Delhi District Court
Through vs Harkhit Rawat Page No. 1 Of on 20 November, 2018
IN THE COURT OF SH. ANIL ANTIL, ADJ05 SOUTH EAST
DISTRICT, SAKET COURTS, NEW DELHI
TM No. 07/18
Wrangler Apparel Corp.
3411 Silverside Road,
Wilmington,
Delaware19810,
USA
Through
Meena Bansal
Constituted Attorney
96, Sukhdev Vihar
Mathura Road
New Delhi110025 ..........Plaintiff
V E R S U S
Harkhit Rawat
S/o Sh. Paresh Rawat,
WZ163, Dasgara, Todapur,
New Delhi
Also at:
C200, BlockC,
Maya Puri 2, Delhi64 ........Defendant
TM No. 7/18 Wrangler Apparel Corp. Vs. Harkhit Rawat Page no. 1 of 11
Date of institution of the suit : 16.01.2018
Date of reserved for judgment : 19.11.2018
Date of pronouncement of judgment: 20.11.2018
Suit Decreed
EXPARTE JUDGMENT
1.The plaintiff has filed the suit for permanent injunction for restraining the defendant from passing off and infringing their trademark, for damages and renditions of accounts.
2. Plaintiff's version as per averments in the plaint : 2.1 The case of the plaintiff as set out in the plaint in nutshell is that plaintiff is organized and existing under the laws of Delaware [3411, Silverside Road, 201, Baynard Building, Wilmington, Delaware 19810, USA] and is engaged in the business of manufacture, distribution, marketing and sale of a wide range of casual apparels, jeans, western wear etc and other allied/ related products.
2.2 That in 1897 and 1943, the plaintiff has been honestly and bonafidely, continuously, commercially, openly, exclusively and to the exclusion of others, uninterruptedly and in the course of trade and as proprietor thereof using its trade mark WRANGLER, WRANGLER DEVICE, WRANGLER JEANS CO, WRANGLER WORKWEAR, Wrangler OUTDOOR WITH DEVICE, WRANGLER JEANS CO.
TM No. 7/18 Wrangler Apparel Corp. Vs. Harkhit Rawat Page no. 2 of 11 ESTABLISHED 1947, and WRANGLER LOGO in relation to its said goods and business and carrying on its said goods and business thereunder and has built up a worldwide and globally valuable trade, goodwill and reputation therein and acquired proprietary rights therein. 2.3 That the plaintiff's said goods are sold and traded by the plaintiff directly or through a wide network of its associates, affiliates, licensees and through a wide marketing network including through retail as also through internet and ecommerce. The plaintiff has expertise in its brand management and for preserving the brands prestige and global presence. 2.4 The details of plaintiff's trademark WRANGLER, WRANGLER DEVICE, WRANGLER JEANS CO, WRANGLER WORKWEAR, Wrangler OUTDOOR WITH DEVICE, WRANGLER JEANS CO. ESTABLISHED 1947, and WRANGLER LOGO is mentioned in para 6 of the plaint.
2.5 That the artwork involved in the plaintiff various stylized, formative/ bearing and labels are original artistic work and plaintiff holds copyright therein. The plaintiff is the owner and proprietor if the artistic features involved in the said trademark/label and device and holds copyright. That the plaintiff is the proprietor thereof as of its goodwill and reputation under the statutory and common law. The plaintiff has spending enormous amount of moneys, efforts, skills and time on promotion of its said trademark through extensive advertisement, publicity and marketing. 2.6 That the said registration mentioned in para 6 of the plaint are TM No. 7/18 Wrangler Apparel Corp. Vs. Harkhit Rawat Page no. 3 of 11 legal, valid and subsisting on the Registrar of the respective countries. Some of the applications for registration of the plaintiff's said trademark are pending. The plaintiff's said trademark is a well known trademark within the meaning of Section 2 (1) (zg) of the Act.
2.7 That the plaintiff invest heavily in R and D and its product are known for their highest standards of quality, safety, innovation and reliability and there is an ever increasing demand. The plaintiff products as well as information therein are available to Indians and Indian Trade and industries since decades.
2.8 That the plaintiff with the advent of ecommerce, the internet and trade thereunder, plaintiff adopted the said trademark as an essential and material part of its email id and domain name viz www.WRANGLER.com. The plaintiff using the said domain name in course of its trade globally in relation to its goods and business.
