Delhi District Court
M/Sshubham Goldiee Masale Pvt. Ltd vs Fmc Enterprises on 8 November, 2024
In the court of Ms. Anu Grover Baliga,
District Judge (Commercial Court-04), South East District,
Saket Courts, New Delhi
CS (COMM) 411/21
M/s Shubham Goldiee Vs. FMC Enterprises
In the matter of:
M/s Shubham Goldiee Masale Pvt. Ltd.,
51/40, Goldiee House,
Nayaganj, Kanpur, UP.
.....Plaintiff
Versus
FMC Enterprises,
Through Proprietor, Chand Alam Ansari,
105/683, A, Saket Bhawan,
Deputy Padao, Kanpur-208001, Uttar Pradesh
Customer Care No. - 9919030061.
Also At:
88/390, Humayu Bagh,
Chaman Ganj, Kanpur Nagar,
Fahimabad, Uttar Pradesh-208001.
.....Defendant
Date of institution : 22.09.2021.
Date of reserving judgment : 06.11.2024.
Date of pronouncement of Judgment : 08.11.2024.
JUDGMENT UNDER ORDER VIII RULE 10 CPC
1.Vide the present judgment, I shall decide a suit filed by the Plaintiff interalia seeking permanent injunction for restraining the Defendant, their dealers, distributors, stockists, agents, associates, employees, servants, assignees from infringing the Plaintiff's trademark GOLDIEE. Reliefs for rendition of accounts CS (COMM) NO. 411/21 M/s Shubaham Goldiee Masale Pvt. Ltd. Vs. FMC Enterprises Page 1/9 and punitive / compensatory damages to the tune of Rs. 3,05,000/- have also been sought vide the present suit.
2. As per record, initially it is only FMC Enterprises that was arrayed as the Defendant and in the plaint filed, the following material averments were made against the then arrayed Defendant:-
a. The plaintiff is engaged in the business of of manufacturing and marketing of wide range of food products for human consumption including spices and other allied and related goods.
b. The Plaintiff adopted the trademark GOLDIEE and has been using the same since then continuously and uninterruptedly since 1980. The Plaintiff is also the registered proprietor of the trademark GOLDIEE and other formative trademarks (the details of the same have been provided in para 5 and para 6 of the Plaint). c. The Plaintiff's goods and business under the said trademark / labels have acquired tremendous goodwill and enviable reputation in the markets and the Plaintiff has already built up a handsome and valuable trade there under. (The sales figures of the Plaintiff Company from 2000 to 2021 have been detailed in para 9 of the Plaint).
d. The Plaintiff also carries on its business under the said trademark / label through its website www.goldiee.com and https://www.goldieeonlinestore.com/. (Screenshots of the Plaintiff's website have been represented in Para 10 of the Plaint).
e. The art works involved in the plaintiff's said trademark/labels GOLDIEE and formative trademarks are original artistic works and the plaintiff is the owner and proprietor of the copyright therein within the meaning of the Indian Copyright Act, 1957. The Plaintiff has copyright registration for one of the formative works/labels under no. A-120994/2017.CS (COMM) NO. 411/21 M/s Shubaham Goldiee Masale Pvt. Ltd. Vs. FMC Enterprises Page 2/9
f. The Defendant is engaged in the business of manufacturing, marketing, trading, soliciting, networking of Spices and allied/related/cognate products. The plaintiff is not aware about the exact constitution of the defendant and it is called upon to disclose the same upon its appearance. That the Defendant has adopted and started using the trademark/label FEVRET GOLDJEE, Goldice in relation to its impugned goods. The word FEVRET is insignificant in the impugned trademark/label as can been seen in the specimens of the impugned trademark/label. That the impugned trademark/label adopted and being used by the defendant in relation to their impugned goods and business and packaging thereof are identical with and deceptively similar to the plaintiff's said trademark/label/trade name and its packaging in each and every respect including phonetically, visually, structurally, in its basic idea and in its essential features. g. The Defendant has also copied the main features involved in the Plaintiff's trademarks and is thus infringing the Plaintiff's rights involved in its said trade mark / label. The defendant is using all kind of false description on its 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.
h. The Plaintiff learnt about the Defendant and their impugned adoption of the impugned Trade Mark/label in the 3rd week of July 2021, when the plaintiff came across the impugned goods under the impugned trademark in the markets of South- East Delhi viz. Lajpat Nagar, Kalkaji, Greater Kailash, Defence Colony, CR Park, Amar Colony, Jamia Nagar, Okhla, Sarita Vihar, Jaitpur, Badarpur and adjoining areas.
