Delhi District Court
M/S Dfm Foods Ltd vs M/S Annapurna Agro on 12 January, 2022
DLCT010004272021
IN THE COURT OF DISTRICT JUDGE (COMMERCIAL COURT)-
01,
CENTRAL, TIS HAZARI COURTS, DELHI
PRESIDED BY: MR. BHARAT PARASHAR
IN THE MATTER OF:
CS (Comm.) No. 137/21
M/S DFM FOODS LTD.
8377, ROSHANARA ROAD,
DELHI-110007
.....PLAINTIFF
VERSUS
M/S ANNAPURNA AGRO
INDUSTRIES
1ST FLOOR, 135, J.N.S.C. BOSE ROAD
RANIKUTHI, NEAR RANIKUTHI
MORE
KOLKATA-700040
ALSO AT :-
GIRMINT ROAD MAJIARA
PLOT J.L. 43, P.S. ASANSOL
PASCHIM BARDHAMAN-713301
WEST BENGAL
MOB. 9163306435 ...DEFENDANT
CS (Comm.) No. 137/21 Page 1 of 15
Date of Institution : 12.01.2021
Date of reserving judgment : 14.12.2021
Date of Judgment : 12.01.2022
JUDGMENT
1. The plaintiff M/s DFM Foods Ltd. filed the present suit seeking a decree of perpetual injunction against defendant M/s Annapurna Agro Industries so as to restrain defendant and persons claiming under him from infringing the trademark and/or copyright of the plaintiff and also for delivery up, damages and rendition of accounts etc. Plaintiff's Case
2. Briefly stated the case of plaintiff as stands emanated from the plaint is as under:
The plaintiff i.e. M/s DFM Foods Ltd., is a Limited company engaged in the business of manufacturing and trading of various food items for human consumption including flour and preparations made from cereals, snacks foods, cereal based snack food and chips, rice chips, potato chips, corn based snacks, whole grain based snack foods, bread, biscuits, cakes, pastry, namkeen, confectionary, tea, rice etc.
3. The plaintiff company claims to be manufacturing its various goods under the trade mark "CURLS". The said trade mark was stated to have been used by one Mr. Tarun Kumar Singla since January, 2016 and registration of the trade mark is stated to have been applied under no. 3164035 dated 20.01.2016 in respect of various food items such as breads, pastries, muffins, donuts, sauces, seasoning, biscuits, rice, coffee etc. After CS (Comm.) No. 137/21 Page 2 of 15 registration, the trade mark is stated to have been assigned by Mr. Tarun Kumar Singla in favour of one Mr. Sanjay Gupta vide assignment deed dated 11.11.2017. Thereafter, the said trade mark is stated to have been further assigned in favour of plaintiff company M/s DFM Foods Ltd. by said Mr. Sanjay Gupta vide assignment deed dated 29.11.2017. Thus, the plaintiff company is stated to be a registered proprietor of the registered trade mark "CURLS" under no. 3164035 in the register of Trade Marks and accordingly claims to be a user of the said trade mark "CURLS" since 2016.
4. The plaintiff company also claims to have adopted trademark "Crax Curls" since the year 2016 and has been using the same in respect of the corn based snack foods being manufactured by it, openly, continuously and extensively. The trademark "Crax Curls" thus is stated to be registered under no. 3667345 dated 01.11.2017 in respect of corn based snack foods included in class 30. The said registration is also stated to be valid and subsisting in full force.
5. The plaintiff company also claims to have developed its own pack- aging of "Crax Curls" with label/logo "Curls" in a special style, design, font, writing style etc. and the same is also stated to be the original artistic work of the plaintiff company and thereby the copyright in the same is also stated to be vesting in the plaintiff. The said artistic work/packaging is also stated to be having a unique colour combination of blue, red and yellow colour. The plaintiff thus also claims itself to be the registered owner of the copyright in the packaging having been registered under no.
CS (Comm.) No. 137/21 Page 3 of 15A-131999/2019 under the Copyright Act, 1957 before the Registrar of Copyrights.
6. Sample packaging being used by plaintiff and depicting the said colour combination and the style font showing the artistic nature of the copyright and trade mark have also been annexed with the plaint.
