Delhi District Court
Rspl Limited vs M/S Shree Prem Chemicals on 11 November, 2022
IN THE COURT OF MS SAVITA RAO, DISTRICT JUDGE
COMMERCIAL COURT-04, SHAHDARA,
KARKARDOOMA COURTS, DELHI
CNR No. DLSH01-007400-2019
CS (Comm) No. 251/2019
In the matter of :-
RSPL Limited
119-121 (Part), Block P&T
Fazalganj, Kalpi Road
Kanpur, 208012, U.P
............Plaintiff
Vs.
M/s Shree Prem Chemicals
Vasundhra Nagar, Manglana Road
Makrana, Rajasthan , Pin- 341505
.........Defendant
Date of institution of the case : 19.11.2019
Date of final arguments : 04.11.2022
Date of judgment : 11.11.2022
EX-PARTE JUDGMENT
1.This is suit under sections 134 & 135 of Trade Marks Act, 1999 as well as under section 51 of Indian Copyright Act for the relief of permanent injunction to restrain passing off, infringement of trademark and copyright, delivery up and rendition of accounts etc., filed by plaintiff against the defendant.
2. As stated, plaintiff is a company duly incorporated under Indian Companies Act having its registered office in Kanpur, U.P. The family of Directors, Predecessor of Plaintiff Company, started the business of manufacturing and sale of different kinds of CS (Comm) No. 251 of 2019 1/9 washing soaps and detergents sometimes in year 1975 under the name and style of M/s Manoj Soap Works. The founders of the plaintiff group, at that very time , coined, conceived and adopted the trademark GHARI with the/or without DEVICE OF GHARI honestly and bonafidely and also with a view to distinguish their products from the other similar products of other manufacturer which is being used since the year 1955 in relation to its products. The plaintiff company also adopted the punch line " Pehle Istemal karen Phir Vishwas karen' in due course of time and the said punch line became synonymous with the plaintiff's trademark. As further stated, plaintiff company also conceived and adopted another trademark/label/packaging/trade dress of Ghari Label with the punch line ' Pehle Istemal Karen Phir Vishwas Karen' in the year 1988 in an artistic manner in relation of its goods/business. Plaintiff company modified the packaging and adopted trademark/label/packaging/trade dress Ghadi/Device of Ghari/Ghadi Maha Shakrishali which is being used continuously, extensively and commercially to the exclusion of others in the course of trade without any interruption or interference from any corner whatsoever . In order to acquire statutory right, plaintiff company got registered its trademark/label/packaging/trade dress under the Provisions of Trademark Act, 1999 for various goods and services, which are stated to be valid and existing.
3. As further stated, trademark/label/packaging/trade dress of plaintiff company is represented in an artistic manner including get up, lettering style, colour scheme, placement of words etc. which is stated to be original within the meaning of Copyrights Acts 1957. Plaintiff company also holds the copyright in artistic work of trademark/label/packaging/trade dress duly registered under the CS (Comm) No. 251 of 2019 2/9 Copyright Act . Plaintiff has been continuously advertising and promoting its said trademark/label/packaging/trade dress and punch lines through different means and modes including through print and electronic media i.e. by way of extensive advertisements in newspapers, magazines, televisions etc. and have been expanding their business through their exclusive website www.gharidetergent.com.
4. As further stated, on account of extensive publicity and advertising and also having regard to the excellent quality and high standards of the plaintiff's manufacture and sale, plaintiff's goods bearing the said trade mark/label/packaging/trade dress enjoy solid, enduring and first class reputation in the markets. Plaintiff's said trademark/label/packaging/trade dress and said punch lines has already become distinctive indicium of the plaintiff and plaintiff's goods and business and the public at large associates, identifies and distinguishes the said trademark/label/packaging/trade dress and the said punch lines with the plaintiff and plaintiff's goods alone. In view of the acquired proprietary rights of the plaintiff over their trademark/label/packaging/trade dress under the statute as well as common law, nobody can use or deal with the same/similar trademark/label/packaging/trade dress and copy rights therein in relation to their goods and business without the leave and license of plaintiff company.
