Delhi District Court
Puma Se Through Rohit Bisht vs Rama Shankar Garg on 26 August, 2023
IN THE COURT OF MS. HEMANI MALHOTRA,
DISTRICT JUDGE (COMMERCIAL)-2, WEST,
ROOM NO.209,EXTENSION BLOCK,
TIS HAZARI COURTS DELHI
CNR NO.DLWT01-0028462022
CS (COMM) NO. 244/2022
IN THE MATTER OF :
PUMA SE
PUMA WAY 1,
HERZOGENAURACH, 91074 GERMANY
THROUGH ITS
AUTHORISED REPRESENTATIVE
MR. ROHIT BISHT
PUMA STORE
A3, 8, PASCHIM VIHAR ROAD,
NEW DELHI-110063 ... PLAINTIFF
VERSUS
RAMA SHANKAR GARG
PROPRIETOR OF M/S BABA FOOTWEAR
1295-B, MIE, PART-B,
BAHADURGARG, JHAJJAR,
HARYANA-124507 ...DEFENDANT
Date of institution : 28.03.2022
Date of receiving by this Court : 13.07.2023
Date of conclusion of arguments : 19.08.2023
Date of announcement of judgment : 26.08.2023
SUMMARY JUDGMENT
1.By this judgment, I shall dispose off the application U/o XIII A CPC filed by plaintiff seeking Summary Judgment.
2. Brief facts necessary for the disposal of the present application are that the plaintiff Company is registered under the laws of European Community respectively under the law of Germany, having its office at PUMA Way 1, Herzogenaurach, 91074 Germany and is engaged in manufacturing, sale and distribution of Footwear, sports and casual wear including t-shirt, Shoes, Slippers, lower, jackets, caps, shorts, pants, other apparel and accessories across the world including India under the name "PUMA" and LOGO and it has a huge turnover. Moreover, "PUMA", being the umbrella brand of the plaintiff, have become a source identifier for the plaintiff and its group of companies.
Further, "Puma" and logo, form Strip logo and Jumping Cat Logo " are well known mark in India and around the world. The registration of said
trademarks/logos "PUMA" are valid and subsisting in favour of plaintiff company till date, details of which are mentioned in para 8 of the plaint. It is claimed that the plaintiff company has thus the exclusive rights to use said Trademarks/logos with respect to its products and no one is entitled to use said trademark. /
3. The plaintiff company has alleged that in last week of February'2022 it came to its knowledge that the defendant is engaged in same/similar trade and business as that of the plaintiff and storing, distributing and selling slippers, shoes accessories and other allied accessories in the area of Paschim Vihar, Moti Nagar, Punjabi Bagh, Rajouri Garden, Tilak Nagar, Subhash Nagar etc. Thus, it is the case of the plaintiff that the defendant has dishonestly and malafidely adopted impugned trademarks/label/colour combination/trade dress/logos 'PAMA' which is visually, structurally identical and / or deceptively and confusingly similar to the registered trademarks of plaintiff 'Puma' thereby causing confusion and deception amongst the unwary purchasing public and traders by making them believe that the origin of those goods is the plaintiff company. It has been averred that by doing so, the defendant is not only damaging the reputation and goodwill of the plaintiff company by passing off his substandard products as that of the plaintiff company but is also causing financial loss to the plaintiff company by reaping unfair advantage of the repute and distinctive character of the trademark of the plaintiff company. The impugned adoption of the trade mark/label by the defendant is dishonest, tainted, ill-motivated and is disseminating confusion and deception The same is apparent from the comparative chart of both the competing trademark/label/colour combination/trade dress of the plaintiff and the defendant, which is as under:
PLAINTIFF'S SAID TRADEMARK DEFENDANT'S
PUMA/label/product COUNTERFEIT
GOODS
4. It is further the case of the plaintiff that the defendant is not the proprietor of the impugned trademark/label/colour combination/trade dress/colour combination/trade dress and has no right to adopt or use the same as a trademark or in any other manner It is also alleged that due to the defendant's impugned activities, the plaintiff is suffering huge losses both in business and in reputation and such losses are incapable of being assessed in monetary terms and hence defendant is liable to render its accounts and are also liable to pay compensatory damages to the plaintiff. Hence, the present suit.
5. Applications under Order XXXIX Rule 1 and 2 CPC r/w Section 135 of Trade Mark Act,1999 and under Order XXVI Rule 9 CPC r/w Section 135 of Trade Mark Act,1999 were also filed alongwith the suit.
6. Both applications were disposed off vide order dated 30.3.2022 passed by Learned Predecessor of this Court with observation that prima facie case of infringement of of trademark, copyright and passing off was made out in favour of the plaintiff and defendant & all other acting on his behalf were restrained from using trade marks/logos plaintiff. Local Commissioner was also appointed vide order dated 30.3.2022 of Learned Predecessor to seize impugned goods, accessories, packaging material and all other material bearing the falsified trade mark.
7. Summons of the suit and notice of accompanying applications were issued to defendant vide order dated 30.3.2022, passed by Learned Predecessor. Sh. Raja Jain, learned counsel for defendant appeared on 10.5.2022. Thereafter on 21.09.2022 at joint request, matter was sent to Mediation Center. However, matter could not be settled before mediation. Subsequently, defendant did not appear before this Court and vide order dated 22.2.2023, defendant was proceeded exparte. Hence, the application Under Order XIII A CPC r/w Section 151 CPC for summary judgment which is under disposal.