7. It has been thus claimed that no other person/firm/company has any right to sell identical goods under the trade mark "Curls" and/or "Crax Curls" or to use any packaging having same or similar label/logo or colour combination which may be deceptively similar to the mark and/or packaging of the plaintiff, without its permission. The plaintiff also claims to have earned good reputation and large market share on account of its superior quality of products and the public at large Identifies the said goods being sold under the said label/logo and packaging to be associated with the plaintiff company. The plaintiff also claims to have spent sub- stantial amount on publicity of its said goods under the trade mark "Curls" and/or "Crax Curls". The sale figures carried out by the plaintiff under the trade mark "Curls" and/or "Crax Curls" over a period of time have been mentioned in the plaint as under:
Financial Year Amount (In Rs Lakhs)
2018-19 16199
2019-20 16024
2020-21 9646
Defendant's Role
CS (Comm.) No. 137/21 Page 4 of 15
8. It has been further stated that in the first week of October, 2020, plaintiff came to know that the defendant is selling identical goods in iden- tical/deceptively similar packaging having identical mark/label. Accord- ingly, plaintiff issued a legal notice dated 09.10.2020 inter-alia calling upon the defendant to desist forthwith from using the impugned packaging and label/logo on his goods. In response thereto, the defendant is stated to have sent a false and misleading reply dated 19.12.2020 wherein he falsely claimed to have never manufactured and/or sold puffed corn snacks in identical packaging and/or identical logo as claimed in the notice sent by the plaintiff. It was however also stated in the reply that while defendant had no knowledge or information about the products of plaintiff but even otherwise defendant has stopped production of wheat flour puffs since Sep- tember, 2020 and has no intention to manufacture the same.
9. It has been however further stated in the plaint that as per the knowl- edge of plaintiff, defendant is still continuing to sell identical goods in identical/deceptively similar packaging having identical mark/label logo 'Curls' pirating the trademark "Curls" and/or "Crax Curls" of plaintiff in open market and also through famous e-commerce website such as www.indiamart.com. Print out of the relevant web page of the e-marketing websites reflecting the goods of plaintiff as available for sale has also been placed on record.
10. It is in these circumstances stated that defendant is guilty of infringe- ment of the plaintiff's trade mark "Curls" and/or "Crax Curls", since he has adopted and is using identical/deceptively similar packaging having CS (Comm.) No. 137/21 Page 5 of 15 identical mark/label in relation to identical goods with dishonest, malafide and ulterior motive to earn profits in an illegal manner by passing off his goods and business as that of the plaintiff. The plaintiff thus filed the present suit seeking decree of perpetual injunction so as to restrain defen- dant and persons claiming under him from infringing the trademark and/or copyright of the plaintiff and also for delivery up, damages and rendition of accounts.
Proceedings before the Court
11. After summons of the suit and notice of the application under Order XXXIX Rule 1 and 2 CPC filed alongwith the suit were issued to defendant then on 01.04.2021 one counsel Mr. Riju Mani Talukdar appeared on behalf of defendant and filed the memo of appearance.
12. Subsequently on 26.07.2021 one other counsel namely Mr. Rit Arora appeared on behalf of defendant but it was noticed that no written statement was yet filed on behalf of defendant. The matter came to be adjourned to 11.08.2021 but again on that date none appeared on behalf of defendant. Accordingly on the request of Ld. Counsel for plaintiff arguments on the application under Order XXXIX Rule 1 and 2 CPC were heard and matter was adjourned for orders to 17.08.2021. However, on 17.08.2021 the earlier counsel Mr. Riju Mani again appeared on behalf of defendant and sought adjournment to address arguments on the application under Order XXXIX Rule 1 and 2 CPC. No written statement was however yet filed on behalf of defendant. Detailed observations regarding the conduct of defendant in contesting the present matter were made in the CS (Comm.) No. 137/21 Page 6 of 15 order dated 17.08.2021 while disposing of application under Order XXXIX Rule 1 and 2 CPC in favour of plaintiff. The relevant portion of the said order dated 17.08.2021 read as under :
Order dated 17.08.2021 " 13. Upon institution of the suit, summons of the suit and notice of the application under Order XXXIX Rule 1 and 2 CPC were ordered to be issued to the defendant. Finally, on 01.04.2021, one counsel Mr. Riju Mani Talukdar appeared on behalf of defendant and filed memo of appearance. Thereafter, on 26.07.2021, one proxy counsel Mr. Rit Arora, appeared on behalf of defendant but it was noticed that no written statement has yet been filed on behalf of defendant. The matter then came to be adjourned to 11.08.2021 but on that date none appeared on behalf of defendant. It was in these circumstances, Ld. Counsel for plaintiff requested that as the defendant is deliberately delaying the matter and in the process harming the business interests of plaintiff, so his application under Order XXXIX Rule 1 and 2 CPC may be disposed off.
