court, it serves as evidence in those proceedings and must be given under oath or affirmation to hold value. Further, those authorized to administer oaths, like Notaries and Oath Commissioners, must understand the seriousness and sanctity of their role, as affidavits guide decisions that determine parties' rights and obligations. The ld. Single Judge of the Karnataka High Court observed as follows:
"4.3. Thus, when an affidavit is tendered in Court, it is intended to be acted upon as evidence in such proceedings. Evidence, unless given on oath or solemn affirmation, is of no value. Normally administering oath before recording evidence is the function of persons authorised to receive evidence. This important and solemn function is assigned and entrusted to Notaries, Oath Commissioners and Designated Officers, under Code of Civil Procedure, Code of Criminal Procedure and High Court Rules. Persons entrusted with the duty and power of administering oath or affirmation should always bear in mind, the solemnity and sanctity attached to the act of administering oath/affirmation; they should not forget that affidavits are intended to be acted upon as evidence for rendering decisions determining rights and obligations of parties. Decisions on Writ Petition, Civil Petitions, Interlocutory Petitions wholly depend on averments affirmed by affidavit, replacing the requirement of oral evidence. Administering oath/affirmation to a wrong deponent is nothing but permitting impersonation of a witness giving evidence. Making an endorsement relating to administration of oath or affirmation in the absence of a party, is similar to recording evidence in the absence of the witness. Such things should not happen;C.O. (COMM.IPD-TM) 224/2023 & CS(COMM) 545/2023 Page 4 of 7
This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 19/10/2023 at 20:45:00 these things cannot be permitted to happen; and that these matters are required to be reminded to the persons concerned, is an indication of the sad state of affairs."
11. Thus, the signatures of the deponent are mandatory prior to notarization and not after that. The purpose of appearing before a notary is to ensure that the deponent is assuring the notary that whatever he or she has stated in the document or in the affidavit is correct. The entire purpose of the notarization would be defeated if such notarization is permitted without even the signatures of the deponent. Accordingly, Mr. Vijay Kumar, ld. Notary who has registration no.77/05, shall appear before the Court on the next date of hearing along with his original register and his credentials to verify whether the notary had even perused the signed copy of the affidavit, and as to who had verified the signatures of the deponent.
12. The affidavit is not on record. However, based on the copy of the affidavit which has been handed over, submissions have been heard.
13. The Defendant is a registered proprietor of the mark 'SPYKAR' bearing registration no. 1253722 dated 8th December 2003 in class 25, claiming user since 1st December 2003. However, in the documents, the earliest invoice presented is dated 3rd July, 2017, and it does not mention the mark. Ld. Counsel for the Defendants has highlighted the brochure, some merchandise, and stalls set up by the Defendants in trade fairs to demonstrate the use of the mark 'SPYKAR'. The profit and loss account of the Defendants has also been placed on record, which indicates that Defendants has substantial sales of footwear, but the actual brand which is used is not clear. The brochure reveals that there are several brands used by the Defendants such as 'PU SPIKE', 'SPIKE LITE', 'SIGN UP', 'AIR C.O. (COMM.IPD-TM) 224/2023 & CS(COMM) 545/2023 Page 5 of 7 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 19/10/2023 at 20:45:00 SPIKE' 'WISDOM' and 'SPYKAR'. Among these, 'SPYKAR' is only one type of footwear sold, and in fact the brochure reveals that the 'SPYKAR' branded footwear has the least number of models. In trade fairs and other merchandise, the mark 'SPYKAR' is used quite prominently. The cartons with the mark 'SPYKAR' have also been produced before the Court. However, the exact date of adoption is not clear to the Court, as there is no publicly verifiable advertisement filed by the Defendants on record.
14. Mr. Jayant Mehta ld. Senior Counsel for the Plaintiff submits that the examination report for the Defendants' registration dated 1st August 2003 clearly cited the Plaintiff's mark as previously applied mark. Thus, the Defendants were well aware when they applied in 2003 that the Plaintiff had a 'SPYKAR' mark in respect of clothing as also in respect of footwear in class 25.
15. It is also argued by ld. Senior Counsel that the Defendants are also imitating other well-known marks and logos as well.
16. After some hearing, ld. counsel for the Defendants seek an adjournment to be able to obtain instructions whether the Defendants are willing to make a change in its trademark 'SPYKAR'. In addition, he also seeks time to bring the affidavit on record along with other documents. Let the needful be done.
17. It is also submitted that the logo of the Plaintiff has also been imitated by the Defendants.
18. It is clarified that 18th August, 2023 shall be taken as the date when the summons in the present suit have been issued to the Defendants, as the Defendants had entered appearance on the said date. Notice in the application I.A. 14910/2023 is accepted by Mr. U.K. Singhal.
C.O. (COMM.IPD-TM) 224/2023 & CS(COMM) 545/2023 Page 6 of 7This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 19/10/2023 at 20:45:01
19. In view of the above submissions, the Defendants shall not expand its products range under the mark 'SPYKAR' and shall be restricted to the models reflected in the brochure which has been placed on record.
20. List on 20th December, 2023.
21. Let notice be issued to the Notary Mr. Vijay Kumar at Shop No. 106, B-09 ITL Twin Tower, Netaji Subhash Place, Pitampura, Delhi-110034.
22. This shall be treated as a part-heard matter.
C.O. (COMM.IPD-TM) 224/2023
21. Issue notice.
22. Let a reply be filed within a period of 6 weeks.
23. List on 20th December, 2023.
PRATHIBA M. SINGH, J.
OCTOBER 13, 2023 Rahul/dn C.O. (COMM.IPD-TM) 224/2023 & CS(COMM) 545/2023 Page 7 of 7 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 19/10/2023 at 20:45:01