Delhi District Court
Nike Innovate Cv vs Sukhmeet Singh on 25 September, 2023
BEFORE THE COURT OF SH. SURINDER S. RATHI, DISTRICT JUDGE
(COMM.)-03 SHAHDARA, KARKARDOOMA, DELHI.
CS Comm. No.576/22
Nike Innovate CV
Having its principal office at
One Bowerman Drive
Beaverton, Oregon, USA
Through its AR
Narendra Singh
E-1, LGF, Lajpat Nagar
New Delhi-110023. .......Plaintiff
Vs.
Sukhmeet Singh
Owner of Buff Italy
Building No. IX/7060 Ashok
Gali, Gandhi Nagar, Delhi-110031 ........Defendant
Date of Institution : 17.10.2022
Date of Final Arguments : 25.09.2023
Date of Judgment : 25.09.2023
Decision : Decreed
Judgment
1.This suit has been filed by plaintiff for reliefs of permanent injunction qua infringement of Trademark, Copyright of Nike and Passing Off rights apart from Relief of Rendition of Account and Delivery Up.
Case of the Plaintiff
2. Case of the plaintiff as per amended plaint and the evidence led is that it is a "Limited Partnership Firm" registered under the laws of The Netherlands and is engaged in the business of manufacturing, sale and distribution of sportswear, shoes and other related accessories all over the world. Plaintiff is owner of Trademark Nike, Nike with Swoosh CS Comm. No.576/22 Nike Innovate CV Vs. Sukhmeet Singh Page 1 Design. As per plaint the Nike Trademark was conceptualised in the year 1955 for athletic footwear. Plaintiff company has a wholly-owned subsidiary in India namely 'Nike India Private Limited' having offices in all major cities. The plaintiff carries its business through its manufacturers, distributors, franchisee and exclusive showrooms in Karol Bagh, Cannaught Place, Khan Market and other areas in Delhi. Plaintiff has reproduced list of its trademarks registered under Class 25 in India.
3. It is case of the plaintiff that it has sponsored several world known sports persons including Carl Lewis, Cristiano Ronaldo and also sponsored Indian Cricket Team in 2005 and has acquired the status of well-known mark. Plaintiff has invested huge money in advertisement and promotion of its brand across the globe and on the strength of quality of its goods it has acquired enviable reputation in India and its sales turnover in 2020 was USD 16,241 Million. It is pleaded that on account of its own figurative unique design and the artistic work the plaintiff owns the copyright of their trademark Nike and Nike with Swoosh Design.
4. It is pleaded that in the course of business plaintiff came to know that the defendant Sukhmeet Singh, who is doing business in the name and style of M/s Buff Italy, is engaged in stocking, selling and distributing products using plaintiff's trademark of Nike and Swoosh Design by falsifying them. Defendant has an outlet at IX/7060, Ashok Gali, Gandhi Nagar, Delhi. In September 2022, plaintiff carried out the investigation of the premises. It was found the defendant is selling apparels through a dedicated social media handle created in his firm's CS Comm. No.576/22 Nike Innovate CV Vs. Sukhmeet Singh Page 2 name M/s Buff Italy on Instagram and also on Youtube. Screen garbs of such pages are attached with the plaint. Test purchase was carried out but the defendant did not issue any invoice as the sales are being made in clandestine manner. Plaintiff has compared the product sold by the defendant with the original products and has enlisted following 9 differences in the same.
Original Product Infringing Product
1. The security label fixed on inner side of The security label is missing from the the lower is properly tagged and contains product of the defendant. Absence of said NIKE logo, its size along with its other salient feature shows that the product is details which is same as that mentioned infringing. on the MRP tag.
2. Every product contains Swoosh logo, The said information is missing from the actual size along with the name of its inner right side of the infringing lower. manufacturing country, fabric printed on the inner right side of the lower,
3. Detailed information in compliance of Detailed information in compliance of Legal Metrology Act 2009 about every Legal Metrology Act 2009 about every product is set out in Nike/MRP label product is missing from the infringing attached to every product. product.
4. The Nike MRP label attached on the The MRP label is missing from the lower contains complete information of infringing product however an empty tag every product individually. The with no details and a wrong size sticker information contained are: is attached to the infringing product.
a) Style
b) Size
c) Gender
d) Marketed by
e) For Consumer Complaint
f) Email ID
g) Address
h) Toll Free
i) Consumer Policies
j) Product Name
k) Month and Year of Manufacture
l) Net Quantity
m) MRP
n) Country of Original
o) Manufactured by
p) Bar Code
q) Nike Logo
5. The Swoosh logo has been properly That the swoosh logo is shabbily printed attached on the left side of the lower. on the left side of the lower which is also uneven and asymmetrical.
6. The raw material and the technology The raw material and the technology CS Comm. No.576/22 Nike Innovate CV Vs. Sukhmeet Singh Page 3 used in the manufacturing of a genuine used in the manufacturing of the product are of a very good quality and infringing products is of poor quality and standards and thus the overall finishing the product as a whole is poorly finished and the quality of a genuine product is with poor stitching which is evident on very superior. comparison with a genuine product.
7. The trademark (i.e. word marks and/or The trademark have been applied logo) are in a fixed proportion. shabbily and also are not in correct proportion or out of proportion.
8. Every genuine Nike product has Nike In the infringing goods the said Nike Swoosh Mark. Swoosh is either not properly sealed or has been printed shabbily.
9. Every genuine Nike product of is made The infringing product of the defendant of out of high quality material fulfilling is made out of cheap material clearly its primary purpose of a sporting representing it to be used for non-
product. sporting casual use.
5. It is pleaded that the defendant's products are of poor quality and wrong stitching and its tags do not contain mandatory requirement as per Legal Metrology Act 2009. It is pleaded that by adopting the plaintiff's registered trademark Nike and Swoosh Logo plaintiff has committed infringement as well as passing off and thereby causing huge financial loss as well as loss of goodwill and reputation of their well-known trademark. With these pleas the suit in hand was filed with following prayers:
Prayer:
a) Grant an order for permanent injunction thereby restraining the defendant, its associates and agents, officers, employees, distributors, representatives and assigns from using the trademark NIKE and Swoosh Logo and/or any other registered " Nike marks" of the plaintiff on apparels and other accessories in any form and manner and/or trademarks identical and/or confusingly or deceptively similar to the trademark 'Nike' and/or 'Swoosh Logo and/or any other registered "Nike marks" of the plaintiff, thereby infringing plaintiff's registered trademarks;
b) Grant an order for permanent injunction thereby restraining the defendant, its associates and agents, officers, employees, distributors, representatives and assigns from using the copyright vested in device/logo of Swoosh mark and/or any other registered "Nike Marks" of the plaintiff on apparels and other accessories in any form and manner and/or copyright identical and/or confusingly or deceptively similar to the device/logo of Swoosh mark and/or CS Comm. No.576/22 Nike Innovate CV Vs. Sukhmeet Singh Page 4 any other "Nike marks" of the plaintiff, thereby infringing plaintiff's copyright;
c) Grant an order for permanent injunction thereby restraining the defendant, its associates and agents, officers, employees, distributors, representatives and assigns from using any trademark and copyright vested in the trademark Nike and/or device/logo of Swoosh mark and/or any other registered "Nike marks" of the plaintiff on apparels and other accessories in any form and manner and/or copyright identical and/or confusingly or deceptively similar to the trademark Nike and/or device/logo of Swoosh mark and/or any other registered "Nike marks" of the plaintiff, thereby passing off its goods and business as that of the goods and business of the plaintiff.
