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M/S Dreams Lingerie Products vs Akash Chaudhary on 30 May, 2022

Author: Navin Chawla

Bench: Navin Chawla

                     $~10
                     *    IN THE HIGH COURT OF DELHI AT NEW DELHI
                     +    CS(COMM) 370/2022
                          M/S DREAMS LINGERIE PRODUCTS               ..... Plaintiff
                                        Through: Mr.N. Mahabir, Adv.

                                                versus

                             AKASH CHAUDHARY                                   ..... Defendant
                                         Through:             Nemo.

                           CORAM:
                           HON'BLE MR. JUSTICE NAVIN CHAWLA
                                                ORDER

                           %                    30.05.2022
                     I.A. 8669/2022 (Exemption)
                     1.      Allowed, subject to all just exceptions.
                     I.A. 8667/2022

2. This application has been filed seeking exemption from filing pre- institution mediation under Section 12A of the Commercial Courts Act, 2015.

3. Having perused the contents of the application, the same is allowed.

4. This is an application seeking exemption from making an advance service of the suit to the defendant. It is alleged that the said service has not been made as it is apprehended that the defendant may, on service of the notice, dispose of or sell the goods being manufactured under the impugned trade mark. Appointment of a Local Commissioner is also prayed along with the suit.

5. Having considered the contents of the application, the same is allowed. The plaintiff is granted exemption from making an advance service Signature Not Verified Digitally Signed By:SHALOO BATRA Signing Date:09.06.2022 of the suit to the defendant.

CS(COMM) 370/2022

6. Let the plaint be registered as a suit.

7. Issue summons to the defendant to be served through all permitted modes upon the plaintiff taking requisite steps in that regard.

8. The summons to the defendant shall indicate that the written statement to the plaint shall be positively filed within a period of thirty days from the date of receipt of summons. Along with the written statement, the defendant shall also file an affidavit of admission/denial of the documents of the plaintiff, without which the written statement shall not be taken on record.

9. Liberty is given to the plaintiff to file a replication within a period of four weeks of the receipt of the written statement. Along with the replication, if any, filed by the plaintiff, an affidavit of admission/denial of documents of the defendant be filed by the plaintiff, without which the replication shall not be taken on record. If any of the parties wish to seek inspection of any documents, the same shall be sought and given within the timelines.

10. List before the Court on 5th September, 2022.

11. Issue notice to be served on the defendant through all modes, returnable on 5th September, 2022. Reply, if any, be filed within a period of four weeks. Rejoinder thereto be filed within a period of four weeks thereafter.

12. It is the case of the plaintiff that the plaintiff adopted and started using the trade mark "DREAMS" with respect to lingerie in Class 25 since 2006.

The plaintiff has also given details of its registered trade marks and claims that "DREAMS" is a predominant part of all its marks. The plaintiff has also given its annual sales figures for the products bearing its trade mark "DREAMS" and claims that in the year 2022 itself, the sales have been of more than Rs. 39 Crore (Rupees Thirty-Nine Crore) .

13. The plaintiff further asserts that the defendant, from the year 2018, was the distributor of the plaintiff for the territory of Ghaziabad and Western Uttar Pradesh. The said distributorship was terminated only on 31.01.2022. It is further asserted that the father of the defendant, namely, Shri Ajay Kumar was employed as a manager with the plaintiff from 2006 to December 2021. In such a manner, the defendant and his father had access to the entire dealer network, vendors, trade channels, internal business details, product supply chain, price points, product demands and product details of the plaintiff.

14. It is further asserted that after the termination of the distributorship, the defendant alongwith his father has started their own business using the impugned trade mark "DREAM" for the same goods, that is, lingerie, knowledge whereof was gained by the plaintiff in April 2022. The plaintiff also served a cease-and-desist notice on the defendant on 26.04.2022, however, the defendant, by his reply dated 05.05.2022, refused to stop the use of the trade mark.

