Delhi District Court
Rspl Ltd vs Nikunj Traders And Ors on 7 December, 2024
IN THE COURT OF MS. KIRAN BANSAL, DISTRICT JUDGE,
COMMERCIAL COURT-02, SHAHDARA DISTRICT,
KARKARDOOMA COURTS, DELHI
CS (COMM) No.437 OF 2021
IN THE MATTER OF:
M/S RSPL HEALTH PRIVATE LIMITED
119-121, Part-P, Block P&T
Fazalganj, Kanpur, U.P. - 208012
CORPORATE OFFICE AT:
3rd Floor, C-1, 2 and 3
Netaji Subhash Place
Wazirpur District Centre
Pitampura, New Delhi-110034
.....Plaintiff
Versus
1.SITA SINGH Trading as Nikunj Traders 548, Hathilal Laxmi Colony, Ward 10, Gupteshwar, Jabalpur, Madhya Pradesh - 482001 Whatsapp No.: 9685985991 E-mail : [email protected] .....Defendant No.1
2. FACEBOOK INC H.Q. Office at- 1, Hacker way Menlo Park, California, United States-94025 E-mail: [email protected], [email protected] .....Defendant No.2
3. KOTAK MAHINDRA BANK (HEAD OFFICE) Through its Managing Director & CEO CS(COMM) No. 437/2021 M/s RSPL Ltd. Vs. Nikunj Traders & Ors. Page 1 of 30 Add.: 27 BKC, C 27, G Block, Bandra Kurla Complex, Bandra (E) Mumbai, Mumbai City, Maharashtra-400051 Also at:
Zone 2, Building No.21, Infinity Park, 8th Floor, General A.K. Vaidya Marg, Malad East, Mumbai-400097, Opp. Western Express Highway E-mail : [email protected] .....Defendant No.3
4. KOTAK MAHINDRA BANK (BRANCH OFFICE) IFSC Branch Code: KKBK0005922 MICR Code: 482485001 Through its Authorized Branch Manager Add. : Chattrapati Bawan Building, H.No.846, Niwardganj Extension, Wright Town, Jabalpur-428001 E-mail : [email protected] Ph.No./Fax- 022 66466907, 67594840 .....Defendant No.4 Date of Institution 30.10.2021 Date of reserve the judgment 19.11.2024 Date of judgment 07.12.2024 Conclusion Decreed EX-PARTE JUDGMENT
1. Vide this judgment, this Court shall dispose of the present commercial suit filed by the plaintiff Comapny (M/s RSPL Ltd.) in favour of defendant for permanent injunction, restraining infringement, passing off, delivery up, damages etc. CS(COMM) No. 437/2021 M/s RSPL Ltd. Vs. Nikunj Traders & Ors. Page 2 of 30
2. Shorn off unnecessary details, the case of the plaintiff is that the plaintiff has filed present suit under Sections 134 and 135 of the Trademarks Act, 1999 and Section 55 of the Copyright Act, 1957 for permanent injunction, restraining infringement, passing off, delivery up, damages etc. stating that the plaintiff is a duly incorporated company and has authorized Mr. Manoj Singh, DGM-Legal to sign and verify the pleadings as authorized vide board resolution. It is further stated that the plaintiff is engaged in the business of manufacturing and marketing of washing soap, detergent powder, detergent cake, salt, shampoo, hair oil, toothpaste, moisturizer, shaving cream, liquid handwash, floor cleaner, liquid detergent, toilet cleaner and other allied and cognate goods (referred to as the "Said Business and Goods" respectively).
3. In the year 1955, plaintiff had adopted and started using the trademark device DEVICE OF GHARI/WATCH/CLOCK in relation to soap and had also adopted and started using the trademark/label of GHARI/GHADI along with Device of GHARI/WATCH/CLOCK for washing soap in 1975, for detergent cake in 1988 and for detergent powder in the year 1990 and have used the same openly and extensively. It is stated that the plaintiff also coined/conceived and adopted the trademark/label/punch line/tag line/literary work "PEHLE ISTAMAL KARE FIR VISHWASH KARE" (hereinafter referred to as "Said Tagline/Punch Line") in the year 1988 for detergent cake and detergents powder and other allied goods. It is further stated that with passage of time, the business activity of the plaintiff also expanded into various other goods and services i.e. cosmetics, FMGC, Footwear, Wind Energy, Real Estate, Dairy Products. It is stated that the said business activity of the plaintiff has been expanding in nature. It is stated that the trade mark/labels GHARI/GHADI Label bears original artistic features of placement, distinctive getup, makeup, lettering style etc. and the popular punch line is also used along with the Trademark/Label. It is stated that the word GHARI/GHADI along CS(COMM) No. 437/2021 M/s RSPL Ltd. Vs. Nikunj Traders & Ors. Page 3 of 30 with the device of GHARI/WATCH/CLOCK as well as the punch line "PAHLE ISTEMAL KAREN FIR VISWASH KAREN" and the artistic features involved in the said trade mark/label are both individually as well as collectively essential, material and distinguishing features of the said trademark GHARI/GHADI/label.
4. The details of the predecessor of the plaintiff company is stated in para 5 of the plaint and according to the same in the year 1955 L.Shobha Ram, L. Roshan Lal, L. Ram Dhan & Ashok Kumar trading as M/s Roshan Lal Ashok Kumar, Khail Bazar, Panipat had adopted the trademark of DEVICE OF GHARI/WATCH/CLOCK in relation to soap. They also applied for registration of trademark DEVICE OF GHARI/WATCH/CLOCK in relation to soap under no. 170277 in class 03 as proposed to be used and subsequently the trademark was got registered in the name of M/s Roshan Lal Ashok Kumar. Thereafter, chain of assignments have been effected in the said trademark which were duly recorded in the Trade Marks Office and lastly the said trademark was assigned to M/s Mahmood Ahmed trading as M/s Mahmood Abbas & Brothers, 529, Attala, Allahabad (U.P.) under a deed of assignment dated 08.09.1972 & 15.03.1988 and thereafter, vide the deed of assignment dated 20.10.1999 it came to be assigned to the M/s Kanpur Trading Company Private Limited. Thereafter, M/s Kanpur Trading Company Private Limited was registered as subsequent proprietor vide request made on form TM-23 dated 15.10.1999 which was allowed vide order dated 25.10.1999. It is stated that the trademark is registered, legal and subsisting. It is further stated that in the year 1979, Mr. Dayal Dass, Murli Dhar, Trading as M/s Manoj Soap Works, 123/54 Saresh Bagh, Kanpur adopted the trademark DEVICE OF GHARIWATCH/CLOCK in relation to washing soap. They have also applied for registration of trademark DEVICE OF GHARIWATCH/CLOCK in relation to soap under no. 345492 in class 03 as proposed to be used and thereafter, the CS(COMM) No. 437/2021 M/s RSPL Ltd. Vs. Nikunj Traders & Ors. Page 4 of 30 trademark was registered. There was disclaimer condition attached to the said registered trademark that "Registration of this trade mark shall give no right to the exclusive use of the numerals appearing on the mark".