d) Grant an order for ad-interim ex-parte temporary injunction thereby restraining the defendant, its associates and agents, officers, employees, distributors, representatives and assigns from using the trademark and copyright vested of the Trademark Nike and/or device/logo'of Swoosh mark and/or any other registered "Nike marks" of the plaintiff in any form and manner which are identical and/or confusingly or deceptively similar to the trademark 'Nike' and/or 'device logo' of Swoosh mark and/or any other registered "Nike marks" of the plaintiff, on apparels and other accessories or any other goods, thereby infringing plaintiff's registered trademark, copyright and passing off its goods and business as that of the goods and business of the plaintiff.
e) Grant an order for delivery up of all the impugned finished and unfinished materials bearing the impugned and violative trademark/label or any other identical and/or confusingly or deceptively similar trade mark/label including labels, display boards, sign board, trade literatures and goods etc. to the plaintiff for the purposes of destruction and erasure;
f) Grant an order of injunction and pass directions to the Defendant to immediately take down the Instagram account https:/www.instagram.com/buffitalyofficial and the Youtube Link-https:/ https:/www.instagram.com/buffitalyofficial and all links, posts, listings, pictures etc. directly and indirectly associated with the Defendant for sale the infringing apparels or any other product in any form and manner bearing any of the "Nike Marks" of the plaintiff company infringing the trademark and copyright of the plaintiff company and passing off its products and business as that of the plaintiff company and further disclose the complete details (including addresses and contact details) of its sellers selling infringing products of the plaintiff company and also restrain the defendant, its associates and agents, officers, employees, distributors, representatives and assigns from using any other online platform for sale of goods of the plaintiff.
g) For an order to disclose the name of all other persons who are engaged in stocking and retail business of infringing goods bearing the 'Nike marks' and using any indicia whatsoever to show any association or affiliation or connection of the defendant or its products with the plaintiff;
h) For an order to provide a complete discovery of any and all documents and information relating to any and all transaction concerning the infringement CS Comm. No.576/22 Nike Innovate CV Vs. Sukhmeet Singh Page 5 of the trademarks and copyright of the plaintiff and preserve all documents and other evidence in his possession relating to the subject matter of the instant suit;
i) Grant a decree for rendition of accounts and loss of business on account of sale of infringing goods by the defendant, in favour of the plaintiff and against the defendant for infringing the trademarks and copyright of the Plaintiff ;
j) Grant an order of appointment of Local Commissioner under Order 26 Rule 9 of Civil Procedure Code, 1908 at an appropriate stage, directing the Local Commissioner to search and to inspect the premises of the Defendant and seize all infringing apparels and other accessories bearing the trademark, 'Nike' and/or 'device/logo of Swoosh Mark and/or any other registered "Nike marks" of the plaintiff used in a similar manner and/or in a manner identical or confusingly or deceptively similar to the trademark 'Nike' and/or 'device/logo of Swoosh Mark and/or any other registered "Nike marks" of the plaintiff and to open the lock and door of the godown, if any, where the defendant is stocking and keeping the spurious and infringing apparels and other accessories;
k) Pass a decree of punitive damages against the defendant;
l) Grant an order for the costs of the proceedings;
m) Pass any other or further order(s) which Hon'ble Court may deem fit and proper in the facts and circumstances of the present case in favour of the Plaintiff and against the Defendant.
6. Upon filing of the suit plaintiff's application under Order 26 Rule 9 CPC was allowed whereby Local Commissioner was assigned for carrying out search and seizure of products which infringed the plaintiff's trademark.
7. Summons of the suit and notice of application under Order 39 Rule 1 and 2 CPC was issued to the defendant.
8. As directed search and seizure was carried out on 26.11.2022. In the raid carried out by Sh. Mohd. Shamim, defendant Sukhmeet Singh and another person Sunny were found at the shop. The plaintiff's AR and counsel Sh. Prabhat Kumar Gupta accompanied the team. During the search and seizure 26 T-Shirts, 9 Wind Cheaters and 17 Shorts i.e. total 52 garments were seized which as per report infringed the CS Comm. No.576/22 Nike Innovate CV Vs. Sukhmeet Singh Page 6 plaintiff's trademark.The goods seized were handed over in Superdari to Plaintiff's AR Narendra Singh vide a separate memorandum.
9. Thereafter plaintiff moved an Order 1 Rule 10 CPC application for seeking impleadment of Sukhmeet Singh as a defendant in this case as proprietor of M/s Buff Italy.
10.Defendant entered appearance on 20.12.2022 and filed a detailed Written Statement.
Defendant's Case
11. Case of the defendant as per WS and the evidence led is that he is not dealing in any goods infringing plaintiff's trademark and that this whole suit is based on false, fabricated and concocted facts. It is pleaded that plaintiff is a foreign company and is not selling any goods with their trademark within the jurisdiction of this Court and that this Court does not have territorial jurisdiction. It is pleaded that plaintiff approached the Court with unclean hands and made false and leading statements for gaining undue advantage. It is further pleaded that the plaint does not disclose any cause of action and the suit is barred under Section 134 of Trademark Act, 1999 and Section 20 CPC.
12. In his reply on merits defendant has denied that Narendra Singh is duly authorised to sign, verify and institute the suit in hand. As far as defendant's plea that plaintiff is a limited partnership organised under Laws of The Netherlands with the principal office in USA it is stated that it is a matter of record. Defendant has not disputed the fact that plaintiff has registered trademarks in India or that they had a turnover of USD 16,241 million.
CS Comm. No.576/22 Nike Innovate CV Vs. Sukhmeet Singh Page 7
13. Defendant has accepted that he is doing business of wholesale of clothes in the name and style of M/s Buff Italy but has denied that he sells apparels bearing mark with the similar trademark Nike or Swoosh Logo.