15. The plaintiff has produced before this Court the packaging of the products of both the parties. The same are reproduced below:-

Plaintiff's Defendant's Plaintiff's Defendant's

16. Having considered the contents of the plaint, the documents filed Signature Not Verified Digitally Signed By:SHALOO BATRA Signing Date:09.06.2022 therewith, and the submissions of the learned counsel for the plaintiff, I am of the opinion that the plaintiff has been able to make out a good prima facie case in its favour. The balance of convenience is also in favour of the plaintiff and against the defendant. The plaintiff is likely to suffer grave irreparable injury in case ad-interim protection is not granted to the plaintiff at this stage. It may be noted that the products of the parties are identical.

17. Accordingly, till the next date of hearing, the defendant, his distributors, dealers, stockists, retailers, servants, agents and all others acting for and on his behalf are restrained from manufacturing, selling, importing, exporting, offering for sale, advertising and directly or indirectly dealing in identical and/or cognate products/ services, or otherwise, under the mark "DREAM" or any other trademark/trade name or logo/device, which is identical to and/or deceptively similar to the plaintiff's trade mark and trade name "DREAMS".

18. Compliance with Order XXXIX, Rule 3 the Code of Civil Procedure, 1908, be made within ten days from today.

19. List on 5th September, 2022.

20. For the reasons recorded hereinabove, I am of the opinion that the plaintiff has also been able to make out a case for the appointment of a Local Commissioner to visit the factory address/premises of the defendant at Akash Trading Company Plot No.J-32, Sector-D1, Tronica City, Loni, Ghaziabad, Uttar Pradesh, India.

21. I, accordingly, appoint Mr. Kanav Vir Singh, Advocate, Address: C- 55, Ground Floor, Panchsheel Enclave, New Delhi-110017, Mob. No. 9899333001, as a Local Commissioner to visit the above premises of the Signature Not Verified Digitally Signed By:SHALOO BATRA Signing Date:09.06.2022 defendant. The Local Commissioner shall:-

a) Prepare an inventory of the goods, that is, lingerie, bearing the mark "DREAM", in finished or unfinished form, and packaging, get up, trade dress and printed materials which bear the trade mark "DREAM" on it;

b) After preparing the said inventory, the Local Commissioner shall take into custody the said infringing goods/materials and hand over the said detained materials on superdari to the defendant, after obtaining an undertaking from the defendant that the defendant shall produce the same as and when required by the Court;

c) Make an inventory of the dyes, moulds, positive, negatives, machines or any other equipment used to produce the infringed goods in finished or unfinished products, packaging and printed materials which bear the trade mark "DREAM" and for other purposes and after taking into custody hand over the detained materials on superdari to the defendant, after obtaining an undertaking that the defendant shall produce the same as and when required by the Court;

d) Sign the books of account, manufacturing records including, cash books, stock registers, export records registers, ledgers of the defendant which pertain to the manufacture and sale of the above said goods in finished or unfinished products, packaging and printed materials which bear the trade mark "DREAM";

e) The Local Commissioner shall also be authorized to take the assistance of the local Police, if required, in carrying out the commission;

f) The Local Commissioner shall also be authorized to break open the lock(s) if the premises of the defendant are found to be locked for Signature Not Verified Digitally Signed By:SHALOO BATRA Signing Date:09.06.2022 carrying out the aforesaid directions;

g) The Local Commissioner may take the help of the representatives of the plaintiff's company in identifying the infringing goods in finished or unfinished products, packaging and printed materials which bear the trademark "DREAM";

h) The Local Commissioner shall be authorized to take samples of the infringing goods, to be filed along with the report in finished or unfinished products, packaging and printed materials which bear the trade mark "DREAM"; and

i) The Local Commissioner shall also be authorized to take the help of a photographer to take photographs of the defendant's premises or infringing goods in finished or unfinished products, packaging and printed materials which bear the trade mark "DREAM".

22. The fee of the Local Commissioner is fixed at Rs. 1,00,000/- (Rupees One Lakh only) to be paid by the plaintiff at the first instance, in addition to the out-of-pocket expenses.

23. The report of the Local Commissioner shall be submitted within one week of execution of the commission.

24. The application stands disposed of.

25. Dasti.

26. This order may not be uploaded on the website of the Delhi High Court for a period of ten days.

NAVIN CHAWLA, J MAY 30, 2022/rv Signature Not Verified Digitally Signed By:SHALOO BATRA Signing Date:09.06.2022