5. As further stated, in the last week of October 2019, plaintiff company came to know that defendant no.1 who is engaged in the marketing of detergent powder and other allied and cognate goods manufactured by defendant no.2 have, jointly adopted the identical trademark/label/packaging Dhadi /Device of Ghari / Dhadi Maha Shaktishali including colour, colour combination, placement of CS (Comm) No. 251 of 2019 3/9 words and all other complete features of the plaintiff's well known trademark/label/packaging/trade dress Ghadi/Device of Ghari/Ghadi Maha Shaktishali by replacing ' G' with 'D' or 'GH' with 'DH' and making other minor changes. Defendants have copies not only the colour combination, get up and placement of words but also the punch line/tag ' Pehle Istemal Karen Phir Vishwas Karen' in verbatim in relation to their products and goods.
6. It was further stated that the impugned trademark/label/packaging/trade dress adopted by the defendants is so identical and deceptively similar that the same cannot be termed as by coincidence. Adoption and user of impugned trademark/label/packaging/trade dress by the defendants is with a dishonest intention to take advantage of all financial and human resources invested by the plaintiff without incurring any cost to trade upon the reputation and good will of the plaintiff company and to create confusion and deception amongst the customers that it is emanating from the plaintiff's source or that some vital links exist between the plaintiff company and the defendants. As further stated, defendants are carrying on their trade and business all over India including Shahdara, Delhi and by doing so, defendants are not only infringing the proprietory rights of the plaintiff in the said trademark/label/packaging/trade dress as well as copyright involved therein but also are causing financial loss to the plaintiff company by reaping unfair advantage of the goodwill and reputation. Alongwith the plaint, copies of registration certificates, legal proceedings of trademarks of plaintiff company under the Trade Marks Act have also been filed.
7. After filing of the suit, vide order dated 27.11.2019 ex- parte temporary injunction was granted in favour of plaintiff and CS (Comm) No. 251 of 2019 4/9 against the defendants and Local Commissioner was appointed for seizure of all the material bearing the impugned trademark/label/packaging/trade dress Dhadi/Device of Ghadi/Dhadi Maha Shaktishali and punch line/tag line " Pehle Istemal Karen Phir Vishwas Karen" and other incriminating material. The matter was listed for issuance of summons and notice of applications to the defendants for 09.01.2020. On the next date of hearing i.e. on 09.01.2020, proprietor of defendant no.1 appeared before the court alongwith counsel and on application under order 1 rule 10 r/w section 151 CPC moved on behalf of plaintiff, defendant no.2 was directed to be deleted from array of defendants. On the request of parties, matter was referred to Mediation Centre, Karkardooma Courts, Delhi for exploring the possibility of settlement . No settlement was effected between the parties and rather thereafter defendant stopped appearing in the matter. Defendant accordingly was proceeded ex-parte vide order dated 11.10.2021
8. Matter was fixed up for ex-parte final arguments while placing reliance upon Parsvanath Developers Ltd v. Vikram Khosla, CS Comm No. 618 of 2019 and C.M No. 8431 of 2020, decided on 03.03.2021, 2021 SCC Online DEL 3147 and Merck Sharp and Dohme Corp. v. Mr. Munish Thakur, 2017 SCC Online Del 11226, wherein it was held that " where the plaint has been verified and also supported with the affidavit/statement of truth on behalf of the plaintiff and the defendant having being proceeded ex-parte, no purpose would be served if the plaintiff is directed to lead ex-parte evidence. Arguments are to be addressed straightway and the judgment is CS (Comm) No. 251 of 2019 5/9 to be passed on the basis of the material on record " . Relevant documents were given exhibit numbers.
9. I have heard Ld. Counsel for plaintiffs and have carefully perused the record.
10. Plaintiff, in support of its claim, has relied upon following documents:
(1) Plaintiff's Trademark /lable is Ex. Ex. P-1 (colly) (2) Defendant's Trademark/Lable is Ex. P-2 (colly) (3) Downloaded copies of plaintiff's trademark certificates/statuses/journal pages is Ex. P-3 (pages 5 to 208 )(colly) (4) Photocopies of plaintiff's trademark certificates in Foreign Countries is Ex.P-4 (pages 209 to 219) (colly) (5) Colour Copies of Copyright Certificates of plaintiff is Ex. P-5 (pages 220 to 241) (6) Downloaded copies of Certificate of Company Registration and Documents pertaining to change in names/constitutions/Transfer/Currents Status is Ex. P-6 ( page 242 to 250) (7) Copy of Assignemnt deed is Ex. P-7 (8) Plaintiff's Sales Bills/Invoices are is P-8 (9) Copies of Plaintiff's Advertisement Materials is Ex. P-
9.
