Delhi District Court
Also At vs Shri Subhash Kumar on 22 August, 2023
IN THE COURT OF MS. BARKHA GUPTA, DISTRICT
JUDGE (COMMERCIAL COURT), NORTH-EAST,
KARKARDOOMA COURTS, DELHI
C.S. (Comm) No.106/2019
CNR No. DLNE01-003638-2019
Shri Guddu Kumar,
Proprietor of M/s Leela Cosmetics,
House No.162, E-Block, Gali No.8,
Khajuri Khas, Delhi-110094.
Also at:-
E-253-A, 12, Khajuri Khas,
North-East, Delhi-110094.
......Plaintiff
Versus
Shri Subhash Kumar,
Proprietor of M/s Linda Cosmetics,
Gadi Mandu, Gali No.7,
Near Bharat Gas Agency,
5/1/2 Pusta, Khajuri,
Delhi-110094.
Also at:-
House No.17, 1st Floor, Gamdi Gaon,
Gali No.1, Opposite Durga Shiv Mandir,
Pusta, Bhajanpura, Delhi-110053.
....Defendant
Date of Institution : 18.09.2019
Final arguments : 19.08.2023
Date of decision : 22.08.2023
CS (Comm) No106/19 Guddu Kumar Vs. Subhash Kumar page 1 of 13
EX-PARTE JUDGMENT
1.The plaintiff Shri Guddu Kumar, who is the proprietor of 'M/s Leela Cosmetics' (hereinafter referred to as the 'plaintiff') has filed a suit for permanent injunction for restraining, infringing, passing off and rendition of accounts against the defendant namely Shri Subhash Kumar, who is the proprietor of 'M/s Linda Cosmetics' (hereinafter referred to as the 'defendant').
2. Brief facts of the case as revealed from the plaint are that the plaintiff carries on his business of trading, manufacturing and marketing of various cosmetics including sticks of Sindoor as elaborately mentioned in para no.2 of the plaint, which falls in class 3 of the Trade Marks Act under the name and style of 'M/s Leela Cosmetics'.
Further, the plaintiff had coined, conceived and adopted 'ROOP LADY' as the trademark/label and 'LEELA COSMETICS' as the trade name and design of the sticks of Sindoor (hereinafter referred to as trademark/label/name/design) in the year 2006, which is inherently distinctive and distinguishable to the said goods of others.
3. The plaintiff further submit that in fact, the business was started by his father Shri Ashok Kumar, however, since very early age, he also started participating in the said business.
Further, he is using the said trademark/label/name/design CS (Comm) No106/19 Guddu Kumar Vs. Subhash Kumar page 2 of 13 in a distinctive get up, make up, colour scheme, colour combination and artistic manner. Further, the plaintiff has also adopted the 'ROOP' variant trademark/label 'ROOP ME' etc and is using the same since the year 2006 till date.
4. The plaintiff further submit that he is the registered proprietor of the trademarks 'ROOP LEELA' and 'ROOP LADY' vide Trademark nos.3476857 and 1894845 respectively. Further, the plaintiff is also the owner and proprietor of the artistic features pertaining to the trademark/label 'ROOP LADY' and also hold its copyright, which is registered under no.A-123574/2018 under the provisions of Copyright Act, 1957.
5. The plaintiff further submit that he has built up valuable trade/goodwill and reputation with regard to the said trademarks, which are distinctive and are associated with his cosmetic products, particularly the sticks of Sindoor, which are in high demand and he is the prior user. Further, business of the plaintiff is very extensive and the goods under the said trademarks/labels/names are distributed in major parts of India. The plaintiff has given the sales figure for the financial years since 2006 to 2018 in para no.11 of the plaint.
6. The plaintiff further submit that the defendant is engaged in the same business as that of his and submit that the defendant has adopted the identical/deceptively similar trademarks/labels/names 'ROOP LINDA', 'ROOP SUHANA' CS (Comm) No106/19 Guddu Kumar Vs. Subhash Kumar page 3 of 13 under the trade name 'LINDA COSMETICS'. He further submit that the designs of the sticks of Sindoor and other cosmetics of the defendant are identical/deceptively similar to the goods as manufactured and traded by the plaintiff under the said trade name/mark/label/design i.e. 'ROOP LADY' of the plaintiff phonetically, visually and structurally and hence, the defendant has also infringed copyright of the plaintiff and/or has passed off and accordingly, the defendant has violated the proprietary rights of the plaintiff in the said trade name/mark/label/design.
