Delhi District Court
M/S Ask Automotive Ltd vs Neeraj Kumar on 29 July, 2025
In the Court of Shri Ashutosh Kumar, District Judge (Commercial
Court)-01, Tis Hazari Courts, West District, Delhi
CS (Comm.) No. 343/2021
CNR No. DLWT010056182021
M/s. ASK Automotive Limited
Having its registered office at:
Flat No. 104, 929/1
Naiwala, Faiz Road, Karol Bagh,
New Delhi-110005
Through its Authorized Representative
Ms. Rajani Sharma
........Plaintiff
Versus
Neeraj Kumar
Building No. 6/13,
Industrial Area, Kirti Nagar,
New Delhi-110015
........Defendant
Date of Institution : 11-08-2021
Date of hearing of arguments : 22-07-2025
Date of decision : 29-07-2025
Plaintiff's counsel: Ms Priya Nagpal
Defendant's Counsel: Sh Ajay Paul
JUDGMENT
1. This is a suit for permanent injunction, infringement of trade Mark, copyright and rendition of accounts filed by the plaintiff CS (COMM.) No 343/2021 ASK Automotive Ltd Vs Neeraj Kumar Page No.1 of 33 against the defendant.
2. Plaintiff's case is that it is a company registered under the Companies Act 1956 and engaged in the business of manufacturing, export, distribution, sale and retail of all kinds Friction Products in Two-Wheeler Segment, three wheeler segments and four wheeler segments and commercial vehicles and has filed the present suit through Rajani Sharma, who has been authorized vide Board Resolution dated 27.07.2020 to institute, commence, prosecute and defend all legal proceeding/filing/defending suits/complaints/petitions on its behalf.
3. It is the case of the plaintiff that plaintiff company was founded in 1988 by K. S. Rathee with a vision of 'achieving excellence in the field of manufacturing Automotive Components' and it has acquired a status of major supplier to original equipment manufacturers (OEMs) in India and over a span of three decades, it has grown from small manufacturer to major supplier of friction material such as brake assemblies, brake shoe, brake linings, clutch plate and aluminum casting products like panels, hubs, non automotive parts, crank case, engine parts, grip engine parts etc. to Original Equipment manufacturers (OEMs) in India and has been able to position itself as a key resource for leading OEMs and has successfully added leading names like Honda Motorcycle, Hero Moto Corp, Bajaj Auto, Suzuki Motorcycle, Yamaha, Maruti CS (COMM.) No 343/2021 ASK Automotive Ltd Vs Neeraj Kumar Page No.2 of 33 Suzuki, Ford TVS Yobike, BMW, Royal Enfield, Kawasaki, Mahindra 2-Wheeler, Denso, Piaggio, Brembo, UFI Filters, Sonalika International, Magnetti Marelli, Stanley Black & Decker, Rockman, Rico, Knorr Bremse, Polaris, Mitsubishi Electric, to its clientele list.
4. It is further the claim of the plaintiff that it has its registered office and principal place of business at Flat No.104, 929/1, Naiwala, Faiz Road, Karol Bagh, New Delhi-110005 and carries its business through the said registered office and also through its dealers and franchise in Karol Bagh, Delhi and other parts of Delhi.
5. Plaintiff's further case is that it is registered owner of trademark/trade dress "ASK" and details of its registration in India is as under:
Sr No. Registered Class Registrati Date of Valid Up Trademark on No. Registration to 1 ASK 12 506591 07.03.1989 07.03.2030 (Word Mark) 2 12 1437839 24.03.2006 24.03.2026 3 12 1913404 25.01.2010 25.01.2030 CS (COMM.) No 343/2021 ASK Automotive Ltd Vs Neeraj Kumar Page No.3 of 33 4 12 3758974 20.02.2018 20.02.2028 5 12 3758975 20.02.2018 20.02.2028 6 35 2553199 24.06.2013 24.06.2023 7 12 3763432 24.02.2018 24.02.2028 8 12 3941227 10.09.2018 10.09.2028 9 12 3763431 24.02.2018 23.05.2029 10 SAFESTOP 12 4002204 19.11.2018 06.02.2031
6. It is further the case of the plaintiff the all the aforesaid CS (COMM.) No 343/2021 ASK Automotive Ltd Vs Neeraj Kumar Page No.4 of 33 registrations of the trade mark / trade dress "ASK" are valid and subsisting in its favour from the aforesaid dates till date. It is also claimed that plaintiff is also the owner of copyright pertaining to the artistic work "ASK" used in the packaging materials of the said products of the plaintiff under registration no. A-91965/2012 dated 01-05-2012.