5. It is stated that M/s Manoj Soap Works also assigned the said trademark DEVICE OF GHARI/WATCH/CLOCK in favour of M/s Kanpur Detergents & Chemicals Private Limited, 122/623, Shastri Nagar, Kanpur vide deed of assignment dated 06.11.1987 and thereafter, under a deed of assignment dated 26.10.1991, it came to be assigned to the M/s Kanpur, Trading Company Private Limited and thereafter M/s Kanpur Trading Company Private Limited was registered as subsequent proprietor vide request made on form TM-24 dated 28.06.1994 which was allowed vide order dated 08.09.1994. The said details are also stated in the plaint as to how the plaintiff has acquired the registered trademark which is not reproduced herein for the sake of brevity. It is further stated that plaintiff has honestly and bonafidely adopted and is using the trademark GHARI/GHADI /label along with the trade name/corporate name RSPL and is the owner and proprietor of the same.
6. It is stated that the plaintiff has filed various applications for registration of trademark GHARI/GHADI along with the Device of GHARI/ WATCH/CLOCK in Classes 01 to 42 under the provisions of the Trade Marks Act, 1999 in India including Class 03. However, the plaintiff, in order to protect its well-known and reputed Trade mark/Corporate name had applied for the registration to the Trade Mark authorities in the year 2009. The status of the trademark/label has been given in a separate list and the status of the trademark registration certificate has also been annexed separately along with plaint. It is stated that the plaintiff represents its GHARI/GHADI label in an artistic manner including its getup, lettering style, colour combination and pattern of letters, overall colour scheme of the package, placement of words, slogan, CS(COMM) No. 437/2021 M/s RSPL Ltd. Vs. Nikunj Traders & Ors. Page 5 of 30 punch line, etc. and the art work involved in the plaintiff's trade mark/label and exclusive. It is further stated that the plaintiff has applied in form TM 60 for getting NOC for registration of the said artistic work and label with the registrar of Copyright. It is stated that the artistic work involved in the plaintiff's trademark is an original art work with the Copyright Act, 1957 and registered under Copyright Act. It is stated that the goods of the plaintiff are sold and distributed in major parts of the country and also within the territorial jurisdiction of this Court. It is stated that the said trade mark i.e. DEVICE OF GHARI/WATCH/CLOCK has already become distinctive and associated with the plaintiff and the plaintiff's goods. It is stated that in the year 2002, the plaintiff adopted domain name of its trademark www.gharidetergent.com and in the year 2007 further adopted domain name www.rspl.net.in. It is stated that the website of the plaintiff has various visitors and wide spectrum of business and services and the plaintiff is using the said domain website not only to display its said products but also is using it as a tool to carry out its business and the website of the plaintiff is interactive in nature. It is stated that the plaintiff has also registered itself on the portal of GST and has obtained the GSTIN No.23AADCS7820A1ZV and is using the same for all its business activities.
7. It is stated that the plaintiff has been continuously promoting the business & goods under the trademark/label along with its trademark GHARI/GHADI along with the Device of GHARI/WATCH/CLOCK through different means and modes including visual, audio and print media i.e. through advertisement in leading newspapers, magazines, advertisement in televisions, trade literatures, trade hoardings and boards etc. It is further stated that the plaintiff has already spent enormous amounts of money on its publicity. In consequence thereof and having regard to the aforesaid including to the excellent quality and the high standards of the plaintiff's product, the trade CS(COMM) No. 437/2021 M/s RSPL Ltd. Vs. Nikunj Traders & Ors. Page 6 of 30 level of the plaintiff enjoys solid, enduring and first class reputation in the markets and the said label of the plaintiff is the indispensible identity of the plaintiff well known product Ghadi detergent. The famous Bollywood Actor/celebrity Mr. Amitabh Bachchan does promotion and advertisement of the Brand GHADI detergent. As a result of such long use and quality of services, the plaintiff's trademark/label are extremely popular among the customers and are counted among one of the top brands in its category of interest that excel in quality.
8. As per plaint, the plaintiff is a company duly incorporated under the provisions of the Companies Act 1956 and is engaged in the business of manufacturing and marketing of washing soap, detergent powder, detergent cake, salt, shampoo, hair oil, toothpaste, moisturizer, shaving cream, liquid handwash, floor cleaner, liquid detergent, toilet cleaner and other allied and cognate goods (referred to as the "Said Business and Goods" respectively).
9. The plaintiff has honestly and bonfidely adopted and is using its trademark GHARI/GHADI/label (referred to as the said GHARI/GHADI label). The plaintiff is the owner and proprietor of the same. The plaintiff represents its GHARI/GHADI label in an artistic manner in its getup, lettering style, overall colour scheme of the package , placement of words, slogan, punch line, artistic features etc. Since the adoption of the said GHARI/GHADI trade dress / packaging the plaintiff has been continuously and uninterruptedly using and reproducing all its copyrights in the course of its trade and business and is, therefore, commercially using the same. The plaintiff also adopted the domain name of its trademark www.gharidetergent.com in the year 2002 and it also displays its said product under the said trademark/ label and also the device of GHARI/WATCH/CLOCK on the internet through its website under the domain name namely www.gharidetergent.com.
CS(COMM) No. 437/2021 M/s RSPL Ltd. Vs. Nikunj Traders & Ors. Page 7 of 3010. It is alleged that the defendant No.1 to the knowledge of plaintiff is engaged in the business of detergent powder, detergent cake, soap and allied / related goods (hereinafter referred to as "impugned goods"). Defendant no.2 is a Social media platform which operates and hosts Facebook services and is the relevant data controller for users of Facebook services. Defendant no.2 enables its users to upload content in the nature of posts, photos and videos as well and share the same electronically with other users. It is alleged that one facebook user namely Shri Shekhar Pagare has posted and circulated a message containing the images of plaintiff's product under the said trademark/label/trade dress on a facebook group namely ALL INDIA FMCG GROUP and have availability of GHARI/GHADI detergent powder on a wholesale rate which is being operated on the portal of defendant no.2 under the weblink/URL https://www.facebook.com/ groups/ 1473861859467243/ user/10000493127821. However, the actual details of original content holder/owner of the impugned facebook URL/Weblink is not known to plaintiff. Defendant no.2 has been impleaded as a proforma party for the purpose of executing the orders of the court.