The plaintiff further submit that he has also filed comparison of his products with the products of the defendant at para no.18 of his plaint.
7. The plaintiff further submit that the defendant has infringed his registered trade name/mark/label/design pertaining to the sticks of Sindoor under the trademark 'ROOP LADY' and also its copyright pertaining to the design of sticks of Sindoor etc which is also registered in his name and submit that the defendant has no right to adopt or use the same.
Further, due to said reason, the purchasers, who intend to purchase the goods of the plaintiff particularly, sticks of Sindoor go unwary and they get confused by the impugned adoption and user of the impugned trade name/mark/label/design adopted by the defendant and hence, the purchasers assume that they are purchasing the goods of the plaintiff and under misconception, the defendant is able to sell his product.
CS (Comm) No106/19 Guddu Kumar Vs. Subhash Kumar page 4 of 13
8. The plaintiff submit that due to the said act of the defendant, his business is adversely affected and further, his goodwill is also adversely affected. He further submit that the defendant has deceived the customers of the plaintiff due to which, the plaintiff has also suffered irreparable loss.
9. The plaintiff further submit that cause of action arose in his favour for the first time in the second week of November, 2017, when he came to know that the defendant has filed an application for registration of the trademark, which is deceptively similar to that of the registered trademark of the plaintiff before the competent authority.
Further, the cause of action again arose in February, 2019 when the plaintiff came to know about the impugned use of the registered trade name/mark/label/design by the defendant, after which, the plaintiff immediately filed a complaint with the police officials of the concerned police station.
The plaintiff further submit that cause of action also arose in the last week of August, 2019, when he came to know that the defendant is continuously using his registered trademark and also submit that the cause of action is a continuous one.
10.(a) The plaintiff prays that a decree for permanent injunction may be passed in his favour and against the defendant whereby, the defendant, his agents, servants, assigns etc may be restrained from manufacturing, using, selling, exporting, offering for sale, advertising or displaying directly or indirectly or dealing in any CS (Comm) No106/19 Guddu Kumar Vs. Subhash Kumar page 5 of 13 other manner or mode in the cosmetics under the trade name/mark/label/design 'ROOP LADY' and 'ROOP LEELA'.
The plaintiff further prays that the defendant may also be restrained from infringing the copyright of the plaintiff in the trade name/mark/label/design and further, the defendant may also be restrained from passing off and violating the trademarks 'ROOP LADY' 'ROOP LEELA' and 'LEELA COSMETICS', designs of sticks of Sindoor and other variants and further, the defendant may also be restrained from infringing the trademarks 'ROOP LEELA' and 'ROOP LADY'.
(b) For passing an order of delivery up of all the impugned goods and business of the defendant bearing the impugned trade names/marks/labels including on the packing material, cartons, boxes, blisters, carry bags, finished and unfinished goods, boxes, stickers having impugned design or any other incriminating material including display boards and trade literature to the plaintiff for the purpose of destructions/erasure.
(c) For passing an order for rendition of accounts of the defendant for the aforesaid impugned trade activities and for passing a decree in favour of the plaintiff on the amount so ascertained.
(d) The plaintiff submit that in the alternative to the rendition of accounts, a decree in sum of Rs.1,00,000/- on account of damages sustained by the plaintiff due to the impugned act of the CS (Comm) No106/19 Guddu Kumar Vs. Subhash Kumar page 6 of 13 defendant may be passed in favour of the plaintiff and agianst the defendant.
11. From the perusal of the record, it is revealed that vide order dated 19.10.2019, my Ld. Predecessor allowed the application of the plaintiff as filed under Order XXXIX Rules 1 and 2 r/w Section 151 CPC as well as the application filed under Order XXVI Rule 9 read with Section 151 CPC.
