Delhi District Court
Levi Strauss And Company vs Kulwant Singh on 25 September, 2024
DLCT010126982019
IN THE COURT OF SH. SANJEEV KUMAR AGGARWAL : DISTRICT
JUDGE (COMMERCIAL) -01 : CENTRAL, TIS HAZARI COURTS,
DELHI
CS (Com.) No. 726/2023
Levi Strauss & company,
1155, Battery Street, San Francisco,
State of California,
United States of America.
Also at :
Levi Strauss India Pvt. Ltd.,
Tower A, Signature Tower,
5th Floor, Sector-30, Gurgaon - 122002.
Through its AR :
Sh. Narendra Singh. ..... plaintiff.
Versus
Sh. Kulwant Singh,
H-16/89, Tank Road,
Karol Bagh, Delhi - 110005.
Also at :
E-16/934, Basement,
Arora Complex (Near Shiv Mandir),
Main Tank Road - 110005. .... defendant.
Suit (Com.) No. 726/2023 Page No. 1 of 65
Levi Strauss & Co. Vs. Kulwant Singh
Date of institution : 18.09.2019
Date of reserving Judgment : 12.08.2024
Date of decision : 25.09.2024
SUIT FOR MANDATORY AND PERMANENT INJUNCTION,
INFRINGEMENT OF TRADEMARKS AND COPYRIGHT, PASSING
OFF AND RENDITION OF ACCOUNTS.
JUDGMENT
1. Vide this Judgment, I shall decide the present suit filed by the plaintiff for mandatory and permanent injunction, infringement of trademarks and copyright, passing off and rendition of accounts against the defendant.
2. The brief facts as stated in the plaint are that Sh. Narendra Singh S/o S.S. Fauzdar is duly authorized to institute, sign, depose, verify and pursue the present suit through power of attorney dated 08.11.2017 and 02.09.2021. It is further stated that the plaintiff company the plaintiff is a company duly registered under the laws of California, United States of America having its registered office at 1155 Battery Street, San Francisco, State of California, United States of America and is engaged in the business of manufacturing and marketing of clothing of all kinds, readymade garments and clothing and leisure shoes, Spectacle Glasses, Sunglasses, bags and other accessories under the trademark "Levi's" and other trademarks. The plaintiff company carries on its business in Delhi through its exclusive franchise and showrooms in various parts of Delhi.
3. It is further stated that the plaintiff company is operating across the globe and its products are available in India as well. The plaintiff company has been innovating since 1873, the year it created and patented the world's first blue jeans and operates in more than 110 Suit (Com.) No. 726/2023 Page No. 2 of 65 Levi Strauss & Co. Vs. Kulwant Singh countries worldwide. That throughout its long history, the plaintiff company has inspired change in the marketplace, the workplace and the world. It is further stated that the brand "Levi's" was known in India even before its launch in the country because of its global presence. The plaintiff company ventured into the youth segment in India in 1994 by launching its products under the iconic brand name "Levi's". Levi's in India is being built as the most definitive, the trendiest and the most premium apparel brand targeted at trendsetters and early adopters. The plaintiff is the registered proprietor of various trademarks in various classes in India, including among others the trademarks registered in class 25 set out in the table below (hereinafter referred to as the "Levi's marks").
Mark Logo Reg. Reg. Valid Till Class
No. Date
GUARANTE
E TICKET 350738 26.06.19 26.06.2027 25
79
LEVI'S 270875 26.03.19 26.03.2026 25
71
LEVI'S 851933 19.04.19 19.04.2026 25
99
LEVI'S
(HOUSEMA 301881 02.01.19 02.01.2020 25
RK) 75
LEVI'S
(HOUSEMA 851936 19.04.19 19.04.2029 25
RK) 99
TWO
HORSE 290954 18.09.19 18.09.2028 25
73
Suit (Com.) No. 726/2023 Page No. 3 of 65
Levi Strauss & Co. Vs. Kulwant Singh
Arcuate
Stitching 382357 23.10.19 23.10.2019 25
Design 81
Arcuate 25
Stitching 851939 19.04.19 19.04.2029
Design 99
MiscGeom(D
evice) 851717 16.04.19 16.04.2029 25
99
LEVI'S 851932 19.04.19 19.04.2029 18
(Word) 99
LEVI'S 851935 19.04.19 19.04.2029 18
DEVICE 99
Device 851938 19.04.19 19.04.2029 18
99
MiscGeom(D 900545 31.01.20 31.01.2020 25
evice) 00
MiscGeom(D 851716 16.04.19 16.04.2029 18
evice) 99
Silver Tab 540033 16.11.19 16.11.2024 25
(Device) 90
Orange Tab 540035 16.11.19 16.11.2024 25
(Device) 90
Red Tab 540034 16.11.19 16.11.2024 25
(Device) 90
Device 532644 05.07.19 05.07.2024 25
90
Suit (Com.) No. 726/2023 Page No. 4 of 65
Levi Strauss & Co. Vs. Kulwant Singh
501 515566 23.08.19 23.08.2020 25
(Word) 89
DOCKERS 515288 18.08.19 18.08.2020 25
(Device) 89
Pocket 352692 23.08.19 23.08.2027 25
Device 79
(Device)
Logo 317649 11.08.19 11.08.2024 25
76
Levi's 362699 04.09.20 04.09.2027 25
Sportswear 7 17
(logo &
Design)
Levi's & Tab 356945 13.06.20 13.06.2027 25
(Device & 7 17
Design)
LEVI'S 336220 14.09.20 14.09.2026 25
ALTERED 0 16
(Word)
WELLTHRE 283792 05.11.20 05.11.2024 25
AD 8 14
(Word)
COMMUTER 249675 15.03.20 15.03.2023 25
(Word) 3 13
LEVI'S 245398 03.01.20 03.01.2023 99
Suit (Com.) No. 726/2023 Page No. 5 of 65
Levi Strauss & Co. Vs. Kulwant Singh
DOUBLE 3 13
STITCH
(Word)
Levi's 220297 09.09.20 09.09.2021 35
(Logo) 3 11
Device 217607 15.07.20 15.07.2021 25
2 11
FIT OUT 217607 15.07.20 15.07.2021 25
START UP 1 11
(Word)
Logo 215189 30.05.20 30.05.2021 99
(Device) 1 11
GO FORTH 214501 16.05.20 16.05.2021 25
(Word) 2 11
PATENTED 213561 26.04.20 26.04.2021 99
MAY 201973 6 11
LABEL
(Device)
STA-PREST 211968 22.03.20 22.03.2021 25
(Word) 5 11
DEVICE 199036 07.07.20 07.07.2020 25
WITH LABEL 3 10
(Device)
505 194489 01.04.20 01.04.2020 25
(Word) 4 10
Suit (Com.) No. 726/2023 Page No. 6 of 65
Levi Strauss & Co. Vs. Kulwant Singh
DEVICE 194054 23.03.20 23.03.2020 25
WITH LOGO 2 10
(Device)
DEVICE 190216 29.12.20 29.12.2019 99
8 09
DENIZEN 186963 05.10.20 05.10.2019 99
(Word) 6 09
LEVI'S 162205 19.11.20 19.11.2027 9
(Word) 9 07
DOCKERS 153070 13.02.20 13.02.2027 9
(Word) 2 07
LEVI'S 153070 13.02.20 13.02.2027 9
(Word) 1 07
OUR 147188 20.07.20 20.07.2026 25
SIGNATURE 5 06
, YOUR
STYLE
(Word)
LEVI 142565 01.03.20 01.03.2026 25
STRAUSS 1 06
SIGNATURE
WITH LABEL
(Device)
LEVIS LOOP 141725 27.01.20 27.01.2026 35
ONLY FOR 6 06
ORIGINALS
WITH
DEVICE
MARK
Suit (Com.) No. 726/2023 Page No. 7 of 65
Levi Strauss & Co. Vs. Kulwant Singh
DEVICE 137126 14.07.20 14.07.2025 25
MARK 9 05
4. It is further stated that the registration of the above trademarks stands renewed from time to time by the trademark Registry and the said trademarks, on account of renewal, are valid and subsisting in favor of the plaintiff company till date and the plaintiff company has the exclusive right to use the above stated trademarks with respect to its goods in the classes stated above and no one is entitled to use the said trademarks or any deceptively similar trademark in respect of the goods stated above, without a valid license, assignment etc. by the plaintiff company. That apparels of the plaintiff company comprises of the labels bearing "Levi's marks" embossed and / or written on its product. Plaintiff company's products are used by the general populace for its leisure wear as well as fashion wear. The products of the plaintiff company under "Levi's marks" have become very prominent in the trade.
5. It is further stated that the plaintiff company has spent huge amount of money in advertising and promotion of its products under "Levi's marks". The said advertisement and the promotion are done by the plaintiff company through various print as well as electronic media such as newspapers, magazines, Radio commercials, TV Commercials, pamphlets on account of good quality and standards of manufacturing and ever introducing new technologies and by putting its skillful and untiring efforts in advertising and marketing, goods of the plaintiffs has acquired an enviable reputation in India and worldwide.
NET REVENUE PER YEAR:
2016 $ 4.6 billion
2015 $ 4.5 billion
Suit (Com.) No. 726/2023 Page No. 8 of 65
Levi Strauss & Co. Vs. Kulwant Singh
2014 $ 4.7 billion
2013 $ 4.7 billion
2012 $ 4.6 billion
6. It is further stated that on account of tremendous promotion and publicity as well as the large volumes of sales, the members of public and trade associates "Levi's marks" with the plaintiff company only and the plaintiff company maintains strict quality control and as such the same has acquired excellent reputation and goodwill in the market and among the users at large.
7. It is further stated that defendant is engaged in the business of stocking, distributing and selling infringing goods bearing the falsified "Levi's marks" from its warehouse situated at H-16/89, Tank Road, Karol Bagh, Delhi-110005 and during a market survey in the last week of August, 2019, it came to the knowledge of the plaintiff company that the defendant is clandestinely storing and selling apparels including t-shirts, lowers shirts and jeans under "Levi's marks" which are deceptively and confusingly similar trademarks and are much inferior in quality than the products of the plaintiff. It is further stated that the labels attached, and the trademarks embossed on the impugned product of the defendant is same/similar in design and appearance, as those used by the plaintiff company.
8. It is further stated that the plaintiff has conducted an investigation through its investigator to confirm about such acts of the defendant. The investigator of the plaintiff company visited premises of the defendant and has purchased / procured infringing goods bearing the impugned trademarks of the plaintiff company. It is further stated that the essential features of the products of the plaintiff and those of the defendant and also the trademarks and logos affixed by the plaintiff on its original products with those of the marks and logos affixed by the defendant it becomes obvious that the defendant is selling its products in Suit (Com.) No. 726/2023 Page No. 9 of 65 Levi Strauss & Co. Vs. Kulwant Singh the guise of the products of the plaintiff and further, the finished apparels of the defendant are of much inferior quality than those marketed by the plaintiff company. Plaintiff company have certain characteristic features like all products bear standardized labeling such as security label, size and price label, each of these labels are informative and peculiar to each individual product of the plaintiff company and on close scrutiny of the products of the defendant it was found that these labels are either missing or contain wrong information which does not pertain to the plaintiff company.
9. It is further stated that on the examination of the infringing goods of the defendant and original goods of the plaintiff company following differences and similarities can be observed :-
Examination on the basis of the label attached to the products:
Plaintiff's product.Suit (Com.) No. 726/2023 Page No. 10 of 65
Levi Strauss & Co. Vs. Kulwant Singh Defendant's product.
Original Product Infringing Product
(plaintiff's Product) (defendant's Product)
1. The original Levi's t-shirt size A similar label is attached at
label as printed at the back of the back of the counterfeit t-
every product contains, Levi's shirt which contains Levi's
logo, and includes the actual logo and size.
size of the product along with
its made.
2. There is text printed (about There is no such text the Levi's highlighting the printed on the infringed essentials of the brand) on the product of the defendant.
below left side of the original product.
