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Delhi High Court - Orders

Itc Limited vs Ajit Traders & Ors on 14 February, 2019

Author: Rajiv Sahai Endlaw

Bench: Rajiv Sahai Endlaw

$~15
*    IN THE HIGH COURT OF DELHI AT NEW DELHI
+    CS(COMM) 87/2019
     ITC LIMITED                                ..... Plaintiff
                   Through: Mr. Sai Krishna Rajagopala, Mr.
                              Sudeep Chatterjee, Ms. Nupur
                              Lamba, Ms. Aishwarya Chaturvedi &
                              Mr. Nitin Sharma, Advs.
                           Versus
     AJIT TRADERS & ORS                         ..... Defendants
                   Through: None.
     CORAM:
     HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
                   ORDER

% 14.02.2019 IA No.2335/2019 (for exemption)

1. Allowed, subject to just exceptions.

2. The application is disposed of.

CS(COMM) No.87/2019, IA No.2333/2019 (under Order XXXIX Rules 1 and 2 CPC) & IA No.2334/2019 (under Order XXVI Rule 9 and under Order XXXIX Rule 7 CPC)

3. The plaintiff has sued to restrain the defendant no.5 Rohit Verma from counterfeiting the packaging of „atta‟ sold by the plaintiff under the registered trade mark "AASHIRVAAD", by getting the packaging manufactured from the defendant no.6 Marudhara Polypack and selling the said counterfeit goods through the defendants no.1 to 4 viz. (i) Ajit Traders,

(ii) Mohit Confectionery, (iii) Makhija Store, and, (iv) Garg Trading Company.

4. Issue summons of the suit and notice of the application for interim relief to the defendants no.1 to 6 by all modes including dasti and electronic, returnable on 12th March, 2019.

5. The plaintiff, on the basis of averments made in the plaint and the documents filed therewith has also made out a case for grant of ex parte ad- interim injunction.

6. The defendants, till further orders, are restrained from manufacturing or getting manufactured, selling, offering for sale, advertising „atta‟ or any other product under the impugned packaging or any other deceptive variant thereof, including by using the trademarks/logos "AASHIRVAAD", "ITC" and / or their derivatives formatives and the identical or nearly identical / deceptively similar trade-dress / get-up / lay-out etc. of the plaintiff‟s "AASHIRVAAD" atta or any other mark or name, identical or deceptively similar to the plaintiff‟s trademarks / trade name / logo / corporate name in relation to any products / services as that of the plaintiff‟s or in any other form whatsoever, so as to result in violation of the plaintiff‟s statutory and common law rights thereby resulting in infringement, passing off, dilution etc.

7. It is the case of the plaintiff that the plaintiff, before the institution of the suit, on making enquiries learnt only of defendants no.1 to 4 selling the counterfeit goods; however the plaintiff is entitled to so restrain all others who may be found to be so dealing in counterfeit good and has thus impleaded as defendant no.7 „Ashok Kumar‟ to, from time to time add such others. The counsel for the plaintiff states that the plaintiff, in the interregnum between filing the suit and today, has learnt of:-

(i) Rajesh Kumar, next to Pradeep Vihar General Store, Gali No.2, B-Block, Pradeep Vihar, Burari, Delhi.

(ii) Sunil Kumar, Block No.11, Central Market, Kalyan Puri, Delhi.

(iii) Samar Store, Veer Bazar Road, Shyam Colony, Budh Vihar Phase-II, Delhi-110086.

(iv) Yash Kumar, Utsav Vihar, Mangal Bazar Road, Karala, Delhi-

110081.

also dealing in counterfeit goods and seeks restrain against them as well.

8. The aforesaid persons are permitted to be impleaded as defendants no.7 to 10. Amended memo of parties be filed within two days.

9. Needless to state, the ex parte ad interim order aforesaid is extended to the aforesaid defendants also.

10. The plaintiff has also made out a case for ex parte issuance of commission. The advocates mentioned below are issued commissions to visit the premises against their respective names and to:

Sl. Name of the Commissioners Premises to be visited No.

1. Mr. Anuj Agarwal, Advocate Ajit Traders, 60 Feet Road, Baba Mob.: 9811885242 Colony, Sant Nagar, Burari, Delhi-

110084.

