Delhi District Court
Levi Strauss & Co vs Suraj Bhan on 29 May, 2019
IN THE COURT OF MS. TWINKLE WADHWA : LD. ADDITIONAL DISTRICT
JUDGE03:PATIALA HOUSE COURT:NEW DELHI DISTRICT
TM No. 13808/16
Levi Strauss & Co.
1155 Battery Street, San Francisco
State of California, USA,
Through its constituted Attorney
Mr. Rishi Bansal,
96, Sukhdev Vihar,
Mathura Raod, New Delhi25.
.....Plaintiff
VERSUS
1. Suraj Bhan
S/o Ram Lal
Owner of Geetanjali Jeans Collection
Shop no. 4, 17A/6, Ajmal Khan Road,
Opp. Bank of Baroda,
Karol Bagh,
New Delhi110005
2. Kewal Ram
S/o Sh. Bhagirath Ram
Owner of Sai Collection
Shop no4, 17A/6, Ajmal Khan Road,
Opp. Bank of Baroda,
Karol Bagh,
New Delhi110005
TM No. 13808/16 Page 1 of 13
3. Sanjay Kumar Keshri
S/o Sh. Sambhu Nath Keshri
Owner of Navya Collection
Shop no2, 17A/7, Ajmal Khan Road,
Opp. Bank of Baroda,
Karol Bagh,
New Delhi110005
4. Ashwani Shankar
S/o Sh. Rakesh Kumar
Owner of Fashion Fusion
Shop no3, Ground Floor,
17A/20, Opp. Titan Showroom, WEA
Ajmal Khan Road,
Karol Bagh,
New Delhi110005
5. Kamal Kumar
S/o Sh. Mohan Lal
Owner of Navkam Collections
Shop at 17A/20, WEA Basement,
Opp. West Side, Ajmal Khan Road
Karol Bagh,
New Delhi110005
.....Defendants
Date of Institution : 08.06.2016
Date of Final Arguments : 19.09.2018
Date of Decision : 29.05.2019
Conclusion : Decreed
TM No. 13808/16 Page 2 of 13
JUDGMENT
The Case
1. By way of present judgment, I shall dispose off the case of plaintiff filed under Section 134, 135 of Trade Marks Act, 1999 and passing off thereby seeking permanent injunction, restraining infringement, passing off, delivery up, rendition of accounts etc from defendants. Present suit was filed as John Doe. Plaintiff's Case
2. The case of the plaintiff as per pleadings and the evidence led is that the plaintiff company is the owner of registered trademark "Levi's with/without "Two Horse Logo" and/or House Mark" for the purpose of clothing of all kinds, readymade garments and clothing and leisure shoes, spectacle glasses, Sunglasses, bahs and other accessories. It is the case of plaintiff that plaintiff also own the trademark "Levis's" and they have been using these marks since1873. The plaintiff has engaged in the business of manufacturing and marketing of clothing of all kinds readymade garments and clothing and leisure shoes, spectacle glasses, Sunglasses, bahs and other accessories. Under various stylized/artistic formats and label namely Levi's.The plaintiff has TM No. 13808/16 Page 3 of 13 been using the said trade marks honestly, bonafidely, extensively, exclusively, continuously, commercially in course of trade since 1873. Plaintiff's goods under the said trademarks are freely and commercially available in India. The details of the application for registration of trademarks in respect of various classes of goods as well as the registered trademark have also been provided in the plaint. The plaintiff has been regularly and continuously promoting its distinctive trademark through extensive advertisements, publicities promotions and marketing research and has been spending enormous amounts of money, efforts, skills and time thereon. Plaintiff represent their trademark/label in an artistic manner including its getup, lettering style, color schemes, placement of words and artistic features etc. It is the case of plaintiff that they have been providing latest technology and products to the people and also spending a lot of R&D (Research and Development) and are know for innovation and reliability.
3. It is the case of the plaintiff that the defendants are engaged in the business of selling fake and counterfeit goods including readymade garments and allied/cognate goods bearing the plaintiff's said trademark. The defendants have adopted and are using the mark/label Levi's with/without "Two Horse Logo" and/or House Mark Levi's with its logo/label forms and Levis Strauss & TM No. 13808/16 Page 4 of 13 Co. having artistic features, getup, layout, lettering style and placement similar to that of the plaintiff. It is alleged that the defendants' impugned mark is deceptively identical and similar to the plaintiff's trademark/label in each and every respect including phonetically, visually, structurally, in its basic idea and in its essential features and that the defendants have been using the same in the course of trade without the leave and license of the plaintiffs. Defendants have also infringed plaintiff's copyrights involved in the said trademarks and is also using the same trade dress. The defendants are also passing off their impugned goods and business as that of the plaintiff's. They are using all kinds of false description on its impugned goods to wrongly link the impugned goods with those of the plaintiff and mislead common people and customers. The plaintiff has impleaded the defendant in the capacity of John Doe. Reliance has been placed on similar orders passed by the Hon'ble High Court of Delhi reported CS(OS) No. 688 of 2010, wherein the name of the defendant was not known at the time of filing of the suit and such a defendant was nationally referred to as 'John Doe'.