14. He has not denied specifically denied as required under Order 8 Rule 5 CPC that he has a social media channel on Instagram and You Tube where he is selling goods. As against the plaintiff's plea that a test purchase of pair of lowers was carried out from him bearing plaintiff's trademark Nike and Swoosh logo and qua which no invoice was issued, there is no specific denial. In para 23 photographs and comparative analysis of two products i.e. the original and one purchase from the defendant has been reproduced, even that has not been denied specifically. Defendant has expressed no objection to the plaintiff's valuation of the trademark at Rs.5 lakhs. With these pleas dismissal of the suit is prayed.
15. In his affidavit of admission and denial defendant has denied the power of attorney of plaintiff's AR dated 19.01.2022 for want of knowledge. He has denied the photographs of the claimed infringing goods and the screenshot of Instagram and You Tube account but no reason is provided as mandated under Order 11 Rule 4 (3) CPC.
Replication:
16. Separate Replication was filed where the plaintiff reiterated its pleaded case and stated that in the Local Commissioner spot proceedings 52 pieces of apparels infringing the plaintiff's trademark were seized on 26.11.2022. As regards defendant's objection to authority of their AR CS Comm. No.576/22 Nike Innovate CV Vs. Sukhmeet Singh Page 8 Narendra Singh to file this suit it is reiterated that the power of attorney dated 19.01.2022 is placed on record which authorises Narendra Singh to represent the plaintiff firm in India. However, there is no averment qua any record showing juristic stature of the plaintiff company.
17. Upon completion of pleadings following issues were identified by this Court on 06.02.2023:
Issues:
i. Whether plaintiff is registered Partnership Firm and hit by Section 69 of Partnership Act?OPP ii. Whether this Court has territorial jurisdiction to try this suit? OP Parties iii. Whether Plaintiff is entitled to permanent injunction against defendant and their subjects to injunct them from using, selling, solicitising, exporting, displaying and advertising products using the trademark lable 'Nike' and "Swoosh Logo" as prayed? (OPP) iv. Whether plaintiff is entitled to decree of injunction against defendantand their subjects restraining them from disposing the assets violating the goods of plaintiff's registered trademark 'Nike' and "Swoosh Logo"? (OPP) v. Whether plaintiff is entitled to decree of delivery up of finished and unfinished goods apart from dressing material in violation of the above trademark?(OPP) vi. Whether plaintiff is entitled to decree of rendition of accounts of profits earned by defendant in violation of plaintiff's above trademark?(OPP) vii. Whether plaintiff is entitled to damages?(OPP) viii.Relief
18.Evidence in this case was ordered to be recorded before Ld. LC as per following protocol created by this Court under Order 18 Rule 4 CPC read with Order 15A Rule 6(l) CPC as applicable to Commercial suits. Evidence was recorded before Ld. LC Sh. Shubham Nagpal CS Comm. No.576/22 Nike Innovate CV Vs. Sukhmeet Singh Page 9 Advocate appointed by this Court for the sake of timely disposal of this case.
"Protocol for Recording of Evidence before Court Commissioner appointed by District Judge, Commercial Court, 2022"
Part - 1 Preliminary
1. Short title- This Protocol is titled "Protocol for Recording of Evidence before Court Commissioner appointed by District Judge Commercial Court 2022."
2. Statutory Provision- This protocol is prepared as per Order 18 Rule 4 CPC and Order 15A Rule 6(l) CPC as applicable to Commercial Court.
3. Court- Whenever the term 'Court' appears in this Protocol it should refer to Commercial Court as defined under Section 2(b) of Commercial Court Act 2015.
Part - 2 Preparation for Assignment
4. Recording of evidence in Commercial Cases- Recording of evidence in Commercial Cases may be carried out before the Court Commissioner.
Explanation: For reasons to be recorded, Court may retain the case for recording of evidence before the Court.
5. Appointment of Court Commissioner- As per the Protocol, on the first Case Management Hearing when the issues are identified, the Court may pass an order for appointment of Court Commissioner.
6. Copy of order be shared with parties and Court Commissioner- Copy of the order of framing of issues, appointment of Court Commissioner and the schedule of recording of evidence shall be supplied to the parties as well as the Court Commissioner.
Part - 3 Recording of Evidence
7. Filing of list of witnesses- Both sides shall file list of witnesses preferably within one week but not later than 15 days of identification of issues before the Court while sharing an advanced copy thereof with the opposite party.
8. Order of assignment of Case to the Court Commissioner- While assigning the case, following aspects shall be complied :
i. Schedule of evidence- Recording of evidence shall start within two weeks of identification of issues. Evidence shall continue on day to day basis, till conclusion. Any alteration in schedule for recording of evidence, if needed, shall be decided by the Court Commissioner as per convenience CS Comm. No.576/22 Nike Innovate CV Vs. Sukhmeet Singh Page 10 of all concerned, as far as possible. However, entire evidence shall be concluded within Eight weeks of initiation.
ii. Judicial File- Judicial file shall not be sent or summoned for the purpose of recording of evidence by the Court Commissioner.
iii. Examination-in-Chief- An advance copy of examination in chief by way of affidavit shall be supplied to opposite party preferably one week in advance. However, no adjournment shall be granted in case of non-supply of advance copy. iv. Production of documents for cross-examination- In case the opposite side is desirous of production of any document by the witness or any other entity for the purpose of cross- examination, an application requesting the same shall be moved well in advance before the Court.
Part - 4 Duty of Court Commissioner
9. Recording of evidence by the Court Commissioner- i. Place and Time- Court Commissioner shall record evidence either in Lawyer's chamber, or Judges/Bar Library, Court Room or any other public place within the Court Complex as mutually agreed by all concerned. Evidence shall be recorded between 10.00 AM to 5.00 PM. It can carry on beyond 5.00 PM as well in case both parties agree. It can be recorded even on a holiday if all the stakeholders are comfortable and agree to the same. ii. Chronology of recording- Court Commissioner shall proceed to record the examination by first recording the deposition of litigating party before examining additional summoned witnesses.
iii. Oath to witnesses- Court Commissioner shall administer oath to the witnesses under examination as a delegatee of the Court as per Oaths Act, 1969. iv. Recording of evidence- The evidence shall be preferably typed on a computer but can also be recorded by hand neatly.
v. Time frame- Court Commissioner shall conclude the recording of evidence, as early as possible, but not later than eight weeks of assignment of a case. In case, for any reason the parties are unable to adhere to the time schedule, extension can be sought from the Court. vi. Comfortable sitting space- Witnesses and their Counsel shall be provided comfortable sitting space by the Court Commissioner.
