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M/S Nif Private Limited vs M/S Prashant Dairy on 1 December, 2022

IN THE COURT OF MS SAVITA RAO, DISTRICT JUDGE
      COMMERCIAL COURT-04, SHAHDARA,
        KARKARDOOMA COURTS, DELHI


CNR No. DLSH01-007399-2019
CS (Comm) No. 254/2019

In the matter of :-

M/s NIF Private Limited
Plot no. 119-121,
Block P & T, Fazal Ganj
Kalpi Road, Kanpur- 208012 (UP)
                                                      ............Plaintiff

Vs.

M/s Prashant Dairy
Belsanditara Shankar Chowk
PO- Belsanditara, P.S. Bibhutipur
District Samastipur, Bihar - 848237

                                                      .........Defendant

Date of institution of the case                   :      19.11.2019
Date of final arguments                           :      29.11.2022
Date of judgment                                  :      01.12.2022


                       EX-PARTE JUDGMENT

1.

This is suit under sections 134 & 135 of Trade Marks Act, 1999 as well as under section 51 of Indian Copyright Act for the relief of permanent injunction to restrain passing off, infringement of trademark and copyright, delivery up and rendition of accounts etc., filed by plaintiff against the defendant.

2. The plaintiff company is stated to be engaged in the business of procuring, processing and sale of milk and milk allied products under the trademark ' Namaste India' since 27.10.2007. It is stated that in the year 2007-2008, plaintiff company created, composed and adopted a special artistic work, trade dress/device/packaging style for the sale and distribution of its milk and allied products having unique pictorial appearance and distinctive style of writing the trademark ' Namaste India' . In order to acquire statutory rights, plaintiff company got registered the trademark/label ' Namaste India' under the provisions of Trade mark Act 1999 for its various goods and services, details of which have been mentioned in the plaint. As further stated, the art work i.e. the get up, lettering style, colour scheme, placement of work, artistic features etc. involved in the trademark/label is unique and exclusive which is being used continuously and uninterruptedly by the plaintiff and has also been registered in the favour of plaintiff company under the provisions of Indian Copyright Act 1957, details of which are also mentioned in the plaint. Plaintiff has been continuously advertising and promoting its said trademark/label through different means and modes including print and electronic media .

3. As further stated, in the second week of November 2019, plaintiff company came to know that defendant who is also engaged in the business of procurement, processing and sale of milk and other dairy products, has with a malafide intention to pass on its products as those of the plaintiff's, deliberately adopted the same trade mark/label ' Namaste India' for the sale of its products and by said adoption and user, defendant has infringed the proprietary rights of the plaintiff in the said trademark/label and copyright. Adoptiong of said identical trade mark/label by the CS (Comm) No. 254 of 2019 2/8 defendant is bound to confuse/deceive not only the ordinary purchaser but also big retailers/dealers/distributors which has been done by the defendants with a dishonest intention to take advantage of all financial and human resources invested by the plaintiff without incurring any cost to trade upon the reputation and good will of the plaintiff company and to create confusion and deception amongst the customers/dealers.

4. As further stated, defendants are not only infringing the proprietory rights of the plaintiff in the said trademark/label as well as copyright involved therein but by passing off its products as that of the plaintiff company, are also causing financial loss to the plaintiff company by reaping unfair advantage of the goodwill and reputation.

5. After filing of the suit, vide order dated 25.11.2019 ex- parte temporary injunction was granted in favour of plaintiff and against the defendant and Local Commissioner was appointed for seizure of all the material bearing the impugned trademark/label and other incriminating material. After service of the summons, defendant appeared and on joint request, matter was referred to Mediation Centre, Karkardooma Courts, Delhi for exploring the possibility of settlement . No settlement was effected between the parties and though written statement was filed by the defendant but thereafter defendant stopped appearing in the matter. Defendant accordingly was proceeded ex-parte vide order dated 10.11.2021

6. Matter was fixed up for ex-parte final arguments while placing reliance upon Parsvanath Developers Ltd v. Vikram Khosla, CS Comm No. 618 of 2019 and C.M No. 8431 of 2020, decided on 03.03.2021, 2021 SCC Online DEL 3147 and CS (Comm) No. 254 of 2019 3/8 Merck Sharp and Dohme Corp. v. Mr. Munish Thakur, 2017 SCC Online Del 11226, wherein it was held that " where the plaint has been verified and also supported with the affidavit/statement of truth on behalf of the plaintiff and the defendant having being proceeded ex-parte, no purpose would be served if the plaintiff is directed to lead ex-parte evidence. Arguments are to be addressed straightway and the judgment is to be passed on the basis of the material on record " . Relevant documents were given exhibit numbers.

7. I have heard Ld. Counsel for plaintiffs and have carefully perused the record.

8. Plaintiff, in support of its claim, has relied upon following documents:

(1) Representation of Trade mark/Label of plaintiff is Ex. P-1.

(2) Representation of impugned trade mark/label of defendant is Ex. P-2.

(3) Copy of Registration Certificates and Status of Trademark of the plaintiff is Ex. P-3.

(4) Copy of Copyright Certificates of plaintiff is Ex. P-4. (5) Copy of invoices of plaintiff company is Ex. P-5. (6) Copy of sales figure of plaintiff company alongwith the advertisement expenses is Ex. P-6.

(7) Copy of advertisement and other sales promotional material of the plaintiff is Ex. P-7.