8. During trial, learned counsel for plaintiff withdrew relief as mentioned in para 42 (d) and (e) of the plaint regarding delivery up and rendition of account of profits illegally earned by the defendant.
9. It was argued by learned counsel for plaintiff that as no written statement on behalf of defendant no.1 has been filed, hence, the averments of the plaintiff are unchallenged and unrebutted. In view thereof, summary judgment under Order XIII A CPC be passed. Learned counsel for plaintiff also relied upon cases titled as DISNEY ENTERPRISE INC. & ANR. VS. BALRAJ MUTTNEJA & ORS. (CS (OS)3466/2012 DATED 20.2.2014 PASSED BY HON'BLE DELHI HIGH COURT ; case titled as LT. FOODS LIMITED VS. SARASWATI TRADING COMPANY CS (COMM) 413/2021 and case titled as AKTIEBOLAGET VOLVO & ORS VS VOLVO WHITE PAINS INDUSTRIES AND ORS. , CS (COMM) 198/2022 dated 7.2.2023.
10. I have heard Sh. Varun Khanna, learned counsel for plaintiff and carefully perused the record.
11. Summary judgment as the name suggests is an outcome of the case decided summarily, based on the documentary evidence produced before the Court by the parties, without going for recording of evidence. The rule of Civil Procedure empowers the court to narrow issues and expedite proceedings by granting summary judgments where the common law permits. It is an effective tool for deciding cases where it can be clearly demonstrated that a trial is unnecessary. However, to grant a summary judgment, the court must be satisfied that there is no issue for trial. Rule 3 of Order XIII A of the CPC lays down the following grounds for Summary Judgment against a party on a claim, when it considers that :
(a) The plaintiff has no real prospect of succeeding on a claim or the defendant has no real prospect of successfully defending the claim : and
(b) There is no other compelling reason why the claim should not be disposed of before recording of oral evidence.
12. In a case titled as "AMBAWATTA BUILDWELL PRIVATE LIMITED VS. IMPERIA STRUCTURE LTD. AND ORS . reported as 2019 SCC ONLINE DL 8657, it was held by the Hon'ble High Court of Delhi as under:
"What has to be seen is, whether the defence pleaded, has any chance of succeeding of in law and if the answer is in the negative, a decree on admissions or order XXV of CPC or a summary judgment Under Order XIII A CPC as applicable to commercial dispute where Chapter X-A of the Delhi High Court (in original sites) Rules 2018 has to follow."
13. Similarly, in SYRMA TECHNOLOGY PVT. LTD. VS.
POWERWAVE TECHNOLOGIES SWEDEN AD and another reported as 2020 SCC ONLINE MAD 5737, it was held by the Hon'ble Madras High Court as under:
"This rule provides sufficient powers to the court to pass the conditional order. This power has to be exercised when it appears to the court that it is possible that a claim or defence may succeed but it is improbable that it shall do so. If we read Order XIII A Rule 6 & 7 together, a clear picture would emerge. If it appears to the court that a claim or defence may succeed and it is also probable, then the application filed seeking a Summary judgment will have to be dismissed. If it appears to the Court that it is possible but improbable as stated in Rule 7 of Order XIII- A of the Code, then it may consider passing a conditional order."
If the court considers that a plaintiff has no real prospect of succeeding on the claim or the defendant has no real prospect of successfully defending the claim there is no other compelling reason as to why the claim should not be disposed of before recording of oral evidence, it may give a Summary judgment. Alternatively, the Court can also consider striking out the pleadings either in whole or in part. This discretion is given to the Court before deciding to give a summary judgment. Therefore, the court has to keep in mind and decide as to whether it is a fit case for striking out the pleadings dismissing an application and proceed further or a conditional order could be passed. After exhausting these stages, the question of granting a summary judgment would arise."
14. Now applying the principles of summary judgment to the facts of the instant case, I am of the considered opinion that that the defendant did not place any document on record to counter the allegations of plaintiff which are further supported by the report of Learned Local Commissioner dated 13.4.2022. Report of Learned Local Commissioner dated 13.4.2022 shows that a large quantity of shoes with trademark 'PAMA' logo form strip logo shows and strips were found and hence seized. 45 cartoons with 25-30 pairs of shows/sandals in each,were seized and sealed from1295B, M.I.E. PART-B, BAHADURGARH(HARYANA). Cartoons were handed over to the plaintiff on superdari. Thus, for want of rebuttal to the allegations, averments of plaintiff stand proved against the defendant. Hence, suit of the plaintiff stands decreed in its favour in terms prayer made at para 42 clause a, b,c,f and g in the plaint. Since during trial, learned counsel for plaintiff withdrew relief as mentioned in para 42 (d) and (e) of the plaint regarding delivery up and rendition of account of profits illegally earned by the defendant, no relief to this effect is granted to plaintiff.
15. Decree sheet be prepared accordingly.
File be consigned to Record Room.
ANNOUNCED IN THE OPEN COURT ON 26.8.2023 (HEMANI MALHOTRA) DISTRICT JUDGE (COMMERCIAL COURT)-02/WEST, TIS HAZARI COURTS EXTN. BLOCK, DELHI