7. It is also the case of the plaintiff that it is also the registered owner of the wordmark "ASK" in the different countries, which are valid and subsisting in its favour till date, details of which are as under:
Sr. Registered Country Registration Class Reg. date/valid No. Trademark No. Up to
1. ASK Qatar 106799 12 01.05.2017/ 14.06.2026
2. ASK USA 5221368 12 13.06.2017/ 13.06.2027
3. ASK Saudi 1437020404 12 15.12.2016/ Arabia 25.02.2026
4. ASK Australia 1838826 12 18.04.2017/ 18.04.2027
5. ASK Nepal 44160 12 22.08.2017/ 21.08.2024
6. ASK Turkey 201372873 12 28.08.2013
7. ASK Sri Lanka 168971 12 17.02.2012/ 17.02.2022 CS (COMM.) No 343/2021 ASK Automotive Ltd Vs Neeraj Kumar Page No.5 of 33
8. ASK Malaysia 2017059608 12 26.05.2017/ 26.05.2027
9. ASK South 11240 12 24.04.2017/ Africa 24.04.2027 10 ASK Guatemala 012373 12 28.12.2018/ 05.08.2029 11 ASK Honduras 1460 12 11.01.2019/ 03.09.2029 12 ASK Hong 304636332 12 16.08.2018/ Kong 17.08.2028
8. It is claimed by the plaintiff that due to quality of its products, its long term and vast use, the said trademark "ASK" has become a well-known mark and entitled to maximum protections against all kinds of misuse and misappropriation by any unauthorized trader or person irrespective of the class or goods for which the mark is registered and used by the Plaintiff Company. It is also claimed that from the very inception in the year 1988, plaintiff had adopted a very unique trade dress for its products (brake shoe), which was unique in as much as the entire packing is of yellow colour with "ASK" written in red on the left upper corner of the packing in a unique format of a right angled triangle, which connotes the initial of the company name "A" and down below almost in the middle of the front packing, the same mentions the name of the product "BRAKE SHOES" with a lined background CS (COMM.) No 343/2021 ASK Automotive Ltd Vs Neeraj Kumar Page No.6 of 33 in a unique manner and that plaintiff's product became so famous that the purchasing public refers the same with the name "PILI DIBBI". It is claimed that plaintiff is also the owner of the copyright in the artistic work, style and design of the trade dress presented in a unique style and design as the packaging of the brake shoes in its yellow color with logo in red color and other features make it distinctive. It is claimed that plaintiff's mark has its own figurative distinctiveness on account of its unique design effect, sign, graphics, style, colour combination and trade dress as a whole. It is further claimed by the plaintiff that mentioning of the registered trademark & its position is another essential feature of the trade dress adopted by it and the part star caption "In collaboration with ASK Technica Japan" in red background on the upper right hand corner is yet another essential feature of the trade dress of its products.
9. It is further the case of the plaintiff that it has also been awarded numerous certifications / awards indicating its reputation and dedication towards maintaining high standards of quality and the list of some of the awards and certifications is mentioned as follows:
1. 1999: Best vendor Award from Kinetic.
2. 2003: "Challenge India Support Award" from Honda (HMSI)
3. 2005: "Best and Fastest Development Award" from CS (COMM.) No 343/2021 ASK Automotive Ltd Vs Neeraj Kumar Page No.7 of 33 Honda (HMSI).
4. 2006: "Certificate for Quality & Delivery" from Honda (HMSI).
5. 2008: OHSAS 18001:2007 Certification.
6. 2009-2010: Award in proprietory items category.
"Certificate for Quality & Delivery" from Honda (HMSI)
7. 2011: Award for Delivery & Management Quality from Honda (HMSI). Awards for Overall Excellent performance & Quality from Mahindra2Wheelers.
8. 2012: Award for Superior Performance in the field of Quality from Suzuki
9. 2012: Gold Award in category of Delivery & Performance from YAMAHA.
10. 2013: Award for Superior Performance in the field of Quality from Suzuki.