14. Thus, keeping in view the overall facts and circumstances of the case and the conduct of defendant in prolonging the proceedings, it was deemed appropriate to hear arguments on the present application.
Arguments on the application were accordingly heard on 11.08.2021 and matter was adjourned for today for pronouncement of or- ders.
15. During the course of arguments, Ld. Counsel for plaintiff pointed out that from the reply dated 19.02.2020 sent by defendant to the notice dated 09.10.2020 of the plaintiff (reply has been placed on record along-
with plaint), it is clear that defendant has not disputed the trade mark or copyright of the plaintiff in the goods manufactured by the plaintiff and has simply claimed ignorance about the trade mark or copyright of plaintiff. Defendant however further stated in his reply that he has since CS (Comm.) No. 137/21 Page 7 of 15 stopped manufacturing said goods even prior to receiving the legal no- tice of plaintiff. It was however submitted by Ld. Counsel for plaintiff that from the documentary evidence placed on record by him viz., the print out of webpage of e-marketing sites and also from the photo- graphs of the packaging (including one actual packaging material) used by defendant with respect to his goods, it is clear that defendant has been using identical/deceptively same/similar mark/logo as that of the plaintiff on identical goods and thereby harming the business interests of plaintiff while also earning undue profits. It was also submitted that as per the in- formation gathered by plaintiff the defendant was still continuing with his said activities and thus in order to protect the genuine business inter- ests of plaintiff, it is imperative that defendant or any one claiming under him are forthwith restrained from using same/similar mark/logo which are identical/deceptively same/similar to that of the plaintiff on identical nature of goods.
16. However, today, i.e. on 17.08.2021 though in the morning, Ld. Counsel for plaintiff appeared but subsequently, one counsel Sh. Riju Mani also appeared on behalf of defendant and again sought sometime to file written statement. He was accordingly informed that he is well within his rights to file written statement within the statutory period. He was however also apprised that the order on the application under Order XXXIX Rule 1 and 2 CPC as well as on another application under Order XI Rule 1 (5) read with Order VII Rule 14 and Section 151 CPC shall be announced today during the course of day."
13. The matter was accordingly adjourned to 04.10.2021 with direction to defendant to file the written statement within the statutory period. However, again on 04.10.2021 when despite repeated calls none appeared on behalf of defendant so he was ordered to be proceeded ex-parte and CS (Comm.) No. 137/21 Page 8 of 15 matter was adjourned for recording ex-parte plaintiff's evidence to 08.11.2021. Accordingly on 08.11.2021 plaintiff company in order to prove its case examined PW-1 Mr. Raju Singh Tomer, the company secretary of plaintiff company.
14. In his deposition PW-1 Raju Singh Tomer beside tendering his affidavit Ex. PW-1/A towards his examination in chief also proved the following documents :
Sr. No. Documents Exhibits
1. Board resolution dated 10.02.2020 Ex.PW-1/1.
2. Certified copy of the entry in the Register Ex.PW-1/2.
of Trade Marks relating to registered trade mark no.3164035 in Class 30
3. Certified copy of the entry in the Register Ex.PW-1/3 of Trade Marks relating to registered trade mark no.3667345 in Class 30
