Delhi District Court
Anurag Jain Proprietor Of M/S Anurag ... vs Vishal Kumar Verma on 18 July, 2024
IN THE COURT OF SH. BRIJESH KUMAR GARG,
DISTRICT JUDGE (COMMERCIAL COURT)-01 :
SHAHDARA, KARKARDOOMA COURTS: DELHI
CS (Comm.) No. 155/2019
CNR No. DLSH01-008654-2018
ANURAG JAIN
Proprietor of
M/s ANURAG FOOD PRODUCTS
Through its Authorized Representative
Mr. Chet Narayan Singh,
P-33, Street No.13, Bihari Colony,
Shahdara, Delhi-110 032. ......Plaintiff
Versus
VISHAL KUMAR VERMA
M/s Vishal Store,
Mangal Bazar, Churi Patti,
Katihar, Bihar-854 105. ......Defendant
Date of institution : 22.12.2018
Date of final arguments : 07.06.2024
Date of Judgment : 18.07.2024
JUDGMENT
1. The present commercial suit, under Section 62 of the Copyright Act, 2000, for permanent injunction, restraining infringement and passing off, damages, delivery up and rendition of accounts, has been filed by the plaintiff, against the defendant, on 22.12.2018, wherein, it is stated that the plaintiff is the proprietor of M/s Anurag Food Products and is engaged in manufacturing, selling and marketing of namkeen, toffee, candy and other allied/related products.
CS (Comm.) 155/2019 page 1 of 15 D.J.(Commercial)-01/Shahdara/KKD/Delhi
2. It is further stated in the plaint that in the year 2013, the plaintiff adopted the trademark 'ULLU KI DUM', with its unique artistic feature, for selling his candy/confectionary items for children and the said artistic feature of the products was very attractive and eye-catching and its uniqueness lies in its artistic feature.
3. It is further stated in the plaint that the product under the trademark 'ULLU KI DUM', with its unique packaging, became very famous with children and the plaintiff obtained statutory rights to protect its unique artistic work and applied for copyright registration, and accordingly, copyright registration No.A- 113971/2015, was granted to the plaintiff.
4. It is further stated in the plaint that the plaintiff had also applied for registration of its trademark, 'ULLU KI DUM', before the Trademark Registry, vide application bearing No.2551094, dated 19.06.2013.
5. It is further stated in the plaint that the plaintiff has regularly and continuously promoting its aforesaid distinctive mark and business, through extensive advertisements, publicity, promotions and marketing and has also spent enormous amount of money, efforts, skills and time.
6. It is further stated in the plaint that the plaintiff is the proprietor of the above-mentioned artistic work/trade mark 'ULLU KI DUM', and is a registered proprietor of the same and has acquired valuable and statutory rights in the same. It is further stated that the plaintiff is using the said artistic work/ CS (Comm.) 155/2019 page 2 of 15 D.J.(Commercial)-01/Shahdara/KKD/Delhi trademark, 'ULLU KI DUM', in the course of its trade for the past more than three years and the said artistic work has acquired uniqueness, owing to a long and continuous use over the years.
7. It is further stated in the plaint that the aforesaid artistic work is the most prominent and valuable copyright of the plaintiff and the plaintiff has acquired goodwill and reputation under the statutory and common law, and therefore, nobody can be permitted to use the same or any other deceptively similar artistic work/trademark/ copyright thereto, in any manner whatsoever, in relation to any specification of goods, without any leave and licence of the plaintiff.
8. It is further stated in the plaint that the defendant is the owner/ proprietor of M/s Vishal Store and is also engaged in the marketing and selling of confectionary items and other allied/ related products under the same or similar artistic feature, including its trademark, 'ULLU KI DUM', which are similar to the plaintiff's trademark, 'ULLU KI DUM'.
9. It is further stated in the plaint that the defendant has copied each and every feature of the copyright work of the plaintiff and has lavishly copied the complete artistic work of the plaintiff, without any leave or licence of the plaintiff. It is further stated that the defendant has also mentioned wrong address as, 'SHANDARA', by miss-spelling the word 'SHAHDARA' and has therefore, deceived the public at large.