2.9 That defendant is engaged in manufacturing and marketing of shoes, footwear, readymade garments, clothing, lifestyle products and other allied/related products. That defendant is started using and adopted the trademark WRANGLER, Wrangler, WRANGLER Logo, and other formative trademarks/ labels in relation to their impugned goods are identical and deceptively similar to the plaintiff's trademark in each and every respect including phonetically, visually , structurally and have been using the same individually or in combination of each other in logo/label. Defendant is also indulging in counterfeiting the impugned goods in complete violation of TM No. 7/18 Wrangler Apparel Corp. Vs. Harkhit Rawat Page no. 4 of 11 plaintiff's statutory and common law right in the said trademark and copyright.
2.10 That the defendant by adopting and using the plaintiff's trademark and thereby passing off and enabling others to pass off their impugned goods and business as that of the plaintiff as well as diluting the plaintiff proprietor rights therein. The defendant is not the proprietor of the impugned trade mark/ Label and has adopted and is so using in relation to their impugned goods and business and is otherwise dealing with it in the course of trade without the leave and license of the plaintiff. 2.11 That defendant is selling and distributing of spurious goods from its premises at South East Delhi viz. Okhla, Lajpat Nagar, Lodhi Colony, Greater Kailash etc. During the market survey in last week of August 2017, the plaintiff company came to the knowledge that the trademarks and logos adopted by the defendant are deceptively and confusingly similar to the registered trademark/label WRANGLER, Wrangler, WRANGLER Logo, of plaintiff and unwary customers are likely to be easily deceived, confused or misled.
3. Process issued to the defendant but neither the defendant appeared nor WS filed despite being duly served. Hence, defendant is proceeded exparte vide order dated 02.08.2018.
4. The plaintiff has led exparte evidence by way of an affidavit, reiterating the averments made in the plaint. In exparte evidence, AR of the plaintiff company Sh. Gurjeet Singh stepped into the witness box and TM No. 7/18 Wrangler Apparel Corp. Vs. Harkhit Rawat Page no. 5 of 11 deposed vide affidavit of evidence exhibited as Ex.PW1/A reiterating the contents of the plaint.
5. For the sake of brevity and to avoid repetition the contents are not reproduced. The AR of plaintiff relied upon the documentary evidence Ex. PW1/1 to Ex. PW1/7 & Ex. PW1/8 is 65B certificate in support of electronic evidence. Ex. PW1/6 (OSR):
S. Particulars of Documents Documents exhibited/marked No. as 1 The true representation of Trade Ex.PW1/1 (colly) Mark/ Labels of the plaintiff 2 The true representation of defendants' Ex. PW1/2 (colly) impugned trademark/s 3 Status of plaintiff's registered Ex. PW1/3 (colly) trademarks/labels in India with registration certificates downloaded from www.ipindia.nic.in 4 Advertisements, news articles of the Ex. PW1/4 (colly) plaintiff's trademarks/labels from www.wrangler.com, http://apparel.edgl.com 5 Documents downloaded from the Ex. PW1/5 internet showing the list of plaintiff's exclusive dealers/distributors in jurisdiction of the Hon'ble Court TM No. 7/18 Wrangler Apparel Corp. Vs. Harkhit Rawat Page no. 6 of 11 downloaded from search engine www.google.co.in 6 Power of Attorney Ex. PW1/6 (OSR) 7 Report of Local Commissioner Ex. PW1/7 (OSR) 8 Affidavit under Section 65B of Indian Ex. PW1/8 (OSR) Evidence Act, 1872
6. Heard. Perused the records meticulously. I am of the considered view, plaintiff is entitled to a decree in his favour and against the defendant for the reasons stated as under.
7. Perusal of the documents and Pleadings filed by the plaintiff transpires that plaintiff's trademark are all registered and valid as on the date of filing of the suit. The registration gives exclusive rights to the plaintiff to protect their rights in said marks and take infringements actions against any party in violation thereof. By virtue of long, extensive and continuous use of trademark, plaintiff's marks have become inseparable and synonymous with the goods and services of the plaintiff.