3. The MRP tag contains There is no MRP tag Suit (Com.) No. 726/2023 Page No. 11 of 65 Levi Strauss & Co. Vs. Kulwant Singh complete information of every attached on the infringed product individually. The product of the defendant.
information contained are: The absence of this
a. MFD & PKD BY essential feature shows that
a. MKTD BY the product is counterfeit.
b. PRODUCT
c. NET QUANTITY
d. MONTH & YEAR OF
MANUFACTURE AND
PACKING
e. MAX RETAIL PRICE
f. SIZE
g. LOT
h. TWO DIMENSIONAL
BAR CODE
i. PO NO.
j. CUSTOMER CARE
ADDRESS
k. EMAIL ID
l. TOLL FREE NO.
4. That each genuine product Similar label is attached on contains a care label on the the infringing product. left inner side of the product.
Examination on the basis of quality of material, finish and proportion of trademarks.
Original Infringing
1. The raw material and the The raw material and the
technology used in the technology used in the
manufacturing of a genuine manufacturing of the
product are of a very good infringing products is of poor
Suit (Com.) No. 726/2023 Page No. 12 of 65
Levi Strauss & Co. Vs. Kulwant Singh
quality and standards and quality and the product as a
thus the overall finishing whole is poorly finished with
and the quality of a genuine poor stitching which is evident
product is very superior. on comparison with the
genuine product.
2. The trademark (i.e. word The logos have been applied marks and /or logo) are in a shabbily and also are not in fixed proportion. proportion or out of proportion.
3. Embroidery work on the Embroidery work done in the original is of superior infringing product is of poor quality quality.
10. It is further stated that the defendant with malafide intentions has infringed the "Levi's marks" of the plaintiff by affixing same/similar "Levi's marks" of the plaintiff. It is further stated that it is apparent that the defendant has represented to the members of the trade and public that its products are in some manner associated with that of plaintiff, whereas no such association exists, with an obvious intention to mislead the consumers and persons in the trade therefore, defendant is attempting to pass off its products as and for the products of the plaintiff. It is further stated that the defendant's adoption and unauthorized use of the impugned "Levi's marks" of the plaintiff company constitutes act of infringement of trademark. The infringement in the present case is unambiguous since the defendant is using "Levi's marks" with the sole motive to cause deception amongst consumers at large and the conduct of the defendant is targeted to earn unlawful and easy profit at the cost of misusing the goodwill and reputation that vest in the plaintiff and the defendant is earning illegal profits on account of the unlawful use of deceptively and confusingly similar "Levi's marks" of the plaintiff company and goodwill of the plaintiff and it is necessary in the interest of Suit (Com.) No. 726/2023 Page No. 13 of 65 Levi Strauss & Co. Vs. Kulwant Singh justice that the defendant render all its books of account, profits for ascertainment of the damages plaintiff has suffered.
11. Plaintiff has prayed for grant of following relief:
i. Grant an order for mandatory injunction thereby restraining the defendant, its associates and agents, officers, employees, distributors, franchisee, representatives and assigns from using "Levi's marks" and/or any other trademark and logos deceptively and confusingly similar to the "Levi's marks" of the plaintiff company on any apparels including t-shirts, jeans, shirts, and other accessories infringing the registered trademarks of the plaintiff company;
ii. Grant an order for permanent injunction thereby restraining the defendant, its associates and agents, officers, employees, distributors, franchisee, representatives and assigns from using "Levi's marks" and/or any other "Levi's marks" deceptively and confusingly similar to the registered trademarks and logos of the plaintiff company on any apparels including t-shirts, jeans, shirts, and other accessories thereby infringing the registered trademarks of the plaintiff company;
iii. Grant an order for mandatory injunction thereby restraining the defendants, its associates and agents, officers, employees, distributors, franchisee representatives and assigns from using the copyright in the artistic work vested in the "Levi's marks" and/or any other copyright and logos deceptively and confusingly similar to the artistic logo of the plaintiff company on any apparels including t-shirts, jeans, shirts, and other accessories thereby infringing the copyright of the plaintiff company;Suit (Com.) No. 726/2023 Page No. 14 of 65
Levi Strauss & Co. Vs. Kulwant Singh iv. Grant an order for permanent injunction thereby restraining the defendant, its associates and agents, officers, employees, distributors, franchisee, representatives and assigns from using the copyright vested in the artistic work in the "Levi's marks" and/or any other copyright deceptively and confusingly similar to the artistic work of the plaintiff company on any apparels including t-shirts, jeans, shirts, and other accessories thereby infringing the copyright of the plaintiff company;
v. Grant an order for mandatory injunction thereby restraining the defendants, its associates and agents, officers, employees, from using "Levi's marks" or copyright vested in the artistic work in the "Levi's marks" and/or any other copyright deceptively and confusingly similar to the artistic work of the plaintiff company on any apparels including t-shirts, jeans, shirts, and other accessories distributors, franchisee, representatives and assigns from passing off its goods as that of the plaintiff's goods;
vi. Grant an order for permanent injunction thereby restraining the defendants, its associates and agents, officers, employees, from using "Levi's marks" or copyright vested in the artistic work in the "Levi's marks" and/or any other copyright deceptively and confusingly similar to the artistic work of the plaintiff company on any apparels including t-shirts, jeans, shirts, and other accessories distributors, franchisee, representatives and assigns from passing off its goods as that of the plaintiff's goods;
vii. Grant an order for ad-interim ex-parte temporary injunction thereby restraining the defendants, its associates and agents, officers, employees, distributors, Suit (Com.) No. 726/2023 Page No. 15 of 65 Levi Strauss & Co. Vs. Kulwant Singh representatives and assigns from using any of the "Levi's marks" and/or copyright vested in the "Levi's marks" of the plaintiff on apparels including t-shirt, shirt and other accessories in any form and manner and/or copyright or trademarks identical and /or confusingly or deceptively similar to the "Levi's marks" and other copyright of the plaintiff, thereby infringing plaintiff's registered trademarks, copyright and passing of their goods as that of plaintiff;
viii. Grant an order for mandatory injunction thereby restraining the defendants, its partners associates, officers, employees, manufacturer, distributors, importers, stockiest representatives, assigns, and all other persons acting on its behalf and/or all other persons claiming through or under them or controlled by them, from importing, marketing, distributing, selling, offering to sale, the impugned goods bearing "Levi's marks" or any mark deceptively and confusingly similar to "Levi's marks" of the plaintiff company on jeans, shirts, t-shirts and other apparels on any platform (whether wholesale or retail, physical or online), in any form and manner thereby diluting or tarnish the goodwill and reputation of the trademark of the plaintiff.
ix. Grant an order for permanent injunction thereby restraining the defendants, its partners associates, officers, employees, manufacturer, distributors, importers, stockiest representatives, assigns, and all other persons acting on its behalf and/or all other persons claiming through or under them or controlled by them, from importing, marketing, distributing, selling, offering to sale, the impugned goods bearing "Levi's marks" or any mark deceptively and confusingly similar to "Levi's marks" of the plaintiff company on jeans, shirts, t-shirts and other apparels Suit (Com.) No. 726/2023 Page No. 16 of 65 Levi Strauss & Co. Vs. Kulwant Singh on any platform (whether wholesale or retail, physical or online), in any form and manner thereby diluting or tarnish the goodwill and reputation of the trademark of the plaintiff.
x. Grant an order for rendition of accounts by the defendants for the profits received by selling the infringing goods of the plaintiff company;
xi. Grant an order for delivery up of all the infringing finished and unfinished materials bearing the infringing and violative "Levi's marks" or any other deceptively similar trademark/label including its labels, display boards, sign board, trade literatures and goods etc. to the plaintiff for the purposes of destruction and erasure;
xii. For an order to disclose the name of all other persons who are engaged in storing, supply and selling of infringing products in the infringing packaging materials bearing mark/logo from using "Levi's marks".
xiii. For an order to provide a complete discovery of any and all documents and information relating to any and all transaction concerning the infringement of the trademark of the plaintiff;
xiv. Grant an order of appointment of Local Commissioner under Order XXVI Rule 9 of Civil Procedure Code, 1908, at an appropriate stage, directing the Local Commissioner to search and to inspect the premises of defendant and seize all infringing apparels including shirts, t- shirts and other accessories bearing any of the "Levi's marks" of the plaintiff and/or copyright vested in "Levi's marks" used in similar manner and/or in a manner identical or confusingly or deceptively similar to the "Levi's marks"Suit (Com.) No. 726/2023 Page No. 17 of 65
Levi Strauss & Co. Vs. Kulwant Singh and/or copyright vested in "Levi's marks" of the plaintiff and to open the lock and door of the godown, if any, where defendant is stocking and keeping huge quantity of spurious and infringing apparels and other accessories.
12. Vide order dated 18.9.2019, my Ld. Predecessor has granted interim stay restraining the defendants from using the plaintiff's trademark and logo by manufacturing, selling and advertising and marketing their products with the trademark Levi's or any other mark similar to the same and further appointed local commissioner to seize the goods.
13. Initially the plaintiff has filed the suit against the defendant using the pseudo name Ashok Kumar giving only the address of defendant as H-16/89, Tank Road, Karol Bagh, New Delhi and after filing of report of local commissioner, plaintiff has filed application by which Kulwant Singh was substituted as defendant in place of Ashok Kumar.
14. Summons of the suit were sent to the defendant and defendant contested the suit. In the written statement it is stated by the defendant that the defendant is not dealing with goods under the trademark alleged in the plaint. It is further stated by defendant that the plaintiff has not mentioned name of copyright owner and plaintiff has filed a false and concocted suit under the Trademark and Copyright Act against the defendant. It is further stated that the plaintiff is a foreign company and is neither selling any of its goods nor has any subordinate office within the jurisdiction of this court hence plaint is in direct contravention of provision of Order 7 Rule 10/11 of the CPC and the suit is barred by Section 20 CPC and Section 134 of Trademarks Act and thus this court has no territorial jurisdiction as the plaintiff has not filed any document in support of his claim that the defendant has sold the alleged goods in the said jurisdiction.
15. On merits, defendant has denied the contents of the plaint. It Suit (Com.) No. 726/2023 Page No. 18 of 65 Levi Strauss & Co. Vs. Kulwant Singh is denied that the plaintiff is a company registered under the laws of California, USA or that Sh. Narendra Singh is duly authorized to sign, verify pleadings and institute the present suit. It is further denied that the defendant is engaged in the business of stocking, distributing and selling infringed goods bearing marks Levi's from its warehouse situated at H- 16/89, Tank Road, Karol Bagh, Delhi - 110005 and thus, the defendant has prayed for dismissal of the suit.
16. Vide order dated 12.12.2023, the application under Order 39 Rules 1 & 2 CPC was disposed off and interim stay was confirmed.
17. No replication was filed by the plaintiff. Admission / denial of documents done.
18. In admission denial affidavit defendant has denied following documents of plaintiff by way of affidavit :
1. Copy of certificate of incorporation of plaintiff company.
2. Copy of power of attorney dated 8.11.2017.
3. Copy of legal proceedings of trademarks of plaintiff company.
4. Photographs of infringed goods of defendant.
5. Photographs of genuine goods of plaintiff.
6. Affidavit of investigator.
19. On the other hand, since no document was filed by the defendant, plaintiff did not file affidavit qua admission / denial of documents of defendant.
20. On the basis of the pleadings of the parties, following issues were framed vide order dated 31.1.2024 for consideration :-
Suit (Com.) No. 726/2023 Page No. 19 of 65Levi Strauss & Co. Vs. Kulwant Singh
1. Whether Sh. Narendra Singh is duly constituted AR of the plaintiff company, if not what effect? OPD.
2. Whether plaintiff has carried out any survey as alleged in para 13 of the plaint? If not, what effects? OPD.
3. Whether plaintiff is entitled for permanent and mandatory injunction as prayed in para (a) to (i) of the prayer? OPP.
4. Whether defendant has infringed the trademark and copyright of the plaintiff or pass of its goods as goods of plaintiff? OPP.
5. Whether plaintiff is entitled to decree of rendition of accounts as prayed in para (j) of the prayer? OPP.
6. Whether plaintiff is entitled to delivery up of all the goods as prayed in para (k) of the prayer? OPP.
7. Whether plaintiff is entitled for any damages from the defendant? If so, what amount? OPP.
8. Relief.
21. In order to prove its case, plaintiff has examined Sh. Narendra Singh, its AR as PW1 and Sh. Rohit Kumar as PW2 whereas defendant has only examined the Local Commissioner as DW1.