vii. Exhibition of documents- Court Commissioner shall exhibit all the documents sought to be proved by a party on record. In case of any objection to exhibition of the documents by either side, the objection shall be recorded in some detail and left open with an assurance that mere marking of such exhibits will not be treated as conclusive proof thereof and that admissibility of such document shall be decided by the referral Court at final stage. viii. Original documents to be retained by parties- Court Commissioner shall make an observation in the record of evidence of all original documents produced and shall sign the exhibits with an endorsement OSR (original seen and returned) wherever necessary. If a party has filed original documents alongwith pleadings in Court, the same can be taken back as per rules for the purpose of recording of evidence before the Court Commissioner. ix. Language- Recording of evidence shall preferably be carried out in English or Court language, as the case may be, unless requested by the parties otherwise. x. Adjournments- Once started, the cross-examination shall preferably concluded on the same day or continue on day-to-day basis. In case of any hardship viz. ill health etc. the case can be deferred but preferably for a day or two but not later than a week.
In case an evidence schedule is fixed and adjournment is sought by the opposite side, i.e the side other than who is leading evidence, without 24 hour advance notice.
CS Comm. No.576/22 Nike Innovate CV Vs. Sukhmeet Singh Page 11 Explanation: In case a witness scheduled to be examined or under examination is reported to be unwell or unavailable, the party leading the evidence shall produce the next witness in line in the list for recording of evidence.
xi. Recording of objections- All the objections raised during cross-examination/reexamination shall be recorded in the deposition under title objections and shall be left open for the decision of the Court at the stage of final arguments. Witness shall not refuse to answer the question asked.
xii. Questions to be allowed- In case Court Commissioner finds any question not related to the fact and issue, he shall record his objection but shall allow the question to be put and witness must answer.
xiii. No third person intervention- Court Commissioner shall ensure that the witness is not assisted by his Counsel or any other person while under examination in answering the questions.
xiv. Recording of demeanour of witness- Court Commissioner shall record the demeanour of the witness wherever it is found pertinent and necessary for sharing with the Court. xv. Copy of evidence- All parties shall be provided uncertified electronic/hard copy of the evidence recorded, free of cost by Court Commissioner. xvi. Safe keeping of original deposition- Court Commissioner shall keep the original depositions in his safe custody till such time they are filed in the Court in original upon completion of each witness individually.
xvii. Miscellaneous proceedings- Court Commissioner shall maintain a miscellaneous proceeding sheet for each day of work and shall submit it in the Court at the time of submission of final report.
xviii. Hostile Witness- In case a witness is sought to be declared hostile, then Court Commissioner shall refer both the parties to Court at the earliest and the Court shall decide the issue within three days.
Part - 5 Miscellaneous
10. Summoning of Witness-
i. Summons from Court- In case a litigating party is desirous of summoning a person for deposition or production of documents, it shall obtain summons from the Court with an endorsement that such person shall appear before the address of Court Commissioner on scheduled date, time and place.
ii. Diet Money- Diet money shall be paid to such witness by the party desirous of summoning as per rules.
11. Advisory to Court Commissioner- While recording the evidence on commission, the Court Commissioner shall ensure the following:
i. Impartial- Court Commissioner shall conduct himself in an impartial way and behave in an indiscriminate manner while recording of evidence. ii. Polite- Court Commissioner shall be polite with the witness and other stakeholders while recording of evidence.
iii. Confidentiality- Court Commissioner shall maintain confidentiality during the whole process.
iv. Keeping professional distance- Court Commissioner shall not solicit professional work from the parties.
CS Comm. No.576/22 Nike Innovate CV Vs. Sukhmeet Singh Page 12 v. Integrity- Court Commissioner shall not accept remuneration or any favour in cash or kind from the parties over and above the honorarium fixed by the Court. vi. Non-judgmental- Court Commissioner shall not criticize the professional conduct of lawyers and litigating parties on their understanding of law. vii. Punctuality- Court Commissioner shall adhere to time schedules and shall not make excuses like being engaged in some personal or Court work etc. viii. Coordination- In case of any unforeseen circumstances warranting change of dates of hearing, for his own case or the request of other side, he shall apprise the other side in advance via phone call, email, SMS, Whatsapp Group etc.. ix. No third party sharing- Court Commissioner shall not allow the deposition to be inspected by any third party and shall not share a copy thereof with any stranger without permission of the Court.
x. Inspection- Court Commissioner shall allow any party to inspect the recorded proceedings only in his presence.
xi. Recusal- In case either of the parties or Counsel for the parties are related or closely known to Court Commissioner, he/she shall recuse self from the case and inform the referral Court.
12. Remuneration of Court Commissioner -
i. Remuneration- In terms of Order 18 Rule 4 of the Code read with Order 15 Rule 2(l) and Rule 2(o) of the Code, Court Commissioner shall be paid remuneration for the work carried out.
ii. Mode of payment- Such remuneration shall be paid by the party directly for the work carried out by way of cash, UPI, Bank Transfer, cheque or draft against due receipt. iii. Cost to parties- Each party shall individually bear the cost incurred in leading its evidence. iv. Fee to be paid- Remuneration fee for recording of evidence is fixed at Rs.2,000/- per witness or Rs.2,000/- per hour whichever is more. Court Commissioner shall record the Evidence himself and in case the Stenographer services are taken it can either be arranged by a litigating party on its own cost or in case the same is arranged by Court Commissioner, then the actual cost of typing shall be reimbursed by the party to the Court Commissioner. v. Litigation Cost- Expenditure incurred in recording of evidence shall be redeemable as cost of litigation at the end of the suit.
13. Judicial Intervention during recording of evidence-
i. Parties to cooperate- It is expected that both the sides will cooperate with Court Commissioner as well as with each other in recording of evidence and carry out proceedings in a cordial manner.
ii. Dissolution of hindrances- In case of any conflict resulting into hindrance recording of evidence, it shall be resolved amicably by the parties at their own level with the active help of the Court Commissioner.
iii. Court intervention- However, in case of any unforeseen situation requiring judicial intervention, Court Commissioner shall fix date and time for joint appearance of both sides before the Court for removal of any such impediment.
14. Miscellaneous Applications-
i. Moving the application- In case either of the parties is desirous of moving any miscellaneous application viz. amending of pleadings, interim injunction etc. it shall share an advance copy with the opposite side and reply thereof, if any, shall be filed and shared within seven days.
ii. Date of hearing- Upon receipt of reply, both the sides shall get the application fixed for disposal in the Court with the help of Reader of the Court and shall not wait till next date CS Comm. No.576/22 Nike Innovate CV Vs. Sukhmeet Singh Page 13 fixed for hearing. All such miscellaneous applications shall be registered, numbered and indexed separately.
iii. Evidence not to be stalled- It is clarified that, unless Court Commissioner is of the view that the interim application moved by either of the parties is such that evidence cannot be recorded before its disposal, the recording of PE/DE shall continue unabatedly.
