Delhi District Court
Shashank Aggarwal vs Sambhav Kumartrading As M/S Annapurana on 5 November, 2024
IN THE COURT OF DJ (COMMERCIAL COURT)-11 (CENTRAL): TIS
HAZARI COURTS, DELHI
PRESIDED BY: SH. SANJAY SHARMA-II, DHJS
CS (Comm.) No. 875/2023
CNR No.: DLCT01-007444-2023
Shashank Aggarwal
(Trading as: M/s. Sai Enterprises)
Ground Floor, H. No. 166, Block-E
Plot No. 81, Street No. 17, Swaroop Nagar
Delhi-110042
..... Plaintiff
VERSUS
Sambhav Kumar
(Trading as: M/s. Annapurana)
Ground Floor, Plot No. 326
Khasra No. 326, OPT Union Bank of India
Burari, Delhi-110084
Also at:
85B, Plot No. 7, Shakti Enclave
Sant Apartment, Gali No. 1, Burari
Delhi-110084
..... Defendant
Date of Institution : 30.05.2023
Date of Arguments : 22.10.2024
Date of Judgment : 05.11.2024
JUDGMENT
THE SUIT:
1. The plaintiff filed a suit for permanent injunction to restrain the defendant from infringing his registered designs qua HAIR DRYER and ELECTRIC KETTLE, passing off, delivery up and damages in the sum of Rs. 5,00,000/- or rendition of accounts.
CS (Comm.) No. 875/2023 Shashank Aggarwal vs. Sambhav Kumar Page No. 1 of 10 THE PLAINT:
2. The plaintiff is a manufacturer, supplier, wholesaler, retailer, exporter of several goods including ' electric kettles, jar, fabric cleaners, electric hair dryers and electric hair straighteners' since 2015.
3. The plaintiff is promoting and trading mostly through e-
commerce platforms and online modes, including, ' Flipkart' and 'Amazon'.
4. The plaintiff's goods are enlisted on 'Flipkart' and 'Amazon' as WRAPDEALZI and UNWRRAP DEALZ respectively.
5. The plaintiff created new, original, novel, unique and distinctive designs for HAIR DRYER and ELECTRIC KETTLE and obtained registrations, as under:
"DESIGN NO. 1I. Design Registration Application No. 330798-001 Date of Filing of Application - July 07, 2020 Goods and Class for which it is Registered - HAIR DRYER; 28-03 Design Registration Certificate No. - 96837 Date of Grant / Issue of Registration Certificate - March 22, 2021 DESIGN NO. 2 II. Design Registration Application No. 347672-001 Date of Filing of Application - August 10, 2021 Goods and Class for which it is Registered - ELECTRIC KETTLE; 07-02 Design Registration Certificate No. - 102236 Date of Grant / Issue of Registration Certificate - September 14, 2021"
6. The uniqueness, novelty and originality of the design of HAIR DRYER are vested in distinct shape and configuration of the handle, body and its rear side including peculiar placement of curves, lines, depth and openings.
CS (Comm.) No. 875/2023 Shashank Aggarwal vs. Sambhav Kumar Page No. 2 of 10
7. The uniqueness, novelty and originality of the design of ELECTRIC KETTLE are vested in distinct shape and configuration of the handle, extent and manner of roundness of the body, unique structure of lid and separate lining and its base including spacing, curves and lines therein.
8. The registrations of the said designs are valid and subsisting. There is no cancellation or rectification petition filed or pending against the said designs. The said designs were never used prior to their registrations.
9. The plaintiff is using two registered trademarks, namely, BELDAENOVA and FAPA on the said designs of the said goods.
10. The plaintiff's goods under the said designs and marks acquired immense goodwill and reputation amongst the public and exclusively associated with the plaintiff.
11. The plaintiff spent substantial amount in promotion, advertising and marketing of the said goods under the said designs through online platforms across the globe.
12. The case of the plaintiff is that the defendant is indulging in sale of HAIR DRYER and ELECTRIC KETTLE of his registered designs on online platforms, particularly, ' Flipkart' and 'Amazon' under the name 'ANIAN' and 'CHOOSE AND TRACK' respectively.
13. It is further case of the plaintiff that the goods sold by the defendant are exact replica of the registered designs of the plaintiff and / or are deceptively or confusingly similar or identical to the said designs.
14. It is further case of the plaintiff that the defendant is trading upon goodwill and reputation of the registered designs of his goods and diluting his goodwill and reputation.
