Delhi District Court
M/S Aditya Birla Fashion & Retail Ltd vs Kulbhushan Goel on 6 September, 2018
IN THE COURT OF MS. TWINKLE WADHWA : LD. ADDITIONAL DISTRICT
JUDGE03:PATIALA HOUSE COURT:NEW DELHI DISTRICT
TM No. 13594/16
M/s Aditya Birla Fashion & Retail Ltd
701704, 7th Floor, Skyline,
Icon Business Park,
8692, Off Andheri Kurla Road,
Marul Village, Andheri East,
Mumbai Maharashtra 400059
.....Plaintiff
VERSUS
Kulbhushan Goel
S/o Brij Lal Gupta
Proprietor of M/s Export Hut
B14, Sector18, Noida 201301
.....Defendant
Date of Institution : 10.08.2015
Date of Final Arguments : 13.08.2018
Date of Decision : 06.09.2018
EXPARTE JUDGMENT
The Case
1.This suit has been filed by plaintiff company under Section 134 & 135 of Trade Marks Act, 1999 apart from Section 55 of TM No. 13494/16 Page 1 of 9 Copy Right Act, 1957 for seeking permanent injunction against defendant from usage of registered trademark "LOUIS PHILIPPE and LP" apart from other reliefs.
Appearance
2. I have heard Ld. Counsel for the plaintiff and have perused the case file.
Plaintiff's Case
3. The case of the plaintiff as per pleadings and the evidence lead is that the plaintiff company is engaged in the business of manufacture and sale of a wide range of goods i.e clothing, readymade garments, apparels, leather goods, eyewear, footwear, soaps, perfumery deodorants, preparations for hair and skin care, Jewelery, previous stones and chronometric instruments and other allied/related products. The plaintiff has adopted the trademark LOUIS PHILIPPE and LP as a trade mark and also as an essential part of its trade name in relation to its goods and business. The plaintiff over a period of time has been using its said trademark in various stylized/artistic formats/labels which have been created and are being created over a period of time. Plaintiff has also provided details of its trademarks including class on record. It is averred that plaintiff also holds copyright in the art work involved in the plaintiff's trademarks/labels. The allegation of plaintiff is that the TM No. 13494/16 Page 2 of 9 defendant is engaged in the business of selling, manufacturing, marketing, purveying, supplying, soliciting trade of readymade garments, apparels and other relied/related products. Defendant has adopted and started using trademaks of the plaintiff and have given false trade description to their impugned goods. The defendant has also copied the artistic features involved in the plaintiff's trademark. Defendant is using all kinds of false description on their impugned goods to wrongly link the impugned goods with the plaintiff and to wrongly convey to the public and customers that the impugned goods are coming from the source and origin of the plaintiff. These goods and business are also same and similar to that of the plaintiff.
4. Plaintiff has also pressed his application for appointment of Local Commissioner. During the proceedings LC was appointed to raid at the premises of defendant, namely, Kulbhushan Goel at B 14, Sector18, Noida201201 in order to collect the evidence vide order dated 11.08.2015 LC visited the premises and accordingly filed his report. In the report of Local Commissioner, it is mentioned that some articels were recovered from defendant's shop which was 20 pieces of mark LOUIS PHILIPPE in quantity.
5. Plaintiff has impleaded the defendant in the capacity of John Doe. Reliance has been placed on similar orders passed by the TM No. 13494/16 Page 3 of 9 Hon'ble High Court of Delhi in CS(OS) No. 688 of 2010, wherein the name of defendant was not known at the time of filing of the suit and such a defendant was notionally referred to as John Doe. Such John Doe orders were passed by Hon'ble High Court to include any such person infringing the plaintiff's trademark.
6. Summons were duly served upon the defendant. Despite service no WS filed by defendant and their defence was struck off on 25.11.2016. Defendant has also entered their appearance but since last 13 dates of hearing none has appeared on behalf of defendant.
7. On completion of pleadings, following issues were identified on 28.01.2016 ISSUES
1. 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 LOUIS PHILIPPE and LP the impugned goods? OPP.
2. 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 LOUIS PHILIPPE and LP the impugned goods? OPP.
3. Whether plaintiff is entitled to decree of delivery up of impugned goods containing Trade Mark LOUIS PHILIPPE TM No. 13494/16 Page 4 of 9 and LP the impugned goods? OPP.
4. 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 ? OPP.