11. Defendant no.3 is an Indian banking and financial services company headquartered in Mumbai and defendant no.4 is the branch office of defendant no.3 situated at Jabalpur. Both defendant nos. 3 and 4 are also proforma parties for the purpose of executing the orders of the court.
12. On getting complaint about the quality of products under the trademark/label/packaging/trade dress GHARI/GHADI of plaintiff from one of their suppliers based at Shahdara, New Delhi, who apprehended that the same could be duplicate product of plaintiff's well-known trademark/label/ packaging/trade dress GHARI/GHADI, the plaintiff launched inquiries through CS(COMM) No. 437/2021 M/s RSPL Ltd. Vs. Nikunj Traders & Ors. Page 8 of 30 various agencies which resulted into revelation of impugned facebook post of defendant no.1 under impugned facebook URL/Weblink wherein defendant no.1 is clandestinely impersonating himself as authorized distributor of plaintiff company and openly interacting with and inviting the prudent retailers, shopkeepers, wholesalers and general public and further offering and selling them the counterfeit/duplicate GHARI/GHADI detergent powder across the country at a huge discounted price as compared to the market price of plaintiff's detergent powder.
13. It is alleged that the in-house brand protection team of plaintiff started their investigation and placed enquiries through one of their distributor/dealer namely Rajesh Trading to the owner/content holder of the impugned facebook post under the impugned facebook URL/Weblink. The said dealer / distributor of the plaintiff deliberately and willfully placed test order with defendant no.1 consisting various variants of plaintiff's detergent powder and detergent cake and further asked to provide tax invoice of the aforesaid order, however, defendant no.1 insisted plaintiff's dealer / distributor to first deposit Rs.1500/- as advance cum security amount against total purchase order. Defendant no.1 further shared his contact number and bank details and consequently the said amount of Rs.1500/- was duly paid by plaintiff's dealer/distributor and thereafter defendant no.1 issued proforma invoice dated 10.09.2021 in respect of the test order and assured plaintiff's dealer/distributor of providing him same/similar tax invoice as that of the test invoice.
14. It is alleged that defendant no.1 is thus, using the identical trade name RSPL Ltd. (hereinafter referred to as "impugned tradename") identical to registered label/logo of plaintiff ORSPL (hereinafter referred to as "impugned label/logo) and identical GSTIN Number 23AADCS7820A1ZV of the plaintiff (hereinafter referred to as "impugned GSTIN Number) in their invoice which CS(COMM) No. 437/2021 M/s RSPL Ltd. Vs. Nikunj Traders & Ors. Page 9 of 30 tantamounts to infringement of plaintiff right as subsisting in their trademark and copyright.
15. It is further alleged that defendant no.1 eventually issued a customized invoice dated 11.10.2021 to plaintiff's dealer/distributor which in fact is not a tax invoice and is categorically having the impugned tradename RSPL Ltd., impugned label/logo ORSPL upon the said impugned invoice dated 11.10.2021. The impugned goods under impugned tradename/ label/ packaging/ trade dress GHARI/GHADI adopted and being adopted by defendant no.1 in relation to its impugned goods and business is identical and/or similar with the plaintiff's said trademark/label/trade dress and punch line/slogan in each and every respect including visually, structurally in its basic idea and essential features. The use of impugned trademark/label/trade dress by defendant no.1 in relation to impugned goods and business amounts to unfair advantage and is detrimental to the distinctive character or repute of the said trademark/label/trade dress of the plaintiff. The use by defendant no.1 is in violation of plaintiff's proprietary rights therein and is also infringing the plaintiff's copyright.
16. Cause of action is stated to have arisen when the plaintiff came across in the impugned facebook weblink in September, 2021 as uploaded of defendant no.1 and further when test order dated 10.09.2021 was placed and the defendant no.1 through the platform tax invoice stated to have further revision on 11.10.2021 when defendant no.1 issued a customized impugned invoice to the plaintiffs dealer/distributor. Cause of action stated to be continued as the impugned facebook weblink still to be uploaded.
17. The present court is stated to have territorial jurisdiction as the impugn weblink is uploaded/shared/disseminated/circulated on the platforms of CS(COMM) No. 437/2021 M/s RSPL Ltd. Vs. Nikunj Traders & Ors. Page 10 of 30 defendant no.2 having worldwide presence which can be accessed and seen by general public across the globe including Shahdara, Delhi and further as the plaintiff has received complaints pertaining to the impugn duplicate/counterfeit products from the dealers/distributors situated within the local territorial jurisdiction of this Court. It is stated that the plaintiff is carrying on its business activity under the said trademark/label through this dealer/distributors within the jurisdiction of this Court and the plaintiff's goods are also sold to the consumer in Shahdara District through its interactive website.
18. The subject-matter of the present suit is stated to be commercial dispute as defined in Section 2(1)(c) of the Commercial Courts Act. Plaintiff has thus, prayed for the following relief:-
(A) For a decree of permanent injunction restraining the defendant no.1 and his partners, agents, representatives, distributors, assigns, heirs, successors, stockists etc. from using, soliciting, exporting, displaying, advertising or using impugned trademark/label/Trade dress GHADI/GHARI with or without the device of GHARI/WATCH/CLOCK, impugned trade name "RSPL Limited", Impugned Label/Logo "ORSPL" and impugned GSTIN No.23AADCS7820A12ZV in relation to their impugned goods and business of detergent powder, detergent cake and soap and allied/related goods sold under trademark or any other trademark or any other label/artistic feature/packaging/trade dress which is or which may be identical with and/or deceptively similar to the plaintiff's trademark and artistic feature/packaging/trade dress under the trademark GHARI/GHADI with or without the Device of GHARI/WATCH/CLOCK including plaintiff's trade name "RSPL Limited", registered Label/Logo "ORSPL" and registered GSTIN No.23AADCS7820A12ZV in relation to their impugned goods and CS(COMM) No. 437/2021 M/s RSPL Ltd. Vs. Nikunj Traders & Ors. Page 11 of 30 business of detergent powder, soap and allied products or from doing any other acts or deeds amounting to or likely to:
i. Infringing the plaintiff's registered trademarks GHARI/GHADI trade dress (as stated above).
ii. Passing off their goods and business as that of the plaintiff in violation of the plaintiff's rights in its said registered trademark or/and artistic features/packaging/trade dress of GHARI/GHADI label.
iii. Infringement of registered copyright in the artistic work involved in the plaintiff's artistic features/ packaging/ trade dress of GHARI/GHADI label.
iv. Diluting the plaintiff's goodwill and reputation to well-known trademark/label GHARI/GHADI and DEVICE OF GHARI/WATCH/CLOCK.
v. Not only that the defendant is further guilty of falsification and unfair and unethical trade practices.
