Delhi District Court
Levi Strauss & Co vs Anto Mani Roy on 4 January, 2019
IN THE COURT OF MS. TWINKLE WADHWA : LD. ADDITIONAL DISTRICT
JUDGE03:PATIALA HOUSE COURT:NEW DELHI DISTRICT
TM No. 13694/16
Levi Strauss & Co.
1155 Battery Street, San Francisco
State of California, USA,
Through its constituted Attorney
Mr. Rishi Bansal,
96, Sukhdev Vihar,
Mathura Raod, New Delhi25. .....Plaintiff
VERSUS
Anto Mani Roy
S/o Sh.Bhuvan Ram Roy
Building no. 2151/7,
1st Floor, New Patel Nagar,
New Delhi110008
Also at
27/51, BlockA1,
Bangali Colony,
Sant Nagar,
Burari, Delhi .....Defendants
Date of Institution : 07.05.2016
Date of Final Arguments : 26.10.2018
Date of Decision : 04.01.2019
TM No. 13694/16 Page 1 of 9
ExPARTE JUDGMENT
The Case
1.This suit has been filed by plaintiff company under Section 134, 135 and 27 of Trade Marks Act, 1999 apart from Section 51 of Copy Right Act, 1957 for seeking permanent injunction against defendant from usage of registered trademark "Levi's" apart from other reliefs.
Appearance
2. I have heard Ld. Counsel for the plaintiff and have perused the case file.
Plaintiff's Case
3. The case of the plaintiff as per pleadings and the evidence is that the plaintiff company is the owner of registered trademark "Levi's with/without "Two Horse Logo" and/or House Mark" for the purpose of clothing of all kinds, readymade garments and clothing and leisure shoes, spectacle glasses, bahs and other accessories and engaged in the business of manufacturing and marketing of clothing of all kinds readymade garments and clothing and other allied/related products. The plaintiff has been using the word/mark Levi's as a trade mark and also as an essential part of its trade name in relation to its said goods and business. Plaintiff has been using the said mark honestly, bonafidely, extensively, exclusively, TM No. 13694/16 Page 2 of 9 continuously, commercially in course of trade since 1873. Plaintiff's goods under the said trademarks are freely and commercially available in India. The details of the application for registration of trademarks in respect of various classes of goods as well as the registered trademark have also been provided in the plaint. The plaintiff has been regularly and continuously promoting its distinctive trademark through extensive advertisements, publicities promotions and marketing research and has been spending enormous amounts of money, efforts, skills and time thereon. Plaintiff represent their trademark in an artistic manner including its getup, lettering style, color schemes, placement of words and artistic features etc.
4. Plaintiff has also presses his application for appointment of Local Commissioner. During the pendency of the proceedings, LC was appointed to raid in the premises of defendants in order to collect the evidence vide order dated 07.05.2016 LC visited the premises and accordingly filed his report regarding the evidence against the defendant.
5. Plaintiff has impleaded the defendant in the capacity of John Doe. Reliance has been placed on similar orders passed by the Hon'ble High Court of Delhi in CS(OS) No. 688 of 2010, wherein the name of defendant was not know at the time of filing of the suit TM No. 13694/16 Page 3 of 9 and such a defendant was notionally referred to as John Doe. Such John Doe orders were passed by Hon'ble High Court to include any such person infringing the plaintiff's trademark.
6. It is the case of the plaintiff that the defendant is engaged in the business of selling fake and counterfeit goods including readymade garments and allied/cognate goods bearing the plaintiff's said trademark. The defendants have adopted and are using the mark having artistic features, getup, layout, lettering style and placement similar to that of the plaintiff. It is alleged that the defendant's impugned mark is deceptively identical and similar to the plaintiff's trademark. Defendants have also infringed plaintiff's copyrights involved in the said trademarks and is also using the same trade dress. Defendants have also adopted and started using the impugned trade mark dishonestly, fraudulently and out of positive greed with the view to take advantage and to trade upon the established good will, reputation and proprietary rights of the plaintiff in the plaintiff's said trade mark name. Because of such activities of the defendants, plaintiff is suffering huge losses both in business and in reputation which cannot be compensated in terms of money.
Case of defendant
7. Summons were duly served upon the defendant by way of TM No. 13694/16 Page 4 of 9 publication on 24.11.2016 and their defence was struck off on 13.02.2017.
9. On completion of pleadings, following points of consideration were identified on 13.02.2017 ISSUES
1. Whether the plaintiff is entitled to decree for permanent injunction restraining defendants, their agents, representatives, stockists etc. for using, selling, soliciting etc. of impugned goods containing Trade Mark "LEVI'S with/without "Two Horse Logo" and/or House mark Levi's"? OPP.
2. Whether plaintiff is entitled to decree of injunction restraining the defendants and their subjects from dealing with or disposing of the merchandise containing Trade Mark "LEVI'S with/without "Two Horse Logo"
and/or House mark Levi's"? OPP.
3. Whether plaintiff is entitled to decree of delivery up of impugned goods containing Trade Mark "LEVI'S with/without "Two Horse Logo" and/or House mark Levi's"? OPP.