10. It is further stated that in the month of May, 2017, the plaintiff became aware about the said illegal acts of the defendant CS (Comm.) 155/2019 page 3 of 15 D.J.(Commercial)-01/Shahdara/KKD/Delhi and accordingly, he filed a police complaint, against the defendant, at Kathiar police station on 03.06.2017. Thereafter, the police conducted a search at the premises of the defendant, and seized /recovered huge amount of infringed goods from there. It is further stated that the plaintiff had again launched an enquiry in the market and had come to know that the defendant has not stopped his illegal activities, despite registration of FIR in the month of July 2017.
11. It is further stated in the plaint that the packaging adopted and used by the defendant, in respect of his impugned goods and business, are identical and deceptively similar to the plaintiff's copyright, in each and every respect and in its essential features. It is further stated that the defendant is having no right to use the same, in any manner, in respect of its impugned goods and business.
12. It is further stated in the plaint that the defendant is fully aware about the plaintiff's rights, goodwill, reputation, benefits etc., in the said copyright work of the plaintiff. But, despite the said knowledge, the defendant has adopted and started using the impugned artistic work on its packaging, dishonestly and fraudulently and has caused huge loss in business and reputation to the plaintiff.
13. It is further stated in the plaint that the defendant is not only making the retail sales, but is also supplying the impugned goods to various dealers/ shopkeepers/ retailers in Delhi, who are making the clandestine and surruptitious sales to unwary consumers in the market. It has been prayed that a decree for CS (Comm.) 155/2019 page 4 of 15 D.J.(Commercial)-01/Shahdara/KKD/Delhi permanent injunction, restraining infringement and passing of trademark and delivery up may be passed in favour of the plaintiff and against the defendant. The plaintiff has also claimed the damages worth Rs.10 Lakhs from the defendant.
14. After filing of the present suit, the summons of the suit for settlement of issues were duly served upon the defendant and in compliance, the defendant has filed his written-statement on 14.12.2022, wherein, it is stated that the plaintiff has filed the misconceived and illegal suit, which is not maintainable in law and facts of the case. It is further stated that the plaintiff is having the knowledge that the defendant is not manufacturing any confectionary article, in the name and style of 'ULLU KI DUM' and the defendant is only trading the same, in the market.
15. It is further stated in the written-statement that the confectionary items under the trademark 'ULLU KI DUM', are not being manufactured only by M/s Anurag Food Products, but the same are also being manufactured by 'Camico' and its products are available in the market with different names, 'ULLU KI DUM', 'ULLU KI PUCHH' & 'ULLU KI DAM' and the defendant was only a traders and was not manufacturing any of the aforesaid articles, and this fact was well within the knowledge of the plaintiff.
16. It is further stated in the written-statement that the defendant is only a trader and is trading various items like chocolate, namkeen, jellies, toffees, kurkure, chips etc. It is further stated that the plaintiff is a chronic litigant and used to file various civil suits, under various provisions of law, only to CS (Comm.) 155/2019 page 5 of 15 D.J.(Commercial)-01/Shahdara/KKD/Delhi harass the defendants. The details of the various previous litigations are also mentioned in the written statement.
17. It is further stated in the written statement that the suit of the plaintiff is without any cause of action and is based on false, imaginary and fictitious cause of action. It has been prayed that the present suit is nothing, but a misuse of the process of law, and therefore, the same be dismissed with special costs.
18. No replication to the written statement of the defendant, was filed on behalf of the plaintiff, despite opportunity.
19. First case management hearing was conducted on 09.01.2023, and from the pleadings of the parties, the following issues were framed by the court, as under:
1. Whether the plaintiff is entitled for a decree of permanent injunction, as prayed in the plaint? OPP
2. Whether the plaintiff is entitled for a decree for rendition of account, as claimed in the plaint ? OPP
3. Whether the plaintiff is entitled to recover/claim damages of Rs.10,00,000/- from the defendant, as claimed in the plaint ? OPP
4. Relief.
20. During the trial, the plaintiff has examined his authorized representative Sh. Chet Narayan Singh, as PW-1. Whereas, the defendant has examined himself, as DW-1.
21. After completion of trial, final arguments were concluded by Sh.Animesh Rastogi, Advocate, for the plaintiff and Sh.Sanjeet Kumar, Advocate, for the defendant, on 07.06.2024.
CS (Comm.) 155/2019 page 6 of 15 D.J.(Commercial)-01/Shahdara/KKD/Delhi The Ld. Counsels for the parties have also filed their written arguments.
