Delhi High Court - Orders
Vivo Mobile Communication Co Ltd vs Mr Jitendra Kumar Tiwari Trading As Maa ... on 22 March, 2022
Author: Prathiba M. Singh
Bench: Prathiba M. Singh
Signature Not Verified
Digitally Signed
By:DEVANSHU JOSHI
Signing Date:24.03.2022
07:51:31
$~10
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS (COMM) 510/2021 & I.As. 13431/2021, 13433-34/2021
VIVO MOBILE COMMUNICATION CO LTD ..... Plaintiff
Through: Mr. Himanshu Deda, Mr. Naqeeb
Nawab, Mr. Raghav Vig and Mr.
Yashwardhan Singh, Advocates.
(M:8802636159)
versus
MR JITENDRA KUMAR TIWARI TRADING AS MAA
VAISHNAVI CHEMICALS ..... Defendant
Through: None.
CORAM:
JUSTICE PRATHIBA M. SINGH
ORDER
% 22.03.2022
1. This hearing has been done through hybrid mode. I.A.13433/2021 (u/O XI Rules 2 & 5 CPC)
2. The present application for interrogatories filed by the Plaintiff, is not pressed at this stage.
3. Accordingly, I.A.13433/2021 is disposed of as not pressed. I.A.13434/2021 (for additional documents)
4. This is an application filed by the Plaintiff seeking leave to file additional documents. The additional documents, if any, shall be filed strictly in accordance with the Commercial Courts Act, 2015.
5. I.A.13434/2021 is disposed of in these terms.
I.A.13431/2021 (u/O XXXIX Rules 1 & 2 CPC) & CS (COMM) 510/2021
6. None appears for the Defendant.
7. None had appeared on behalf of the Defendant even on the previous CS (COMM) 510/2021 Page 1 of 4 Signature Not Verified Digitally Signed By:DEVANSHU JOSHI Signing Date:24.03.2022 07:51:31 returnable date i.e., 7th January, 2022. Notably, the execution of the local commission took place on 14th October, 2021. Therefore, the Defendant clearly has notice of the present case. Despite this, since none had appeared on behalf of the Defendant, the Defendant is being proceeded ex-parte.
8. The Plaintiff has filed the present suit for declaration, permanent injunction restraining infringement of trademarks and copyright as well as passing off, damages, etc. against the Defendant.
9. I.A.13431/2021 is an application filed by the Plaintiff in this suit, seeking interim injunction against the Defendant, restraining it from using the Defendant's marks/trade dress/logo/device/etc.
10. A perusal of the record shows that an ad-interim ex-parte injunction order was granted on 12th October, 2021 and the local commission pursuant thereto has already been executed. The relevant portion of the said order dated 12th October, 2021 reads as under:
"19. Accordingly, till further orders, defendant, its partners, principals, employees, agents, distributors, franchisees, representative, assigns and all those connected with it, are restrained from using the plaintiffs mark VIVO or any other deceptively similar mark, logo or device amounting to passing off of plaintiffs mark VIVO."
11. The trademarks of the Plaintiff-Vivo Mobile Communication Co. Ltd., being 'VIVO' and VIVO formative marks, as specified in the plaint, are stated to have been in use in respect of its mobile phone business worldwide and other diverse business activities, etc. for the last several years since around the year 2011. The 'VIVO' trademark and formative marks are also registered trademarks of the Plaintiff as per the documents filed on record.
CS (COMM) 510/2021 Page 2 of 4 Signature Not Verified Digitally Signed By:DEVANSHU JOSHI Signing Date:24.03.2022 07:51:31The VIVO mark also has a unique logo style and colour combination of blue and white. This Court notes that the Defendant has also applied for the trademark 'VIVO +PLUS ADHESIVE (LABEL)' for adhesives in Class 1 bearing no.4755554 dated 24th November, 2020. This Court also notes that the Plaintiff had issued a letter to the Defendant in respect of usage of the Plaintiff's marks and some emails were also exchanged between the parties. However, since there was no settlement between the parties, the suit came to be filed, in which the ad-interim order as extracted above was granted. As per the report of the Local Commissioner also, various products of the Defendant were found with trademarks JB+, Jaguar, etc. However, some products of VIVO were also found by the Local Commissioner.
12. The mark 'VIVO' and its various formative marks being registered in favour of the Plaintiffs, and due to the extensive use of the said mark, the adoption and use of 'VIVO' or 'VIVO PLUS' especially in the same logo form, would undoubtedly lead to confusion and deception. It would also result in dilution of the 'VIVO' mark. Moreover, there is no representation on behalf of the Defendants. Accordingly, the interim order passed on 12th October, 2021 is confirmed during the pendency of the suit.
13. I.A. 13431/2021 is disposed of.
14. Additionally, ld. counsel for the Plaintiff wishes to file evidence in view of the prayer in the suit seeking declaration of the Plaintiff's marks as well-known trademarks in India. The said prayer is as under:
"h) A decree of declaration thereby declaring that the Plaintiff's VIVO Marks, inter alia, VIVO, are well-
CS (COMM) 510/2021 Page 3 of 4 Signature Not Verified Digitally Signed By:DEVANSHU JOSHI Signing Date:24.03.2022 07:51:31known trade marks in the Republic of India;"
15. Accordingly, let the affidavit in evidence be filed by ld. Counsel for the Plaintiff, in support of the prayer seeking declaration of the Plaintiff's mark as a well-known trademark.
16. List before the Joint Registrar on 5th May, 2022 for marking of exhibits.
17. List before the Court on 26th July, 2022.
18. Copy of this order be uploaded forthwith.
19. The digitally signed copy of this order, duly uploaded on the official website of the Delhi High Court, www.delhihighcourt.nic.in, shall be treated as the certified copy of the order for the purpose of ensuring compliance. No physical copy of orders shall be insisted by any authority/entity or litigant.
PRATHIBA M. SINGH, J.
MARCH 22, 2022/dk/ms CS (COMM) 510/2021 Page 4 of 4