(B) For a decree of permanent injunction whereby directing the defendant no.1 to temporarily take down, remove, or block/ restrict/ access to the impugned Facebook weblink/ URL https://www.facebook.com/groups/1473861859467243/user/100004 931257821 and/ or any other active or similar "impugned weblink/URL" which contains or purport to contain, infringing contents or part thereof, and also from all media in the control of the defendant no.1, including but not limited to defendant no.2's website, web pages, mobile application, etc. (C) Restraining the defendant no.1 from disposing off or dealing with their assets including their premises at the addresses mentioned in the memo of parties and their stocks-in-trade or any other assets as may be brought to the notice of the Hon'ble Court during the CS(COMM) No. 437/2021 M/s RSPL Ltd. Vs. Nikunj Traders & Ors. Page 12 of 30 course of the proceedings and on the defendant no.1's disclosure thereof and which the defendant no.1 is called upon to disclose and/or on its ascertainment by the plaintiff as the plaintiff is not aware of the same as per Section 135(2)(c) of the Trade Marks Act, 1999 as it could adversely effect the plaintiff's ability to recover the costs and pecuniary reliefs thereon.
(D) For an order for delivery up of all the impugned finished and unfinished materials bearing the impugned and violative trademark/artistic feature/label/packaging/trade dress or any other word/mark which may be identical with or deceptively similar to the plaintiff's said GHARI/GHADI trade dress including its blocks, label, display board, sign board, trade literatures and goods etc. to the plaintiff for the purpose of destruction and erasure. (E) For an order directing the defendant no.2 to temporarily take down, remove, or block/restrict access to the "impugned Facebook weblink/URLhttps://www.facebook.com/groups/1473861859467243 /user/100004931257821 of the defendant no.1 and to further direct the defendant no.2 to disclose the basis subscribe information including the name, email and contact details of the impugned Facebook user who has created and/or posted the aforesaid impugned weblink/ URL https://www.facebook.com/groups/ 1473861859467243/user/ 100004931257821 of the defendant no.1 for the purpose of compliance of the orders of this Court. (F) For an order directing the defendant no. 3 and 4 to freeze the bank Account o the defendant no.1 bearing A/c No.3645199726, IFSC Code: KKBK0005922, Beneficiary Name: NIKUNJ TRADERS, Kotak Mahindra Bank, Branch-Jabalpur Wright Town Branch, Jabalpur, Madhya Pradesh which is being maintained with the defendant no.4 which is continuously being used for obtaining CS(COMM) No. 437/2021 M/s RSPL Ltd. Vs. Nikunj Traders & Ors. Page 13 of 30 the illegal funds transfer from the general public at large in exchange of duplicate/fake impugned detergent powder bearing impugned trademark/label/trade name GHADI/GHARI of the defendant no.1. (G) For an order directing the defendant No.3 and 4 to disclose the KYC details of the defendant no.1 for the purpose of compliance of the orders of this Court.
(H) For a decree of damages amounting to Rs.5,00,000/-.
(I) For an order for cost of proceedings.
19. The present suit was instituted on 30.10.2021 and vide order dated 09.11.2021, the plaintiff was granted ex parte ad interim injunction. Summons were issued to the defendant. Deputy Manager of defendant no.4 Sh. Prashant Sharma appeared on behalf of defendant nos. 3 and 4. Also, it was observed that vide order dated 08.12.2021 that defendant nos. 2, 3 and 4 have been duly served but steps have not been taken for service of defendant no.1. Sh.
Prashant Sharma, Deputy Manager of defendant no.4 supply the KYC details of defendant no.1 to the counsel for plaintiff. The account of the defendant no.1 was also freezed vide order dated 08.12.2021 and it was directed that steps be taken for service of defendant no.1. Thereafter, affidavit of service, tracking report and postal receipts were filed as per which the defendant no.1 was duly served on 29.12.2021 and 30.12.2021 but, none appeared on behalf of defendant no.1 despite service. The other defendants also did not file any WS, hence, the right of the defendants to file WS was closed and defendants were proceded ex parte vide order dated 10.05.2022 and matter was listed for ex parte evidence.
20. Vide order dated 19.12.2022 a notional issues were framed as under:-
1. Whether this Court has territorial jurisdiction to try this suit as plaintiff company is doing business from Kanpur and defendant No. 1 is from Jabalpur?CS(COMM) No. 437/2021 M/s RSPL Ltd. Vs. Nikunj Traders & Ors. Page 14 of 30
21. In support of its case, plaintiff has examined PW-1 Sh. Sh. Manoj Singh, who tendered his evidence by way of affidavit which is Ex.PW1/A and has relied upon the following documents:
(a) True representation of plaintiff product under registered Trade Mark/Label "GHARI/GHADI" Ex.PW-1/1;
(b) True representation sheet of impugned product of the defendant under impugned Trade Marks/Label "GHARI/GHADI" Ex.PW-1/2 to Ex.PW-1/4;
(c) Comparison chart displaying plaintiff co.'s product/Trade Marks/Label "GHARI/GHADI" viz-a-viz defendant's impugned product/Trade Marks/Label Ex.PW-1/5;
(d) Screenshots of the plaintiff's own interactive website displaying products of the plaintiff under Trade Marks/Label "GHARI/GHADI" Ex.PW-1/6 & Ex.PW-1/7;
(e) Screenshots of some of major e-commerce interactive websites displaying and selling products of the plaintiff under Trade Marks/Label "GHARI/GHADI" Ex.PW-1/8 (colly);
(f) Copy of Legal Proceeding Certificate along-with Trademark Registration Certificates and status reports of the plaintiff's various Trade Marks/Label "GHARI/GHADI" Ex.PW-1/9 (colly)(OSR);
(g) Copy of Copyright Certificate of plaintif in respect of the Trade Marks/Label "GHARI/GHADI" Ex.PW-1/10 (colly) (OSR);
(h) Copy of list containing all registered as well as pending Trademarks and Copyright of the plainitff Ex.PW-1/11 (colly);
(i) Photocopies of sales invoice including invoice pertaining to advertisement expense of the plaintiff's productt under Trade Marks/Label "GHARI/GHADI" Mark PW-1/12 (colly) (now de-CS(COMM) No. 437/2021 M/s RSPL Ltd. Vs. Nikunj Traders & Ors. Page 15 of 30
exhibited as original not brought);
(j) Photocopy of sales figures including advertisement & promotional material of the plaintiff's product under Trade Marks/Label "GHARI/GHADI" Ex.PW-1/13 (OSR)(colly);
(k) Copy of GST Certificate of plaintiff Mark PW-1/14 (now de- exhibited as original not brought);
(l) Copy of an order dated 26.07.2004 passed by Asst. Registrar of Trademark Mark PW-1/15 (now de-exhibited as original not brought);
(m) Copy of business partnership agreement between the plaintiff and their authorized distributors for Shahdara District Mark PW-1/16 (now de- exhibited as original not brought);
(n) Screenshots of Whatsapp chats of plaintiff's and defendant no.1 Ex.PW-1/17 (colly);
(o) Copy of details of the bank account pertaining to defendant no.1 as given to the plaintiff Mark PW-1/18 (now de-exhibited as original not brought);
(p) Copy of payment receipt of Rs.1,500/- made in the impugned Bank account of defendant no.1 Mark PW-1/19 (now de-exhibited as original not brought);
(q) Copy of impugned Proforma Tax Invoice dated 10.09.2021 along- with the impugned invoice dated 11.10.2021 as issued by defendant no.1 Mark PW-1/20 (now de-exhibited as original not brought);
(r) Resolution passed in favour of Mr. Manoj Singh, Legal Manager of the plaintiff company Ex.PW-1/21 (OSR)(colly);
(s) Affidavit under Section 65B of the Indian Evidence Act as Ex.PW-1/22.CS(COMM) No. 437/2021 M/s RSPL Ltd. Vs. Nikunj Traders & Ors. Page 16 of 30
22. I have given thoughtful consideration to arguments advanced by Ld. Counsel for plaintiff and also perused the material on record and gone through the relevant provisions of law and the precedents on the point.