3. As per record, on applications filed by the Plaintiff seeking ex-parte interim injunction and appointment of a Local Commissioner, one of the Ld. Predecessors CS (COMM) NO. 411/21 M/s Shubaham Goldiee Masale Pvt. Ltd. Vs. FMC Enterprises Page 3/9 of this Court vide order dated 08.03.2022 had restrained the Defendant from infringing the trademark of the Plaintiff till further orders and a Local Commissioner had been appointed to seize the impugned goods and ledger accounts, etc. of the Defendant from its office at FMC Enterprises, 105/683, A, Saket Bhawan, Deputy Padao, Kanpur-208001, Uttar Pradesh.
4. The record further reflects that the Local Commissioner (herein after referred to as the LC) appointed by the Court filed a comprehensive report mentioning therein that she had visited the aforementioned premises of the Defendant on 21.03.2022. Ld. Counsel for the Plaintiff has pointed out that the report of the LC reveals that on the inspection of the premises of the Defendant, packets of spices / masalas with brand name labelled as "Goldiee' for copying purposes, packets of stickers with brand name label of "Goldjee, packaging cartons with sticker of infringed trademark "Goldjee" were all found at the spot. As per the report of the LC all the infringing materials / packaging material / stickers etc. were sealed in 16 gunny bags and 534 small cartons. She has also reported that the same were then given on Superdari to the Defendant. As per the LC's report, a copy of the plaint along with the documents was also supplied to the Defendant. It is however a matter of record that despite service by the LC, the Defendant did not appear in Court. Thereafter on the directions of the Ld. Predecessor of this Court, the summons of the suit were again sent through registered AD and approved courier DTDC to the Defendant. On 09.08.2023, before this Court a report was received that the Defendant no longer carries on its business at the address supplied by the Plaintiff and where the LC had visited. Thereafter on an application filed by the Plaintiff asserting therein that after the inspection by the LC, the name of the proprietor of the Defendant has been revealed as Chand Alam Ansari and his address is also at 105/683, A, Saket Bhawan, Deputy Padao, Kanpur-208001, Uttar Pradesh, it was directed by this Court that the amended memo of parties be filed CS (COMM) NO. 411/21 M/s Shubaham Goldiee Masale Pvt. Ltd. Vs. FMC Enterprises Page 4/9 and summons of the suit be sent in the name of the proprietor on the address supplied by the Plaintiff. On receipt of the summons report, this Court vide its Order dated 06.06.2024 held that the Defendant stands served on the aforementioned address. This Court also took into consideration that the Defendant was also served with the copy of the suit way back in the year 2022 by the Ld. LC. Vide the same Order, the Defendant having not appeared despite service was proceeded ex parte.
5. Ld. Counsel for Plaintiff in view of the above, then submitted before this Court that this Court must now pass a judgment under Order VIII Rule 10 CPC and that there is no need for the Plaintiff to lead ex parte evidence. In support of his contention that the Local Commissioner's report and the fact that the Defendant has chosen not to contest the present suit, the Plaintiff is entitled to a judgment under Order VIII Rule 10 CPC. Ld. Counsel for Plaintiff has relied upon the following judgments:
i. LT Foods Limited versus Saraswati Trading Company - CS (COMM) 413/2021 passed by the Hon'ble High Court on 11.11.2022.
ii. Imagine Marketing Pvt. Ltd. versus M/s Green Associates - CS (COMM) 564/2021 passed by the Hon'ble High Court on 21.03.2024.
iii. Bata India Ltd. versus DVS Shoes Factory - CS (COMM) 80/2020 passed by the Hon'ble High Court on 21.02.2023.
iv. Louis Vuitton Malletier Versus Iqbal Singh and Ors. - (2019) 78 PTC 315.