Plaintiff's Evidence
19. Plaintiff examined PW1 Narendra Singh, its AR. Vide his affidavit Ex.PW1/A he deposed on the lines of plaint and exhibited following documents:
i. Ex.PW1/1 is Power of Attorney dated 19.01.2022; ii. Ex.PW1/2 is Legal Proceeding Certificate bearing Trade Mark No.346173 under class 25;
iii. Ex.PW1/3 Legal Proceeding Certificate bearing Trade Mark No.453268 under class 25;
iv. Ex.PW1/4 Legal Proceeding Certificate bearing Trade Mark No.509574 under class 25;
v. Ex.PW1/5 Legal Proceeding Certificate bearing Trade Mark No.949269 under class 25;
vi. Ex.PW1/6 Legal Proceeding Certificate bearing Trade Mark No.526647 under class 25;
vii. Ex.PW1/7 Legal Proceeding Certificate bearing Trade Mark No.526650 under class 25;
viii.Ex.PW1/8 Screenshots of defendant's Instagram page; ix. Ex.PW1/9 Screenshots of Defendant's Youtube Page; x. Ex.PW1/10 is affidavit of investigator xi. Ex.PW1/11 Photographs of infringing goods of the defendant bearing trademark confusingly and deceptively similar to Nike Marks; xii. Ex.PW1/12 Photographs of original goods of the plaintiff bearing trademark Nike;
xiii.Ex.PW1/13 is Local Commissioner report filed by appointed Local Commissioner.
20. PW1 Narendra Singh was cross-examined at length by Ld. Counsel for defendant wherein he stated that he has placed on record photocopy of his PoA and is carrying the original power of attorney. He stated that he is working with the plaintiff company for the last 9- 10 years. He denied that the Power of Attorney Ex.PW1/1 is a forged document. He stated that he came to know about the business of defendant through a market survey. He accepted that no document qua CS Comm. No.576/22 Nike Innovate CV Vs. Sukhmeet Singh Page 14 the same is placed on record. He accepted that no receipt of test purchase carried out prior to filing of the suit is placed on record. He stated that he is trained by the plaintiff for identifying the original and counterfeit products of the plaintiff.
21. The plaintiff filed an additional affidavit in chief Ex.PW1/X and exhibited following documents:
i. Ex.PW1/1A is the Business Register Extract; ii. Ex.PW1/2A is the Trade Register Extract, 2007; iii. Ex.PW1/3A is the Certified Translated copy of Trade Register Act; iv. Ex.PW1/4A is the affidvit under Order XI Rule 6 of the Amended Code of Civil Procedure, 1908.
22. In his cross-examination carried for the above additional documents he stated that he is Director of Legist IPR Services Private Ltd.
23. No evidence has been led by the defendant despite opportunity being given.
24. I have heard arguments of Ms. Aastha Sharma, Ld. Counsel for Plaintiff and Sh. Manmohan Singh, Ld. Counsel for defendant and have perused the case file carefully.
Issue No. 1 and 225. The first and second issues were treated as preliminary issues as far as the aspect of applicability of Section 69 of Partnership Act, while relying on a judgment of Honble Supreme Court it was ruled that in so far as the suit is based on general law as well as trademark and copyright laws there is no breach of contract involves and hence the Section 69 Partnership Act was not applicable.
CS Comm. No.576/22 Nike Innovate CV Vs. Sukhmeet Singh Page 15
26.During the course of trial a query was raised by this Court qua the legal status of the plaintiff. In para 2 of the plaint the plantiff has described itself to be a "Limited Partnership organised under the laws of The Netherlands". In reply to this para the defendant has not raised any objection or query and has rather pleaded that it is a matter of record and needs no reply. In the supplementary affidavit filed by the plaintiff document Ex.PW1/1A is filed and proved which is an extract of a Registrar of Firms maintained by "The Netherlands Chamber of Commerce". Perusal thereof shows that M/s Nike Innovate CV is a Limited Parternship incorporated on 28.02.2014. In order to show that "The Netherlands Chamber of Commerce" has a legal duty/authority to register such partnership firms, the relevant legal provision has been placed on record as Ex.PW1/2A which is in Dutch language alongwith its certified translation Ex.PW1/3A. Perusal of Article 2 thereof provides that there shall be a Trade Register of Companies and Legal Entities and as per sub-clause "c" the register of all companies and legal entities is being maintained so that it contributes to efficient working of Govt. Article 3 provides that such trade register is to be maintained by the Chamber i.e. "The Netherlands Chamber of Commerce" as defined under Article 1 (1) (i) of Trade Register Act 2007/Commercial Registration Act, 2007 of The Netherlands. Article 5 of this Act provides for registration of Limited Liability Partnerships like the plaintiff.
27.It is submitted on behalf of defendant that the above documents cannot be accepted because PW1 has not filed any certificate under Section 65B of Evidence Act. Perusal of record reveals that detailed affidavit CS Comm. No.576/22 Nike Innovate CV Vs. Sukhmeet Singh Page 16 under Order 11 Rule 6 CPC dated 16.08.2023 has already been placed on record and exhibited as Ex.PW1/4A. A submission was made on behlaf of defendant that the affidavit does not contain the details of the computer which was used to access the above documents. This plea is factually incorrect since para 6 of the above affidavit not only contains the details of the computer as Apple Macbook Pro Model No. A1278 but also that details of the printer i.e. Canon G4010.
28.Another submission was made that no proof of ownership of this computer by PW1 has been filed. This plea is absolutely irrelevant in so far as law does not mandate that an electronic record available publicly on a government site on the World Wide Web has to be accessed and downloaded only through a self-owned computer. Moreover, once the defendant has not denied the legal status of the plaintiff in the WS, Ld. Counsel for defendant is estopped in law from improvising and making such like submissions. In this backdrop, the plea that plaintiff should have disclosed the name of the partners, is inconsequential and cannot have no adverse bearing on the merits of the case since a certificate of registration of the firm is already available on record. In the light of the above documents and the evidence led by the plaintiff it is hereby concluded that plaintiff has established on record that it is a limited partnership registered under Laws of "The Netherlands".