4. True copy of copyright registration Ex.PW-1/4 certificate under no. A-131999- 2019
5. Sale invoices Ex.PW-1/5 to Ex.
PW-1/13
6. Copy of advertisement bills Ex.PW-1/14 to Ex.
PW-1/17 (OSR)
7. Office copy of legal notice dated Ex.PW- 1/18 09.10.2020
8. Reply dated 19.12.2020 of legal notice Ex.PW-1/19 dated 09.10.2020
9. Print out of web page pertaining to listing Ex. PW-1/20 CS (Comm.) No. 137/21 Page 9 of 15 of the defendant's product under the mark CURLS on the wesite www.indiamart.com
10. Print out of web page pertaining to listing Ex. PW-1/21 of the defendant's product under the mark CURLS on the website www.youtube.com
11. Print out of photograph of the front and Ex.PW-1/22 to back page of the defendant's packaging Ex.PW- 1/23 CURLS
12. Original packaging of the defendant''s Ex.PW-1/24 product showing front portion thereof
13. Original packaging of the plaintiff's Ex.PW-1/25 product showing front portion thereof
14. Original packaging of the plaintiff's Ex.PW-1/26 product showing back portion thereof
15. Original packaging of the defendant's Ex.PW-1/27 product showing back portion thereof
16. Certificate under Section 65-B of Indian Ex.PW-1/28 Evidence Act bearing my signatures at point A on each of the three pages and also at point B on page no. 3 The plaintiff evidence was thereafter closed on 08.11.2021.
15. Ld. Counsel for plaintiff while submitting that subject matter of the suit is a Commercial Dispute as defined under Section 2(1)(c) of The Commercial Courts Act, 2015 also submitted that there is no legal impediment in the suit which may prohibit decreeing of the suit in favour CS (Comm.) No. 137/21 Page 10 of 15 of plaintiff company. He also pointed out that in support of all the printouts taken out from various websites through internet the necessary certificate under Section 65B of the Indian Evidence Act, 1872 has also been filed on record alongwith the plaint itself.
16. In support of his submissions Ld. Counsel for plaintiff also relied upon the following case laws :
a) Frito-Lay India & Ors. Vs. Radesh Foods & Anr., 2009 (40) PTC 37 (Del.)
b) Indofill Organic Industries Ltd. Vs. Mr. Amar Vakil & Ors., 2011 (46) PTC 395 (Del.)
c) Lachhman Das Behari Lal Vs. Ghanshyam Das Jetha Nand & Ors., 2007 (35) PTC 693 (Del).
d) Adobe System, Inc & Anr. Vs. Mr. Mahindra Saxena & Anr., CS (OS) No. 782/2002 decided on 07.07.2009 by Hon'ble Delhi High Court.
17. I have heard the arguments and carefully perused the record.
18. From the proceedings conducted in the present matter as have been reproduced above, it is clear that defendant deliberately chose not to participate in the present proceedings despite having due knowledge of the pendency of the present suit. In fact the intention on the part of defendant appeared to be that of lingering on the matter. It is crystal clear from the proceedings that defendant deliberately chose not to file any written statement and deliberately chose not to contest the claim of plaintiff company. Thus, as the defendant was proceeded ex-parte so the evidence led by the plaintiff company remained completely uncontroverted on record. Further, by way of evidence led by plaintiff duly supported by CS (Comm.) No. 137/21 Page 11 of 15 various documents including pictures of plaintiff's products and registration of its trademark and copyright, I do not find any reason to disbelieve the claim of plaintiff either as regard user of its mark "CURLS" and "Crax Curls" and also its artistic work / logo "CURLS since long. I have also no reason to disbelieve that plaintiff company products are well reputed and recognized among the public and members of trade and has therefore acquired exclusivity, goodwill and reputation.
19. While a civil case proceeds on the doctrine of preponderance of probabilities and not on proof beyond reasonable doubt, but keeping in view the overall facts and circumstances of the present case, coupled with the evidence led on record, I am left with no doubts whatsoever that the plaintiff has been successful in establishing its case entitling him for grant of a decree of perpetual injunction in its favour and against the defendant.
20. At this stage, it will be pertinent to mention that on 12.01.2022 Ld. Counsel for plaintiff company Mr. Ashok Goel also sent an email on the official email ID of the Court submitting that the plaintiff is not pressing for the relief of delivery of infringing goods or of rendition of accounts as prayed for under para 32 (iii) and (iv). A printout of the email communication has been placed on record.
Final Order Decree of Perpetual Injunction.