CS (Comm.) No. 875/2023 Shashank Aggarwal vs. Sambhav Kumar Page No. 3 of 10 THE APPEARANCE OF THE DEFENDANT:
15. Ms. Raj Priya, Ld. Counsel for the defendant appeared on 31.07.2023. Thereafter, the defendant did not appear. Accordingly, the defendant was proceeded ex-parte, vide order dated 29.08.2023.
THE PLAINTIFF EVIDENCE:
16. The plaintiff appeared as PW-1. He deposed, on strength of affidavit Ex.PW1/A. He relied on documents, as under:
Sl No. Description Exhibit
1. Certificate of Registration of Design No. 330798- Ex.PW1/1 001 in Class 28-03 on 07.07.2020 qua HAIR DRYER
2. Certificate of Registration of Design No. 347672- Ex.PW1/2 001 in Class 07-02 on 10.08.2021 qua ELECTRIC KETTLE
3. Photographs of design of HAIR DRYER from Ex.PW1/3 different angles
4. Photographs of design of ELECTRIC KETTLE from Ex.PW1/4 different angles
5. Trademark Registration Certificates Ex.PW1/5 (colly.)
6. Status of trademark registrations Ex.PW1/6 (colly.)
7. A copy of GST Registration Certificate Ex.PW1/7
8. Sale Invoices of the plaintiff Ex.PW1/8
9. Screen-shots of listing of the goods of the plaintiff Ex.PW1/9 on 'Flipkart' and 'Amazon' (colly.)
10. Screen-shots of listings of the goods of the plaintiff Ex.PW1/10 on 'Amazon' and 'Flipkart' (colly.)
11. Screen-shots of listings of the goods of the Ex.PW1/11 defendant on 'Amazon' and 'Flipkart' (colly.)
12. Invoices regarding online purchase of ELECTRIC Ex.PW1/12 KETTLE and HAIR DRYER from the defendant
13. Comparative table of the photographs of the goods Ex.PW1/13 of the plaintiff and the defendant
14. Photographs of the defendant's products i.e. HAIR Ex.PW1/14 DRYER and ELECTRIC KETTLE from different angles
15. Screen-shots of the plaintiff's e-mails sent to Ex.PW1/15 'Flipkart' (colly.) CS (Comm.) No. 875/2023 Shashank Aggarwal vs. Sambhav Kumar Page No. 4 of 10
16. Certificate in the form of an affidavit under Order 11 Ex.PW1/16 Rule 6 (3) CPC
17. Certificate under Section 65B of 'The Indian Ex.PW1/17 Evidence Act, 1872' APPEARANCE:
17. I have heard arguments of Mr. Rahul Kumar, Ld. Counsel for the plaintiff and perused the pleadings and documents, and written arguments.
CONTENTIONS OF THE PLAINTIFF:
18. Ld. Counsel for the plaintiff contended that the plaintiff is proprietor of registered designs of HAIR DRYER and ELECTRIC KETTLE. He contended that the defendant is selling identical or deceptively similar HAIR DRYER and ELECTRIC KETTLE through online platforms and e-commerce sites including 'Flipkart' and 'Amazon'. He contended that the plaintiff is engaged in manufacturing and trading of ELECTRIC KETTLE and HAIR DRYER and other goods through online platforms. He contended that the plaintiff is listed as a seller on 'Flipkart' and 'Amazon' as WRAPDEALZI and UNWRRAP DEALZ respectively. He contended that the plaintiff conceptualized, created and adopted the said designs in respect of ELECTRIC KETTLE and HAIR DRYER. He contended that the said designs are new, original, unique, novel and distinctive.
He contended that the plaintiff invested substantial amount in creation, development, promotion and advertisement of the said designs qua the said goods. He contended that the plaintiff is selling the said goods under the registered designs with registered trademarks BELDAENOVA and FAPA. He contended that the defendant is selling replicas of the said goods under the said designs through online platforms and thereby causing infringement of registered designs of the plaintiff.