22. Final arguments were heard from Ms. Priya Nagpal, Ld. Counsel for plaintiff and Sh. Manmohan Singh, Sh. Sandeep Singh and Sh. Saurabh Singh Tomer, Ld. Counsels for defendant.
23. It is argued by Ld. Counsel for the plaintiff that the plaintiff through the testimony of PW1 Narender Singh has been able to prove that company is a company registered under the law of California, USA Suit (Com.) No. 726/2023 Page No. 20 of 65 Levi Strauss & Co. Vs. Kulwant Singh and Sh. Thomas Onda the official of plaintiff company appointed him as attorney to file present suit vide Power of attorney and is owner of various trademarks in India including the trademarks Levi's, Levi's (Housemark), Two Horse Logo and Arcuate Stitching Design etc. and plaintiff operates in Delhi through its manufacturers, distributors, franchises and exclusive showrooms in Karol Bagh, Connaught Place, Khan Market and other areas of Delhi. It is stated that the plaintiff company through Mr. Thomas M. Onda has authorized its AR Narendra Singh to institute the present suit vide power of attorney dated 8.11.2017, 2.9.2021 and 23.10.2023 which has been duly proved.
24. It is further argued that since it is not claimed by the defendant that the defendant is owner of trademark Levi's therefore defendant has no right to use the trademark Levi's. He further argued that the plaintiff has proved the registration certificate of the trademark of plaintiff company which proves that the plaintiff is the registered owner of trade Levi's and also have copyright over it. Ld. Counsel has further argued that the court has appointed Local Commissioner on application of plaintiff who inspected the premises as H-16/89, Tank Road, Karol Bagh and found the infringed goods having infringed trademark of plaintiff company which was seized by the local commissioner. She argued that during the preparation of report, it was also found by local commissioner that M/s. BUFF operated by the defendant only which is situated at E-16/934, Basement, Arora Complex, Shiv Mandir, Main Tank Road, Delhi and from there also, he seized goods having infringed trademark of plaintiff. She argued that the seized goods were handed over to the Manager of defendant on superdari. Ld. Counsel also argued that the plaintiff has also proved the legal proceedings certificate of the trademark of plaintiff in terms of the Judgment Amrish Aggarwal Vs. M/s. Venus Home Appliances Pvt. Ltd. passed on 27.8.2019. She further argued that the defendant has not filed any objection to the report of local commissioner but despite this, he was permitted to examine local Suit (Com.) No. 726/2023 Page No. 21 of 65 Levi Strauss & Co. Vs. Kulwant Singh commissioner as DW1 and nothing has come out in favour of defendant to disbelieve the report of local commissioner and hence, it is proved that the infringed goods were recovered from the possession of defendant therefore the plaintiff is entitled to decree of permanent and mandatory injunction, rendition of accounts and damages as sought by the plaintiff. In support of her contention, she has also relied upon the following Judgments : -
i. Amrish Agarwal Vs. M/s. Venus Home Appliances Pvt. Ltd., CM (M) No. 1059/2018 dated 27.8.2019;
ii. Sudhir Engineering Company Vs. Nitco Roadways, 1995 IIAD (Delhi) 189 dated 23.3.1995;
iii. United Bank of India Vs. Naresh Kumar & Ors. dated 18.9.1996;
iv. Pepsico, INC & Anr. Vs. PSI Ganesh Marketing & Anr., CS (OS) No. 157/2013 dated 19.5.2014;
v. Louis Vuitton Malletier Vs. Capital General Store & Ors., CS (Com.) No. 469/2021 dated 6.2.2023;
vi. National Fertilizers Ltd. Vs. Indo Gulf Industries Ltd., CS (Com.) No. 143/2016 dated 29.1.2018;
vii. Baker Oil Tools (India) Pvt. Ltd. Vs. Baker Hughes Ltd. & Anr., RFA No. 583/2004 dated 3.6.2011;
viii. Jugraj Singh & Anr. Vs. Jaswant Singh & Ors., 1971 AIR 761 dated 16.3.1970;
ix. Sandisk LLC & Anr. Vs. M/s. B-One Mobile & Ors., CS (Com.) No. 1130/2018 dated 9.4.2019;Suit (Com.) No. 726/2023 Page No. 22 of 65
Levi Strauss & Co. Vs. Kulwant Singh x. Citibank N.A. Vs. Juggilal Kamlapat Jute Mills Co., AIR 1982 Delhi 487 dated 17.5.1982;
xi. Christian Louboutin SAS Vs. Ashish Bansal & Anr., CS (Com.) No. 503/2016 dated 31.7.2018;
xii. Cartier International AG & Ors. Vs. Gaurav Bhatia & Ors., CS (OS) No. 1317/2014 dated 4.1.2016;
xiii. Microsoft Corporation Vs. Deepak Raval, CS (OS) No. 529/2003 dated 16.6.2006;
xiv. Times Incorporated Vs. Lokesh Srivastava & Anr., CS (OS) No. 2169/1999 dated 3.1.2005.
25. On the other hand, Ld. Counsel for the defendant has argued that the plaintiff has filed the suit through Narendra Singh claiming that he is the AR of the plaintiff but the plaintiff has not produced any evidence or document to prove that Sh. Narendra Singh is duly constituted AR of plaintiff company therefore the present suit is liable to be dismissed on this ground alone. He further argued that the plaintiff has failed to prove through testimony of PW1 that the plaintiff company owns trademark Levi's in India or carried on its business within the territorial jurisdiction of this court therefore this court has no territorial jurisdiction to entertain the present suit. Ld. Counsel further argued that since the plaintiff has failed to prove that the infringed goods which were allegedly recovered by the local commissioner was recovered from the possession of the defendant and thus, the plaintiff has miserably failed to prove that the defendant has infringed the trademark Levi's of plaintiff company.
26. Ld. Counsel for defendant further argued that it is admitted fact that it is not dispute fact that Sh. Narendra Sigh has no concern with the plaintiff company as he is neither the Director nor anywhere Suit (Com.) No. 726/2023 Page No. 23 of 65 Levi Strauss & Co. Vs. Kulwant Singh associated with the functioning of plaintiff company therefore he was not duly authorized to file the present suit on behalf of plaintiff company in his official capacity. He argued that as far Sh. Narendra Singh being authorized to institute the suit being attorney / AR of plaintiff company but the plaintiff has not proved certificate of incorporation of plaintiff company as per Evidence Act, as same was only marked as Mark A being photocopy and further has not produced original General Power of Attorney in his favour dated 8.11.2017 and therefore defendant has taken the objection and further even the power of attorney has expired. He argued that even the power of attorney dated 2.11.2021 has expired when he deposed before the court and in response to the question that even power of attorney dated 2.11.2021 and 31.12.2023, he admitted the said suggestion but stated that he has another power of attorney which is in continuation with 31.12.2023 but admitted that he has not exhibited the said power of attorney. He further argued that Sh. Narendra Singh has also admitted that there is no seal or stamp of plaintiff company on power of attorney Ex. PW1/1 and Ex. PW1/2 therefore when the power of attorney produced by the plaintiff does not bear the seal and stamp of plaintiff company, it cannot be considered that the same has been issued by the plaintiff company. He further argued that Mr. Thomas M. Onda who is alleged to be Assistant Secretary in the plaintiff company but plaintiff did not prove any document in support of said fact. Hence, even it is not proved that Mr. Thomas M. Onda was the Assistant Secretary of plaintiff company and since power of attorney does not bear stamp and seal of plaintiff company therefore plaintiff has miserably failed to prove that the abovesaid power of attorneys were executed by plaintiff company. Hence, plaintiff has failed to prove that suit is filed by duly authorized person on its behalf.
27. In support of his contentions, he has relied upon the following Judgments :-
Suit (Com.) No. 726/2023 Page No. 24 of 65Levi Strauss & Co. Vs. Kulwant Singh i. Sudhir Engineering Company Vs. Nitco Roadways, 1995 IIAD (Delhi) 189 dated 23.3.1995;
ii. Om Prakash Berlia & Anr. Vs. Unit Trust of India & Ors., (1983) AIR (Bombay) I;
iii. Baker Oil Tools (India) Pvt. Ltd. Vs. Baker Hughes Ltd. & Anr., RFA No. 583/2004 dated 3.6.2011;
iv. Gulabpati Vs. Smt. Pushpa Rani Pandey & Ors., AIR online 2019 ALL 2010;
v. Ved Prakash Kharbanda Vs. Vimal Bindal, RFA No. 83/2007 dated 8.3.2013.
28. I have considered the submissions and have gone through the record and the Judgments relied upon by the parties. My issuewise findings are as follows : -
ISSUE NO. 1Whether Sh. Narendra Singh is duly constituted AR of the plaintiff company, if not what effect? OPD.
29. As evident from plaint, present suit has been filed by the plaintiff through its AR Sh. Narendra Singh. In his testimony led through affidavit Ex. PW1/A, he has deposed that the plaintiff company has authorized him through power of attorney dated 8.11.2017 and 2.9.2021 which he has relied upon the power of attorney dated 18.11.2017 as Ex. PW1/1 which is for the period from 1.1.2018 to 31.12.2019 and dated 2.9.2021 as Ex. PW1/2 which is for the period from 1.2.2022 to 31.12.2023. (The defendant has objected to the execution of same on mode of proof and admissibility).
In his cross examination he has deposed that he is working Suit (Com.) No. 726/2023 Page No. 25 of 65 Levi Strauss & Co. Vs. Kulwant Singh in firm namely Legist IPR Services Ltd. This company is registered in SDM office and he is Director in the said company. He does not remember my Director number. His company is dealing in IPR services therefore they approached to the plaintiff company that they are providing such services and thereafter they had meetings and conferences and after which it was finalized to appoint him as AR. Officials from his company used to go for meetings. He does not remember the name of the official who went for meeting. These meetings held in California, USA. He does not remember the address of California. He does not have the minutes of meeting which took place with the official of plaintiff company. He cannot produce the minutes. The power of attorney Ex. PW1/1 has been given to him by Thomas M. Onda. The said power of attorney is valid from 1.1.2018 till 31.12.2019. The power of attorney Ex. PW1/2 is also given by same person and same is valid from 1.1.2022 till 31.12.2023.
He was asked question as under:
"Q. I say to you as per the aforesaid two power of attorneys, you have no authority to depose before this court today as your power of attorney Ex. PW1/2 expired on 31.12.2023. What you have to say? Ans. It is correct. However, I have another power of attorney which is in continuity after 31.12.2023".
The said power of attorney is on record. He admitted that he has not exhibited said power of attorney. Thomas M. Onda is the Assistant Secretary in the plaintiff company. He admitted that there is no seal / stamp of plaintiff company on the power of attorney Ex. PW1/1 and Ex. PW1/2. He denied the suggestion that he is not duly authorized by the plaintiff company to represent the same as AR in the present case. He does not have any document to show that Thomas M. Onda is the Assistant Secretary or even any other employee in the plaintiff company. He vol stated he can produce the document to show that Thomas M. Onda is the employee of plaintiff company. The power of Suit (Com.) No. 726/2023 Page No. 26 of 65 Levi Strauss & Co. Vs. Kulwant Singh attorneys Ex. PW1/1 and Ex. PW1/2 were received in his firm office by post. The said power of attorneys were received from California. He does not remember who has sent the said power of attorneys. He does not have the envelopes in which the said power of attorneys have been received. He cannot produce the same. They maintain the record of Dak received in his firm. He cannot produce the said dak register of particular day when the said power of attorney was received. He denied the suggestion that he cannot produce the said dak register as the power of attorneys are fake and fabricated documents. He admitted that power of attorney were not executed in his presence. He was asked question as under:
"Q. In your power of attorney Ex. PW1/1, it is written "The attorneys are permitted to (I) Act on behalf of LS&Co. before any public or private institution, in this country, file writs, applications, affidavits, evidence and other documents, be notified of any resolution, withdraw any documents or make payments that may arise for any matters".
Ans. It is correct that the said fact is mentioned in the power of attorney".
He admitted that he has not filed any resolution passed by the plaintiff company to institute the present suit.