4. Consequently, the Local Commissioner was appointed in this case vide order dated 08.06.2016 who visited the premises of five defendants mentioned herein. The said local commissioner report TM No. 13808/16 Page 5 of 13 is duly exhibited on record. The said local commissioner visited the five shops, seen the goods which were found to be in infringement of trade marks of plaintiff and seized them in gunny bag. Thereafter, he handed over the goods on superdari to the owner of these shops. It is the case of plaintiff, as is evident from the report of local commissioner which is accompanied with photographs on record that defendants have infringed the trademark of the plaintiff and has tried to pass off its goods as that of plaintiff. Case of defendant
5. A joint WS is filed on behalf of the five defendants thereby denying all the averments made in the plaint. It is the case of defendants that they claim no right towards the trade mark of the plaintiff company. They have not infringed anybody's trademark. They had just kept the product of the plaintiff company in their shops and had done no business. Further defendants are simple shopkeepers who do not know the difference between the original and duplicate products of the plaintiff company. Further there is no cause of action against the present defendants. Further the present suit is not instituted by appropriate person and the person who signed on behalf of plaintiff had no locus and capacity to do so. Further present Court does not have jurisdiction and appropriate Court fee is also not filed. Defendants have filed written statement TM No. 13808/16 Page 6 of 13 and have done crossexamination of the plaintiff's witness but lead no evidence.
6. On completion of pleadings, following points of consideration were identified on 28.02.2017 ISSUES
1. Whether Courts at New Delhi have no territorial jurisdiction to try this suit? OPD.
2. Whether the plaintiff is entitled to decree for permanent injunction restraining defendants, their agents, representatives, stockists etc. for using, selling, soliciting etc. of impugned goods containing Trade Mark/Label Levi's and/or Levi's' of the impugned goods? OPP.
3. Whether plaintiff is entitled to decree of injunction restraining the defendants and their subjects from dealing with or disposing of the merchandise containing Trade Mark/Label Levi's and/or Levi's' of the impugned goods? OPP.
4. Whether plaintiff is entitled to decree of delivery up of impugned goods containing Trade Mark/Label Levi's and/or Levi's' of the impugned goods? OPP.
5. Whether plaintiff is entitled to Rendition of accounts and damages on account of profits made by the defendant by sale of goods containing Trade Mark/Label Levi's and/or Levi's' of the impugned goods? OPP.
6. Relief.
7. To prove its case plaintiff examined Mrs. Meena Bansal as TM No. 13808/16 Page 7 of 13 PW1 and exhibited the following documents S.No. No. of Exhibits Details of the documents Ex.PW1/1 (Colly) True representation of the plaintiff's trade 1 mark/label Ex.PW1/2 (Colly) True representation of impugned trade mark of 2 defendant Ex.PW1/3 (Colly) Copy of legal proceeding certificate of plaintiff (OSR) 3 registered trade mark in India Ex.PW1/4 (Colly) Copies of plaintiff's various documents, 4 advertisement material etc. Ex.PW1/5 (Colly) Copies of list of the plaintiff's stores/showroom 5 in India including New Delhi 6 Ex.PW1/6 (OSR) Copy of power of attorney 7 Ex.PW1/7 (Colly) Report of local commissioner Mark A Copy of certificate of incorporation of plaintiff 8 company Ex.PW1/8 (OSR) Copy of power of attorney dated 14.12.2016 along with application u/O 7 rule 14 allowed on 9 11.12.2017 Ex.PW1/9 (OSR) Copy of power of attorney dated 24.07.2015 in 10 favour of Rishi Bansal filed along with plaint
8. I have heard both the counsels and gone through the record. Reasons of Decision
9. The Issue wise findings are as follows TM No. 13808/16 Page 8 of 13 Issue No.1Whether Courts at New Delhi have no territorial jurisdiction to try this suit? OPD.
10. In the present case, all the defendants shops were visited by Local Commissioner at Karol Bagh. There is nothing on record to prove that these defendants were selling their goods outside Karol Bagh also. Further u/Sec 134 & 135 of Trade Mark Act, the suit for infringement of trade mark can also be filed at a place where plaintiff has office. Office of plaintiff is situated within the jurisdiction of New Delhi. Hence this Court has jurisdiction. Issues No.2 Whether the plaintiff is entitled to decree for permanent injunction restraining defendants, their agents, representatives, stockists etc. for using, selling, soliciting etc. of impugned goods containing Trade Mark/Label Levi's and/or Levi's' of the impugned goods? OPP.
Issue No. 3 Whether plaintiff is entitled to decree of injunction restraining the defendants and their subjects from dealing with or disposing of the merchandise containing Trade Mark/Label Levi's and/or Levi's' of the impugned goods? OPP.
