Delhi High Court - Orders
Replication) New Balance Athletics, ... vs Apex Shoe Company Pvt. Ltd on 23 January, 2019
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw
$~14
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(COMM) 850/2018 & IAs No.6402/2018 (u/O XXXIX R-1&2
CPC) & 16185/2018 (for condonation of 68 days delay in filing
replication)
NEW BALANCE ATHLETICS, INC. ..... Plaintiff
Through: Mr. Aditya Goyal, Adv.
Versus
APEX SHOE COMPANY PVT. LTD. ..... Defendant
Through: Mr. Abhishek Malhotra, Mr.
Himanshu Deora & Mr. Shashwat
Rakshit, Advs.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
ORDER
% 23.01.2019
1. Vide separate judgment pronounced today, IA No.6402/2018 of the plaintiff under Order XXXIX Rules 1 and 2 CPC has been allowed.
2. IA No.16185/2018 of the plaintiff for condonation of 68 days delay in filing the replication is allowed for the reasons stated therein.
3. Having gone through the files, it is found that Volume-II of Part-III file contains documents of another suit tagged in this suit. The same be removed and returned to the advocate who has filed the same.
4. The suit is ripe for framing of issues.
5. On the pleadings of the parties, the following issues are framed:
(i) Whether the goods of the plaintiff under the mark 'NEW BALANCE' had a reputation and goodwill in India? OPP CS(COMM) 850/2018 Page 1 of 2
(ii) Whether the use of the mark 'NEW BALANCE' in India by the defendant was more than that of the plaintiff and if so, to what effect? OPD
(iii) Whether the mark of the defendant infringes the mark of the plaintiff? OPP
(iv) Whether the use by the defendant of the mark 'NEW BALANCE' amounts to the defendant passing off its goods as that of the plaintiff under the mark 'NEW BALANCE'? OPP (V) If the above issues are decided in favour of the plaintiff, whether the plaintiff is entitled to any compensation and if so, in what amount and / or to the relief of rendition of accounts against the defendant? OPP.
(vi) Relief.
6. No other issue arises or is pressed.
7. The parties to file their list of witnesses within 15 days.
8. The plaintiff to file affidavits by way of examination-in-chief of its witnesses within eight weeks.
9. The parties will have liberty to apply for recording of evidence on commission.
10. List before the Joint Registrar on 25th April, 2019 for scheduling the dates of trial.
RAJIV SAHAI ENDLAW, J JANUARY 23, 2019 'gsr'..
(Corrected and released on 20th February, 2019) CS(COMM) 850/2018 Page 2 of 2