11. 2013: Award from Honda (HMSI) for business Expansion Support Supplier.
12. 2014: Special Award from YAMAHA for Excellence in Cost innovation.
13. 2015: Award from HONDA for Delivery Management
14. 2015: Award from HONDA for Cost Competitiveness (Spare Parts)
15. 2016: Award from HONDA for quality & Delivery.
16. 2016: Award from Suzuki for Cost Competitiveness.
17. 2016: Gold Award from Bajaj for Quality.
18. 2016: Award from Denso for Outstanding Performance in Development support.
19. 2016: Award from Maruti Suzuki for Superior Performance in the field of Special Support in 2-
Wheeler Engine.
20. 2017: Award from HONDA for Delivery Management.
21. 2017: Award from Suzuki for Periodic Cost Down.
22. 2018: Award from HONDA for Delivery Management.
23. 2018: SAP Ace Award from for Operational Excellence CS (COMM.) No 343/2021 ASK Automotive Ltd Vs Neeraj Kumar Page No.8 of 33 Manufacturing.
10.It is further claimed that the plaintiff company is certified for ISO 9001:2015, ISO 45001:2018, ISO 14001: 2015, IATF 16949:2016, ensuring highest level of compliance to quality and defect prevention, which explains its outstanding domestic as well as global reputation.
11.It is further the case of the plaintiff that it is in License and Technical Assistance Agreement with ASKTECHNICA CORPORATION, which is a corporation organized and existing under the laws of Japan, having its principal office at 1488, Ichikawadaimon, Ichikawamisato-cho, Nishiyatsushiro-Gun, Yamanashi Prefecture, Japan and has established itself as one of the leaders in its category of products.
12.It is also claimed by the plaintiff that it is also in technical collaboration with HSH, Taiwan for Safety Control Cables and Nucap Industries, Canada for NRS for Disc Brake Pads for 2W, 4W, & CV. Plaintiff has also entered into a joint venture agreement with Fras-Le S.A., a company incorporated under the laws of Brazil ('Fras-Le') to carry out the business of production and marketing of the brake pads, brake linings for commercial vehicles (CV) from 3.5 tons and above but excluding pad back plates for CV for (a) Original Equipment Manufacturer (s) ("OEM"), Original Equipment Supplier(s) ("OES") and CS (COMM.) No 343/2021 ASK Automotive Ltd Vs Neeraj Kumar Page No.9 of 33 independent aftermarket ("IAM"), in the India, Sri Lanka, Bangladesh and Nepal, (b) Private label production for Fras-le (c) Export customers and Indian IAM customers currently being supplied CV products by ASK and (d) OEM, OES and IAM for future potential international customers in the CV segment. That Fras-Le, is World's No. 1 in Friction Products, Part of USD 3.80 Bn Randon Group, for Commercial Vehicle, Brake Linings & Brake Pads, in OEM, OES and IAM segment/s. Ask Fras-Le Friction Private Limited is a joint venture company of the Plaintiff Company and Fras-Le.
13.Plaintiff's further case is that its goods are used by the general populace, mechanics etc. for their automotive two wheeler vehicles segment, three wheeler segment, four wheeler segment and commercial vehicle segment and that the said customers, which inter alia include mechanics who are uneducated or very low literate and can be easily deceived, confused or misled. It is claimed that the plaintiff's goods under the trademark & trade dress "ASK" have become a very prominent name for the category of its products i.e. brake shoe, clutch plate, disk pad set and other automotive parts, which has acquired distinctiveness and is associated in the minds of the purchasing public as goods of the Plaintiff on account of its excellent quality & standards of goods manufactured. It is also claimed that the plaintiff company's trademark/ trade dress "ASK" is printed on all the CS (COMM.) No 343/2021 ASK Automotive Ltd Vs Neeraj Kumar Page No.10 of 33 packaging material of the goods manufactured by the Plaintiff Company.
14.The detail of plaintiff's sales turnover for the last eight years is as under:-
YEAR SALES TURNOVER
(INR IN CR.)