12. From the perusal of record, it is revealed that on 28.01.2020, 25.08.2020, 25.09.2020, 12.11.2020 and 18.12.2020, the defendant put in his appearance in the Court through his Advocate, however, the defendant did not file written statement and vide order dated 16.09.2021, the defendant was proceeded as Ex-parte.
13. The plaintiff, in support of his case, examined himself as PW-1 and also examined Ms. Amrita Jha (the Local Commissioner) as PW-2. As per record, the defendant did not examine any witness.
14. I have heard final arguments as advanced by Advocate Shri Amit Tiwari, learned counsel for the plaintiff and have also gone through the material as placed on record. None appeared for the defendant to advance final arguments.
15(a). It is pertinent to mention here that during the course of advancing final arguments, learned counsel for the plaintiff stated CS (Comm) No106/19 Guddu Kumar Vs. Subhash Kumar page 7 of 13 that the plaintiff is not pressing the clause (b) of the prayer as mentioned at page no.33 of the plaint, which is as under:-
"For passing an order of delivery up of all the defendants impugned goods and business bearing the impugned trade names/marks/labels including on the packing material, carton boxes, blisters, carry bags, finished and unfinished goods, boxes, stickers having impugned design or any other incriminating material including display boards and trade literature to the plaintiff for the purpose of destructions/erasure."
(b) It is also appropriate to mention here that during the course of final arguments, learned counsel for the plaintiff submitted that he is seeking relief only pertaining to the registered trademark 'ROOP LADY' and the copyright of which is also in favour of the plaintiff and the plaintiff is also claiming relief for passing it off and the plaintiff is not claiming any relief for 'ROOP LEELA'.
16. The plaintiff has examined himself as PW-1 and adduced evidence vide his affidavit Ex. PW1/A bearing his signatures at points A and B respectively, wherein he reiterated whatever he has stated in the plaint, which is not repeated here for the sake of brevity. He has relied upon the following documents:-
1. The photographs of the trade marks/labels/packagings of his products as well as that of the defendant as Ex. PW1/1 and Ex. PW1/2 respectively (three sticks of sindoor).
2. Copy of the GST Registration of the plaintiff as Ex. PW1/3 (OSR).
CS (Comm) No106/19 Guddu Kumar Vs. Subhash Kumar page 8 of 13
3. Copy of the ISO Registration Certificate of the plaintiff as Ex. PW1/4 (OSR).
4. Computer generated Trade Mark Status and Registration Certificate filed along with the suit alongwith list of documents dated 22.08.2021 (pages from 1 to 11) and list of documents dated 11.11.2020 (pages from 9 to 11) as Ex. PW1/5 (Colly).
5. The original Assignment Deed dated 28.01.2020 as Ex.PW1/6.
6. Copy of the Copyright Registration Certificate of the plaintiff as Ex. PW1/7 (OSR).
7. Copy of the sale bills as Ex. PW1/8 (Colly) (OSR) (Original of invoice no. 16, dated 17.08.2019 is not produced)
8. Screenshots of third party websites as Ex. PW1/9 (Colly).
9. Computer generated Trade Mark Status of the defendant as Ex. PW1/10.
10. Certificate under Section 65B of the Indian Evidence Act in support of the documents Ex.PW-1/3, Ex.PW-1/5, Ex.PW-1/9 (colly) and Ex.PW-1/10 as Ex.PW-1/11.
17. Further, the plaintiff has also examined the Local Commissioner, i.e. Advocate Ms. Amrita Jha as PW-2, who executed the commission as per order dated 19.10.2019 passed by my Ld. Predecessor. She has proved the detailed report dated 04.11.2019 as Ex.PW-2/1 bearing her signatures at points A and B. She has also relied upon the following documents:-
CS (Comm) No106/19 Guddu Kumar Vs. Subhash Kumar page 9 of 13
1. Proof of service of the order as Ex. PW2/2, bearing her signature at point A.
2. Rough spot proceedings as Ex. PW2/3, bearing her signature at point A.
3. Photographs of the proceedings as Mark A.
4. CD of the video recording of the proceedings as Ex.PW2/4. The cover of CD bears her signature at point A.
5. Inventory/list of goods seized from the premises of the defendant as Ex. PW2/5, bearing her signatures at points A, B, C, D, E, F, G and H.