6. I have gone through the judicial dicta laid down by the Ld. Counsel for Plaintiff and have also considered the report of the Ld. LC and the other documents filed along with the plaint. Provisions of Order VIII Rule 10 CPC lay down that where any party from whom a written statement is required under Order I or rule 9 fails to present the same within the time permitted or fixed by the Court, as the case may be, the Court shall pronounce judgment against him, or make such CS (COMM) NO. 411/21 M/s Shubaham Goldiee Masale Pvt. Ltd. Vs. FMC Enterprises Page 5/9 order in relation to the suit as it thinks fit and on the pronouncement of such judgment a decree shall be drawn up. Considering the said provisions, the report of the Ld. LC submitted in the present case along with the evidence collected by her and the judicial dicta referred to by the Ld. Counsel, this Court is of the considered opinion that in the present case, no ex parte evidence is required to be led by the Plaintiff to prove the assertions made in the plaint and the documents filed therewith.
7. Now in the present case, the aforementioned material on record makes it clear that the Plaintiff Company has a registered trademark GOLDIEE with respect to its goods. On the basis of the documents placed on record, in particular the Auditors Certificate reflecting the annual sale of the Plaintiff with respect to GOLDIEE goods & products for the year 2019-20 to be Rs. 7,69,25,52,594/-, the Plaintiff has been able to establish that it enjoys an unparallel reputation and goodwill with respect to its trademark GOLDIEE. The photographs of the specimen product of the Plaintiff's goods and the Defendants' goods, which are a part of the LC's report establishes that the Defendant is using a trademark GOLDJEE which is structurally and visually similar to the registered trademark of the Plaintiff. Even phonetically the two trademarks are quite similar. It is apparent that the Defendant is malafidely using the alphabet j instead of i, but in a manner that the alphabet 'j' appears to be 'i' only.
8. It is well settled law that in an action for infringement of its trademark, the Plaintiff is not required to prove that the whole of its registered trademark has been copied and he can even succeed if he shows that the mark used by the Defendant is similar to its mark, as would cause confusion in the mind of consumers. In as far back as in 1965, the Hon'ble Supreme Court had recognized the statutory rights of the owner of a registered trademark and in the case titled and reported as Kaviraj CS (COMM) NO. 411/21 M/s Shubaham Goldiee Masale Pvt. Ltd. Vs. FMC Enterprises Page 6/9 Pandit Durga Dutt Sharma Vs. Navaratna Pharmaceutical Laboratories AIR 1965 SSC 980, had held as under:-
"The action for infringement is a statutory remedy conferred on the registered proprietor of a registered trade mark for the vindication of the exclusive right to the use of the trade mark in relation to those goods"
"It the essential features of the trade mark of the plaintiff have been adopted by the defendant, the fact that the get-up, packing and other writing or marks on the goods or on the packets in which he offers his goods for sale show marked differences, or indicate clearly a trade origin different from that of the registered proprietor of the mark would be immaterial."
9. In another case of Laxmikant V. Patel Vs. Chetanbhai Shah And Another, reported at (2002) 3 SCC 65, the Hon'ble Apex Court made following observation:
"........The law does not permit any one to carry on his business in such a way as would persuade the customers or clients in believing that his goods or services belonging to someone else are his or are associated therewith. It does not matter whether the latter person does so fraudulently or otherwise. The reasons are two. Firstly, honesty and fair play are, and ought to be, the basic policies in the world of business. Secondly, when a person adopts or intends to adopt a name in connection with his business or services which already belongs to someone else it results in confusion and has propensity of diverting the customers and clients of someone else to himself and thereby resulting in injury."
10. In view of the aforementioned judicial dicta and the facts of the present case discussed hereinabove, it is therefore clear that the Defendant has infringed the trademark of the Plaintiff and therefore is bound to be perpetually restrained from selling its goods under the trademark GOLDJEE or any other mark deceptively similar to the trademark of the Plaintiff namely GOLDIEE.