2010-11 348
2011-12 447
2012-13 519
2013-14 733
2014-15 947
2015-16 991
2016-17 1130
2017-18 1627
2018-19 1785
2019-20 1645
15.It is further averred by the plaintiff that in the third week of July 2021, plaintiff came to know that the defendant was engaged in manufacturing, stocking, selling, distributing and/or otherwise dealing in brake shoes bearing the trademark "ASK", which mark was deceptively and confusingly similar to plaintiff's trademark and due to the same, the mechanics who were either illiterate or not well aware of characteristics of the genuine products and other unwary customers might be easily deceived or misled by spurious CS (COMM.) No 343/2021 ASK Automotive Ltd Vs Neeraj Kumar Page No.11 of 33 goods of the defendant. It is further claimed that thereafter plaintiff conducted an investigation at defendant's premises situated at Building No. 6/13, Industrial Area, Kirti Nagar, New Delhi-110015 and found that the defendant was a manufacturer, stockist, distributor and was selling goods bearing the infringing trademark "ASK" of the Plaintiff Company in Kirti Nagar, Delhi and other markets of Delhi/NCR, which were identical and/or marks deceptively and confusingly similar to plaintiff's trademark. Plaintiff was able to buy some of the samples of the infringing goods bearing plaintiff's trademark "ASK" during investigation conducted at the defendant's premises but defendant did not issue any receipt or invoice for the goods sold by him.
16.It is further the case of the plaintiff that the infringing products being manufactured, stocked, distributed and sold by the defendant were cheap imitation of the original products manufactured by the plaintiff company and were also similar in colour combination, shape, size and other descriptions of the plaintiff's products. The comparison of similarities and essential features of plaintiff's trademark/ trade dress that have been adopted by the defendant are mentioned herein below:
Features of Plaintiff's Features of Defendant's Trademark/Trade dress and Trademark size of packaging the major portion of the the product of the CS (COMM.) No 343/2021 ASK Automotive Ltd Vs Neeraj Kumar Page No.12 of 33 packaging constitutes of Defendant is sold without yellow colour background. any packaging. (Loose product) on the top left corner of the the product of the packaging material the Defendant is sold without registered trade mark any packaging. (Loose "ASK" is printed in red product) color in a right angled triangle format and also connotes the initial letter of the Company "A".
down below in the middle the product of the
part of the packaging of the Defendant is sold without
product i.e "BRAKE any packaging. (Loose
SHOES" is written in black product)
print with lined background
consisting of black shading.
the packaging of the brake the product of the
shoe mentions in part star Defendant is sold without
format "In Technical any packaging. (Loose
Collaboration with ASK product)
Technica Japan" in red
background.
That in the bottom of the That the product of the
packaging it mentions Defendant is sold without
"CLUTCH SHOES any packaging. (Loose
CONTROL CABLES product)
DISK BRAKE PADS
CLUTCH PLATES" in a
particular manner and style.
CS (COMM.) No 343/2021 ASK Automotive Ltd Vs Neeraj Kumar Page No.13 of 33
on the original brake shoe on the infringing brake
the trademark "ASK" is shoe the trademark "ASK"
engraved and laser printed is also engraved but the
on it. quality is of very low
standard.
On the original product On the infringing product,
batch No. and "Made in random numbers and
India" is written with laser "Made in India" is written
printing shabbily.
the finishing of brake shoe the finishing of brake shoe
of the Plaintiff is finely of the infringing product is
done. shabbily done.
17.It is further the case of the plaintiff that defendant has selected the plaintiff company's impugned trademark to ride upon its goodwill and reputation, which deceptive method would lead the purchasing public and business associates to believe that the infringing products so manufactured, stored, distributed and sold by the defendant were being manufactured/produced by the plaintiff company and further that from the same the defendant is making illegal gains and causing wrongful loss to the plaintiff company. It is also claimed that the deficiency in the mode of manufacture, working conditions, technical expertise, plant and machinery, hygienic condition and raw material used by the defendant can cause injury to the public by purchasing substandard products marketed by defendant under the trademark CS (COMM.) No 343/2021 ASK Automotive Ltd Vs Neeraj Kumar Page No.14 of 33 "ASK", which would also directly and adversely affect and cause irreparable prejudice, damage and injury to the goodwill and reputation of the plaintiff, which would be beyond any monetary compensation. Also by his said conduct the defendant would further destroy plaintiff's brand and the market as quality of his product is deficient / substandard.