2. Mr. Rohan Ganpathy, Advocate Rajesh Kumar, next to Pradeep Mob.:8826787980 Vihar General Store, Gali No.2, B-

Block, Pradeep Vihar, Burari, Delhi.

3. Mr. Shantanu Mathur, Advocate Mohit Confectionery, Main Road, Mob.:9908404810 Near Primary School, Mandawali, New Delhi.

4. Ms. Shreya Munoth, Advocate Makhija Store, Opposite Suhag Mob.: 9958498446 Jewellers, Main Road, Mandawali, Delhi-110092.

5. Ms. Tanya Tawakley, Advocate Sunil Kumar, Block No.11, Central Mob.: 9811405285 Market, Kalyan Puri, Delhi.

6. Ms. Chitvan Singhal, Advocate M/s Garg Trading Company, Mob.: 9920814714 Rithala Road, Budh Vihar Phase-2, Delhi-110086.

7. Mr. Shlok Chandra, Advocate Samar Store, Veer Bazar Road, Mob.:09999670588 Shyam Colony, Budh Vihar Phase-

II, Delhi-110086.

8. Ms. Keerty Grover, Advocate Yash Kumar, Utsav Vihar, Mangal Mob.: 8800486677 Bazar Road, Karala, Delhi-110081.

9. Mr. Shivansh Soni, Advocate Shyam Flour Mill, I-264, Sector-3, Mob.:9575622146 Bawana Industrial Area, New Delhi-110 039.

10. Mr. Adit, Advocate Marudhara Polypack, F-458, Mob.:9999890679 Sector-63, Noida.

(i) report whether any goods/packaging under the mark "AASHIRVAAD" or any other deceptively similar mark and bearing the name and logo of the plaintiff and identical or similar to the packaging of the plaintiff as detailed in the plaint and copy of which be supplied by the plaintiff to the commissioners, are found therein.

(ii) if any such goods are found, to make an inventory of the same and to take into custody the said goods, packaging material, bags, stationary, brochures, pamphlets, signboards, dyes, moulds etc. used for counterfeiting and to seize the same.

(iii) take into custody, seize and sign all books of accounts of the defendants including ledgers, cash books, purchase, sale records, bill books and all other relevant documents etc. pertaining to the sale of impugned goods found in the premises aforesaid and to prepare an inventory thereof.

(iv) return the seized infringing goods to the defendants or its representatives on superdari upon him/her furnishing an undertaking that he/she will produce the goods when called upon to do so by this Court.

(v) prepare mirror images of the CCTV footage if any recorded from the CCTVs cameras installed at any of the premises aforesaid on a hard disk to be provided by the plaintiff and to along with the report with an inventories aforesaid also submit before this Court the hard disk.

(vi) break open locks and doors for execution of the commission.

(vii) pre-emptively seek police assistance and protection to enable execution of the commission/s.

(viii) demand the disclosure of the other premises where the infringing goods are sourced, stocked and sold by the defendants and visit such premises, and carry out the directions as enumerated herein.

(ix) demand the disclosure of the place of manufacturing, printing, packaging of the defendants‟ products and visit such premises, and carry out the directions as enumerated herein.

(x) visit any other premises of the defendants named hereinabove and any other party/un-named defendant/John Doe(s)/Ashok Kumar(s) where such counterfeit products are stocked/sold and to carry out the directions as enumerated hereinabove.

11. The Commissioners shall also be entitled to have the commission proceedings videographed / photographed with the assistance provided by the plaintiff.

12. The Station House Officers within whose jurisdiction the premises aforesaid are situated are directed to, on assistance being sought by the Commissioners, render all assistance necessary for execution of the commission.

13. The representatives of the plaintiff shall be entitled to accompany the commissioners.

14. The report be submitted within one week of execution of the commission.

15. The fee of each of the Commissioners is fixed at Rs.1 lac, besides out of pocket expenses.

16. Commission be executed without notice to the defendants or the persons incharge of any of the premises aforesaid.

17. IA No.2333/2019 is disposed of.

18. The provisions of Order XXXIX Rule 3 be complied with at the time of execution of the commissions or within 24 hours thereof.

Dasti under signature of Court Master.

RAJIV SAHAI ENDLAW, J FEBRUARY 14, 2019 „gsr‟..