CS (Comm.) No. 875/2023 Shashank Aggarwal vs. Sambhav Kumar Page No. 5 of 10
19. Ld. Counsel for the plaintiff contended that the defendant is selling HAIR DRYER and ELECTRIC KETTLE under the seller name as 'ANIAN' and 'CHOOSE AND TRACK' on 'Flipkart' and 'Amazon' respectively. He contended that the plaintiff purchased HAIR DRYER and ELECTRIC KETTLE from the defendant through online mode on 21.04.2023 and 23.04.2023. He contended that on visual comparison of the designs of the plaintiff's goods and the defendant's goods, it is evident that the defendant's goods are exact replica of the plaint's goods. He contended that the defendant neither contested the suit nor challenged the averments made in the plaint and the evidence led by the plaintiff. He contended that the defendant is not only infringing right of the plaintiff qua the said registered designs but he is also encashing upon goodwill and reputation of the plaintiff qua the said goods under the said designs. He contended that the plaintiff has exclusive copyright in the said designs and the defendant should be restrained from infringing the rights of the plaintiff in the said designs. In that regard, he relied upon the judgments, as under:
Sl. No. Case Law Citation
1. V Guard Industries Ltd. vs. Sukan Raj CS (Comm.) 25/2021 Jain & Anr. decided on 18.01.2021
2. Havells India Limited vs. Panasonic Life CS (Comm.) 261/2022 Solutions India Pvt. Ltd. and Anr. decided on 31.05.2022
3. Havells India Limited vs. Arise India Ltd. 2018 SCC OnLine Del and Anr. 11155
4. Symphony Ltd. vs. Thermo King India 2019 SCC OnLine Del Pvt. Ltd. 7510
5. Steelbird Hi-Tech India vs. Asia Fibre CS (Comm.) 1366/2016 Glass Products Ltd. & Anr. decided on 17.02.2020
6. TTK Prestige Ltd. vs. Gupta Light House CS (Comm.) 865/2022 decided on 24.07.2023
7. E.N. Project and Engineering Industries 2021 SCC OnLine Del (P) Ltd. and Another vs. KVT Electrical 4731 Project and Engineering and Others
8. Carlsberg Breweries A/s vs. Som 2018 SCC OnLine Del Distilleries and Breweries Ltd. 12912 CS (Comm.) No. 875/2023 Shashank Aggarwal vs. Sambhav Kumar Page No. 6 of 10
9. Anurag Sanghi and Another vs. Knitpro 2019 SCC OnLine Del International 8945
10. Eicher Goodearth Pvt. Ltd. vs. Krishna 2015 SCC OnLine Del Mehta & Ors. 10139
11. Whirlpool of India Ltd. vs. Videocon 2012 SCC OnLine Bom Industries Ltd. 1041 ANALYSIS AND DISCUSSION:
20. The plaintiff is a proprietor of designs qua HAIR DRYER and ELECTRIC KETTLE, vide registrations dated 22.03.2021 and 14.09.2021 respectively. The plaintiff is trading in the said goods under the said designs through online platforms and e-
commerce sites. The defendant is selling HAIR DRYER and ELECTRIC KETTLE through online platforms.
21. In Havells India Limited vs. Panasonic Life Solutions India Pvt. Ltd. and Anr. (supra), Hon;ble High Court of Delhi held, as under:
"68. Insofar as the claim for infringement of the Design 2016 is concerned, to determine infringement under Section 22(1) of the Act, the test is to compare the rival designs and judge by the eye, if the essential features of the impugned design / product are substantially different from the registered design sought to be protected. There is no dispute between the parties that Plaintiff has registration in Design 2016. Therefore, all that is required to be judged is whether the essential features of Design 2016 are substantially similar or different from the VENICE PRIME design.....As held in Castrol India Limited v. Tide Water Oil Co. (I) Ltd. 1994 SCC OnLine Cal 303, if the visual features of the two competing designs are similar or strikingly similar to the eye, it is not necessary that the two designs must be exactly identical and same. The matter has to be looked as one of substance and essential features of the designs ought to be considered.....
81.....It has been held in several judgments that if the Courts were to examine the dissimilarities with great minuteness, no Plaintiff would ever succeed in a claim for infringement or passing off as a clever Defendant, with some skill would always be in a position to make some cosmetic or minor changes and get away with deceit and / or infringement."
CS (Comm.) No. 875/2023 Shashank Aggarwal vs. Sambhav Kumar Page No. 7 of 10
22. In Bharat Glass Tube Limited vs. Gopal Glass Works Limited, (2008) 10 SCC 657, it has been observed that the onus to prove objections against the registrability of a design on the ground of Section 19(1)(b) of the Act rests with the challenger.