30. It is argued by Ld. Counsel for the plaintiff that from the testimony of PW1 it is proved that POA Ex. PW1/1 and POA Ex. PW1/2 were duly executed by plaintiff company authorizing PW1 to file the present case. He further argued that from aforesaid power of attorney it is proved that Sh. Narendra Singh is duly authorized to file present suit and depose in the court. She argued that since power of attorney has been executed out of India duly attested by notary of public therefore Section 85 of Indian Evidence Act, same is admissible in evidence even without producing the person who executed the said power of attorney. In support of her arguments, she relied upon the Judgment Baker Oil Suit (Com.) No. 726/2023 Page No. 27 of 65 Levi Strauss & Co. Vs. Kulwant Singh Tools (India) Pvt. Ltd. (supra.).
31. On the other hand Ld. Counsel for defendant has argued that first of all plaintiff has failed to proved that plaintiff company is a registered company as per Company Act as plaintiff has not proved the registration certificate as per law.
32. Ld. Counsel for defendant further argued that alleged POA Ex. PW1/was issued by Mr. Thomas Onda but plaintiff has not examined any witness to proved that same were executed by him and further failed to proved that Mr. Thomas Onda is competent to execute the POA on behalf of plaintiff.
33. As far as certification of incorporation of plaintiff company is concerned, PW1 has marked the same as Mark A being photocopy hence not proved as per Section 59 of BNS (Section 65B of the Indian Evidence Act). On perusal of same, it is evident that the name of corporation is mentioned as Levi's Strauss of Delaware, INC and further from said documents, it is evident that the same has been incorporated on 23.11.1970. Undoubtedly the original of same has not been proved by PW1 hence said document cannot be relied upon but in my view for the same reason, it cannot be said that plaintiff is not a company. The product of plaintiff is available everywhere in the world and Judicial notice can be taken that Levi's Strauss is a company.
Further, plaintiff has proved the trademark registration certificate of plaintiff company as Ex. PW1/3 which has been granted by Government of India Registrar of Trademark and in the said certificate, it is clearly mentioned that the certificate is granted to Levi's Strauss & Co. having address at : Levis Plaza, 1155, Battery Street, San Francisco, California. Hence, taking judicial notice that the trademark of Levi's Strauss & Co. is registered in India and the fact that the Levi's Strauss is a well known multinational company and also having products particularly in clothing brands in my view despite the fact that the plaintiff has not filed the original certificate of incorporation, I hold that the plaintiff is a company Suit (Com.) No. 726/2023 Page No. 28 of 65 Levi Strauss & Co. Vs. Kulwant Singh which is registered in USA and is having registered trademark as mentioned in the registration of trademark Ex. PW1/3 (Colly.).
34. Now coming to the question whether the power of attorney Ex. PW1/1 and Ex. PW1/2 are issued by the said company or not and whether Thomas M. Onda is authorized to issue said power of attorney or not. From the power of attorney dated 8.11.2017 Ex. PW1/1 it is evident that the same has been issued by Thomas M. Onda. It contains three pages. First two pages are the certificate issued by the Notary Public and the third page is the attorney given by Thomas M. Onda on behalf of Levi's Strauss & Co. in favour of Sh. Narendra Singh, son of Sh. S.S. Faujdar of Legist Intellectual Property Rights Services, Ltd. on 1.1.2018. The original of the same was produced by the plaintiff at the time of exhibition of documents. The defendant has objected as to the mode of proof and admissibility on . The main objection of the defendant was that the said Thomas M. Onda who executed the said power of attorney or the notary has not been examined as witness. In my view, the said objection has no force because if a person who execute a power of attorney has to appear in the witness box to prove the same then the entire purpose of executing the power of attorney would be defeated and further it would not be feasible for executant of POA to visit from USA to India to prove the same. The power of attorney is duly notarized as evident from the said certificate issued by the notary public Ricardo T. Labardo Jr. Undoubtedly the plaintiff has placed no document that Thomas M. Onda is the Assistant Secretary of plaintiff company but when question was asked from PW1 that he does not have any document to show that Thomas M. Onda is the Assistant Secretary or any other employee of the plaintiff company, witness responded that he can produce the said document and then his cross examination was deferred to produce the same. Thereafter on the next date, PW1 has brought documents but the counsel for the defendant did not ask any question whether he has brought the documents related to the Suit (Com.) No. 726/2023 Page No. 29 of 65 Levi Strauss & Co. Vs. Kulwant Singh employment / working of Mr. Thomas M. Onda as Assistant Secretary in the plaintiff company hence presumption can be raised that Mr. Thomas M. Onda is the Assistant Secretary of the plaintiff company and duly authorized to execute the power of attorney Ex. PW1/1 and Ex. PW1/2 on behalf of the plaintiff.
35. Further I am agree with the contention of Ld. Counsel for plaintiff that in case of duly notarized Power of Attorney, not only presumption arise that same has been executed by the executant of said power attorney but also that executant has authority to execute the same on behalf the company for which he is executing the power of attorney. In this regard, I rely upon Baker Oil Tools (India) Pvt. Ltd. vs Baker Hughes Ltd. & Anr. RFA No. 583/2004 dated 03.06.2011 in which the Hon'ble High Court has dealt with the similar kind of issue. The relevant para of judgement is reproduce as below:
"25. Coming to the facts of the case at hand, the respondents have filed the suits in question through one Mr. Sameer Oberoi in his capacity as constituted attorney for both the respondents/plaintiffs. Admittedly, Mr. Sameer Oberoi is neither a principal officer nor Director or Secretary of the respondent companies and he derives his authority not only to sign, file and verify the suits, but to institute the same by virtue of two separate Power of Attorneys executed by respondents No. 1 and 2 in his favour. It is not in dispute that Mr. Sameer Oberoi was one of the Advocates working for the Solicitor Concern M/s Remfry and Sagar.
Hence, the crucial question for determination is that:
"Whether the respondents/plaintiffs were required to prove on record the authority of the executants of the said Power of Attorneys through the Board Resolution or Articles of Association or there was no need to prove the authority of the executants of the Power of Attorneys once the respondents/plaintiffs had succeeded to prove the due execution and authentication of the said Power of Attorneys by duly appointed Notary Public entitling the respondents to Suit (Com.) No. 726/2023 Page No. 30 of 65 Levi Strauss & Co. Vs. Kulwant Singh the benefit of Section 85 of the Indian Evidence Act for raising a presumption for the due execution and authentication of the said attorneys?"
26. It is an admitted case between the parties that the respondents did not place on record any certificate, copy of the Board Resolution or the copy of the minutes book wherein such a Board Resolution was passed to support the authority of the executants of the said two Power of Attorneys. The first Power of Attorney, which was proved on record as Exhibit PW2/3 was executed by Mr. Peter John Woolley, Director and by Jeremy Andrew Aron, Secretary of respondent No. 1 company while the second Power of Attorney proved on record as Exhibit PW2/4 was executed by Lawrence O‟Donnell, III in his capacity as Corporate Secretary. Both the said Power of Attorneys are attested by the Notary Public and a separate notarial certificate can be seen appended with both the said Power of Attorneys. In the first Power of Attorney, Ex. PW2/3, the Notary Public has referred to the Resolution of the Board of Directors passed by them in their meeting held on 27 th day of March, 1995. The notarial certificate of first Power of Attorney also refers to the presence of both the executants i.e. Peter John Woolley, and Jeremy Andrew Aron whose position in the company the Notary Public has duly attested; one being Director and other being Secretary. Similarly in notarial certificate certified by the Notary Public in respect of the second Power of Attorney he also duly acknowledges the presence of executants Lawrence O‟ Donnell, III besides referring to the constitution of company wherein due authority has been given to the said officers to execute the Power of Attorney on behalf of the company. Section 57(6) of the Indian Evidence Act provides that the Court shall take judicial notice of all the seals of which English Courts take judicial notice and the seals of Notary Public. Under Section 85 of the Indian Evidence Act, the Court shall presume that every document purporting to be Power of Attorney, which has been duly executed before and authenticated by Notary Public can be taken to have been so executed and authenticated. Section 8 of The Notaries Act, 1952 describes the functions of notaries as under:-
Suit (Com.) No. 726/2023 Page No. 31 of 65Levi Strauss & Co. Vs. Kulwant Singh "8. Function of Notaries.-
(1) A notary may do all or any of the following acts by virtue of his office, namely:-
(a) verify, authenticate, certify or attest the execution of any instrument.
(b) Present any promissory note, hundi or bill of exchange for acceptance or payment or demand better security.
(c) note to protest the dishonour by non acceptance or non payment of any promissory note, hundi, bill of exchange or protest for better security or prepare acts of honour under the Negotiable Instruments Act, 1881, or serve notice of such note or protest.
(d) note and draw up ship's protest, boat's protest or protest relating to de moorage and other commercial matters.
(e) administer oath to, or take affidavit from, any person,
(f) prepare bottom and respondent bonds, charter parties and other mercantile documents.
(g) prepare, attest or authenticate any instrument intended to take effect in any country or place outside India in such form and language as many conform to the law of the place where such deed is intended to operate.
(h) translate, and verify the translation of, any document from one language to another.
(i) any other act which may be prescribed. (2) No act specified in sub-section (1) shall be deemed to be a notaries act except when it is done by a notary under his signature and official seal."
27. The decision of the Hon‟ble Apex Court in the matter of Jugraj Singh and Anr. vs Jaswant Singh and Ors. AIR 1971 SC 761 is a landmark judgment which helped to clear the air surrounding the legal proposition with regard to the presumption arising under section 85 and relevant para of the same is reproduced as under:-
"7. The short question in this case is whether Mr. Chawla possessed such a power of attorney for executing the document and for presentation of it for registration. Now, if we were to take into account the first power of attorney which was executed in his favour on May 30, 1963, we would be forced to say that it did not comply with the Suit (Com.) No. 726/2023 Page No. 32 of 65 Levi Strauss & Co. Vs. Kulwant Singh requirements of the law and was ineffective to clothe Mr. Chawla with the authority to execute the sale deed or to present it for registration. That power of attorney was not authenticated as required by Section 33 of the Indian Registration Act which in the case of an Indian residing abroad, requires that the document should be authenticated by a Notary Public. The document only bore the signature of a witness without anything to show that he was a Notary Public. In any event there was no authentication by the Notary Public (if he was one) in the manner which the law would consider adequate. The second power of attorney however does show that it was executed before a proper Notary Public who complied with the laws of California and authenticated the document as required by that law. We are satisfied that that power of attorney was also duly authenticated in accordance with our laws. The only complaint was that the Notary Public did not say in his endorsement that Mr. Chawla had been identified to his satisfaction. But that flows from the fact that he endorsed on the" document that it had been subscribed and sworn before him. There is a presumption of regularity of official acts and we are satisfied that he must have satisfied himself in the discharge of his duties that the person who was executing it was the proper person. This makes the second power of attorney valid and effective both under Section 85 of the Indian Evidence Act and Section 33 of the Indian Registration Act."
28. This Court in the matter of Citibank N.A., New Delhi vs Juggilal Kamlapat Jute Mills Co. Ltd. AIR 1982 Delhi 487 had the benefit of examining a similar issue where also the authority of the Power of Attorney holder was questioned in the absence of proving the Board Resolution. Answering the controversy, the Court in the following paras held as under:-
"20. Section 85 of the Evidence Act reads as under :
"Presumption as to powers of attorney. - The court shall presume that every document purporting to be a power of attorney, and to have been executed before, and authenticated by, a notary public, or any court, judge, magistrate, Indian Consul or Vice-Consul, or representative Suit (Com.) No. 726/2023 Page No. 33 of 65 Levi Strauss & Co. Vs. Kulwant Singh of the Central Government, was so executed and authenticated."
21. For raising a presumption under this section, the twin requirements to be fulfillled are : (1) that the document in question must purport to be a power of attorney, and (2) that it must purport to have been executed before and authenticated by a notary public, or any court, judge, magistrate, Indian consul, or vice-consul, or representative of to Central Government. Exhibit P-42A is a document which purports to be a power to be a power of attorney. It further purports to have been executed before and authenticated by a notary public. Thus, both these requirements stand fulfillled and there is no dispute to this extent.