Issue No. 4 Whether plaintiff is entitled to decree of delivery up of impugned goods containing Trade Mark/Label Levi's and/or Levi's' of the impugned goods? OPP.
11. The plaintiff that plaintiff has established by way of various documents that its trade marks are registered all over India and TM No. 13808/16 Page 9 of 13 abroad. By way of continuous, persistent and consistent use over the years, plaintiff has acquired passing off rights in the impugned trade mark as well. Further defendants have also mentioned in their WS that they do not claim any rights with respect to the trade mark of plaintiff nor they infringed plaintiff's trade mark.
12. Plaintiff has lead only one witness before the Court in evidence i.e PW1 Meena Bansal. The said witness has proved all the documents in the Court including registered trade mark of plaintiff in India, plaintiff's documents and advertisements material in India, list of plaintiff's stores in India, Power of Attorney in her favour and Local Commissioner report.
13. In the crossexamination, questions regarding authorisation of PW1 Meena Bansal with respect to her authority to file the present suit have been put to her. The present suit was filed on 07.06.2016 and she has specifically deposed that her Power of Attorney commenced from 01.08.2015 and expired on 03.12.2016. Hence she had valid Power of Attorney in her favour on the date of filing of the present suit. Further she has also specifically deposed that her another Power of Attorney commenced from 08.12.2016 and expired on 31.12.2017 which was specifically renewed on 01.01.2018 and shall continue till 31.12.2019. Hence the suit was filed by duly authorised attorney.
TM No. 13808/16 Page 10 of 1314. She also proved local commissioner report which specifically lays down that local commissioner visited the five shops. In first shop, Shop no. 17/A 20 where Kamal Kumar owner was found. The goods were seized and hander over to him on superdari. In the second shop i.e Private Shop no. 3 where owner Ashwani Shankar was found and goods were released to him on superdari. In the third shop i.e Shop no4, goods were seized as per the orders of this Court and were handed over on superdari to shop owner Suraj Bhan. In the forth shop i.e Private Shop no4, goods were seized and were handed over on superdari to owner Kewal Ram. In the fifth shop i.e Private Shop no2, infringed goods were seized and handed over on superdari to owner Sanjay Kumar Keshri. There is no such suggestion put to the witness that the report of Local Commissioner is fabricated one. There is no such suggestion put to the witness that these defendants were not found present at the shop at the time of raid. Hence the report of Local Commissioner is duly proved.
15. It is merely suggested to the witness that defendants are small shopkeepers who have no knowledge of the goodwill and mark of plaintiff company. Hence defendants have failed to set up any cogent defence in their favour either in their WS or by way of crossexamination of the plaintiff's witness. Hence plaintiff has TM No. 13808/16 Page 11 of 13 been able to prove that in view of visit by the Court appointed Local Commissioner, defendants were found dealing with such products which were not of the plaintiff company and were copies. Hence defendants have infringed plaintiff's rights in their trade mark and have also tried to pass off their goods as that of the plaintiff.
16. In the circumstances, plaintiff is entitled to decree of permanent injunction restraining defendant their agents, representatives, stockists etc. from using, selling, soliciting etc. of impugned goods containing Trade Mark/Label LEVI's of the plaintiff. Also plaintiff is entitled to decree of delivery up of the impugned goods found during the raid of Local Commissioner.
Issue No.5Whether plaintiff is entitled to Rendition of accounts and damages on account of profits made by the defendant by sale of goods containing Trade Mark/Label Levi's and/or Levi's' of the impugned goods? OPP.
17. As far as issue regarding damages is concerned, plaintiff has unable to prove actual loss suffered to them. However it cannot be denied that they have suffered some loss. Also the loss is to their reputation and as well as to the sale of their products. As no evidence filed regarding loss of profits, each defendant is hereby directed to pay to the plaintiff Rs. 25,000/ on account of damages TM No. 13808/16 Page 12 of 13 and for loss of profits to the plaintiff. This amount is arrived at by considering the goods which were seized by Local Commissioner and overall circumstances of case.
Issue No.6 - Relief.
18. In view of the above, the present suit is decreed in favour of the plaintiff and against the defendant. In the circumstances, plaintiff is entitled to decree of permanent injunction restraining defendant their agents, representatives, stockists etc. from using, selling, soliciting etc. of impugned goods containing Trade Mark/Label LEVI's of the plaintiff. Also plaintiff is entitled to decree of delivery up of the impugned goods found during the raid of Local Commissioner. As no evidence filed regarding loss of profits, each defendant is hereby directed to pay to the plaintiff Rs. 25,000/ on account of damages and for loss of profits to the plaintiff.
Decree sheet be prepared accordingly.
File be consigned to record room.
Digitally signedAnnounced in an open Court by TWINKLE WADHWA TWINKLE On 29th day of May, 2019. WADHWA Date:
2019.05.29 14:36:05 +0530 (Twinkle Wadhwa) ADJ03/PHC/NEW DELHI 29.05.2019 TM No. 13808/16 Page 13 of 13