Delhi High Court - Orders
Calvin Klein Trademark Trust vs M/S Blue Ivory & Ors on 12 September, 2022
Author: Navin Chawla
Bench: Navin Chawla
$~20
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(COMM) 629/2022
CALVIN KLEIN TRADEMARK TRUST
..... Plaintiff
Through: Mr.Pravin Anand, Mr.Saif Khan,
Mr.Shobhit Agarwal & Mr.Prajjwal
Kushwaha, Advs.
versus
M/S BLUE IVORY & ORS.
..... Defendants
Through: None.
CORAM:
HON'BLE MR. JUSTICE NAVIN CHAWLA
ORDER
% 12.09.2022 I.A. 14826/2022 (Exemption)
1. Allowed, subject to all just exceptions.
I.A. 14825/20222. This is an application filed on behalf of the plaintiff seeking leave to file additional documents which are not in the power, possession, control or custody of the plaintiff at the moment.
3. The plaintiff may file the additional documents strictly in accordance with the provisions of the law.
4. The application stands disposed of.
I.A. 14827/20225. This is an application seeking exemption from serving an advance copy of the suit paper book on the defendants.
6. Having considered the contents of the application, the same is Signature Not Verified Digitally Signed By:SHALOO BATRA Signing Date:27.09.2022 01:42:17 allowed. The plaintiff is granted exemption from serving an advance copy of the suit paper book on the defendants.
CS(COMM) 629/2022
7. Let the plaint be registered as a suit.
8. Issue summons to the defendants to be served through all permitted modes, including electronically, returnable on 16th December, 2022 before the learned Joint Registrar (Judicial).
9. The summons to the defendant(s) shall indicate that the written statement(s) to the plaint shall be positively filed within a period of 30 days from the date of receipt of summons. Along with the written statement(s), the defendant(s) shall also file the affidavit(s) of admission/denial of the documents of the plaintiff, without which the written statement(s) shall not be taken on record.
10. Liberty is given to the plaintiff to file the replication(s) within a period of 15 days of the receipt of the written statement(s). Along with the replication(s), if any, filed by the plaintiff, the affidavit(s) of admission/denial of documents of the defendant(s) be filed by the plaintiff, without which the replication(s) shall not be taken on record. If any of the parties wish to seek inspection of any documents, the same shall be sought and given within the timelines.
I.A. 14823/202211. Issue Notice. On the plaintiff taking steps, let notice be served on the defendants through all permissible modes, including electronically, returnable on 16th December, 2022 before the learned Joint Registrar (Judicial).
12. Let reply(ies) to the application be filed by the defendants within a Signature Not Verified Digitally Signed By:SHALOO BATRA Signing Date:27.09.2022 01:42:17 period of four weeks of receipt of the notice. Rejoinder thereto, if any, be filed within a period of two weeks thereafter.
13. It is the case of the plaintiff that the plaintiff-entity was founded in the year 1968 and is engaged in the business of manufacture, distribution and sale of a wide range of clothing, fragrances, cosmetics, eyewear, watches, home furnishings and other allied products.
14. The plaintiff asserts that it has been marketing the aforementioned goods and is the registered proprietor of several trade marks such as 'Calvin Klein', CK (word/logo) and , (in short, 'the CK Marks') under the provisions of the Trade Marks Act, 1999 (in short, the Act') in classes 03, 18 and 25, the details whereof are given in paragraph 9 of the plaint.
15. The plaintiff asserts that it has built up a globally-valuable brand, comprising the CK Marks, with total worldwide sales of approximately $8.4 Billion in 2016. The plaintiff has acquired immense goodwill and reputation under the said CK Marks vide extensive advertising, publicity, promotion and marketing research. In India, its consolidated sales turnover reached about $31 Million in year 2017 alone. It is further asserted that the plaintiff has been expending huge amount on promoting the CK Marks through visual, print and electronic media not only in India but also globally.
16. The plaintiff further asserts that it is entitled to the exclusive rights in the artwork, by virtue of the same being 'original artistic work' under Section 2(c) of the Copyright Act, 1957 (in short, 'Copyright Act') which forms a part of the various stylistic representations of the plaintiff's abovementioned CK Marks, as provided under Section 14(c) of the Copyright Act.
Signature Not Verified Digitally Signed By:SHALOO BATRA Signing Date:27.09.2022 01:42:1717. The plaintiff asserts that it is only in the month of July, 2022 that the plaintiff became aware of the infringement of its CK Marks being carried out by the defendants herein. The plaintiff has placed on record goods carrying the CK Marks of the plaintiff and allegedly sold by the defendants, and claims that the impugned goods are counterfeit.
18. Having perused the contents of the plaint, the documents filed therewith, and having heard the submissions made by the learned counsel for the plaintiff; in my opinion the plaintiff has been able to make out a good prima facie case in its favour. The balance of convenience is also in favour of the plaintiff and against the defendants. The plaintiff is likely to suffer irreparable injury in case ad-interim protection is not granted in its favour. Accordingly, an ad-interim order in terms of the prayers detailed in paragraph nos. 11 (a) and (b) of the present application is granted in favour of the plaintiff and against the defendants, till the next date of hearing.