(8) Copy of Certificate of Incorporation, Amalgamation and Demerger, Change of name of the plaintiff is Ex. P-8. (9) Copy of Assignment deed dated 20.02.2013 is Ex. P-9. (10) Copy of Board of Resolution is Ex. P-10.

(11) Copy of orders passed by Hon'ble High Court and District Courts are Ex. P-11 (colly)

9. As already noted, defendant after appearing on some dates stopped appearing before the court and therefore was proceeded ex- parte. Written statement though was filed on record wherein it was submitted that defendant has nothing to do with the instant suit . As stated, each and every statement made by the plaintiff in the plaint is a false statement and plaintiff failed to file any documentry evidence to prove its case. As further stated, plaintiff does not hold Trademark Certificate for the Trademark/Word Mark ' Namaste India' , whereas defendant has all the valid licenses and approvals which are necessary to do the business of milk products besides the fact that defendant in each of its packaging had clearly stated all the necessary information as required by law and government process.

10. The averments made in the plaint (which is supported with the affidavit and statement of truth) remained uncontroverted, unrebutted and unchallenged for the failure of defendant to contest the matter after filing of the written statement.

11. In terms of report of Local Commissioner placed on record, number of rolls of ' Namste India' for milk products were found during the search of premises of defendant which were identified by the AR of plaintiff company as fake goods. Inventory of Goods seized from the premises of defendant was also placed on record. Certificate of registration of Trademark in class 29 is Ex. P-3 is part of record. Counsel for plaintiff also placed reliance upon Century Traders Vs. Roshan Lal Duggar & Co.

MANU/DE/0153/1977, Midas Hygiene Vs. Sudhir Bhatia, CS (Comm) No. 254 of 2019 5/8 MANU/SC/0186/2004, Hindustan Pencils Pvt. Ltd. Vs. M/s India Stationery Products I.A. no. 2775 of 1988 in Suit no. 941 of 1988, M/s Ansul Industries Vs. M/s Shiva Tobacco company FAO no. 228/2005, M/s NIF Pvt. Ltd. Vs. M/s Patel Brothers CS (OS) no. 293/2015, M/s NIF Pvt. Ltd. Vs. Shri Shyam Organics, CS (Comm) no. 33/2021, Frankfinn Aviation Services Private Limited Vs. Frankfinn Creations and Ors. 2022 SCC Online Del 2054, Chandar Kishore Chaurasia Vs. RA Perfumery Works Private Ltd. 2022/DHC/004454, Shree Rajmoti Industries Vs. Rajmoti Oil Mill Pvt. Ltd and Ors. MANU/DE/1090/2004, Lyft Inc. Vs. Goer Techno Infra Private Limited I.A. 13970/2019 and Shakti Fashion & Anr. Vs. Burberry Limited CRP-IPD 2/2022 & CM Appl. 20304/2022.

12. This court does not find any reason to disbelieve the version of the plaintiff and the averments made in the plaint supported by the documents on record and the report of Local Commissioner. Coloured pictures of the original goods and fake goods have also been filed alongwith the plaint. From the perusal of documents on record, it is apparent that the defendant has infringed the impugned trademark/label of plaintiff; passed of its goods and business as that of the plaintiff; infringed the plaintiff's copyright in the said Trademark/Label by using, publishing, reproducing the same and defendant apparently is guilty of falsification and unfair trade practices. The conduct of the defendant is in complete violation of plaintiff's statutory and common law rights and amounts to infringement of the registered trademark/label and copyright of the plaintiff.

13. As regards rendition of accounts of profits earned by the defendant, no document/material has been placed on record by the plaintiff . Hence, no order in this respect is passed.

14. Instant suit is accordingly decreed with cost (inclusive of the cost incurred for payment to Local Commissioner) in favour of the plaintiff and against the defendant, thereby :

(1) defendant is restrained by itself as also through its individual partners/proprietors, directors, agents, representatives, distributors, dealers, assigns, heirs, successors, stockists and all other acting for and on behalf of defendant from manufacturing, counterfeiting, using, selling, soliciting, exporting, displaying, advertising, importing/exporting or by any other mode or manner dealing in or using the impugned trade mark/label for the milk sold under the trademark " Namaste India" or any other trade mark/label which may be identical with an /or deceptively similar to the plaintiff's trademark/label ' Namaste India' in relation to their impugned goods and business of milk and dairy products or from doing any other acts or deeds amounting to or likely to:

(i) infringement of the plaintiff's registered trade mark/label of the plaintiff.

(ii) passing off their goods and business as that of the plaintiff in violation of the plaintitff's rights in the said trademark/label.

2. For delivery up of all the impugned finished and unfinished material of defendant bearing the impugned and violative mark/label or any other word/mark which may be identical with or deceptively similar to the plaintiff's said trademark/label including its blocks, labels, display boards, sign boards, trade literatures and goods etc. CS (Comm) No. 254 of 2019 7/8

15. Decree sheet be prepared accordingly. After completion of formalities, file be consigned to record room.

                                     SAVITA Digitally signed
                                            by SAVITA RAO

                                     RAO    Date: 2022.12.01
                                            15:55:16 +0530

Announced in the open                (SAVITA RAO)
court on this 1st day               DISTRICT JUDGE
 of Dec 2022                    (COMMERCIAL COURT)-04
                                 SHAHDARA, KKD COURTS,
                                        DELHI




CS (Comm) No. 254 of 2019                                  8/8