5. Relief.
8. To prove its case plaintiff examined Sh. Rishi Bansal as PW1 and exhibited the following documents S.No. No. of Exhibits Details of the documents Ex.PW1/1 (Colly) Representation of the trade mark/label of the 1 plaintiff Ex.PW1/2 (Colly) Representation of defendant's impugned 2 trademark/s Mark A The list of plaintiff's registered 3 trademark/pending applications in India Ex.PW1/3 (Colly) Documents pertaining to the registered 4 trademarks of the plaintiff Ex.PW1/4 (Colly) Documents pertaining to the registered 5 copyright of the plaintiff 6 Ex.PW1/5 (Colly) Sales turnover of the plaintiff Ex.PW1/6 (Colly) Documents pertaining to the history/user of the 7 plaintiff Ex.PW1/7 (Colly) Documents relating to jurisdiction of this 8 Hon'ble Court 9 Ex.PW1/9 (OSR) Copy of the resolutioncumauthority 10 Mark B Annexure ABFR1 (colly) being copy of Bomay High Court order dated 05.12.2015 and Gujarat TM No. 13494/16 Page 5 of 9 High Court Order dated 23/10/2015 and Composite scheme of arrangement Annure ABFR2 Mark C being copy of certification of incorporation pursuant to change of name dated 11 12.01.2016 Annexure ABFR3 Ex.PW1/10 being board of 12 resolution Annxure ABFR4 Ex.PW1/11 (OSR) bering power of attorney in favour of 13 me
9. I have heard the arguments of plaintiff and gone through the record.
Reasons of Decision
10. On the basis of above, plaintiff has proved that they are registered users of the trademark 'LOUIS PHILIPPE and LP. The trademark has acquired distinct features and they are regularly doing trade an manufacturing and marketing of clothing of all kinds of readymade garments and clothing, and other allied/related products under the said trade name along with lable/device. It is further proved by the plaintiff that while the Local Commissioner TM No. 13494/16 Page 6 of 9 inspected the premises of defendants, products were found containing tradename and tradedress which was deceptively similar to the tradename of plaintiff. It is case of plaintiff company that it is the registered owner of mark LOUIS PHILIPPE and LP. Since last several years, proof regarding the same is filed on record. Plaintiff has filed on relevant documents thereby showing its global presence by way of various advertisements on internet and otherwise. On the basis of above documents, plaintiff has been able to prove that it is registered owner of the mark LOUIS PHILIPPE and LP and has acquired passing off rights also.
11. Further report of LC is also filed on record. Further I have gone through the report filed by LC. It shows that the goods seized were carrying logo and mark of the plaintiff company. As per report of Local Commissioner, some articels were recovered from defendant's shop which was 20 pieces of mark LOUIS PHILIPPE in quantity. The report of LC stands unchallenged by the Court. Issue No.1Whether 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 LOUIS PHILIPPE and LP the impugned goods.
12. In view of above observation, plaintiff is entitled to decree of TM No. 13494/16 Page 7 of 9 permanent injunction restraining defendant their agents, representatives, stockists etc. for using, selling, soliciting etc. of impugned goods containing Trade Mark LOUIS PHILIPPE and LP the impugned goods.
Issue No.2Whether plaintiff is entitled to decree of injunction restraining the defendants and their subjects from dealing with or disposing of the merchandise containing Trade Mark LOUIS PHILIPPE and LP the impugned goods? OPP.
13. In view of above, plaintiff is entitled to decree of injunction restraining the defendant and their subjects from dealing with or disposing of the merchandise containing Trade Mark LOUIS PHILIPPE and LP the impugned goods.
Issue No.3Whether plaintiff is entitled to decree of delivery up of impugned goods containing Trade Mark LOUIS PHILIPPE and LP the impugned goods? OPP.
14. In view of above, plaintiff is entitled to decree of delivery up of impugned goods containing Trade Mark LOUIS PHILIPPE and LP the impugned goods. Hence seized goods be handed over to plaintiff.
Issue No.4Whether plaintiff is entitled to Rendition of accounts and damages on account of profits made by the defendant by sale of goods containing Trade Mark LOUIS PHILIPPE and LP the impugned goods? OPP.
TM No. 13494/16 Page 8 of 915. Plaintiff has not filed any proof regarding rendition of accounts sought or the damages suffered. Hence plaintiff is not entitled any damages.
Relief
16. In view of the above, the present suit is decreed in favour of the plaintiff and against the defendant.
I hereby also awarded cost of litigation as Rs. 50,000/. Decree sheet be prepared accordingly.
File be consigned to record room. Digitally signed by TWINKLE Announced in an open Court TWINKLE WADHWA On 06th day of September, 2018. WADHWA Date:
2018.09.06 12:29:09 +0530 (Twinkle Wadhwa) ADJ03/PHC/NEW DELHI 06.09.2018 TM No. 13494/16 Page 9 of 9