22. During the course of arguments, it was argued by the Ld. counsel for the plaintiff that the plaintiff is the owner of the copy right in the packaging with the label of 'ULLU KI DUM' and the witness of the plaintiff has proved the case of the plaintiff and has also proved the various documents on record. He has further argued that a case FIR No.357/2017, was also registered against the defendant at Division Sadar, PS City, District Katihar, Bihar, on 03.06.2013, u/s 420/486/120B IPC, regarding the infringement of trademark and copyright of the plaintiff and during the search at the premises of the defendant, a huge quantity of infringed goods was seized by the police. He has further argued that the packaging used by the defendant for his infringed goods are identical/similar with the goods of the plaintiff, and therefore, he cannot be permitted to use the copyright and trademark of the plaintiff. He has further argued that the punitive damages may also be awarded in favour of the plaintiff and against the defendant. He has also relied upon the following judgments, in support of his contentions :
(i) 'Adobe Systems, Inc. and Ors.', reported as, 'MANU/DE/0781/2009';
(ii) 'Sholay Media and Entertainment Pvt. Ltd. and Ors. vs. Parag Sanghavi and Ors.', reported as, 'MANU/DE/ 2486/2015'; and
(iii) 'Midas Hygiene Industries P. Ltd. vs. Sudhia Bhatia and Ors.' reported as, '2004 (73) DRJ 647'.
23. On the other hand, the Ld. counsel for the defendant has argued that the defendant was having no knowledge about the CS (Comm.) 155/2019 page 7 of 15 D.J.(Commercial)-01/Shahdara/KKD/Delhi fact that the goods sold by the defendant were infringing the copyright/ trademark of the plaintiff. He has further argued that the defendant was only the trader of the infringed goods and he had not manufactured any of the infringed goods, carrying the trademark of the plaintiff. Therefore, the suit of the plaintiff is not maintainable. He has further argued that there is no evidence on record, regarding the damages suffered by the plaintiff and no goods were ever seized from the premises of the defendant. He has prayed that the suit of the plaintiff be dismissed with heavy costs. Despite opportunity, the Ld. Counsel for the defendant has failed to file any judgment, in support of his contentions.
24. I have carefully perused the case file and I have also given my considered thoughts to the arguments addressed by the Ld. Counsels for the parties. I have also perused the written arguments filed by the Ld. counsels for the parties. I have also perused the various judgments cited by the Ld. Counsel for the plaintiff, in support of his contentions. My findings on the various issues are as under:
Issue No. 1Whether the plaintiff is entitled for a decree of permanent injunction, as prayed in the plaint? OPP
25. The burden to prove this issue lies on the plaintiff and in support of his contentions, the plaintiff has examined his authorized representative Sh. Chet Narayan Singh, as PW-1. In his affidavit Ex.PW1/A, this witness has reproduced the entire contents of the plaint. He has proved the power of attorney, in CS (Comm.) 155/2019 page 8 of 15 D.J.(Commercial)-01/Shahdara/KKD/Delhi his favour, dated 08.01.2020, as Ex.PW1/1. He has also proved the original packaging of the plaintiff as Ex.PW1/2. The registration certificate, issued by the Dy. Registrar of Copyrights, Govt of India, in favour of the plaintiff, regarding registration of the label "ULLU KI DUM", bearing registration No.A- 113971/2015, has been proved on record as Ex.PW1/3. The original packaging used by the defendant has been proved on record as Ex.PW1/6. A certified copy of FIR No. 257/2017, alongwith copy of complaint lodged by the plaintiff on 03.06.2017 with SHO Katihar Police Station and seizure memo dated 03.06.2017 along with final report dated 29.06.2018, was filed on record on 01.03.2013. The photocopy of the FIR, the seizure memo and the complaint dated 03.06.2017, alongwith photographs of the seized goods, were tendered in evidence of PW-1, as Ex.PW1/7.
26. During the trial, PW-1 Sh. Chet Narayan Singh, was also subjected to cross-examination on behalf of the defendant. But, in his cross-examination, no material discrepancy has come on record, to discard his testimony. He has specifically denied the suggestion of the Ld. Counsel for the defendant that the defendant had never manufactured the products of the plaintiff of its own. He has also denied the suggestion that the defendant had never tampered with the products of the plaintiff.
27. Perusal of the testimony of this witness and his cross- examination shows that this witness was not cross-examined, on any relevant or material point.