18.Hence, the present suit is filed by the plaintiff with the following prayers:
(a) Grant an order for permanent injunction thereby restraining Defendant, his associates and agents, officers, employees, distributors, franchisee, representatives and assigns from using any mark identical and / or deceptively and confusingly similar to the trademark/trade dress "ASK" of the Plaintiff Company on brake shoes and other automotive components manufactured and marketed by the Plaintiff under the trademark of "ASK" thereby infringing Plaintiff's registered trademarks.
(b) Grant an order for permanent injunction thereby restraining the Defendant, his associates and agents, officers, employees, distributors, franchisee, representatives and assigns from using any trade dress/mark identical and / or deceptively and confusingly similar to the trade dress "ASK" of the Plaintiff Company on the packaging of brake shoes and other automotive components manufactured and marketed by the Plaintiff under the name of "ASK" thereby infringing Plaintiff's registered copyright.
(c) Grant an ex-parte, ad-interim injunction thereby restraining the Defendant his associates and agents, officers, employees, distributors, franchisee, representatives and from using the trademark "ASK" and/or any other trademark and copyright CS (COMM.) No 343/2021 ASK Automotive Ltd Vs Neeraj Kumar Page No.15 of 33 identical and/or deceptively and confusingly similar to the trademark/trade dress "ASK" on the brake shoes and other automotive components.
(d) For an order for delivery of all the impugned finished and unfinished materials bearing the impugned and violative trade mark/label or any other deceptively similar trade mark/label including its blocks, labels, display boards, sign board, trade literatures and goods etc. to the plaintiff for the purposes of destruction and erasure.
(e) Grant in favor of Plaintiff an order for punitive damages on account of unlawful activities which Hon'ble Court deem fit and proper in the facts and circumstances of the present case.
(f) Grant an order of appointment of Local Commissioner under Order XXVI Rule 9 of Civil Procedure Code, 1908, at an appropriate stage, directing the Local Commissioner to search and to inspect the premises of the Defendant and seize all infringing goods bearing the trademark/trade dress "ASK"
and/or any other trademark/trade dress and copyright identical and / or deceptively and confusingly similar to the trademark/trade dress "ASK" on the packaging of automotive components including brake shoes and their packaging and other registered trademarks of the Plaintiff and to open the lock and door of the godown, if any, where the Defendant is manufacturing, stocking and keeping huge quantity of spurious and infringing goods.
(g) The Defendant, his partners, officers, employees, agents, distributors. franchisee, representatives and assigns etc., be directed by this Hon'ble Court to:-
i. Provide a complete discovery of any and all documents and information relating to any and all transaction concerning the infringement of the trademarks of the Plaintiff. ii. Preserve all documents and other evidence in their possession relating to the subject matter of the instant suit.
(h) Grant an order for the costs of the proceedings.
CS (COMM.) No 343/2021 ASK Automotive Ltd Vs Neeraj Kumar Page No.16 of 33
(i) Grant an order for rendition of accounts of profits earned by the Defendant by its impugned illegal trade activities and a decree for the amount so found in favor of the plaintiff company on rendition of accounts.
(j) Pass any other or further order(s) which Hon'ble Court may deem fit and proper in the facts and circumstances of the present case be allowed in favour of the Plaintiff Company and against the Defendant.
19. Since interim relief qua ex-parte injunction was granted to the plaintiff at the very inception of the suit and also since Local Commissioner was also appointed in the matter, therefore, prayers sought by the plaintiff under these two heads are not being dealt with at this final stage of disposal of the case.
20.The case of the defendant in the written statement as per preliminary objections is that the suit was not maintainable and is liable to be dismissed in-limine inter alia on the grounds that the plaintiff has not approached the court with clean hands, concealed material facts in as much as the plaintiff is involved in misusing the process of law by filing false cases against various businessmen only to pressurize them not to deal in products other than the brand of the plaintiff, filed the present suit against the defendant as a coercive measure to pressurize the defendant to sell the products of its branch, suit is filed by an unauthorized person since Ms Rajani Sharma and Mr Rajesh Kumar were never authorized by the plaintiff company to file the present suit, CS (COMM.) No 343/2021 ASK Automotive Ltd Vs Neeraj Kumar Page No.17 of 33 plaintiff has failed to file any documentary evidence to show that any counterfeit goods were sold or manufactured by the defendant and also that the suit of the plaintiff is undervalued and sufficient ad-valorem court fees is not filed alongwith the suit.