29. Likewise, issue no. 2 qua objection to territorial jurisdiction was also answered in favour of plaintiff and against the defendant in so far as in the WS defendant has accepted that he is carrying out business CS Comm. No.576/22 Nike Innovate CV Vs. Sukhmeet Singh Page 17 through his firm Buffitaly from Gandhi Nagar market which is part of District Shahdara.
Issue No. 3, 4 and 530.In order to discharge the onus of proving these issues apart from pleadings the plaintiff examined PW1 Narendra Singh. In his affidavit Ex.PW1/A, he categorically stated that plaintiff Nike and Nike Swoosh Design are well known trademarks and have enviable reputation Pan India since 1955 onwards. It is pleaded and proved on record that the plaintiff has registered trademark that both Nike and Nike with Swoosh design since 30.04.1986 and is valid up to 2027. It is specifically deposed by PW1 that defendant has been stocking and selling the counterfeit goods of plaintiff company's Nike Logo and is carried out wholesale business in the name and style of M/s Buff Italy. The image of the product bought in test purchase has been reproduced in the plaint which is Ex.PW1/11 and the original shorts are Ex.PW1/12. The plaint as well as affidavit in chief also refers to two social media handles of the defendant both of Instagram and You Tube where the defendant is said to be selling counterfeit Nike Products. The screenshot of Instagram Ex.PW1/A clearly shows that plaintiff Nike with Swoosh Design trademark T Shirts are prominently displayed with defendant's firm M/s Buffitaly Official, Ashok Gali, Gandhi Nagar. Likewise Ex.PW1/9 is screen garb of YouTube channel purportedly belonging to defendant where Nike goods are claimed to have been displayed for sale.
31.It is argued by Ld. Counsel for plaintiff that it is only on the basis of the above evidence that this Court had issued a search and seizure CS Comm. No.576/22 Nike Innovate CV Vs. Sukhmeet Singh Page 18 order dated 10.11.2022 whereby Ld. LC, Advocate Mohd. Shamim carried out search and seizure at the defendant's premises/outlet alongwith plaintiff's AR PW1 Narendra Singh and other members of the team duly assisted by the police. It is pointed out by Ld. Counsel for plaintiff with the report of Ld. LC Ex.PW1/13 alongwith documentation carried out at the spot shows that defendant Sukhmeet Singh was found present at his outlet at Ashok Gali, Gandhi Nagar at his shop M/s Buff Italy. After he was apprised of the Orders of the Court, counterfeit and infringing goods numbering 52 including 26 T- shirts, 9 Wind Cheaters and 17 Shorts were seized on the pointing out of PW1. The attendance sheet, the seizure memo and the superdarinama apart from proceeding sheets carry the signatures of the defendant as well as PW1 Narendra Singh. It is argued that there is overwhelming evidence against the defendant on record. It is further pointed out that not only the defendant has failed to cross-examine PW1 on the entire report of LC Ex.PW1/13 but also defendant has not stepped into the witness box so as to depose or explain the seizure carried out on his place. It is argued that the plaintiff company which has spent millions of US Dollars in making their brand and registered trademarks popular has suffered huge loss on account of the counterfeit goods by the defendant.
32.On the contrary, it is submitted on behalf of defendant that the report of LC may not be read and relied because the LC did not step into the witness box. The LC report has been exhibited by PW1 Narendra Singh in so far as the entire search and seizure procedure has been carried out in his immediate physical presence and all the documents CS Comm. No.576/22 Nike Innovate CV Vs. Sukhmeet Singh Page 19 bears his signatures. Once a person who was physically present at the spot during the process of search and seizure has proved the document as per Evidence Act, being a signatory, there was absolutely no need to examine other witnesses of the same fact including Ld. LC.
33.If a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person's handwriting must be proved to be in his handwriting. This can be done in the following ways:
i. By calling the writer;
ii. by an expert;
iii. by a witness who is familiar with the handwriting of the writer; (AIR 1983 SC 684 "State of Bihar Vs. Radha Krishna Singh") iv. by comparison of the disputed writing, signature or seal with some other admitted or proven writing, signature or seal of the person; or v. by admission of the party against whom the document is tendered.
34.Moreover, Section 134 of the Evidence Act provides that unless it is mandated in law, a fact can be proved by single witness. Same is reproduced hereunder:
Section 134 Evidence Act, 1872: Number of witness.-
CS Comm. No.576/22 Nike Innovate CV Vs. Sukhmeet Singh Page 20 "No particular number of witness as shall in any case be required for the proof of any fact."
35. It is interesting to observe that the defendant has not taken any stand qua the search and seizure procedure carried out at his place on 26.11.2022. The written statement which was filed on record on 06.02.2023 is totally silent over the same. The fact that no cross- examination was carried out of PW1 qua the search and procedure, seizure of 52 counterfeit apparels and and to aid to the same failure of defendant to step into the witness box indicate that the defendant is neither controverting the search and seizure procedure but is also not controverting the factum of seizure of counterfeit goods. In case titled Muddasani Venkata Narsaiah Vs. Muddasani Sarojana, 2016 Latest Caselaw 346 SC Hon'ble Supreme Court ruled that, "The cross-examination is a matter of substance not of procedure one is required to put one's own version in cross-examination of opponent."
36. In case titled Bhoju Mandal & Ors. v. Debnath Bhagat & Ors., 1962 Latest Caselaw 313 SC Hon'ble SC considered the effect of not cross-examining the witnesses and ruled, "The effect of non cross-examination is that the statement of witness has not been disputed."
37. Hon'ble Supreme Court repelled a submission on the ground that same was not put either to the witnesses or suggested before the courts below. Party is required to put his version to the witness. If no such questions are put the Court would presume that the witness account has been accepted as held in M/s Chuni Lal Dwarka Nath V. Hartfort Fire Insurance Co. Ltd. and Anr. AIR 1958 Punjab 440.
38. In case titled Maroti Bansi Teli v. Radhabai w/o Tukaram Kunbi & CS Comm. No.576/22 Nike Innovate CV Vs. Sukhmeet Singh Page 21 Ors. AIR 1945 Nagpur 60, it has been laid down that the matters sworn to by one party in the pleadings not challenged either in pleadings or cross-examination by other party must be accepted as fully established. The High Court of Calcutta in A.E.G. Carapiet v. A.Y. Derderian AIR 1961 Cal. 359 has laid down that the party is obliged to put his case in cross-examination of witnesses of opposite party. The rule of putting one's version in cross-examination is one of essential justice and not merely technical one.
39. A Division Bench of Nagpur High Court in Kuwarlal Amritlal v.
Rekhlal Koduram & Ors. AIR 1950 Nagpur 83 has laid down that when attestation is not specifically challenged and witness is not cross-examined regarding details of attestation, it is sufficient for him to say that the document was attested. If the other side wants to challenge that statement, it is their duty, quite apart from raising it in the pleadings, to cross-examine the witness along those lines.