22. What presumption has to be raised under s. 85 of the Evidence Act ? Section 85 says that the court shall presume that such a document was so executed and authenticated. Executed by who : obviously by the person purporting to have executed the power of attorney before the notary public. Exhibit P-42A is purported to have been executed by Water R. Humphrey, executing officer, and Carl W. Desch, cashier, for the First National City Bank. It bears the seal of the bank. The real executant or the donor of powers is, therefore, the First National City Bank. Section 85 in terms makes no distinction between a natural person and legal person. Thus, a presumption would have to be raised under s. 85 that this power of attorney had been executed by the said bank. In other words, it will also be presumed that the two officers had the authority to execute the power of attorney on behalf of the bank.
23. The authentication is not merely attestation but something more According to Law Lexicon by T. P. Mukherjee and K. K. Singh, authentication connotes an attestation made by an authorised officer by which he certifies that a record is in due form of law. The words "due form of law" are very important and lend support to the contention of the learned counsel for the plaintiff, namely, that under s. 85 a presumption would arise that the two Suit (Com.) No. 726/2023 Page No. 34 of 65 Levi Strauss & Co. Vs. Kulwant Singh officers, who executed the power of attorney on behalf of the bank, were competent to do so. The nature ad manner of the authentication by the notary public also support this contention. If it was not required of the notary public to satisfy himself about the competence of these two officers to execute the power of attorney, there was no necessity for him to satisfy himself about their power to execute the power of attorney.
24. In the absence of any provision contained in s. 85 of the Evidence Act, any party to a suit, etc., relying on a power of attorney would have to prove it like any other document by producing in the witness- box the executant of the document, or the person in whose presence it was so executed, or the person acquainted with the signatures of the executant, etc., as the case may be. If that party is a company corporated in India or in any other country, it would be further required to prove that the person or persons executing the power executing the power of attorney on its behalf had been duly authorised by means of a resolution duly passed in accordance with law and the articles of association. The purpose of s. 85, in my view, is to eliminate all this cumbersome evidence in case such a power of attorney is executed before and authenticated by a notary public, or other authorities mentioned therein. If evidence to prove these facts except the fact of execution by the executant was insisted upon, most of the purpose of s. 85 would be frustrated specially in these days of prevalent international trade.
25. This very question came up for consideration before this court in National & Grindlays Bank v. Radio Electronics Corporation P. Ltd. [1978] RLR 217. After detailed discussion, Gill J., upon examining the various authorities and meaning of the word "authentication", held as under :
"In my view section 85 (of Evidence Act) does not draw any distinction between the kind of documents, viz :
Power of attorney executed by an individual and the one executed on behalf of a company. Authentication of any of these instruments by a notary public raised a legal Suit (Com.) No. 726/2023 Page No. 35 of 65 Levi Strauss & Co. Vs. Kulwant Singh presumption that the same has been duly executed and the person or persons, who had executed, had the authority to do so. Undoubtedly, such a presumption is not conclusive, being rebuttable. The other party is, therefore, legally entitled to disprove such a presumption. The reason to incorporate such a provision is quite obvious. Its inclusion is intended to obviate the production of evidence as is other wise enjoined to prove the execution of the document. Embarking on an inquiry and demanding proof about the authority of the executant would frustrate the very purpose for which section 85 has been engrafted. Moreover, asking for proof would have far reaching consequences. Apart from entailing delay and unnecessary expense, it would also hamper the entire trade, more particularly trade. Thus, the interpretation placed by the learned counsel for the defendants does not reflect or effectuate the real legislative intention. It, on the other hand, unwarrantedly restricts and whittles down the true meaning and legitimate scope of an unambiguous provision."
26. Similar view was taken by Sultan Singh J. in Suit No. 671/77, Bank of India v. Ajaib Singh Pritam Singh, decided on April 20, 1979. Repelling the contention of the defendants to the contrary, it was observed as under :
"The contention of the learned counsel for defendants Nos. 1 to 3 is that there is a presumption of the execution of power of attorney, i.e., the signatures of the executant on the power of attorney, but there is no presumption that the persons executing the power of attorney on behalf of the plaintiff-bank were duly authorised to execute such power of attorney. I do not agree. If the contention of the learned counsel for the defendants is accepted, section 85 of the Evidence Act would become redundant. The purpose of section 85 of the Evidence Act is that the power of attorneys are executed throughout the world and if such power of attorney is executed and authenticated by a notary public or other officer as mentioned in section 85 of the Evidence Act, the court is bound to presume that the power of attorney was so executed and authenticated. This presumption, however, is a rebuttal presumption and the Suit (Com.) No. 726/2023 Page No. 36 of 65 Levi Strauss & Co. Vs. Kulwant Singh person challenging the authority of the attorney under such power of attorney is to prove that such power of attorney is invalid or that the person acting on the basis of such power of attorney is not duly authorised."
27. The decision of Gill J., referred to above, was followed.
29. This court is thus constantly taking the view that under s. 85 of the Evidence Act, it would also be presumed that the person executing the power of attorney on behalf of a corporate body was competent to do so. I find no reason to take a different view".
36. In view of the above facts and circumstances, I held that the plaintiff has been able to prove through the testimony of PW1 and the POA Ex. PW1/1 and Ex. PW1/2 that Mr. Thomas M. Onda is duly competent to issue the power of attorney in favour of Sh. Narendra Singh and the power of attorney Ex. PW1/1 was valid from 1.1.2018 to 31.12.2019. The present suit has been filed on 18.9.2019 hence the same was filed during validity of the said power of attorney therefore, I hold that the suit was instituted by the duly authorized attorney of the plaintiff company. Power of attorney Ex. PW1/2 was valid from 1.1.2022 to 31.12.2023 therefore, I hold that said power of attorney authorized PW1 to pursue the suit till 31.12.2023.
37. As far as the contention of Ld. Counsel for the defendant that since the power of attorney Ex. PW1/2 was valid only till 31.12.2023 therefore the same has expired on 31.12.2023 and therefore PW1 was not competent to depose before this court is concerned, PW1 has categorically answered that the said power of attorney is on record. Undoubtedly he has also stated that he has not exhibited the said power of attorney but in my view since the PW1 continued to pursue the suit after 31.12.2023 and defendant did not object to the same probably for the reason that he knew that the power of attorney after 31.12.2023 is also on record therefore, it cannot be said that he was not competent to Suit (Com.) No. 726/2023 Page No. 37 of 65 Levi Strauss & Co. Vs. Kulwant Singh depose. Moreover, a person who filed the suit as attorney on behalf of a person or company is competent to depose even if the power of attorney has expired and only objection that he has no authority to depose can be taken by the person who executed the power of attorney or the party on whose behalf that person executed power of attorney. Therefore in my view, PW1 was competent to file and depose on behalf of plaintiff company in view of the aforesaid discussion. I decide issue No. 1 in favour of the plaintiff and against the defendant.
ISSUE NO. 2.
Whether plaintiff has carried out any survey as alleged in para 13 of the plaint? If not, what effects? OPD.
38. The case of the plaintiff is that plaintiff is the registered owner of trade mark Levis and on market survey defendant was found selling and storing the T Shirts, Jeans etc at his premises H-16/89 Karol Bagh. The plaintiff/ PW1 in his examination in chief led through affidavit Ex. PW1/A has repeated the said facts.
In his cross examination PW1 has testified that survey as mentioned in para 14 of his affidavit was got conducted by the plaintiff company. He filed this case on the basis of said survey. The survey was conducted by him on behalf of plaintiff company with his investigation team. The plaintiff company has given power of attorney to him on the basis of which he was authorized to do market survey and court proceedings through power of attorney Ex. PW1/1 and Ex. PW1/2. He admitted that in the said power of attorneys, there is no specific authorization to conduct market survey. The plaintiff company was informed about the survey through e-mail. He does not remember the date when the said e-mail was sent. He sent e-mail from my e-mail "[email protected]" but does not remember the e-mail of the company on which same was sent. He has not filed the market survey report and e-mail copy on record. Said survey was conducted in last Suit (Com.) No. 726/2023 Page No. 38 of 65 Levi Strauss & Co. Vs. Kulwant Singh week of August 2019 through investigator namely Rohit. Rohit is the employee of my company. His designation is Field Officer. Said Rohit has provided him details orally in his office and he prepared the report. He was verbally directed to carry out survey. The photographs Mark B and Mark C were taken by him in his office. The Rohit has given him the product which he taken from the market and thereafter he took the photographs of the same and original product. All the products which was given me from one shop that is of defendant.
39. Plaintiff has also examined PW2 Sh. Rohit Kumar, who in his testimony led by way of affidavit Ex. PW2/A has deposed that as per instructions of Sh. Narendra Singh, he carried out market survey in the last week of August 2019 for the products bearing Levi's mark including T-shirts, lowers, jeans, shirts and other apparels and accessories and found that the defendant is a wholesale unit situated at H-16/89, Tank Road, Karol Bagh, Delhi and is storing and selling apparels which includes T-shirts, lowers, jeans, shirts and other apparels and accessories bearing Levi's marks of plaintiff company. He purchased a T-shirt bearing the word mark Levi's from the premises of defendant and the defendant did not issue any invoice against said purchase.
40. In his cross examination, he deposed that the work profile was to go into the market on the instructions of AR Sh. Narendra Singh to find out where the duplicate goods are sold. He has come to depose for Levi's company. No instructions was issued to him directly from Levis company and he work on the instructions of Sh. Narendra Singh. Narender sir is his boss and on his instructions we investigate to find out the duplicate articles. He further deposed admitted that Narender sir got information about counterfeit product (Q. Ye baat to sahi hai na ki narender sir ko nakli saman ki suchna milti thi aur usi ke aadhar pe wo aapko bhejte the.
Ans. Ye sahi nahi hai. ) Suit (Com.) No. 726/2023 Page No. 39 of 65 Levi Strauss & Co. Vs. Kulwant Singh He further depose that they came to know about counterfeit product through Reiki (Q. Nakli saman ki suchna aapko kaise milti hai?
Ans. Market me iski reiki ki jati hai).
He define Reiki as where goods are being brought (Q. Reiki ka matlab kya hai?
Ans. Reiki ka matlab hota hai kaha kaha ja raha hai, uska pichha karte hain, kahan se wo nakli saman la raha hai fir uski dukan pe le ke aata hai aur bechta hai fir waha se sample purchase hota hai fir wo sample jake company ko de diya jata hai).
He further deposed that he has given the report of this case to Narender sir. He denied the suggestion that he had not prepared any such report. He deposed that T-shirt was purchased from defendant shop in cash. He does not remember whether he had mentioned in his report that he has purchased the T-shirt in cash. He denied the suggestion that he has not purchased any T-shirt from the said shop and that is why he does not have any bill. He denied the suggestion that no market survey has been done by me qua the present case.
41. It is argued by Ld. Counsel for the defendant that though the plaintiff has alleged that the investigation was carried out by Rohit Kumar PW2 but the PW2 was not competent to depose in the court as he was not authorized by the plaintiff company to depose. He further argued that though he alleged that he has prepared the report of his investigation but no such report has been placed on record and neither he has produced the T-shirt which he has allegedly purchased from the defendant shop nor he has produced the bill therefore plaintiff through the testimony of PW2 has failed to prove that any investigation was carried out by him as Suit (Com.) No. 726/2023 Page No. 40 of 65 Levi Strauss & Co. Vs. Kulwant Singh alleged by the plaintiff in the plaint. He argued that the same is a concocted story. He further argued that even from the testimony of PW1, nothing has come out in his cross examination that the plaintiff has appointed Rohit Kumar as investigator and PW2 is an introduced witness.
42. On the other hand Ld. Counsel for plaintiff has argued that from the testimony of PW1 and PW2 it is proved that market survey regarding selling for counterfeit product of plaintiff was done by PW2 and he give report to PW1 an thereafter plaintiff through PW1 file the present suit. He further argue that nothing much has came out in the cross examination of PW1 & PW2 disbelieve their testimony.
43. I have considered the submissions and have gone through the record. Though in my view whether the plaintiff has carried out any investigation or not prior to filing of the suit about the defendant selling infringed products having plaintiff's trademark, same has no bearing on the present case if plaintiff is able to proved that defendant has been dealing in goods having infringed trademark of plaintiff.