21.On merits, the defendant while admitting its place of working as, "Building No. 6/13, Industrial Area, Kirti Nagar, New Delhi-110015" as claimed by the plaintiff in para 23 of the plaint, has denied that he was running a manufacturing unit and engaged in manufacturing, stocking, distributing and selling of infringing goods bearing the falsified trademark / wordmark "ASK" of the plaintiff and on the contrary has claimed that he is engaged in carrying out repair works of various articles on job work basis by deploying a small machine which is only worth Rs. 20,000/-. Defendant has further denied that he manufactures, stores and sells huge amount of infringed goods bearing identical and / or marks deceptively and confusingly similar to plaintiff's trade mark "ASK" or any other registered trade mark of the plaintiff, through his premises and also sells / distribute the same in the market of Kirti Nagar, Delhi or other markets of Delhi/NCR, which were seized from his premises. It is claimed by the defendant that he is a self employed being involved in labour work of repairing various articles including vehicle parts on job work basis and earns only Rs. 500/- to Rs. 1000/- per day. While denying the averments of the plaintiff in general, the defendant CS (COMM.) No 343/2021 ASK Automotive Ltd Vs Neeraj Kumar Page No.18 of 33 has categorically denied having any involvement in any activity causing infringement of trademark and copyright to the plaintiff. Defendant has prayed for dismissal of the suit of the plaintiff with heavy cost.
22. Plaintiff did not file any replication to the written statement filed by the defendant.
23.On the pleadings, following issues were framed on 11-07-2022:
1. Whether the plaintiff is entitled for decree of permanent injunction restraining the defendant, its agents, etc. from using any trade dress / mark identical, deceptively and confusingly similar to their trademark ASK relating to automotive components, etc. as alleged? OPP
2. Whether the plaintiff is entitled for decree order for delivery of all the impugned finished, unfinished material and lable, etc. relating to the plaintiff's trademark? OPP
3. Whether the plaintiff is entitled for rendition of accounts?(OPP)
4. Whether the plaintiff is entitled for punitive damages from the defendant as alleged?(OPP)
5. Whether the suit is not maintainable? OPD
6. Whether the plaintiff has no cause of action? (OPD)
7. Whether the suit has been under valued for the purpose of Court fees and jurisdiction? (OPD)
8. Relief.
24.Plaintiff has examined sole one witness viz PW-1 Ms Rajani Sharma, Vice President - Legal and Secretarial on its behalf and thereafter closed its evidence. Defendant examined himself as DW-1 as its sole witness and thereafter closed his evidence.
25. PW-1 has deposed on the lines of plaint in her affidavit of CS (COMM.) No 343/2021 ASK Automotive Ltd Vs Neeraj Kumar Page No.19 of 33 evidence Ex. PW-1/A and has deposed qua the following documents:
1. Copy of certificate of incorporation dated 18-01-1988 - Ex. PW-1/1 (OS&R).
2. Copy of Board Resolution dated 27.07.2020 in favour of PW-1
- Ex. PW-1/2 (OS&R).
3.Copies of the Legal Proceeding Certificates for Trademark No's. 506591, 1437839, 1913404, 3758974, 3758975, 3763432, 3941227, 3763431 and 4002204 under class 12 are Ex. PW 1/3 to Ex. PW-1/11 (Colly.) (All OS&R)
4. Copy of copyright certificate issued by the office of Copyright Office, India Ex. PW 1/12 (OS&R).
5. Copy of License and Technical Assistance Agreement - Ex. PW 1/13 (OS&R).
6. Photographs of original products of the Plaintiff Company carrying the trademark/ trade dress and copyright "ASK" - Ex. PW-1/14.
7. Photographs of infringing goods bearing trademark "ASK" - Ex. PW-1/15.
8. Affidavit of Investigator - Ex. PW-1/16.
26.Defendant as DW-1 in his evidence by way of affidavit Ex. DW-1/A has broadly relied upon the contents of his written statement but has not relied upon any document in support thereof.
27. Vide order dated 17-08-2021, application under Order XXVI Rule 9 for appointment of Local Commissioner was allowed and report of Local Commissioner alongwith proceedings thereto were placed on record. However, Local Commissioner's report alongwith superdarinama, inventory of seized goods and CS (COMM.) No 343/2021 ASK Automotive Ltd Vs Neeraj Kumar Page No.20 of 33 photographs, were not exhibited during evidence.