CS (Comm.) 155/2019 page 9 of 15 D.J.(Commercial)-01/Shahdara/KKD/Delhi
28. To rebut the contentions of the plaintiff, the defendant has examined himself as DW-1 and has filed his affidavit as Ex.DW1/A, wherein, the defendant has also reproduced the contents of his written-statement. But, he has admitted that he was a trader and was trading various items, i.e., chocolate, namkeen, jellies, toffees, kurkure, chips etc. He has also stated that the product with trademark "ULLU KI DUM", was manufactured not only by Anurag Foods (plaintiff), but was also being manufactured by "Camico" and the said products were available in the market with different names i.e. ULLU KI DUM, ULLI KI PUNCH and ULLU KI DAM. He has further stated that he was only a trader and not the manufacturer and this fact was also within the knowledge of the plaintiff.
29. During the trial, the defendant was also subjected to cross- examination, on behalf of the plaintiff, wherein, he admitted that on 03.06.2017, a raid was conducted at his store, regarding violation / infringement of the copyright of the plaintiff. He has further admitted that case FIR No. 257/2017 was registered against him at PS Katihar, Bihar. He has further admitted that he had never applied for any trademark / copyright registration for registration of trademark "ULLU KI DUM". He has reiterated that he was only a trader.
30. From the above deposition of the witnesses of the parties and the cross-examination of the defendant, it is clear that the defendant was trading in the infringed goods of the plaintiff under the trade name, "ULLU KI DUM". Perusal of the original pouch/packaging used by the plaintiff, Ex.PW1/2, and the CS (Comm.) 155/2019 page 10 of 15 D.J.(Commercial)-01/Shahdara/KKD/Delhi packaging used by the defendant Ex.PW1/6, also indicates that the packaging used by the defendant was exactly the same, as the packaging used by the plaintiff on his products. The copies of the two products are printed below:
Label of the plaintiff Label of the defendant It is also observed that the packaging, Ex.PW1/6, used by the defendant is so deceptively similar to the packaging used by the plaintiff, Ex.PW1/2, that it is highly probable that in every eventuality, the customer shall be deceived in believing that the goods supplied/sold by the defendant were the original goods of the plaintiff. The defence of the defendant that he was not the manufacturer of the infringed goods, by using the packaging, Ex.PW1/6, is no defence under the law. On the contrary, the same has proved the case of the plaintiff.
31. Perusal of the record further shows that vide complaint, dated 03.06.2017, the plaintiff had disclosed all these aforesaid facts to the SHO PS Katihar, Bihar, and on his complaint, a case FIR No. 357/2017, was also registered. During the investigation of the said FIR, a raid was also conducted at the premises of the CS (Comm.) 155/2019 page 11 of 15 D.J.(Commercial)-01/Shahdara/KKD/Delhi defendant and this fact of registration of FIR and the raid at his premises has been admitted by the defendant. The seizure memo dated 03.06.2017, indicates that a total of 13140 small packets, contained in 219 big packets, of infringed goods were seized by the police during the raid.
32. It was also held by the Hon'ble Supreme Court of India, in case titled as, 'Midas Hygiene Industries P. Ltd. vs. Sudhir Bhatia And Ors.', reported as, '2004 (73) DRJ 647', as under :
"5. The law on the subject is well settled. In cases of infringement either of Trade Mark or of Copyright normally an injunction must follow. Mere delay in bringing action is not sufficient to defeat grant of injunction in such cases. The grant of injunction also becomes necessary if it prima facie appears that the adoption of the Mark was itself dishonest."
(emphasis supplied) In view of above discussions, this issue is decided in favour of the plaintiff and against the defendant.
Issues No. 2Whether the plaintiff is entitled for a decree for rendition of account, as claimed in the plaint ? OPP
33. The burden to prove this issue also lies on the plaintiff. But, during the trial, the plaintiff has failed to lead any reliable or cogent evidence in this regard, to entitle him for a decree of rendition of account. During the trial, PW-1 Sh. Chet Narayan Singh, has filed various retail invoices as Ex.PW1/4, but the same could not be proved on record. During the trial, the plaintiff has also filed a certified copy of the FIR, alongwith the seizure memo and copy of his complaint dated 03.06.2017, as CS (Comm.) 155/2019 page 12 of 15 D.J.(Commercial)-01/Shahdara/KKD/Delhi Ex.PW1/7. But, the same are not sufficient to make out any case in favour of the plaintiff, for passing a decree of rendition of accounts against the defendant.
Therefore, this issue is decided against the plaintiff.