4. Whether plaintiff is entitled to Rendition of accounts and damages on account of profits made by the defendant by sale of goods containing Trade Mark "LEVI'S with/without "Two Horse Logo" and/or House mark Levi's"? OPP.
5. Relief.
10. To prove its case plaintiff examined Ms. Meena Bansal as TM No. 13694/16 Page 5 of 9 PW1 and exhibited the following documents S.No. No. of Exhibits Details of the documents 1 Ex.PW1/1 Copy of Power of Attorney Ex.PW1/2 (Colly) True representation of the plaintiff's trade 2 mark/label Ex.PW1/3 (Colly) Copies of list of the plaintiff's stores/showrooms 3 in India including New Delhi Ex.PW1/4 (Colly) List of plaintiff's registered trademark along with 4 copies of legal proceedings certificates Ex.PW1/5 (Colly) Copies of plaintiff's various documents 5 advertisement, material etc Ex.PW1/6 Representation of impugned trade mark/label 6 of defendant 7 Ex.PW1/7 Report of local commissioner Mark A Copy of certificate of incorporation of the 9 plaintiff company
13. I have heard the arguments of plaintiff and gone through the record.
Reasons of Decision
14. On the basis of above, plaintiff has proved that they are registered users of the trademark 'Levi's' and the trademark has acquired distinct features and they are regularly doing trade of and manufacturing and marketing of clothing of all kinds, readymade garments and clothing and other allied/related products under the TM No. 13694/16 Page 6 of 9 said trade name along with lable/device. It is further proved by plaintiff that while the Local Commissioner inspected the premises of defendants, products were found to be deceptively similar wherein trade name was similar to the tradename of plaintiff. It is case of plaintiff company that it is the registered owner of mark Levis since last several years, proof regarding the same is filed on record. Plaintiff has filed on recod relevant documents thereby showing its global presence by way of various advertisements on internet and otherwise. On the basis of above documents, plaintiff has been able to prove that it is registered owner of the mark Levis and other such trade mark Two Horse Logo and/or House mark Levi's and the Two Horse Logo and has acquired passing off rights also.
15. Further report of LC is duly exhibited on record. Further I have gone through the photographs also filed by LC in order to show that the goods seized were carrying logo and mark of the plaintiff company. As per report of Local Commissioner, articles were kept in 63 gunny bags which were recovered from the premises of defendant at Building no. 2151/7, 1 st Floor, New Patel Nagar, New Delhi110008. The report of LC stands unchallenged in the Court.
14. It is also argued that plaintiff had to get LC appointed and TM No. 13694/16 Page 7 of 9 hence cost of litigation be also awarded.
14. In view of above, where the testimony of the plaintiff is uncontroverted and unchallenged and facts are proved on record as defendant failed to appear, plaintiff has been above to prove its case against the defendants.
Issue No.1Whether the plaintiff is entitled to decree for permanent injunction restraining defendants, their agents, representatives, stockists etc. for using, selling, soliciting etc. of impugned goods containing Trade Mark Two Horse Logo"
and/or House mark Levi's?OPP.
21. In view of above observation, plaintiff is entitled to decree of permanent injunction restraining defendant their agents, representatives, stockists etc. for using, selling, soliciting etc. of impugned goods containing Trade Mark Two Horse Logo" and/or House mark LEVI's.
Issue No.2Whether plaintiff is entitled to decree of injunction restraining the defendants and their subjects from dealing with or disposing of the merchandise containing Trade Mark Two Horse Logo" and/or House mark Levi's? OPP.
22. In view of above, plaintiff is entitled to decree of injunction restraining the defendant and their subjects from dealing with or disposing of the merchandise containing Trade Mark Two Horse Logo" and/or House mark LEVI's.TM No. 13694/16 Page 8 of 9
Issue No.3Whether plaintiff is entitled to decree of delivery up of impugned goods containing Trade Mark Two Horse Logo" and/or House mark Levi's? OPP.
23. In view of above, plaintiff is entitled to decree of delivery up of impugned goods containing Trade Mark Two Horse Logo" and/or House mark Levi's. Hence seized goods be handed over to plaintiff.
Issue No.4Whether plaintiff is entitled to Rendition of accounts and damages on account of profits made by the defendant by sale of goods containing Trade Mark Two Horse Logo" and/or House mark Levi's? OPP.
24. Plaintiff has not filed any proof regarding rendition of accounts sought or the damages suffered. Hence, plaintiff is not entitled to any damages and rendition of account. Relief
25. In view of the above, the present suit is decreed in favour of the plaintiff and against the defendant. Cost of litigation of Rs. 1 lakh is also awarded.
Decree sheet be prepared accordingly.
Digitally signed File be consigned to record room. by TWINKLE WADHWA TWINKLE Date: Announced in an open Court WADHWA 2019.01.04 11:49:00 On 04th day of January, 2019. +0530 (Twinkle Wadhwa) ADJ03/PHC/NEW DELHI 04.01.2019 TM No. 13694/16 Page 9 of 9