6. The superdarinama of the authorized representative for the plaintiff as Ex. PW2/6, bearing her signature at point A.
18. From the perusal of record, it is revealed that the defendant did not cross examine PW-1 and PW-2 on any aspect at all and even at the cost of repetition, it is discussed that the defendant did not file written statement and vide order dated 16.09.2021, the defendant was proceeded Ex-parte.
19. It is well settled law that if a witness is not cross-examined on any material aspect/point, then, it amounts to truthfulness of the same.
In the case in hand, the defendant has preferred not to cross-examine PW-1 and PW-2, who are the most material witnesses of the plaintiff on any aspect at all and the defendant has also preferred not to dispute any of the documents relied upon/proved by them. Further, nothing is shown on record that PW-1 and PW-2 have deposed falsely or that the documents CS (Comm) No106/19 Guddu Kumar Vs. Subhash Kumar page 10 of 13 proved by them are forged or fabricated.
20. In the given facts and circumstances, the entire testimonies of PW1 and PW2 have remained unrebutted and uncontroverted by the defendant and further, the documents proved by them have also remained undisputed and unchallenged. Hence, the only reasonable conclusion that can be drawn is that the defendant has nothing to ask or to offer to PW1 and PW-2 in their cross- examinations and the defendant has impliedly admitted their versions and the documents proved by them in entirety.
21. In considered opinion of the court, PWs 1 and 2 have deposed in a straightforward, cogent and convincing manner and as such, there is no reason to doubt or disbelieve their versions. Further, their testimonies are sufficiently corroborated on all material aspects by the documents, which are duly proved on record by them.
As such, nothing is shown on record, if PWs 1 and 2 have deposed falsely or that they have not come forward in narrating the true picture of the case or that their versions suffer from any artificiality or exaggeration or any inherent infirmity, which go to the root of the matter and shake their basic versions. Hence, the only irresistible conclusion that can be drawn in the given facts and circumstances is that the defendant has nothing to ask or to offer to PWs 1 and 2 in cross-examination and further, the defendant has also not disputed any of the documents proved by them and rather, the defendant has admitted them all. Further, the suit of plaintiff is within the period of limitation.
CS (Comm) No106/19 Guddu Kumar Vs. Subhash Kumar page 11 of 13
22. Accordingly, in the given facts and circumstances of the case, on the basis of material as placed and proved on record and in view of aforesaid discussion, the suit of the plaintiff is decreed in favour of the plaintiff and against the defendant only with respect to the trademark 'ROOP LADY', which is shown to be duly registered in favour of the plaintiff and its copyright is also in favour of the plaintiff. Accordingly, the defendant is restrained from manufacturing, using, selling, exporting, offering for sale, advertising or displaying directly or indirectly or dealing in any other manner or mode in the sticks of Sindoor under the said trademark.
The defendant is further restrained from infringing the copyright of the plaintiff 'ROOP LADY' and the defendant is also restrained from passing it off.
23. It is not out of place to discuss here that the defendant has also sought relief for rendition of accounts of the defendant regarding impugned trade activities and prayed that in the alternative, a decree in sum of Rs.1,00,000/- on account of damages sustained by the plaintiff due to the impugned act of the defendant may be passed in his favour and against the defendant, however, from the perusal of the record, it is revealed that plaintiff has neither produced any document on record nor adduced any evidence to show that he is entitled to a decree in sum of Rs.1,00,000/- by the said act of the defendant. Accordingly, the said relief is hereby declined.
CS (Comm) No106/19 Guddu Kumar Vs. Subhash Kumar page 12 of 13
24. In view of totality of facts and circumstances of the case, on the basis of material as placed and proved on record and in view of aforesaid discussion, the suit of the plaintiff is decreed alongwith costs of the suit. The decree-sheet be prepared accordingly.
File be consigned to the record room as per rules after compliance of necessary legal formalities.
Dictated and Announced today
i.e. on 22.08.2023
in the open Court (BARKHA GUPTA)
District Judge, Commercial Court,
North East, Karkardooma Courts, Delhi
CS (Comm) No106/19 Guddu Kumar Vs. Subhash Kumar page 13 of 13