44. Now revering back to the case, PW2 has categorically deposed that he carried out market survey regarding the product of plaintiff and found that defendant is a wholesale unit and storing and selling the t shirts, jeans etc., bearing plaintiff company trade mark and he visited to the premises of defendant and purchased the T-shirt having trade mark of plaintiff, and gave the same to PW1 with its report. In my despite lengthy cross examination by Ld. Counsel for defendant as stated above nothing much has came out to disbelieve PW1 and PW2 testimonies. Undoubtedly PW1 & PW2 has not produced the report given by PW1 or the bill regarding purchasing the T shirt from defendant, but same does not make their testimony unreliable so far as market survey is done. It is quite common in the market not to issue the bill for purchase of garments. Further there cannot be any specific rule or Suit (Com.) No. 726/2023 Page No. 41 of 65 Levi Strauss & Co. Vs. Kulwant Singh regulation to carry out said investigation like a police investigation of a crime. In my view there is no legal requirement that plaintiff can to file suit only once PW2 give him written bill of defendant shop. In my view the preliminary investigation by plaintiff/ its attorney PW1 or the firm for which PW1 was working is only to find out who is selling or manufacturing or storing, dealing in counterfeited goods of the plaintiff so that plaintiff could take legal action against said person / concern and if plaintiff or PW1 is prima facie satisfy with the reporting of PW2 that defendant is selling and dealing the counterfeit products of plaintiff trade mark same it can act on it. There is no need to plaintiff or PW1 to store said report or file in court as it has no legal value. The plaintiff/ PW1 or the agency for which PW1 is working will itself suffer substantial monetary loss if they file a case against defendant as nothing would be found in such circumstances if local commissioner done inspection of defendant premises as usually in such cases local commissioner is appointed, and would result into failure of case. Hence local investigation by investigator are only a precautionary measure adopted by plaintiff before taking legal action.
45. In my view, PW1 & PW2 through their testimonies have been able to prove that PW2 has visited to the shop of defendant and purchased T-shirt from and after report of PW1, the PW2 as attorney of plaintiff file the present case, the onus is shifted upon the defendant to negate the same by leading evidence that he was not dealing in counterfeit goods having trade mark of plaintiff and report of PW2 is malafide, but the defendant did not lead any evidence to prove that PW2 did not visit to his shop to purchase the infringed T-shirt. Hence in these circumstances, I hold that the plaintiff by preponderance of probability has been able to prove that PW2 has visited to the shop of defendant and purchased the T-shirt having trademark Levi's. Further, whether the said T-shirt was infringed product of plaintiff or not, his testimony cannot be accepted because the plaintiff has not produced the said T-shirt in the court nor has produced its original T-shirt for Suit (Com.) No. 726/2023 Page No. 42 of 65 Levi Strauss & Co. Vs. Kulwant Singh comparison.
46. In view of the aforesaid discussion, I hold that the plaintiff through the testimony of PW1 & PW2 is able to prove that the plaintiff has carried out investigation in the market and found that the defendant was selling the goods with trademark Levi's. Issue No. 2 is decided accordingly.
ISSUE NO. 4.
Whether defendant has infringed the trademark and copyright of the plaintiff or pass of its goods as goods of plaintiff? OPP.
47. The onus to prove this issue is upon the Plaintiff company. The plaintiff has examined its AR as PW1 who led his testimony through affidavit Ex. PW1/A in which he has deposed the same facts as stated in the plaint, therefore same are not repeated here. PW1 has relied upon following documents:
1. Certificate of incorporation of plaintiff company as Mark A.
2. General Power of Attorney in my favour dated 8.11.2017 as Ex. PW1/1 (OSR) (objected to as to mode of proof and admissibility).
3. General Power of Attorney in my favour dated 2.9.2021 as Ex. PW1/2 (OSR).
4. Legal proceedings in respect of trademark registration No. 350738 as Ex. PW1/3 (OSR).
5. Legal proceedings in respect of trademark registration No. 270875 as Ex. PW1/4 (OSR).
6. Internet print out of renewal of trademark registration Suit (Com.) No. 726/2023 Page No. 43 of 65 Levi Strauss & Co. Vs. Kulwant Singh No. 851933 as Mark D.
7. Legal proceedings in respect of trademark registration No. 851936 as Ex. PW1/6 (OSR).
8. Legal proceedings in respect of trademark registration No. 290954 as Ex. PW1/7 (OSR).
9. Legal proceedings in respect of trademark registration No. 851939 as Ex. PW1/8 (OSR).
10. Legal proceedings in respect of trademark registration No. 851717 as Ex. PW1/9 (OSR).
11. Photograph of infringing products displaying falsified marks as Mark B.
12. Photograph of original product displaying the original trademarks and logos as Mark C.
48. In his cross examination he has deposed that he does not remember the name of exclusive franchises of plaintiff company which carry plaintiff company's business in Delhi. He does not remember the addresses of the showrooms of plaintiff company situated in Delhi. He has placed the document on record that the plaintiff company is operating across the globe particularly of India. He admitted the suggestion that there is no document on record regarding sales of plaintiff's products in India. He has not filed any document that plaintiff company is innovating since 1873. He has not filed any document that plaintiff company has patented first blue jeans or that plaintiff company is running business in 110 countries. He has not not filed any document to show that Levis Brand was known in India prior to launching of its products in India. I cannot produce the documents with respect to above. The chart of trademarks registered in India given in para 5 of his affidavit is prepared on the basis of legal proceedings certificate provided by Trade Mark Registry. He does not remember whether said legal proceeding certificate was collected by him or same were called through Suit (Com.) No. 726/2023 Page No. 44 of 65 Levi Strauss & Co. Vs. Kulwant Singh some other official of the plaintiff company. He does not remember how many trademarks are registered in the name of LEVIS. The trademark for present suit has been obtained for class 25 but the plaintiff has trademarks in many other classes. He does not have the trademark registration certificate with respect to the legal proceedings certificates which he has filed on record. He has not filed any document to prove that the plaintiff company has spent huge amount of money in advertising and promotion of its products under Levis mark. He can produce the same. He has not filed any document with respect to the net revenue figures of plaintiff company from the year 2012 to 2016. They came to know about the defendant through investigation. He has have not filed report of said investigation. He cannot file the same (Vol. Same are internal record). He denied the suggestion that there is no such investigation was conducted that is why no such report was filed.
He deposed that difference between plaintiff company's product and defendant's product is that in plaintiff company's product, there are tags in which all the details are given and the details which are given in defendant's products are different. He has not filed any document that the product shown in the photograph Mark B is taken from defendant shop. He cannot produce any document that the said product was purchased / obtained from the defendant shop. He denied the suggestion said product does not belong to defendant and that is why he has not filed any document to show that same is purchased / taken from defendant shop. He deposed that product shown in the photograph Mark C is the plaintiff company's product which we purchased from market. He deposed that name of Kulwant Singh came in the knowledge when plaintiff's counsel went with local commissioner at the defendant's premises. He deposed that differences have been mentioned after comparing plaintiff's and defendant's products by him. He has not produced the goods in evidence on the basis of which he has mentioned the differences mentioned in para 19 of his affidavit. He deposed that defendant is running his business under the name and Suit (Com.) No. 726/2023 Page No. 45 of 65 Levi Strauss & Co. Vs. Kulwant Singh style of M/s. BUFF. He does not know that defendant manufacture the clothes with the trademark BUFF.
49. Plaintiff has also examined PW2 Sh. Rohit Kumar, who in his testimony led by way of affidavit Ex. PW2/A has deposed that as per instructions of Sh. Narendra Singh, he carried out market survey in the last week of August 2019 for the products bearing Levi's mark including T-shirts, lowers, jeans, shirts and other apparels and accessories and found that the defendant is a wholesale unit situated at H-16/89, Tank Road, Karol Bagh, Delhi and is storing and selling apparels which includes T-shirts, lowers, jeans, shirts and other apparels and accessories bearing Levi's marks of plaintiff company. He purchased a T-shirt bearing the word mark Levi's from the premises of defendant and the defendant did not issue any invoice against said purchase.
50. In his cross examination, he deposed that the work profile was to go into the market on the instructions of AR Sh. Narendra Singh to find out where the duplicate goods are sold. He has given the T-shirt which he has purchased during his investigation with his report. The T- shirt was purchased from defendant shop in cash.
51. The plaintiff in plaint has stated that plaintiff is propretor of following trade mark:
Mark Logo Reg. Reg. Date Valid Till Class
No.
GUARANTE
E TICKET 350738 26.06.1979 26.06.2027 25
LEVI'S 270875 26.03.1971 26.03.2026 25
LEVI'S 851933 19.04.1999 19.04.2026 25
LEVI'S
(HOUSEMA 301881 02.01.1975 02.01.2020 25
RK)
Suit (Com.) No. 726/2023 Page No. 46 of 65
Levi Strauss & Co. Vs. Kulwant Singh
LEVI'S
(HOUSEMA 851936 19.04.1999 19.04.2029 25
RK)
TWO
HORSE 290954 18.09.1973 18.09.2028 25
Arcuate
Stitching 382357 23.10.1981 23.10.2019 25
Design
Arcuate 25
Stitching 851939 19.04.1999 19.04.2029
Design
MiscGeom(D
evice) 851717 16.04.1999 16.04.2029 25
LEVI'S 851932 19.04.1999 19.04.2029 18
(Word)
LEVI'S 851935 19.04.1999 19.04.2029 18
DEVICE
Device 851938 19.04.1999 19.04.2029 18
MiscGeom(D 900545 31.01.2000 31.01.2020 25
evice)
MiscGeom(D 851716 16.04.1999 16.04.2029 18
evice)
Silver Tab 540033 16.11.1990 16.11.2024 25
(Device)
Orange Tab 540035 16.11.1990 16.11.2024 25
(Device)
Suit (Com.) No. 726/2023 Page No. 47 of 65
Levi Strauss & Co. Vs. Kulwant Singh
Red Tab 540034 16.11.1990 16.11.2024 25
(Device)
Device 532644 05.07.1990 05.07.2024 25
501 515566 23.08.1989 23.08.2020 25
(Word)
DOCKERS 515288 18.08.1989 18.08.2020 25
(Device)
Pocket 352692 23.08.1979 23.08.2027 25
Device
(Device)
Logo 317649 11.08.1976 11.08.2024 25
Levi's 362699 04.09.2017 04.09.2027 25
Sportswear 7
(logo &
Design)
Levi's & Tab 356945 13.06.2017 13.06.2027 25
(Device & 7
Design)
LEVI'S 336220 14.09.2016 14.09.2026 25
ALTERED 0
(Word)
WELLTHRE 283792 05.11.2014 05.11.2024 25
AD 8
(Word)
Suit (Com.) No. 726/2023 Page No. 48 of 65
Levi Strauss & Co. Vs. Kulwant Singh
COMMUTER 249675 15.03.2013 15.03.2023 25
(Word) 3
LEVI'S 245398 03.01.2013 03.01.2023 99
DOUBLE 3
STITCH
(Word)
Levi's 220297 09.09.2011 09.09.2021 35
(Logo) 3
Device 217607 15.07.2011 15.07.2021 25
2
FIT OUT 217607 15.07.2011 15.07.2021 25
START UP 1
(Word)
Logo 215189 30.05.2011 30.05.2021 99
(Device) 1
GO FORTH 214501 16.05.2011 16.05.2021 25
(Word) 2
PATENTED 213561 26.04.2011 26.04.2021 99
MAY 201973 6
LABEL
(Device)
STA-PREST 211968 22.03.2011 22.03.2021 25
(Word) 5
DEVICE 199036 07.07.2010 07.07.2020 25
WITH LABEL 3
(Device)
Suit (Com.) No. 726/2023 Page No. 49 of 65
Levi Strauss & Co. Vs. Kulwant Singh
505 194489 01.04.2010 01.04.2020 25
(Word) 4
DEVICE 194054 23.03.2010 23.03.2020 25
WITH LOGO 2
(Device)
DEVICE 190216 29.12.2009 29.12.2019 99
8
DENIZEN 186963 05.10.2009 05.10.2019 99
(Word) 6
LEVI'S 162205 19.11.2007 19.11.2027 9
(Word) 9
DOCKERS 153070 13.02.2007 13.02.2027 9
(Word) 2
LEVI'S 153070 13.02.2007 13.02.2027 9
(Word) 1
OUR 147188 20.07.2006 20.07.2026 25
SIGNATURE 5
, YOUR
STYLE
(Word)
LEVI 142565 01.03.2006 01.03.2026 25
STRAUSS 1
SIGNATURE
WITH LABEL
(Device)
LEVIS LOOP 141725 27.01.2006 27.01.2026 35
ONLY FOR 6
ORIGINALS
WITH
Suit (Com.) No. 726/2023 Page No. 50 of 65
Levi Strauss & Co. Vs. Kulwant Singh
DEVICE
MARK
DEVICE 137126 14.07.2005 14.07.2025 25
MARK 9
52. In the written statement, defendant has not taken any ground that plaintiff is not the registered proprietor of aforesaid trade mark nor defendant has led any evidence to prove that the plaintiff is not a registered owner of trademark Levi's. Hence said facts remained undisputed.