23. The issue relating to the jurisdiction in the cases of violation of trademark has many a times come up before the consideration of Hon'ble courts across country. It is now well settled that the jurisdiction in cases of infringement of trademark can be made as per S. 134(2) of the Trademark Act as well as S. 20 of the CPC, which provides an additional forum for filing the suit for jurisdiction in cases of trademark infringement. The same is also held by Hon'ble SC in "Indian Performing Rights Society Ltd. Vs. Sanjay Dalia and Ors." [(2015) 10 SCC161] and is accepted by all the courts across country.
24. At this juncture, it is equally important to mention the case of "Burger King Corporation Vs. Techchand Shewakarmani and Ors." [CS (COMM) 919/2016 & CS (COMM) 122/2017 (dated 27/08/2018)] decide by Hon'ble Delhi HC, wherein the court has elaborately discussed the law on point and held how can the jurisdiction be made on basis of cause of action in suit for infringement. Relevant paras of the same are as follows:
"18. Thus, the provisions of Section 134 of the TM Act and Section 62 of the Copyright Act are in addition to and not in exclusion of Section 20 of the CPC. If the Plaintiff can make out a cause of action within the territorial jurisdiction of this Court under Section 20, no reference needs to be made to Section 134.
19. What constitutes cause of action in the context of a suit alleging violation of rights in a trade mark, would therefore be the question. In a case involving trademark infringement, infringement happens when a person "uses in the course of trade" any mark without the owner's consent. Thus, use of a mark is the cause of action in an infringement as also in a passing off action. If use takes place in a territory where the suit is filed, that Court has the jurisdiction to entertain the suit. When there is use of a mark, there is a cause of action to sue, where the use takes place. it is relevant to point out that "use" of a trademark as per Section 2(2) (c) of the TM Act.CS(COMM) No. 437/2021 M/s RSPL Ltd. Vs. Nikunj Traders & Ors. Page 17 of 30
21. Thus, jurisdiction of a Court in a trade mark action, could be invoked where there is use upon or in relation to goods. The phrase `in relation to ‟has been interpreted to include advertising, promotion, publicity, etc. Thus, in addition to actual sale of goods and providing services, if a person advertises his or her business under the mark in a territory, promotes his or her business under the mark in a territory or for example invites franchisee queries from a particular territory, sources goods from a particular territory, manufactures goods in a particular territory, assembles goods in a particular territory, undertakes printing of packaging in a particular territory, exports goods from a particular territory, it would constitute `use of a mark'.
22. This scheme of the TM Act is amply clear from a reading of Sections 28 and 29 as also Section 56. Under Section 28, the rights conferred are the exclusive right to use of a mark. Under Section 29, use of a mark could be any form of use, including - as part of a trade name or a corporate name or name of a business concern [Section 29(5)] use by affixing it to products/services [Section 29(6)(b)]; use by affixing it to packaging [Section 29(6)(b)]; use by offering goods/services for sale; use for the purpose of import or export[Section 29(6)(c)]; use on business papers [Section 29(6)
(d)]; use in comparative advertising which is detrimental to distinctive character or repute of the mark [Section 29(4)]; use in advertising [Section 29(7)]; Applying a mark in a territory for purposes of export of goods/services [Section 56(1)]; Use by which a trade connection is created between the user and the proprietor [Section 56 (2)].
23. Thus, when Section 20 of the CPC provides that a suit could be filed in any place where the cause of action arises, in a suit involving rights in a trademark, cause of action arises in each and every place where there is any form of use of the said mark. Principles which apply to infringement, actions to determine 'use‟ would equally apply to passing off actions".
25. It is the case of the plaintiff that the defendant is selling the infringed products within the territorial jurisdiction of this Court and the plaintiff is also carrying on its business through authorised dealers within the Shahdara District. However, it was observed during the course of plaintiff's evidence that in order to support his contention plaintiff has relied upon agreement between plaintiff and said authorised dealer, the invoice of the defendant and the bank account of defendant however, the same were de-exhibited as they were not in original. Therefore, they can not be taken into consideration while deciding this contention of the plaintiff. Hence, the territorial jurisdiction of this court can not be made on basis of use of mark as per section 29(6)(b) and 29(6)(c) on account of lack of evidence.