40. Ld. counsel for plaintiff has also relied on case titled ML Brother LLP Vs. Maheshkumar Bhuralal Tanna, 2022 Latest Caselaw 1534 Del wherein Hon'ble Delhi High Court ruled,
13." In view of Order 26 Rule 10 (2) CPC and the judgments discussed above, the settled legal position that emerges is that the report of the Local Commissioner can be treated as evidence in the suit where it is not challenged by any party. Accordingly, in the present case the report of the Local Commissioner and the contents therein can be relied upon by the Court as evidence as the same is unchallenged.
41.In the case in hand the factum of search and seizure under Court Orders has not been denied by defendant and he is himself signatory to the Report.
CS Comm. No.576/22 Nike Innovate CV Vs. Sukhmeet Singh Page 22
42.Even in the pleadings the defendant has evasively denied the entire case of the plaintiff pitches in direct contravention of Order 8 Rule 5 CPC. For ready reference the same is reproduced hereunder:
Order 8 Rule 5 CPC: Specific Denial
1. "Every allegation of fact in the plaint, if not denied specifically or by necessaryimplication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability:
Provided that the Court may in its discretion require any fact so admitted to be proved otherwise than by such admission.
Provided further that every allegation of fact in the plaint, if not denied in the manner provided under rule 3A of this Order, shall be taken to be admitted except as against a person under disability."
43.In para 17 of the plaint a specific allocation is made against the defendant that he is engaged in storing, selling and distributing counterfeit products by using plaintiff's registered trademark Nike and Swoosh Logo but the same has been denied by the defendant very evasively just by pleading that the para is wrong and denied. Rather defendant has admitted that he is running a wholesale unit in the name and style of M/s Buff Italy but has again evasively denied that he is selling Nike's Counterfeit goods. In the succeeding paras from para 19 onwards where plaintiff specifically pleads that in a survey plaintiff came to know in September 2022 that defendant is storing, distributing and selling apparels with plaintiff's registered trademark Nike and Swoosh Design. The fact that he is running Instagram handle and You Tube Channels and that the plaintiff carried out test purchase of a product qua which no invoice was issued, all that the WS states is that para 19 to 23 are wrong and denied. Such like evasive denials are no denials in the eyes of Law for lack of specificity. Not only in the general law such denials are treated as incomplete denials but under CS Comm. No.576/22 Nike Innovate CV Vs. Sukhmeet Singh Page 23 the Commercial Courts the denial has to be more specific. Order 8 Rule 3A of the amended CPC as applicable to Commercial suits provides as under:
Order 8 Rule 3A CPC: Denial by the defendant in suits before Commercial Division of the High Court or the Commercial Court--
i. Denial shall be in the manner provided in sub-rules (2), (3), (4) and (5) of this Rule.
ii. The defendant in his written statement shall state which of the allegations in the particulars of plaint he denies, which allegations he is unable to admit or deny, but which he requies the plaintiff to prove, and which allegations he admits.
iii. Where the defendant denies an allegation of fact in a plaint, he must state his reasons for doing so and if he intends to put forward a different version of events from that given by the plaintiff, he must state his own version.
iv. If the defendant disputes the jurisdiction of the Court he must state the reasons for doing so, and if he is able, give his own statement as to which Court ought to have jurisdiction.
v. If the defendant disputes the plaintiff's valuation of the suit, he must state his reasons for doing so, and if he is able, give his own statement of the value of the suit."
44.Plain reading of the above statutory provision shows that not only every denial has to be specific but the defendant must also state reasons for doing so. The law requires that if the defendant intends to put forward a different version of events he must do that as well. An additional proviso has been inserted under Order 8 Rule 3A CPC which specifically provides that every allegation of a fact in the plaint if not denied as per duly introduced Order 8 Rule 3A CPC it shall be deemed to be admitted. The above discussion categorically shows that evasive denial in violation of Order 8 Rule 3A CPC, failure to cross- examine PW1 coupled with the defendant's wilful abstenance from stepping into the witness box are sufficient to conclude that the CS Comm. No.576/22 Nike Innovate CV Vs. Sukhmeet Singh Page 24 plaintiff has established its pleaded case. Reliance has been placed by Ld. Counsel for defendant on case titled Mohinder Kaur Vs. Sant Paul Singh, 2019 Latest Caselaw 891 SC. This judgment refers to Janki Vashdeo Bhojwani and Ors. Vs. Indusind Bank Ltd. and Ors. 2004 Latest Caselaw 697 SC judgment of Hon'ble Supreme Court which provides that the right to depose cannot be delegated.
45.I do not see any reason as to why this judgment is of no aid to the defendant. Plaintiff is a duly registered juristic entity as concluded supra and the PW1 is its duly constituted attorney and hence is competent to depose not only about the business but also about the factum of search and seizure carried out in his presence. Defendant has also relied on Balraj Taneja and Anr. Vs. Sunil Madan and Anr, 1999 Latest Caselaw 325 SC so as to bring home a point that the case of the plaintiff does not deserve to be decreed simply because there is no WS or there is no evasive denial. This judgment of the year 1999 is based on general appreciation of evidence based on the basic fundamental principles that the plaintiff and its plaint should stand on its own legs and shall establish the prima facie case based on documentary and other evidence. Non-denial or evasive denial, has been a bar of implications of non-denial or evasive denial has been raised by introduction of Order 8 Rule 3A CPC in Commercial Courts which is as detailed supra.
46.As far as merits of the case is concerned, the original and the counterfeit Nike Apparels sold by the defendant as mentioned in para 23 of the plaint where a detailed comparative chart has been added highlighting the differences between the two were perused and CS Comm. No.576/22 Nike Innovate CV Vs. Sukhmeet Singh Page 25 compared by the Court physically during the course of final arguments. Objection was taken by Ld. Counsel for defendant on the same which was overruled in so far as the Commercial Court not only has a duty to physically check and compare the two products i.e. the original and the counterfeit ones. As per Section 73 Evidence Act Court is Expert of all Experts. Statement of PW1 can be cross-checked and evaluated by the Court.
47.In case titled Sri Chidanandaswamy Bellary and Anr. Vs. Shadaksharayya reported in 2015 (1) KCCR 972 wherein Hon'ble Karnataka High Court held that, "It is true that Court is the expert of experts under Section 73 of the Evidence Act. It has got power to compare the admitted signatures or handwriting with the disputed signatures or handwriting."