53. Even otherwise, the testimony of PW1 and Legal proceeding certificate Ex. PW1/3, to Ex. PW1/9, it is proved that plaintiff company is registered owner of Trade Mark "Levis" in India since 1979 I class 25 i.e. clothing which include Jeans, T shirt, pants, shorts and skirt and same is still valid. There in no suggestion to PW1 that same are forged and fabricated or that defendant has any proprietary rights in Trade Mark Levis. The legal proceeding certificate issue by Registrar TradeMark is public documents and thus perse admissible and in my view there is no requirement for even calling witness from trade mark authority to prove the same. Hence I reject the objection of defendant that regarding mode of proof and admissibility of these documents. In view of the aforesaid facts and circumstances, I hold that plaintiff is able to prove that it is registered owner of Trade Mark Levi's.
54. Section 28(1) of the 1999 Act, gives a right to registered proprietor of the trademark to use the same to the exclusion of others and also to protect the mark from infringement by third parties. Under Section 29(2) of the said Act, a registered trademark is infringed Suit (Com.) No. 726/2023 Page No. 51 of 65 Levi Strauss & Co. Vs. Kulwant Singh by a person who not being a registered proprietor or a person using by way of permitted use, uses in the course of trade, a mark which because of its identity with or similarity to the registered trademark and identity or similarity of the goods or services covered by such registered mark, in a manner which is likely to cause confusion on the part of the public or likely to have an association with the registered trademark.
55. Once plaintiff is able to proved that it is registered owner of Trade Mark Levi's, plaintiff is to only proved that defendant was manufacturing, selling, storing or in any manner dealing in goods having Trade Mark Levi's without permission of plaintiff in that case plaintiff would prove that its trade mark has been infringed by defendant.
56. On analyzing the testimony of PW1 it is evident that he testified that during market survey found that defendant Kulwant Singh is engaged in the business of stocking, distributing and selling infringed goods bearing falsified Trade Mark "Levi's". from its ware house situated at H-69/89 Tank Road, Karol Bagh and shop situated at E16/934 Basement Complex, Shiv Mandir, Main Tank Road, New Delhi. PW2 has testified that he carried out the said market survey and purchased one t- shirt from defendant shop having trade Mark Levi's.
57. Ld. Counsel for defendant has cross examined both PW1 & PW2 at length but as held in issue no.2 failed to discredit their testimony that no such market survey was carried out. Further in my view more than market survey, report of Sh. Dharam Dev, who was appointed as Local Commissioner to inspect the premises of defendant and to seize the goods is very important to prove that defendant was dealing in infringed goods having trade mark of plaintiff or not.
58. PW1 has testified that this court has vide order dated 18.9.2019 appointed the local commissioner to inspect the premises of Suit (Com.) No. 726/2023 Page No. 52 of 65 Levi Strauss & Co. Vs. Kulwant Singh defendant and seized and seal the infringed goods having Levi's trademark who inspected the premises of defendant and seized the infringed goods having trade Mark of plaintiff company and further deposed that in compliance of the said order, the local commissioner visited the premises of the defendant situated at H-16/89, Tank Road, Karol Bagh, Delhi - 110005 on 19.10.2019. Local Commissioner also visited the premises of the defendant situated at E-16/934, Basement, Arora Complex, Shiv Mandir, Main Tank Road, New Delhi - 110005 in furtherance of the directions of the Hon'ble Court vide order dated 18.9.2019. Local commissioner seized infringed goods bearing the registered trademarks of the plaintiff company from both the premises. Local commissioner seized and sealed 110 pieces of infringing goods / clothes bearing the trademark of the plaintiff company from the premises of the defendant being shop situated at E-16/934, Basement, Arora Complex, Shiv Mandir, Main Tank Road, New Delhi - 110005 and 394 pieces of infringing goods / clothes bearing the trademark fo the plaintiff company from the premises of defendant being warehouse situated at H-16/89, Tank Road, Karol Bagh, Delhi - 110005. During the commission, defendant namely Mr. Kulwant Singh was present at the premises and infringing products bearing "Levi's marks' were seized and sealed in his presence. It was revealed at the time of commission that Mr. Kulwant Singh is running his business under the name and style of M/s. BUFF. He further deposed that the defendant was caught red- handed being engaged in the business of storing and selling infringing goods bearing the trade marks of the plaintiff company and being in possession of such infringing goods bearing the registered trademark of the plaintiff company.
59. I am agree with the contention of Ld. Counsel for defendant that since PW1 in his testimony he has not deposed that he has himself visited to the defendant premises at the time of inspection and only deposed in the cross examination that his counsel has visited therefore Suit (Com.) No. 726/2023 Page No. 53 of 65 Levi Strauss & Co. Vs. Kulwant Singh his testimony to the extent of local commissioner inspected the sport and carry out investigation regarding infringed goods is hearsay hence cannot be considered to the extent that local commissioner inspected the premises of defendant and recovered goods having trade mark of plaintiff, however since since no objection has been filed by the defendant to the said Local Commissioner Report EXDW1/1, therefore the said report is per se admissible. Even otherwise, the local commissioner was examined by the defendant himself who exhibited his report as Ex. DW1/1.
60. From perusal of report of local commissioner EXDW1/1 , it is evident that he visited to the premises No. E-16/934 Basement, Arora Complex, Shiv Mandir, Main Tank Road, New Delhi - 110005 and he found that many counterfeit Levi's products were found in the warehouse and shop which were being sold by the sale boys of firm namely M/s. BUFF and it was also told by one Sardarji that the owner of the firm is Kulwant Singh and he apprised Kulwant Singh who was sitting on the counter and giving directions to staff about the order dated 18.9.2019 and thereafter got acknowledgment of the same from one Sahil who stated that he is the Manager of the shop M/s. BUFF but Kulwant Singh refused to sign. The entire report of local commissioner is reproduced as under :-
"I was appointed local commissioner in the above noted matter to execute the commission in terms of order dated 18.9.2019 and duly amended for extension of time for execution vide order dated 11.10.2019. I have visited the site of commission, i.e. H-16/89, Tank Road, Karol Bagh, Delhi - 110005 and additional site at Shop No. E-16/934 Basement, Arora Complex, Shiv Mandir, Main Tank Road, New Delhi - 110005 (just in front of the warehouse) along with the authorized persons of the plaintiff company on 19.10.2019 and proceedings of the same are furnished below :Suit (Com.) No. 726/2023 Page No. 54 of 65
Levi Strauss & Co. Vs. Kulwant Singh On 19.10.2019, I alongwith plaintiff's authorized officers reached the Police Station, Prasad nagar at 11.30 A.M. and requested the SHO, PS Prasad nagar to provide police help. He kept us waiting till 2.45 pm and thereafter provided police help.
Then, I alongwith plaintiff's authorized officers reached the site of commission i.e. H-16/89, Tank Road, Karol Bagh, Delhi - 110005 and additional site at Shop No. E-16/934 Basement, Arora Complex, Shiv Mandir, Main Tank Road, New Delhi - 110005 (just in front of the warehouse) on 19.10.2019 at about 3 P.M. and found that many counterfeit Levi's Goods were lying stored in the warehouse and shop and were being sold by the sale boys of Firm namely M/s. BUFF. We were told by one Sardarjee that the owner's name is Mr. Kulwant Singh.
I apprised Mr. Kulwant Singh, who was sitting on the counter and giving directions to staff, about the order dated 18.9.2019 and duly amended for extension of time for execution vide order dated 11.10.2019 passed by this Hon'ble Court and attempted to hand over the copies of the same alongwith copy of plaint along with annexures. He got it acknowledged by one Mr. Sahil, telling that he is the Manager of the Firm namely M/s. BUFF but Mr. Kulwant Singh refused to sign.
A large number of counterfeit Levis items at the premises as follows :
I. 110 pieces of counterfeit Levis Goods / clothes at shop bearing address at : E-161/934, Basement, Arora Complex, Shiv Mandir, Tank Road, New Delhi - 110005. The said 110 pieces were put in one gunny bag and sealed and signed by me on 19.10.2019. Inventory of items was prepared and handed over to Mr. Sahil, the Manager of the firm M/s. BUFF on instructions of Mr. Kulwant Singh. Mr. Kulwant Singh refused to sign and acknowledge.Suit (Com.) No. 726/2023 Page No. 55 of 65
Levi Strauss & Co. Vs. Kulwant Singh Photographs and videographs were also prepared. The inventory of items were duly acknowledged by Mr. Sahil is annexed as Annexure-1. The said gunny bag containing 110 items of counterfeit Levis goods were released to Mr. Sahil, the Manager of the Firm namely M/s. BUFF on the instructions of Mr. Kulwant Singh, who was the owner of the Firm. The common supardginama executed by Mr. Sahil in original accepting 110 counterfeit goods of Levis is annexed as Annexure 3.
II. 394 pieces of counterfeit Levis goods / clothes found at H-16/89, Tank Road, Karol Bagh, New Delhi were put in three gunny bags (one gunny bag containing 100 items, second containing 194 items and third containing 100 items) and sealed and signed by me on 19.10.2019. Inventory of items was prepared and handed over to Mr. Sahil, the Manager of the firm M/s. BUFF. Mr. Kulwant Singh refused to sign and acknowledge. Photographs and videographs was also prepared. The inventory of items duly acknowledged by Mr. Sahil, the Manager of the Firm is anenxed as Annexure 2. The said three gunny bags containing 394 of counterfeit Levis goods was released to Mr. Sahil, the Manager of the firm namely M/s. BUFF on the instructions of Mr. Kulwant Singh, who was owner of the firm. The common Supardginama executed by Mr. Sahil in original accepting 394 counterfeit goods of Levis is annexed as Annexure 3.
The photographs are enclosed as Annexure 4. The commission has been executed in terms of the order dated 18.9.2019 and duly amended for extension of time for execution vide order dated 11.10.2019.
Submitted for perusal and records".
61. Since no objection has been filed by the defendant to the said report therefore same remained unchallenged. Even otherwise, Suit (Com.) No. 726/2023 Page No. 56 of 65 Levi Strauss & Co. Vs. Kulwant Singh defendant has himself examine the Local Commissioner as DW1, who proved his report as Ex. DW1/1. From the cross examination of DW1 Dharam Dev, the Ld. local commissioner, it is evident that no suggestion has been given to him that he did not visit to the shop or warehouse of the defendant or that M/s. BUFF is not the shop of defendant Kulwant Singh or that the goods which were seized by him were not having trademark Levi's.
62. From cross examination of DW1 by Ld. Counsel for defendant only at the best it can be taken in favour of defendant that Ld. Local Commissioner has not made comparison to the goods seized by him from the shop of defendant with original goods of plaintiff. In my view, same does not help the defendant as it was not the mandate of the local commissioner to compare the goods, only he has to seize the goods which is having infringed trademark of plaintiff i.e. Levi's. Since it is not disputed that the goods mentioned in the local commissioner report is not recovered from the said premises and planted by local commissioner / DW1, in my view Ld. Counsel for the defendant is unable to shake the testimony of local commissioner to prove that he has not visited to the spot as directed by this court or has not inspected the premises in question or that has not recovered the goods as mentioned in his report. Hence there is no ground to disbelieve the LC report Ex. DW1/1 and from the report of local commissioner, it is proved that T- shirts, lowers, jeans, shirts and other apparels and accessories having trademark of plaintiff company were recovered from the shop / warehouse of defendant therefore the onus is shifted upon the defendant to prove that these goods were the original Levi's goods and not counterfeited goods. Hence defendant is unable to extract anything from DW1 testimony which proved that he has given false report. Since it is not the defense of defendant that goods were original goods of plaintiff purchased from authorized seller of plaintiff or from market, therefore I hold that the goods which were recovered from the defendant were Suit (Com.) No. 726/2023 Page No. 57 of 65 Levi Strauss & Co. Vs. Kulwant Singh counterfeited goods and thus hold that he has infringed the trademark of plaintiff.