CS(COMM) No. 437/2021 M/s RSPL Ltd. Vs. Nikunj Traders & Ors. Page 18 of 3026. Also, the plaintiff has stated that the products of the plaintiff are available on its own interactive website (www.gharidetergent.com and www.rspl.net) and other third party websites (https://www.amazon.in/ https://my.indiamart.com/, https://www.flipkart.com) which can be accessed from all over the country including Delhi. Hence the jurisdiction of this court is made out. In this regard, reliance can be placed on "World Wrestling Entertainment Inc. vs. M/s Reshma Collection and Ors." [(FAO (OS) 506/2013) (Badar Durrez Ahmed j.)] dated 15.10.2014, wherein the Hon'ble High Court very elaboratively discussed the law on the point. The relevant paragraph of the judgement are as follows:
"14. From the above extracts, it is evident that when we say that a person carries on business at a place we mean that the person has an interest in a business at that place, a voice in what is done, a share in the gain or loss and some control at that place. There is no doubt that a person may carry on business at a place not necessarily by himself but through an agent or a manager or through a servant. But, as pointed out in Dhodha House (supra), three conditions have to be fulfilled: (i) the agent must be a special agent who attends exclusively to the business of the principal and carries it on in the name of the principal and not as a general agent who does business for any one that pays him; (ii) the person acting as agent, must be an agent in the strict sense of the term and a manager of a Joint Hindu Family cannot be regarded as an ―agent within the meaning of this condition; and (iii) to constitute ―carrying on business at a certain place, the essential part of the business must be performed at that place.
An illustration of which is given in the above extract itself where a Bombay firm has a branch office at Amritsar, where orders are received, subject to confirmation by the head office at Bombay, and where money is paid and disbursed. Such a firm is said to be carrying on business at Amritsar and is liable to be sued at Amritsar.
18. Insofar as the first two conditions are concerned, they relate to agents. Inasmuch as it is an admitted position that the appellant/ plaintiff has no agent in Delhi, those two conditions are clearly not fulfilled. However, it is the appellant/ plaintiff's case that it carries on business in Delhi directly inasmuch as its goods and services are sold to consumers in Delhi through its website which is accessed in Delhi. It is on this basis that the learned counsel for the appellant/ plaintiff submitted that the decision in Dhodha House (supra) as also in Archie Comic (supra) would really not be applicable in the present case as in those decisions web- based business models, which have been referred to as the 'new media', CS(COMM) No. 437/2021 M/s RSPL Ltd. Vs. Nikunj Traders & Ors. Page 19 of 30 were not considered. The question which then arises is whether the introduction and spread of e-commerce and business over the internet impacts the meaning of the expression 'carries on business' at a certain place.
23. Let us now apply these principles to the type of transaction over the internet, which we have explained above. The website of the appellant/ plaintiff refers to various goods and services. It is not an offer but an invitation to an offer, just as a menu in a restaurant. The invitation, if accepted by a customer in Delhi, becomes an offer made by the customer in Delhi for purchasing the goods ―advertised on the website of the appellant/ plaintiff. When, through the mode of the software and the browser, the transaction is confirmed and payment is made to the appellant/ plaintiff through its website, the appellant / plaintiff accepts the offer of the customer at Delhi. Since the transaction between the two takes place instantaneously, the acceptance by the appellant/ plaintiff is instantaneously communicated to its customer through the internet at Delhi. Therefore, in such a case, part of the cause of action would arise in Delhi."
The Hon'ble High Court further observed that:
"21. But, we are not concerned with the question of cause of action between the appellant/ plaintiff and its customers in Delhi because the defendants are not such customers and they are, in any event, all residents of Mumbai. What we are examining is whether the third condition specified in Dhodha House(supra) is satisfied or not. In other words, if the contracts and/ or transactions entered into between the appellant/ plaintiff on the one hand and its customers are being concluded in Delhi, can it not be said that the essential part of the business of the appellant/ plaintiff, insofar as its transactions with customers in Delhi are concerned, takes place in Delhi? The offers are made by customers at Delhi. The offers are subject to confirmation/ acceptance of the appellant/ plaintiff through its website. The money would emanate or be paid from Delhi. Can it not then be considered that the appellant/ plaintiff is, to a certain extent, carrying on business at Delhi? In our view, it would be so. Because of the advancements in technology and the rapid growth of new models of conducting business over the internet, it is possible for an entity to have a virtual presence in a place which is located at a distance from the place where it has a physical presence. The availability of transactions through the website at a particular place is virtually the same thing as a seller having shops in that place in the physical world. Let us assume for the sake of argument that the appellant/ plaintiff had a shop in Delhi from where it sold its various goods and services. In that case, it could not be denied that the plaintiff carried on business in Delhi. This is apart from the fact that the appellant/ plaintiff may also have been regarded as having voluntarily resided in Delhi. When the shop in the 'physical sense' is replaced by the 'virtual CS(COMM) No. 437/2021 M/s RSPL Ltd. Vs. Nikunj Traders & Ors. Page 20 of 30 shop' because of the advancement of technology, in our view, it cannot be said that the appellant/ plaintiff would not carry on business in Delhi."
27. Thus, the Hon'ble High Court taking into consideration the recent emerging trends of e-commerce and virtual presence of companies nowadays, held that where the website of plaintiff can be accessed from Delhi, goods available on the website amounts to the invitation to offer and when the invitation to offer is accepted by a customer it becomes an offer and when plaintiff accepts the offer of customer, the contract is said to be concluded at Delhi by applying the rules of instantaneous mode of communication, the contract is concluded at Delhi and part of cause of action arises at Delhi.
28. Furthermore, in the case titled as "Ganesh Gouri Industries v. R. C. Plasto Tanks Pvt. Ltd." [(FAO (COMM) 54/2022) (dated 5/8/24)] decided by Hon'ble Delhi HC), the court while dealing with the similar facts had held that :
"57. Further, given the advancement in technology, having a virtual business presence in a jurisdiction would be akin to having a physical presence, as was also observed by a Division Bench of this Court in WWE Inc. v. M/s Reshma Collection (supra). Plasto/Plaintiff has specifically pleaded that its goods are manufactured in India and aresold, marketed, distributed all across the country, and are also exported world- wide through its interactive website and other e-commerce platforms. Further, in the plaint, it is also stated that Plasto/ Plaintiff is selling its goods, within the territorial jurisdiction of the learned Commercial Court, through its various dealers/distributors namely, M/sSunita Sanitary, A. Narula Sanitary Traders, and M/s Bajaj Traders. Given the specific averment that Plasto has physical and virtual business presence in the jurisdiction of theCommercial Court through e-commerce websites online platforms like amazon.com, trade India, India Mart, and through its own interactive website coupled with the averments made in the plaint regarding jurisdiction, we do not find any reason to interfere with the impugned order of the learned Commercial Court in this regard"
29. The plaintiff in this regard, has relied upon the Ex. PW- 1/6 and Ex. PW-1/7 which displays the products of plaintiff under trade marks/ label "GHARI/ GHADI" and Ex. PW-1/8 (Colly.) which provides for the CS(COMM) No. 437/2021 M/s RSPL Ltd. Vs. Nikunj Traders & Ors. Page 21 of 30 screenshots of some of the major e-commerce interactive websites displaying and selling products of plaintiff. In this regard, it can be said that the plaintiff is having an interactive website of its own and its products being listed on third party websites as well, which can be accessed from the jurisdiction of this court and from all over the world, it can be said that a significant part of plaintiff's business is being carried on from Delhi. Therefore, a part of cause of action can be said to have been arisen from the jurisdiction of this court. Hence, territorial jurisdiction of this court can be made out on the basis above discussed law and facts in the present case.