(10) Copies of Plaintiff's Advertisement Bills are Ex. P-10. (11) Copies of orders/judgments/decrees/joint applications are Ex. P-11.
(12) Copy of Bill of defendant no.1 is Ex. P-12 (13) Copy of Resolution is Ex. P-13 (14) Copy of receipt for applying LPC is Ex. P-14 CS (Comm) No. 251 of 2019 6/9
11. Defendant being ex-parte, has not filed his written statement along with statement of truth, affidavit of admission and denial of documents as well as his own documents within the stipulated period of 30 days from service and even upto 120 days from the date of service along with an application for condonation of delay.
12. The averments made in the plaint (which is supported with the affidavit and statement of truth) remained uncontroverted, unrebutted and unchallenged for the failure of defendant to contest the matter. This court does not find any reason to disbelieve the version of the plaintiff and the averments made in the plaint supported by the documents on record. Coloured pictures of the original goods and fake goods have also been filed alongwith the plaint. From the perusal of documents on record, it is clear that the defendant has knowingly, intentionally and dishonestly infringed the impugned trademark/label/trade dress of plaintiff; passed of its goods and business as that of the plaintiff; infringed the plaintiff's copyright in the said Trademark/Label/Trade dress by using, publishing, reproducing the same and defendant apparently is guilty of falsification and unfair trade practices. The mis conduct of the defendant is in complete violation of plaintiff's statutory and common law rights and amounts to infringement of the registered trademark/label and copyright of the plaintiff.
13. As regards rendition of accounts of profits earned by the defendant, no document/material has been placed on record by the plaintiff . Hence, no order in this respect is passed.
14. Instant suit is accordingly decreed with cost in favour of the plaintiff and against the defendant, thereby :
CS (Comm) No. 251 of 2019 7/9(1) defendant is restrained by itself as also through its individual partners/proprietors, directors, agents, representatives, distributors, dealers, assigns, heirs, successors, stockists and all other acting for and on behalf of defendant from manufacturing, counterfeiting, using, selling, soliciting, exporting, displaying, advertising, importing/exporting or by any other mode or manner dealing with the impugned trade mark/label/packaging/trade dress Dhadi/Device of Ghari/Dhadi Maha Shaktishali and punch line/tag line " Pehle Istemal Karen Phir Vishwas Karen" or any other trade mark/label/packaging/trade dress and punch line indentical with or deceptively similar to the Plaintiff's said well known trade mark/label/packaging/trade dress Dhadi/Device of Ghari/Dhadi Maha Shaktishali in relation to the impugned goods namely detergent powder etc. and other allied and cognate goods or in relation to any other goods/products and/or services or from doing any other acts or deeds amounting to or likely to:
(i) infringement of the plaintiff's said well known trade mark/label/packaging/trade dress Dhadi/Device of Ghari/Dhadi Maha Shaktishali.
(ii) passing off or otherwise violation by way of passing off impugned goods of defendant as the said goods of plaintiff under the impugned trade mark/label/packaging/trade dress Dhadi/Device of Ghadi/Dhadi Maha Shaktishali and punch line " Pehle Istemal Karen Phir Vishwas karen".
(iii) Infringement of plaintiff's copyright in the artistic work involved in said well known trade mark/label/packaging/trade dress Dhadi/Device of Ghari/Dhadi Maha Shaktishali.
2. For delivery up of all the impugned finished and unfinished material of defendant bearing the impugned trade CS (Comm) No. 251 of 2019 8/9 mark/label/packaging/trade dress Dhadi/Device of Ghari/Dhadi Maha Shaktishali and punch line " Pehle Istemal karen Phir Vishwas karen" including any other logo/name/mark/label/packaging/trade dress identical with and deceptively similar to it including blocks and labels, display boards, sign boards, trade literature, advertisement material, wrapper, trade dress, packaging etc.
15. Decree sheet be prepared accordingly. After completion of formalities, file be consigned to record room.
Digitally signedSAVITA by SAVITA RAO Date: RAO 2022.11.14 15:55:53 +0530 Announced in the open (SAVITA RAO) court on this 11th day DISTRICT JUDGE of Nov 2022 (COMMERCIAL COURT)-04 SHAHDARA, KKD COURTS, DELHI CS (Comm) No. 251 of 2019 9/9