19. Compliance with Order XXXIX Rule 3 of the Code of Civil Procedure, 1908, be made within a period of ten days from today.
I.A. 14824/202220. This application has been filed by the plaintiff praying for appointment of Local Commissioner(s) to visit the premises of the defendants, the details whereof have been given in the application.
21. For the reasons stated hereinabove, in my opinion, this is a fit case where the Local Commissioner(s) should be appointed. Accordingly, I appoint the following individuals as Local Commissioner(s) to visit the following addresses of the defendants:
Signature Not Verified Digitally Signed By:SHALOO BATRA Signing Date:27.09.2022 01:42:17S. No Particulars of Defendants' Address
1. Mr. Vijay Kumar Yadav, Defendant No. 1:
Adv., Add: Chamber No. M/s Blue Ivory 557, Basement, Western Through its partners/proprietor Wing, Tis Hazari Courts, Shop No. 6120-6122, Block Delhi, Mob. No. No.1, 8527233905 Gali No. 7, Shiv Plaza, Dev Nagar, Tank Road, Karol Bagh, New Delhi-110005
2. Mr. Nikhil Kukreja, Adv., Defendant No.2:
Add: AD-9/D, Shalimar Through its partners/proprietor Bagh, New Delhi, Mob. M/s Anand Enterprises, No. 9811771146 Shop No 16/H-55-56, Gali No. 4, Govind Garh, Tank Road, Karol Bagh, New Delhi - 110005
3. Mr. Vishal Gohri, Adv., Defendant No. 3:
Add: 8/5, 3rd Floor, Through its partners/proprietor Jangpura Extn., New M/s. Jack One (Shanti Delhi, Mob. No. Enterprises), 9711455398 Shop No. 6266, Block No. 6, Gali No. 3, Dev Nagar, Saluja WaliGali, Tank Road, Karol Bagh, New Delhi - 110005 And Shop No. 6282, Gali No. 3, Dev Nagar, Tank Road, Karol Bagh, New Delhi -
110005
4. Mr. Arun Kumar, Adv., Defendant No. 4:
Add: Lawyers Chamber Through its Directors No. 347, Block -I, Delhi M/s. Labroz Fashion Pvt. Ltd, High Court, Mob. No. 6346, Block no -7, Gali No 1, 9650782555 Padam Singh Road, Dev Nagar, Karol Bagh, Near Kundhan Dhaba, Signature Not Verified Delhi - 110005 Digitally Signed By:SHALOO BATRA Signing Date:27.09.2022 01:42:17
22. The Local Commissioner(s) shall be empowered to:
A. Inspect the defendants' premises and make an inventory and take into custody all products, packaging materials, stationery, such other literature, etc. bearing the CK Marks, as mentioned under paragraph 9 of the plaint, and/or its variants or any other deceptively similar mark(s), trade dress, logos and/or artistic work thereto; B. Demand the disclosure of the other outlets/warehouses/ factories of the defendants where the infringing goods are manufactured, stocked and sold by the defendants, and visit such premises and seize all offending goods/material found therein; C. Demand disclosure of all books of accounts including ledgers, cash books, purchase, identity cards and sale records etc. available at the defendants' premises and inspect and sign the same and take copies as part of the record. In the event the books of accounts are maintained electronically, the Local Commissioner(s) are empowered to access the same after the password is provided by the defendants and take electronic copies as part of the record; D. Break open locks and pre-emptively seek police assistance and protection, if necessary, in order to implement the order of this Court. The SHO/DCP of the concerned area is directed to provide immediate police support upon request of the Local Commissioner(s); E. Return the seized infringing goods to the defendants or their representatives on superdari upon them furnishing an undertaking that they will preserve and produce the seized goods as and when called upon to do so by this Court;
F. Visit any other premises of the defendants where such Signature Not Verified Digitally Signed By:SHALOO BATRA Signing Date:27.09.2022 01:42:17 counterfeit products are stocked / sold and seize them in the same manner as enumerated hereinabove.
23. The Local Commissioner(s) shall also be entitled to have the commission proceedings videographed and/or photographed with the assistance provided by the plaintiff.
24. The owner(s) and/or proprietor(s) of the aforesaid premises are also directed to co-operate in the execution of the commission and to allow the Local Commissioner(s) to have access to all such material enumerated hereinabove.
25. The representatives of the plaintiff shall be entitled to accompany the Local Commissioner(s).
26. The report of the Local Commissioner(s) shall be submitted within one week of execution of the commission.
27. The fee of the Local Commissioner(s) is fixed at Rs.75,000/- (Rupees Seventy-Five Thousand only) each to be paid by the plaintiff at the first instance, along with any out-of-pocket expenses that the Local Commissioner(s) may incur.
28. The application is allowed in the above terms.
29. This order may not be uploaded on the website of the Delhi High Court for a period of two weeks.
30. Dasti.
NAVIN CHAWLA, J SEPTEMBER 12, 2022/rv Signature Not Verified Digitally Signed By:SHALOO BATRA Signing Date:27.09.2022 01:42:17