Thus, in view of above, the notional issue of jurisdiction framed vide order dated 19.12.2022 is decided in favour of plaintiff and against the defendant.
30. In the present case, the cause of action of infringement/ passing off of the impugned mark/device/label, goods of the plaintiff firstly arose in the 1 st week of September, 2021, and as the present suit was filed on 30.10.2021. As per the Limitation Act, 1963, the period of limitations for filing a suit for infringement of trademark/ passing off is three years from the date of infringement/ passing off. Therefore, the plaintiff has filed the present suit within the prescribed period of limitation.
31. The present suit is a commercial suit as contemplated under Section 2(1)
(c)(xvii) of the commercial courts Act. The subject matter of the present suit arises out of Intellectual Property Rights relating to registered trademark, copyright, patent, design, domain name etc. which falls under the above mentioned category. Therefore, the facts which alleged in the plaint comes under the "commercial dispute".
32. Vide order dated 09.11.2021, this Court has exempted the plaintiff to CS(COMM) No. 437/2021 M/s RSPL Ltd. Vs. Nikunj Traders & Ors. Page 22 of 30 undergo pre-institution mediation u/s 12A of Commercial Courts Act as the suit was filed by the plaintiff contemplating an urgent relief.
33. As far as the issue regarding whether the plaintiff is entitled to decree of injunction against the defendant restraining the defendant or persons claiming under him to restrain from using/ selling the impugned goods under the trade name/ label/ dress of the plaintiff ie. "GHARI/ GHADI".
34. The documents Ex.PW1/1, 1/6 to 1/11, 1/13, establish about the trademark/trade label of the plaintiff as Ghari/Ghadi. The same are supported by certificate under Section 65B of Indian Evidence Act. Hence, what requires consideration of this Court is that whether the plaintiff has been able to prove the infringement of the said goods by the defendant or the alleged use of the trade name of the plaintiff by the defendant.
35. In this regard, the plaintiff in his plaint has averred the timelines of the events with respect to the trade name 'GHARI'. The plaintiff has also stated that the plaintiff got to know about the activities of the defendant regarding the selling of infringed goods through a facebook post from the account of defendant no.1 ie Shekhar Pagare, posted in the facebook group titled as ALL INDIA FMCG GROUP. The plaintiff has also produced screenshots of the said post in the plaint and the same are exhibited by the plaintiff in his evidence as Ex. PW-1/2 to 1/4. The same has been deposed by the AR of the plaintiff in his evidence by of affidavit at para no. 33. The same are supported by affidavit under Order XI Rule 6 CPC and certificate under Section 65B of Indian Evidence Act
36. In this context it is stated that the defendant was proceeded ex parte. The plaintiff has also produced the chats of the plaintiff's dealer and Defendant CS(COMM) No. 437/2021 M/s RSPL Ltd. Vs. Nikunj Traders & Ors. Page 23 of 30 no.1 as Ex. PW-1/17(Colly.). The same are supported by affidavit under Order XI Rule 6 CPC and certificate under Section 65B of Indian Evidence Act. The testimony of the plaintiff is unrebutted, uncorroborated and therefore, can be taken to as truthful in light of the present facts and circumstances of the case.
37. At this stage, it will be pertinent to refer to the case of "Laxmikant Patel VS. Chetan Bhai Shah" AIR 2002 SC 275, wherein the Honble SC has observed as follows:
"A person may sell his goods or deliver his services such as in case of a profession under a trading name or style. With the lapse of time such business or services associated with a person acquire a reputation or goodwill which becomes a property which is protected by courts. A competitor initiating sale of goods or services in the same name or by imitating that name results in injury to the business of one who has the property in that name. 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 the 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."
38. As per the facts of the present case, the depiction by the defendant of the goods, which he is selling, to be genuine through his facebook post must have caused confusion in the minds of the people regarding it being true. The plaintiff has exhibited the pictures of the facebook profile of the defendant no.1 as Ex.PW-1/3 which clearly shows that the defendant no.1 has posted about the infringed goods on the facebook which are affixed by the trade name of the plaintiff ie. GHARI/ GHADI. It also provides that the defendant no.1 is a member of group namely ALL INDIA FMCG GROUP since 11 April 2021.
39. It is also pertinent to mention here that the plaintiff has in Ex. PW-1/4 has provided screenshots of the recent activity of the defendant no.1 on the CS(COMM) No. 437/2021 M/s RSPL Ltd. Vs. Nikunj Traders & Ors. Page 24 of 30 facebook post, which shows that the defendant no.1 is dealing in the infringed products with some persons on the facebook. In Ex. PW-1/4 itself, it is clear that the defendant has posted in the above said group regarding the availability of Ghadi detergent powder or cake on wholesale rate and the same has been posted along with the photos. It clearly reveals that the defendant no.1 is dealing in the infringed goods. It is also visible that the defendant no.1 is using the RSPL trade name without any authorization of the plaintiff, hence, he is infringing the trademark of the plaintiff. The same is supported by a certificate under section 65-B of the Indian evidence Act, 1872.
40. It is also pertinent to note here that the screenshots of chat between the plaintiff's authorized dealer and defendant no.1 which is Ex. PW-1/17 (colly) sufficiently shows that the defendant no. 1 is misrepresent his goods as that of the plaintiff and claiming it to be original as directly from supply of RSPL unit Madhya Pradesh. The same is supported by certificate under Section 65B of Indian Evidence Act r/w Order XI Rule 6 of the CPC, as amended by the Commercial Courts Act.
41. In view of above, it can be succinctly put as the plaintiff has been able to discharge his burden of proof with respect to the triple test of granting injunction. It can be, in other words, said that the balance of convenience lies in favour of plentiful, a prima facie case has been established by the plaintiff in his favour and if the injunction is not granted then plaintiff will suffer irreparable loss.
42. Hence, decree of permanent injunction is awarded in favour of plaintiff and against defendant.
43. The plaintiff has also sought damages against the defendant no. 1 to the CS(COMM) No. 437/2021 M/s RSPL Ltd. Vs. Nikunj Traders & Ors. Page 25 of 30 tune of rs. 5,00,000/-. Therefore, it is pertinent to discuss the law relating to the grant of damages in the matters of infringement of trademark.