Issues No. 3Whether the plaintiff is entitled to recover/claim damages of Rs.10,00,000/- from the defendant, as claimed in the plaint ? OPP
34. The burden to prove this issue also lies on the plaintiff. In support of his contentions, in his affidavit Ex.PW1/A, PW-1 Sh. Chet Narayan Singh, has stated that the defendant was having no right to use the infringed goods of the plaintiff. But, he has failed to file any cogent evidence on record to prove the damages suffered by the plaintiff, due to aforesaid illegal acts of the defendant. However, during the course of final arguments, the Ld. Counsel for the plaintiff has prayed for awarding punitive damages to the plaintiff, in view of the various judgments of the Hon'ble High Court of Delhi.
35. It has been held by the Hon'ble High Court of Delhi, in case titled as, 'Adobe systems, Inc. and Ors. vs. P. Bhoominath and Ors.', reported as, 'MANU/DE/0781/2009', as under :
"31. In IP matters, the drive of granting punitive damages started with Delhi High Court‟s decision of Time Incorporated v. Lokesh Srivastava, 2005 (30) PTC 3 (Del) wherein the Court has expressly recognized third type of damages as punitive damages apart from compensatory and nominal damages. The Court has made some relevant observations discussing the aspect of punitive damages. The court held that :
"The award of compensatory damages to a plaintiff is aimed CS (Comm.) 155/2019 page 13 of 15 D.J.(Commercial)-01/Shahdara/KKD/Delhi at compensating him for the loss suffered by him whereas punitive damages are aimed at deterring a wrong doer and the like minded from indulging in such unlawful activities... This Court has no hesitation in saying that the time has come when the Courts dealing actions for infringement of trademark, copy rights, patents etc. should not only grant compensatory damages but award punitive damages also with a view to discourage and dishearten law breakers who indulge in violations with impunity out of lust for money so that they realize that in case they are caught, they would be liable not only to reimburse the aggrieved party but would be liable to pay punitive damages also, which may spell financial disaster for them."
The court justified the grant of punitive damages on the basis of flagrancy of infringement which is the doctrine derived from US law.
32. Within Copyright, in infringement matter in the case of Amar Nath Sehgal 's case (supra) wherein this Court considered the author‟s special right against distortion, mutilation and modulation of the work. Consequently, the court granted Rs. 5 Lakhs as a damages on the basis of loss of reputation, honour and injury. This was perhaps one of the few cases, which was not decided exparte."
(emphasis supplied)
36. In view of the material on record and the facts and circumstances of the present case, and the above judgment, this court is of the considered opinion that the plaintiff is also entitled to claim punitive damages from the defendant. In the plaint, the plaintiff has claimed damages of Rs.10 Lakhs, for its loss of business, reputation and goodwill in the market. But, in view of the fact that the plaintiff has failed to lead any cogent or reliable evidence regarding the aforesaid damages suffered by the plaintiff, this court is of the considered opinion that an amount of Rs.1 Lakh can reasonably be awarded in favour of the plaintiff and against the defendant, as compensatory/punitive damages.
This issue is decided accordingly, in favour of the plaintiff and against the defendant.
CS (Comm.) 155/2019 page 14 of 15 D.J.(Commercial)-01/Shahdara/KKD/Delhi Relief
37. In view of my findings on the various issues, as discussed above, the suit of the plaintiff is hereby decreed, partly, in favour of the plaintiff and against the defendant. A decree for permanent injunction is passed in favour of the plaintiff and against the defendant, whereby, the defendant, his agents, representatives, distributors, heirs, successors, stockists etc., are restrained from using, selling, soliciting, displaying, exporting, advertising or by any other mode or manner dealing in or using the impugned copyright work of the plaintiff, identical or deceptively similar to the plaintiff's copyright, in the packaging, with the label, 'ULLU KI DUM'.
A decree for punitive/compensatory damages of Rs.1 Lakh is also passed in favour of the plaintiff and against the defendant.
The costs and expenses i.e. the fees of the counsel for the plaintiff, as provided under the High Court of Delhi Rules, are also awarded in favour of the plaintiff and against the defendant.
The decree sheet be prepared accordingly.
File be consigned to record room, after due compliance.
Announced in the open Court on this 18th Day of July, 2024 BRIJESH KUMAR GARG District Judge (Commercial Court)-01 Shahdara Distt, KKD, Delhi CS (Comm.) 155/2019 page 15 of 15 D.J.(Commercial)-01/Shahdara/KKD/Delhi