23. The plaintiff is a registered proprietor of the designs qua the said goods. The registrations are valid and subsisting. The certificates of registrations categorically state that 'The novelty resides in the shape and configuration of the ELECTRIC KETTLE and HAIR DRYER'. The defendant has neither appeared nor contested the suit. There is no material, therefore, to the contrary that the suit designs are bad for novelty and originality. The defendant cannot be permitted to infringe the right accrued to the plaintiff by virtue of registrations of the designs of HAIR DRYER and ELECTRIC KETTLE.
24. On visual comparison of the designs of the plaintiff's goods and the defendant's goods, it is evident that the designs of HAIR DRYER and ELECTRIC KETTLE of the defendant is the exact replica of the designs of the plaintiff's HAIR DRYER and ELECTRIC KETTLE. This Court is of the considered opinion that the defendant infringed the right of the plaintiff in the designs of HAIR DRYER and ELECTRIC KETTLE and he should be restrained from causing infringement of right of the plaintiff.
RELIEF
25. The suit of the plaintiff is decreed with costs and a decree of permanent injunction is passed in favour of the plaintiff and against the defendant and the defendant, his agents, representatives, distributors and affiliates are restrained from infringing registered designs of the plaintiff, vide No. 330798-001 and 347672-001, qua HAIR DRYER and ELECTRIC KETTLE or using any other design deceptively or confusingly similar or identical with the plaintiff's designs.
CS (Comm.) No. 875/2023 Shashank Aggarwal vs. Sambhav Kumar Page No. 8 of 10
26. The defendant, his associates, agents, representatives, employees and assignees are directed to remove listing / publication / posting of advertisements, offers or promotions from e-commerce platforms, online markets, social media platforms regarding HAIR DRYER and ELECTRIC KETTLE having designs of the plaintiff, vide Registration No. 330798- 001 and 347672-001, or any other design deceptively or confusingly similar or identical with the plaintiff's designs, and the defendant is restrained from passing off his HAIR DRYER and ELECTRIC KETTLE as that of the plaintiff.
27. On being informed about the present decree, ' Flipkart' and 'Amazon' are directed to remove / de-list / block advertisement / promotional material / URLs posted by the defendant, his associates, agents, representatives, employees and assignees on their sites pertaining to sale / advertisement / promotion of HAIR DRYER and ELECTRIC KETTLE containing designs of the plaintiff, vide Registration No. 330798-001 and 347672-001, or any other design deceptively or confusingly similar or identical with the plaintiff's designs, and passing off their goods as that of the plaintiff. The defendant is directed to deliver infringing HAIR DRYERS and ELECTRIC KETTLES to the plaintiff for destruction. The defendant is directed to remove all advertising / promotional material pertaining to the infringing HAIR DRYERS and ELECTRIC KETTLES. In view of judgment in Symphony Ltd. vs. Thermo King India Pvt. Ltd. (supra), the plaintiff is awarded damages in the sum of Rs. 1,00,000/-. Decree sheet be drawn. File be Digitally signed by consigned to record room. SANJAY SANJAY SHARMA SHARMA Date: 2024.11.06 13:09:35 +0530 Announced in the open Court SANJAY SHARMA-II on this 05 November, 2024 DJ (Commercial Court)-03 (Shahdara) th KKD Courts, Delhi CS (Comm.) No. 875/2023 Shashank Aggarwal vs. Sambhav Kumar Page No. 9 of 10 Shashank Aggarwal vs. Sambhav Kumar CNR No.: DLCT01-007444-2023 CS (Comm.) No. 875/2023 05.11.2024 Present : Ms. Akanksha Singh, Ld. Counsel for the plaintiff (through Video Conferencing).
Vide separate judgment, the suit of the plaintiff is decreed. Decree sheet be prepared. On request of Ld. Counsel for the plaintiff, the Court has returned original registrations certificates Ex.PW1/1 and Ex.PW1/2 respectively alongwith the plaintiff's goods and the defendant's goods to Ld. Counsel for the plaintiff against acknowledgment on the margin of the order-sheet. She has placed photocopy of the said certificates on the file of the Court. File be consigned to record room. Digitally signed by SANJAY SANJAY SHARMA SHARMA Date:
2024.11.06 13:09:45 +0530 Sanjay Sharma-II DJ (Commercial Court)-03 Shahdara, KKD, Delhi 05.11.2024 CS (Comm.) No. 875/2023 Shashank Aggarwal vs. Sambhav Kumar Page No. 10 of 10