44. As far as the award of damages are concerned, it is settled that the damages are generally of three kinds:
a. Compensatory damages b. Nominal damages c. Exemplary/ Punitive damages
45. As far as compensatory damages are concerned, the purpose if granting them is to put the party who has suffered injury in the same position as he would have been had the act not been committed. Punitive damages are granted with a view to punish the person committing a wrongful act; to deter the person at fault to commit the same act again and also an approximate award to plaintiff. Nominal damages are granted to the party who is aggrieved of the wrong committed but the proof of the loss is not offered.
46. Section 135 of The Trademarks Act provides that the court may grant damages, as a relief, in cases of infringement of trademark. Section 135(1) is as follows:
"35. Relief in suits for infringement or for passing off.--
(1) The relief which a court may grant in any suit for infringement or for passing off referred to in section 134 includes injunction (subject to such terms, if any, as the court thinks fit) and at the option of the plaintiff, either damages or an account of profits, together with or without any order for the delivery-up of the infringing labels and marks for destruction or erasure."
47. In the case titled as "Indian Performing Right Society Ltd. vs Debashis Patnaik And Ors." dated 15 January, 2007 [(2007(34)PTC201(DEL)], hon'ble Delhi HC has observed as follows:
CS(COMM) No. 437/2021 M/s RSPL Ltd. Vs. Nikunj Traders & Ors. Page 26 of 30"21. Damages have been traditionally defined as 'pecuniary compensation, obtainable by success in an action, for a wrong which is either a tort or a Page 0683 breach of contract' (Re: Broome v. Cassel & Co. 1972 AC 1027). Thus the traditional concept of damages is to compensate a claimant for loss and damage and can also be referred to as compensatory damages which are awarded to compensate a plaintiff for damages which he has suffered or is expected to suffer and to replace something that the plaintiff has lost or is expected to lose because of the wrongful act of the defendant. The primary purpose of the damages is to restore those losses to the plaintiff. However as tort litigation has evolved, we find that the concept of damages is not limited to compensation for loss and damages alone. Three kinds of damages are being awarded by courts which include nominal damages, exemplary damages and compensatory damages.
22. Nominal damages are usually awarded where a legal right of the plaintiff is found to be infringed and there is, however, no proof of actual loss. There may be another situation where nominal damages may be awarded which is a case where loss is shown, but there is no evidence as to its exact quantum.
The purpose of the award of nominal damages thus is vindicatory i.e. to mark the existence of the right in question as well as the fact of violation of such right of the plaintiff by the wrong doer who is the defendant.
Thus a notional amount may be awarded as such damages so as to vindicate the stand of the plaintiff and the claim lodged by him."
48. Also, in the case titled of "Koninlijke Philips N.V. & Anr. vs Amazestore & Ors." [CS(COMM) 737/2016 dated 22.04.2019, Hon'ble Delhi HC] while summarizing the principles regarding the award of damages has laid down criteria as follows:
"40. Keeping in view the aforesaid, this Court is of the view that the rule of thumb that should be followed while granting damages can be summarized in a chart as under:-
# Degree of mala fide Proportionate award
conduct
(i) First-time innocent Injunction
infringer
CS(COMM) No. 437/2021 M/s RSPL Ltd. Vs. Nikunj Traders & Ors. Page 27 of 30
(ii) First-time knowing Injunction + Partial
infringer Costs
(iii) Repeated knowing Injunction + Costs +
infringer which Partial damages
causes minor impact
to the Plaintiff
(iv) Repeated knowing Injunction + Costs +
infringer which Compensatory
causes major impact to damages.
the Plaintiff
(v) Infringement which Injunction + Costs +
was deliberate and Aggravated damages
calculated (Compensatory +
(Gangster/scam/mafia) additional damages)
+ wilful contempt of
court
RELIEF:
49. As far as the relief(s) asked for in the prayer para (f) and (g) claimed against defendant no.3 and 4 is concerned, the defendants No.3 and 4 have already complied with the directions of this court and therefore, no further directions are required.
50. No goods were seized during the trial and no local commissioner was appointed. Nothing has been establish on record by the plaintiff regarding the quantity of the impugned goods/materials and therefore, no directions regarding the disposing or dealing with the assets or delivery up of the impugned goods can be passed by the Court in this regard. There is nothing on record to establish by the plaintiff that the defendant is a repeated infringer and CS(COMM) No. 437/2021 M/s RSPL Ltd. Vs. Nikunj Traders & Ors. Page 28 of 30 has knowingly infringed the trademark of the plaintiff repeatedly. The plaintiff is, thus, only entitled to permanent injunction as prayed in the prayer clause and therefore, the suit of the plaintiff is decreed in its favour and defendant no. 1 and their partners, agents, representatives, distributors, assigns, heirs, successors, stockists etc. are restrained from using, soliciting, exporting, displaying, advertising or using impugned trademark/label/Trade dress GHADI/GHARI with or without the device of GHARI/WATCH/CLOCK, impugned trade name "RSPL Limited", Impugned Label/Logo "ORSPL" in relation to their impugned goods and business of detergent powder, detergent cake and soap and allied/related goods sold under trademark or any other trademark or any other label/artistic feature/packaging/trade dress which is or which may be identical with and/or deceptively similar to the plaintiff's trademark and artistic feature/packaging/trade dress under the trademark GHARI/GHADI with or without the Device of GHARI/WATCH/CLOCK including plaintiff's trade name "RSPL Limited", registered Label/Logo "ORSPL" in relation to their impugned goods and business of detergent powder, soap and allied products or from doing any other acts or infringing the plaintiff's registered trademarks GHARI/GHADI trade dress.
51. As far as order relating to cost and expenses is concerned, the plaintiff has not filed any memo of fees and expenses in this regard, but as per law laid down by Hon'ble Delhi HC in case of Koninlijke Philips N. V. (Supra), in case of first time knowing infringer, proportionate award is injunction + partial costs. Therefore, in the present case, the plaintiff is awarded a cost to the extent of court fees and Rs.35,000/- as litigation cost.
52. With these directions, the suit of the plaintiff is decreed against defendant no. 1, in above terms.CS(COMM) No. 437/2021 M/s RSPL Ltd. Vs. Nikunj Traders & Ors. Page 29 of 30
53. Decree sheet be prepared accordingly.
54. File be consigned to record room.
Announced in the open Court.
On 7th day of December, 2024. (Kiran Bansal) District Judge, Commercial Court-02 Shahdara, Karkardooma/Delhi/07.12.2024.
Digital signature not appended as the same have expired and renewal of the same has been applied.CS(COMM) No. 437/2021 M/s RSPL Ltd. Vs. Nikunj Traders & Ors. Page 30 of 30