8. As held by the Hon'ble High court of Delhi in "The Royal Bank of Scotland Group PLC Vs. Sharekhan Limited, 216(2015) DLT 197", quoted with approval in the case relied upon by the plaintiff:
'In order to establish infringement, the main ingredients of Section 29 of the Act are that the plaintiff's mark must be registered under TM No. 7/18 Wrangler Apparel Corp. Vs. Harkhit Rawat Page no. 7 of 11 the Act; the defendant's mark is identical with or deceptively similar to the registered trade mark; and the defendant's use of the mark is in the course of trade in respect of the goods covered by the registered trade mark. The rival marks are to be compared as a whole. Where two rival marks are identical, it is not necessary for the plaintiff to prove further that the use of defendant's trade mark is likely to deceive and cause confusion as the registration show the title of the registered proprietor and the things speak for themselves. In an infringement action, once a mark is used as indicating commercial origin by the defendant, no amount of added matter intended to show the true origin of the goods can effect the question. If court find that the defendant's mark is closely, visually phonetically similar, even then no further proof is necessary.'
9. In the present case, comparison of the marks as detailed in para 8 of the plaint reflects the similarity between the impugned marks of defendants and the marks of the plaintiff; defendant's marks are structurally, visually and phonetically similar to the plaintiff's marks.
10. Customers base of the products of both the parties may not be the same. But there is all likelihood of 'dilution' of the trademark of the plaintiff and in terms thereof plaintiff is entitled to protection under clause 4 of Section 29 Trademarks Act. Besides, the representation of the marks by the defendant tends to cause confusion in the minds of the general public as well as to the customers. If the defendant is permitted to use the impugned TM No. 7/18 Wrangler Apparel Corp. Vs. Harkhit Rawat Page no. 8 of 11 mark which are deceptively similar and confusingly to that of the plaintiff's company, it will not only cause wrongful loss to the plaintiff company, but it will also cause grave prejudice and harm to public. Not to mention about loss to the goodwill of the plaintiff. Exfacie it is a case of counterfeit goods.
11. Be that as it may be, defendant is exparte. Nothing has come on record to disbelieve the case of the plaintiff or to doubt the authenticity and veracity of the document filed on record. The defendant did not come forward to disprove the case of plaintiff his stand. Consequently plaintiff is entitled to a decree for injunction in his favour and against the defendant.
12. Damages 12.1 In the present suit plaintiff is also claiming rendition of account by the defendant/damages in terms of prayer clause 'd' of the plaint. 12.2. A reference to the decision of Hon'ble High Court of Delhi titled as " The Heels V. Mr. V. K. Abrol and Anr., CS (OS) No. 1385 of 2005 decided on 29.03.2006" would be profitable, wherein the Hon'ble court has held:
"This court has taken a view that where a defendant deliberately stays away from the proceedings with the result that on enquiry into the accounts of the defendant for determination of damages cannot take place, the plaintiff cannot be deprived of the claim for damages as that would amount to a premium on the conduct of such defendant. The result would be that parties who appear before the court and contest the matter would be TM No. 7/18 Wrangler Apparel Corp. Vs. Harkhit Rawat Page no. 9 of 11 liable to damages while the parties who choose to stay away from the court after having infringed the right of the plaintiff, would go scotfree. This position cannot be acceptable.
No doubt it not possible to give an exact figure of damages on the basis of actual loss, but certain token amounts on the basis of the sales of the plaintiff can certainly be made. The plaintiff is unnecessarily dragged into litigation and the defendants must bear consequences thereof. In fact in such a case both compensatory and punitive damages ought to be granted apart from the costs incurred by the plaintiff ono such litigation. In view of the given sales figure of the plaintiff. I consider it appropriates to grant a decree of damages in favour of the plaintiff and against the defendants for a sum of Rs. 3 lakh apart from costs of the suit. ' 12.3 In view of my finding that the plaintiff is entitled to the relief of permanent injunction, also taking in to consideration the proposition of law stated above I am of the view plaintiff is entitled to punitive and compensatory damages to the tune of Rs. 2 lacs rupees in its favour and against the defendant.
13. Relief.
In view of my above discussion, the present suit is decreed in favour of the plaintiff and against the defendant in terms of the para 34 prayer clauses
(a) to (e) of the plaint with compensatory and punitive damages to the tune of Rs. 2 lacs.
TM No. 7/18 Wrangler Apparel Corp. Vs. Harkhit Rawat Page no. 10 of 11 The suit stands disposed off as decreed qua defendant. Cost of the suit is awarded in favour of the plaintiff and against Defendant.
Decree sheet be drawn accordingly.
File be consigned to record room.
Announced in the open court (Anil Antil) today ie. 20.11.2018 ADJ05/(SE)/Saket Court, New Delhi TM No. 7/18 Wrangler Apparel Corp. Vs. Harkhit Rawat Page no. 11 of 11