63. Defendant neither in the written statement nor during cross examination of PW1 or PW2 has given suggestion that the defendant is the owner of trademark Levi's. Only defence taken by the defendant is that the defendant is not dealing with the goods having trademark Levi's. Therefore defendant being in possession of such a number of infringed goods itself led to presumption that same were counterfeited product. Therefore onus shifted upon the defendant to prove that same were original product of plaintiff obtained from rightful source as per Section 106 of BNS (103 of Indian Evidence Act) but defendant himself did not appear in witness box nor has examined any other witness to prove the same. Hence presumption arise against the defendant that same were counterfeited products. Hence I hold that the defendant has failed to discharge the said burden that goods recovered by the Local Commissioner was not counterfeited product.
64. In view of aforesaid discussion I held that plaintiff is able to prove that defendant was storing and selling the apparels with the trade mark Levi's and thus he was infringing the trade mark of plaintiff. I decide issue No. 4 in favour of the plaintiff and against the defendant.
ISSUE NO. 3.
Whether plaintiff is entitled for permanent and mandatory injunction as prayed in para (a) to (i) of the prayer? OPP.
65. In view of my finding that the plaintiff is registered owner of trademark Levi's, I hold that the defendant has no right to use the trademark Levi's, therefore plaintiff is entitled to decree of permanent injunction. Hence, I held that plaintiff is entitle to decree of permanent injunction as prayed in para (a) to (i) in prayer. Issue No. 3 is decided accordingly in favor of plaintiff.
Suit (Com.) No. 726/2023 Page No. 58 of 65Levi Strauss & Co. Vs. Kulwant Singh ISSUE NO. 5.
Whether plaintiff is entitled to decree of rendition of accounts as prayed in para (j) of the prayer? OPP.
AND ISSUE NO. 7.
Whether plaintiff is entitled for any damages from the defendant? If so, what amount? OPP.
66. As far as rendition of account is concern, since the defendant did not choose to file any accounts to thwart any inquiry into their account for determination of damages. As a result, no inquiry into their accounts could be conducted, for this court to pass an order of rendition of accounts of profits. In my view, even if the defendant is directed to provide its accounts, it would be very difficult to ascertain out of total sales how many goods belonged to the plaintiff's trademark sold by the defendant and how much he earned profit on the same. The plaintiff has also claimed punitive damages. Therefore in my view it would not be appropriate to direct rendition of account hence, I decline the relief of grant of decree for directing the defendant to furnish its accounts and it would be appropriate to grant punitive damages.
67. Section 135 (1) of the Trademarks Act, 1999 provides that relief that may be granted in any suit for infringement of or for passing off includes injunction and at the option of the plaintiff, either damages or an account of profits. The plaintiff in the present case has opted for claiming damages and has established beyond doubt that it has suffered damages on account of the conduct of the defendant which are a result of infringement of their trademark and copyright. In the case of Microsoft Corporation Vs. Rajendra Pawar & Anr. reported as 2008 (36) PTC 697 (Del.), considering the aspect of punitive damages, it was held as below:-
Suit (Com.) No. 726/2023 Page No. 59 of 65Levi Strauss & Co. Vs. Kulwant Singh "22. Perhaps it has now become a trend of sorts, especially in matters pertaining to passing off, for the defending party to evade Court proceedings in a systematic attempt to jettison the relief sought by the Plaintiff. Such flagrancy of the Defendant's conduct is strictly deprecatory, and those who recklessly indulge in such shenanigans must do so at their peril, for it is now an inherited wisdom that evasion of Court proceedings does not de facto tantamount to escape from liability. Judicial Process has its own way of bringing to task such erring parties whilst at the same time ensuring that the aggrieved party who has knocked the doors of the Court in anticipation of justice is afforded with adequate relief, both in law and in equity. It is here that the concept of awarding punitive damages comes into perspective.
23. Punitive damages are a manifestation of equitable relief granted to an aggrieved party, which, owing to its inability to prove actual damages, etc., could not be adequately compensated by the Court.
Theoretically as well as practically, the practice of awarding of punitive damages may be rationalized as preventing under compensation of the aggrieved party, allowing redress for undetectable torts and taking some strain away from the criminal justice system. Where the conduct of the erring party is found to be egregiously invidious and calculated to mint profits for his own self, awarding punitive damages prevents the erring party from taking advantage of its own wrong by escaping prosecution or detection".
68. No evidence has been led by the plaintiff to prove that the defendant has also manufactured the goods using infringed trademark of plaintiff and from the evidence of plaintiff's witness, only it comes that the defendant was selling and storing the infringed goods. In view of above discussion, I held that plaintiff is entitled to damages for infringing trademark / copyright of plaintiff. Since admittedly all the goods which Suit (Com.) No. 726/2023 Page No. 60 of 65 Levi Strauss & Co. Vs. Kulwant Singh were having the trademark Levi's was seized from the defendant's premises, the plaintiff has not given any calculation as to what would be the profit the defendant would have earned on the said seized goods i.e. 394 + 110 pieces of Levi's goods / clothes found in the premises of defendant. Therefore the court has to take a notion value of profit earned by the defendant considering the quantity of infringed goods. Even if I presume that the defendant would be earning around Rs. 500-600 per piece, the total profit for infringed pieces would comes around Rs. 3 lacs. Further, the plaintiff itself has put the specified value of the suit for damages as Rs. 5,50,000/-. Hence, considering the aforesaid facts and circumstances, in my view, it would be appropriate to grant Rs. 3 lacs as damages to the plaintiff by way of punitive / exemplary damages. The damages awarded shall be payable, within a period of three months from the date of passing of the judgment failing which, the said amount shall carry interest @ 8% per annum from the date of the decree, till realization.
ISSUE NO. 6 .
Whether plaintiff is entitled to delivery up of all the goods as prayed in para (k) of the prayer? OPP.
69. The onus to prove both these issues is upon the plaintiff. Ld. Counsel for the plaintiff stresses the fact that the plaintiff is not only entitled to the relief of permanent injunction also entitled to the decree for delivery of all infringed material as prayed, directing the defendants to hand over / deliver all the infringing finished/unfinished materials bearing the plaintiff's trademark to plaintiff. Further, in view of my findings in issue No. 5 that defendant has infringed the copyright of the plaintiff's trademark/copyright, therefore, I hold that defendant is liable to hand over the goods to the plaintiff having infringed trademark of plaintiff. Further, in my view, defendant is also liable to disclose the names of the persons who are engaged in selling, storing and supplying of the Suit (Com.) No. 726/2023 Page No. 61 of 65 Levi Strauss & Co. Vs. Kulwant Singh infringed goods of plaintiff's trademark and further, hand over all the documents and information related to the transaction done by them with respect to the said goods. Issue No. 6 is decided accordingly.
RELIEF.
70. In view of aforesaid discussions, I pass a decree for permanent injunction in favour of plaintiff and against the defendant as prayed in Para(a) to (i) which is as under:
(a) the defendant, its associates and agents, officers, employees, distributors, franchisee, representatives and assigns from using "Levi's marks" and/or any other trademark and logos deceptively and confusingly similar to the "Levi's marks" of the plaintiff company on any apparels including t-shirts, jeans, shirts, and other accessories infringing the registered trademarks of the plaintiff company;
(b) restrain the defendant, its associates and agents, officers, employees, distributors, franchisee, representatives and assigns from using "Levi's marks" and/or any other "Levi's marks" deceptively and confusingly similar to the registered trademarks and logos of the plaintiff company on any apparels including t-shirts, jeans, shirts, and other accessories thereby infringing the registered trademarks of the plaintiff company;
(c ) Restrain the defendants, its associates and agents, officers, employees, distributors, franchisee representatives and assigns from using the copyright in the artistic work vested in the "Levi's marks" and/or any other copyright and logos deceptively and confusingly similar to the artistic logo of the plaintiff company on any apparels including t-shirts, jeans, shirts, and other accessories thereby infringing the copyright of the plaintiff company;
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(d) restrain the defendant, its associates and agents, officers, employees, distributors, franchisee, representatives and assigns from using the copyright vested in the artistic work in the "Levi's marks" and/or any other copyright deceptively and confusingly similar to the artistic work of the plaintiff company on any apparels including t-shirts, jeans, shirts, and other accessories thereby infringing the copyright of the plaintiff company;
(e) restrain the defendants, its associates and agents, officers, employees, from using "Levi's marks" or copyright vested in the artistic work in the "Levi's marks" and/or any other copyright deceptively and confusingly similar to the artistic work of the plaintiff company on any apparels including t-shirts, jeans, shirts, and other accessories distributors, franchisee, representatives and assigns from passing off its goods as that of the plaintiff's goods;
(f) restrain the defendants, its associates and agents, officers, employees, from using "Levi's marks" or copyright vested in the artistic work in the "Levi's marks" and/or any other copyright deceptively and confusingly similar to the artistic work of the plaintiff company on any apparels including t-shirts, jeans, shirts, and other accessories distributors, franchisee, representatives and assigns from passing off its goods as that of the plaintiff's goods;
(g) restrain the defendants, its associates and agents, officers, employees, distributors, representatives and assigns from using any of the "Levi's marks" and/or copyright vested in the "Levi's marks" of the plaintiff on apparels including t-shirt, shirt and other accessories in any form and manner and/or copyright or trademarks identical and /or confusingly or deceptively similar to the "Levi's marks" and other copyright of the plaintiff, thereby infringing Suit (Com.) No. 726/2023 Page No. 63 of 65 Levi Strauss & Co. Vs. Kulwant Singh plaintiff's registered trademarks, copyright and passing of their goods as that of plaintiff;
(h) restrain the defendants, its partners associates, officers, employees, manufacturer, distributors, importers, stockiest representatives, assigns, and all other persons acting on its behalf and/or all other persons claiming through or under them or controlled by them, from importing, marketing, distributing, selling, offering to sale, the impugned goods bearing "Levi's marks" or any mark deceptively and confusingly similar to "Levi's marks" of the plaintiff company on jeans, shirts, t-shirts and other apparels on any platform (whether wholesale or retail, physical or online), in any form and manner thereby diluting or tarnish the goodwill and reputation of the trademark of the plaintiff.
(i) restrain the defendants, its partners associates, officers, employees, manufacturer, distributors, importers, stockiest representatives, assigns, and all other persons acting on its behalf and/or all other persons claiming through or under them or controlled by them, from importing, marketing, distributing, selling, offering to sale, the impugned goods bearing "Levi's marks" or any mark deceptively and confusingly similar to "Levi's marks" of the plaintiff company on jeans, shirts, t-shirts and other apparels on any platform (whether wholesale or retail, physical or online), in any form and manner thereby diluting or tarnish the goodwill and reputation of the trademark of the plaintiff.
71. Further, I also pass a decree directing the defendant to hand over/ deliver all the infringing finished/unfinished materials bearing the plaintiff's trademark to plaintiff for destruction/ erasion etc., which were seized at defendants premises by the local commissioner and released on superdari.
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72. Further, I also pass decree directing the defendant to disclose the names of the persons who are engaged in selling, storing and supplying of the infringed goods of plaintiff's trademark and further, hand over all the documents and information related to the transaction done by them with respect to the said goods.
73. Further, I pass a decree for a sum of Rs. 3,00,000/- (Rupees three lacs only) against defendant by way of punitive / exemplary damages including local commissioner fees. The decretal amount shall be paid by the defendant within three months from the date of decree along with interest @ 8% per annum from the date of the decree, till realization. The plaintiff is also entitled to costs of the suit. Decree sheet be prepared accordingly. File consigned to record room after necessary compliance.
Announced in the open court (Sanjeev Kumar Aggarwal) on 25.09.2024 DJ (Commercial)-01, Central, THC/Delhi / 25.09.2024 Digitally signed SANJEEV by SANJEEV KUMAR KUMAR AGGARWAL AGGARWAL Date: 2024.09.25 15:04:40 +0530 Suit (Com.) No. 726/2023 Page No. 65 of 65 Levi Strauss & Co. Vs. Kulwant Singh