11. Coming now to the quantum of damages to be awarded in favour of the Plaintiff, Ld. Counsel for Plaintiff has relied upon para 37 of the judgment pronounced by the Hon'ble Delhi High Court in Louis Vuitton's case (supra) to contend that compensation in the amount of Rs. 3,05,000/- and the costs of the suit must be awarded in favour of the Plaintiff and against the Defendant. He has pointed out that the Plaintiff has paid an amount of Rs. 1,25,000/- as fees to the Ld. CS (COMM) NO. 411/21 M/s Shubaham Goldiee Masale Pvt. Ltd. Vs. FMC Enterprises Page 7/9 LC and despite the fact that the Defendant was served with the copy of the plaint by the Ld. LC, he chose not to appear before this Court. He further states that though the Plaintiff became aware in the year 2021 that the Defendant had been infringing the Plaintiff's trademark, the Defendant could have been doing it from a much earlier time.
12. At this stage, it will be relevant to reproduce para 37 of the aforementioned judgment;
37. However, certain aspects of the present case cannot escape the attention of the court. First being the reports of the Local Commissioners appointed by this Court who have in their reports uncovered the infringing activities of the Defendants. This proves that Defendants have been indulging in infringing activities. Second, the admission made by the Defendants in the written statement that they have been using the Plaintiff's trademark for last 8-9 years. Third, the Defendants have deliberately stayed away from the proceedings. The conduct of the Defendants is egregious, and calls for the court to draw adverse inference against them. Thus, keeping in view the judgments relied upon by the Plaintiffs and the averments made in the written statement and taking note of the conduct of the Defendants, it can be concluded that the flagrant infringing activities of the Defendants have impinged on the Plaintiff's right. In view of the admission, the Court awards damages to the tune of Rs. 3,50,000/- (three lakh fifty thousand only) in favour of the Plaintiff.
38. As a result of the above discussion and conclusions, the suit is decreed in favour of the Plaintiff and against the Defendants in terms of prayer under paragraph 55 (a) to
(d) of the Plaint along with damages of Rs. 3,50,000/- (three lakh fifty thousand only).
13. In view of the aforementioned judicial dicta and the facts of the present case namely that the Defendant is not a bonafide infringer and appears to have been infringing the Trademark of the Plaintiff from the year 2021 and did not bother to appear despite being served and the Plaintiff had to pay an amount of Rs. 1,25,000/- as fees to the Ld. LC, this Court hereby awards damages in favour of the Plaintiff to the extent of Rs. 2,50,000/-. As such the suit of the Plaintiff is decreed against the Defendant Chand Alam Ansari, proprietor of M/s FMC Enterprises and this Defendant as also his dealers, distributors, stockists, agents, associates, employees, servants and/or assignees are hereby restrained from using the trademark GOLDJEE or any other trademark, which may be deceptively similar to the Plaintiff's well-known trademark GOLDIEE, in any manner whatsoever which CS (COMM) NO. 411/21 M/s Shubaham Goldiee Masale Pvt. Ltd. Vs. FMC Enterprises Page 8/9 results in passing off the said trademark of the Plaintiffs. The Defendant, his associates, agents, employees, representatives and assignees are also restrained from using the term "GOLDJEE" displayed on its products' packaging/label/or any other descriptive features or any other product identical to and deceptively similar and phonetically similar to that of the Plaintiff's trademark "GOLDIEE', which results in infringement of said trademark of Plaintiff. The Defendant, his associates, agents, employees, representatives and assignees are also restrained from infringing the original artistic work existing in the texts, font, images, tables, label, layout and shape of the packaging and the product that forms an integral part trade dress of the Plaintiff's product "GOLDIEE". The Defendant is also directed to pay an amount of Rs. 2,50,000/- to the Plaintiff. Costs of the suit are also allowed. Decree-sheet be prepared accordingly.
Digitally signed14. This file be consigned to Record Room. ANU by ANU GROVER BALIGA GROVER Date:
BALIGA 2024.11.08 14:23:50 +0530 Announced in the Open Court (Anu Grover Baliga) on 08th November 2024. District Judge (Commercial Court-04) South-East District/Saket/New Delhi CS (COMM) NO. 411/21 M/s Shubaham Goldiee Masale Pvt. Ltd. Vs. FMC Enterprises Page 9/9