48.But a caution has been given by the Hon'ble Apex Court way back in 1979 in the case of State (Delhi Administration) Vs. Pali Ram, 1978 Latest Caselaw 188 SC. In para 30 it is held that ordinarily it is not prudent for the Court to ask the expert to give his finding upon any of the issues, whether of law or fact, because strictly speaking, such issues are for the court or jury to determine. The handwriting expert's function is to opine after a scientific comparison of the disputed writing with the proved or admitted writing with regard to the points of similarity and dissimilarity in the two sets of writings. Therefore, the Apex Court has cautioned that the Court should not take up the responsibility of comparing the disputed signature or handwriting with the admitted signatures or handwriting unless a report is solicited from the expert since such an examination requires a scientific exercise.
CS Comm. No.576/22 Nike Innovate CV Vs. Sukhmeet Singh Page 26
49.This decision of the Hon'ble Supreme Court reported in Pali Ram's case has been followed with all force subsequently by the Hon'ble Supreme Court in case titled O. Bharathan Vs. K Sudhakaran and Anr., 1996 Latest Caselaw 130 SC.
50.Comparing the two products physically in the light of comparative chart shows that the plaintiff's registered trademark Nike with Swoosh Design has been used not only on the apparels by way of printing but is also used on the product tag.
51.In view of the above discussion the above issues are answered in favour of plaintiff and against the defendant.
Issue No. 6 and 7:
52.As far as punitive damages are concerned, plaintiff in affidavit in chief in para 33 has submitted that upon comparing the price of the original 26 T-Shirts and 17 shorts they have incurred a loss of Rs.1500/- per piece and as regards windchiters upon comparing the price of the original Nike Wind Cheators they have incurred a loss of Rs.3000/- per piece.
53.Plaintiff has relied on Ld. Counsel for plaintiff relied upon case titled Sandisk LLC and Ors. VS B-One Mobile and Ors, 2019 Latest Caselaw 1942 Del wherein in a similar case, counterfeit memory devices infringing the trade mark Sandisk was seized and similar cause of loss was allowed for three months by taking into consideration actual sales and value of stock for three months. The relevant portion of said judgement is reproduced hereinbelow:
"19. Keeping in view the pleadings, documents as well as evidence on record, CS Comm. No.576/22 Nike Innovate CV Vs. Sukhmeet Singh Page 27 this Court is also of the view that the defendants are using the registered trade mark Sandisk of the plaintiffs and its product packaging to sell counterfeit products with a view to trade upon and benefit from the reputation and goodwill of the plaintiff's mark and pass off its services as that of the plaintiffs.
20. Consequently, the allegation that the trade mark Sandisk, SanDisk logo and red frame logo used by defendant's amounts to infringement of plaintiffs' trade- mark is correct. The use of the plaintiffs mark by the defendant's is bound to cause incalculable losses, harm and injury to the plaintiffs and immense harm to the public in general.
54.Moreover in the above cited case, in Para 23, Hon'ble High Court had refused to grant damage of Rs. 1 crore as punitive damages to Sandisk. The relevant portion of said judgement is reproduced hereinbelow:
"23. However, keeping in view the judgments of this Court in Super Cassettes Industries Private Limited VS. HRCN Cable Network Manu/DE/3094/2017 :
2017 (72) PTC [Del and in Hindustan Unilever Limited Vs. Reckitt Benckiser India Limited, Manu/DE/0353/2014: 2014(57) PTC 495 [Del] [DB], this Court is of the opinion that the plaintiffs are not entitled to any punitive dam- ages."
55.Calculating the loss of sales for one month, the damages is quantified for defendant as under:
Defendant Sukhmeet Singh Particulars of Price of Original Quantity Total Cost Products Product Discovered during the Local Commission T-Shirt Rs.750/- 26 Rs.19,500/-
Shorts Rs.750/- 17 Rs.12,750/-
Windchiters Rs.1500/- 9 Rs.13,500/-
Total Rs.45,750/-
The value of stocks for one month would be Rs.45,750/- x 2=Rs.91,500/-.
56.As far as reliefs against defendant is concerned, the suit of the plaintiff is decreed with cost as under:
i. Plaintiff is granted permanent injunction against defendant Sukhmeet Singh, his associates, agents, officers, employees, distributors, representatives and assigns are restrained from CS Comm. No.576/22 Nike Innovate CV Vs. Sukhmeet Singh Page 28 using the trademark 'Nike', Nike with Swoosh design and/or any other registered 'Nike Marks' of the plaintiff on apparels and other accessories in any form and manner and/or trademark identical and/or confusingly and deceptively similar to the registered trademark 'Nike', Nike with Swoosh design and/or any other registered 'Nike Marks' of the plaintiff company thus infringing the registered trademark of plaintiff company. ii. Plaintiff is granted permanent injunction against defendant Sukhmeet Singh, his associates, agents, officers, employees, distributors, representatives and assigns by restraining them from using the copyright vested in 'Nike', Nike with Swoosh design and/or any other registered 'Nike Marks' of the plaintiff on apparels and other accessories in any form and manner and/or copyright identical and/or confusingly and deceptively similar to 'Nike', Nike with Swoosh design and/or any other registered 'Nike Marks' of the plaintiff company thus infringing the registered copyright of plaintiff company.
iii. Plaintiff is granted permanent injunction and defendant Sukhmeet Singh, his associates, agents, officers, employees, distributors, representatives and assigns by restraining them from using the trademark and copyright vested in the 'Nike', Nike with Swoosh design and/or any other registered 'Nike Marks' of the plaintiff on apparels and other accessories in any form and manner and/or trademark identical and/or confusingly and deceptively similar to the CS Comm. No.576/22 Nike Innovate CV Vs. Sukhmeet Singh Page 29 registered trademark'Nike', Nike with Swoosh design and/or any other registered 'Nike Marks' of the plaintiff company and are injuncted from passing off goods and business of plaintiff company.
iv. Plaintiff is awarded damages of Rs.91,500/- as against defendant Sukhmeet Singh as decided supra.
57. Ld. counsel for plaintiff has submitted that she is not pressing her prayer of rendition of account as mentioned in the plaint.
58.Plaintiff is permitted to remove their trademark or shield it and is also at liberty to evade the same at some Government Run Child Care Institutions. Lawyer's fees is assessed as Rs.50,000/-.
59.Decree sheet shall be prepared accordingly only after the deficient court fees is filed on this damages amount of Rs.91,500/- within 10 days. File be consigned to Record Room after due compliance.
(SURINDER S. RATHI) District Judge, Commercial Court -03 Shahdara District, KKD Delhi/25.09.2023 CS Comm. No.576/22 Nike Innovate CV Vs. Sukhmeet Singh Page 30