21. On the basis of pleadings and documents on record coupled with the uncontroverted deposition of PW-1 Mr. Raju Singh Tomer which inspires CS (Comm.) No. 137/21 Page 12 of 15 confidence and also due to lack of any evidence on behalf of defendant to the contrary, the present suit is liable to be decreed. Accordingly, a decree of perpetual injunction is granted in favour of plaintiff and against the defendant in terms of para no. 32 sub clause (i) and (ii) of the plaint.
For the purposes of ready reference, the aforesaid para no. 32 sub clause (i) and (ii) have been reproduced hereunder:-
(i) Pass Decree of perpetual injunction restraining the Defendant, their agents, employees, dealers, representatives and all other persons acting on their behalf from using the impugned mark/logo CURLS or any other mark/lable/logo which is deceptively similar to the plaintiff's registered trade mark CURLS and CRAX CURLS in relation to flour and preparations made from cereals, cereal based snack food, chips, corn based snacks, whole grain based snack foods, bread, biscuits, cakes, pastry, namkeen, confectionary, tea, rice and /or allied/cognate goods and/or goods having same trade connection or any other goods amounting to infringement of the Plaintiff's trade mark CURLS and CRAX CURLS ;
(ii) Pass Decree of perpetual injunction restraining the Defendant, their agents, employees, dealers, representatives and all other persons acting on their behalf from reproducing, publishing and/or visual representation in any manner of the impugned packaging CURLS and label/logo CURLS or any other label/logo/packaging which is deceptively similar/substantial reproduction to the plaintiff's said packaging CRAX CURLS and/or logo CURLS respectively amounting to infringement of the plaintiff's copyright in its artistic work/packaging CRAX CURLS and artistic work/logo CURLS respectively.
Delivery up and rendition of accounts
22. However, as regard prayer clause 32 (iii ) & (iv) respectively for CS (Comm.) No. 137/21 Page 13 of 15 delivery of infringing goods and rendition of accounts, the suit of the plaintiff is disposed off as not pressed.
Damages
23. Ld. Counsel for plaintiff has pressed for awarding three types of damages as under :-
a) Nominal damages.
b) Compensatory damages / i.e. compensating for loss.
c) Punitive damages for deterring wrong doer ; and damages on account of reputation.
24. Certainly from the overall facts and circumstances of the case it is clear that the defendant committed the impugned act of infringement willfully and intentionally in flagrant violation of the plaintiff's established rights in its copyright and trademark. It is also clear from the conduct of defendant during the course of present proceedings that he intentionally on one pretext or the other attempted to linger on the proceedings. The defendant certainly cannot be permitted to enjoy the fruits of his conduct in not only indulging in acts of infringement but by also playing dilli-delaying tactic during the present Court proceedings. Such kind of party needs to be discouraged.
Thus, in my considered opinion the plaintiff company is certainly entitled to compensatory and nominal damages beside being entitled to punitive damages.
25. Though, plaintiff company has prayed for damages to the tune of ₹ 3,00,100/- but in the overall facts and circumstances of the case it will be CS (Comm.) No. 137/21 Page 14 of 15 difficult to arrive at any exact calculation of damages suffered by plaintiff on account of the acts of defendant. I am however of the considered opinion that keeping in view the sale figures of the products of plaintiff as mentioned in the plaint, the interest of justice would be well served if damages to the tune of ₹ 1,50,000/- (Rupees One Lakh and Fifty Thousand only) are awarded in favour of plaintiff to be paid by defendant.
Costs
26. The plaintiff company shall be entitled to the costs of the suit as well, as per rules. Certificate of counsel fee (if any submitted) be taken into reckoning while computing the costs.
27. Decree sheet shall be drawn accordingly.
Copy of the Judgment
28. In compliance of the provisions of Order XX Rule 1 of the Code of Civil Procedure (as amended up-to-date by the Commercial Courts Act, 2015) a copy of this judgment be issued to all the parties to the dispute through electronic mail, if the particulars of the same have been furnished, or otherwise.
29. File be consigned to Record Room.
Announced in the open court on 12.01.2022.
(Bharat Parashar) District Judge (Commercial Court)-01 Central District, Tis Hazari Courts,Delhi CS (Comm.) No. 137/21 Page 15 of 15