28. During the course of arguments, Ld Counsel for the plaintiff had stated that the report of Ld Local Commissioner in the present suit be treated as an evidence in favour of the plaintiff.
29. In this context, reliance may be placed upon the judgment cited as ML Brother LLP vs. Maheshkumar Bhurala Tanna, 2022 (91) PTC 270 (Del), wherein it is observed that once the Commissioner has filed the evidence along with his report, it becomes evidence in the suit itself, where it is not challenged by any party. Accordingly, in view of the same, I am also of the view that the report of the Local Commissioner, which has not been challenged by the defendant, can be treated as evidence in the present suit.
30.I have heard the arguments of Ld Counsels for the parties and have also gone through the written submissions by Ld Counsel for the plaintiff and the case file.
31.During the course of arguments, Ld Counsel for the plaintiff has relied upon the following judgments:
(1) Christian Louboutin Sas vs. Ashish Bansal & Anr., 2018 (75) PTC 353 (Del) (2) Cartier International AG & Ors. vs. Gaurav Bhatia & Ors., 2016 (65) PTC 168 (Del) (3) Pepsico Inc & Anr. vs. Psi Ganesh Marketing & Anr., 2014 (59) PTC 275 (Del) (4) Microsoft Corporation vs. Deepak Raval, 2006 (33) PTC 122 (Del) CS (COMM.) No 343/2021 ASK Automotive Ltd Vs Neeraj Kumar Page No.21 of 33 (5) Time Incorporated vs. Lokesh Srivastava and Anr, 2005 (30) PTC 3 (Del) (6) Super Cassettes Industries vs. Rachana Television Pvt Ltd, 2013 (55) PTC 122 (Del) (7) Sandisk LLC & Anr vs. M/s B-One Mobile & Ors., 2019 (78) PTC 363 (Del) (8) Louis Vuitton Malletier vs. Capital General Store & Ors., 2023 (94) PTC 274 (Del)
32.My issue-wise findings are as under:-
ISSUE NO. 1(1) Whether the plaintiff is entitled for decree of permanent injunction restraining the defendant, its agents, etc. from using any trade dress / mark identical, deceptively and confusingly similar to their trademark ASK relating to automotive components, etc. as alleged? OPP
33. The onus to prove this issue was on the plaintiff.
34. PW1 has reiterated the contents of the plaint in her affidavit of evidence and relied upon certain documents. PW-1 has proved the copy of certificate of incorporation dated 18-01-1988 Ex. PW-1/1 (OS&R) and copy of board resolution dated 27.07.2020 Ex. PW-1/2 (OS&R) executed in her favour vide which she has claimed that she has been authorized by the plaintiff company to file the present suit and participate in the present proceedings. PW-1 has also proved the copies of Legal Proceeding Certificates and other documents in respect of plaintiff's trademark numbers 506591, 1437839, 1913404, 3758974, 3758975, 3763432, CS (COMM.) No 343/2021 ASK Automotive Ltd Vs Neeraj Kumar Page No.22 of 33 3941227, 3763431 and 4002204 under class 12 as Ex. PW 1/3 to Ex. PW-1/11 (Colly.)(All OS&R) and copy of copyright certificate issued by the office of Copyright Office, Ministry of HRD, Government of India has been proved by PW- 1 as Ex. PW 1/12 (OS&R). PW-1 has further proved the copy of License and Technical Assistance Agreement Ex. PW 1/13 (OS&R). Admittedly, all these documents have not been opposed or contradicted by the defendant. During the course of arguments, Ld Counsel for the plaintiff has claimed that in her testimony PW-1 has placed on record the above Trademark Certificate/Legal Proceedings Certificate of trademark, along with the copyright registration certificates of the Plaintiff Company, which were renewed from time to time in the Trademark Registry and the said trademarks, on account of renewal, are valid and subsisting in favour of the Plaintiff Company till date. No contrary evidence is adduced on record from the side of the defendant. Defendant has admittedly not opposed that the plaintiff is the registered trade mark holder of the mark "ASK" and has claimed that he was not manufacturing any such product under any such trade name of "ASK". Plaintiff is admittedly the registered trademark holder of "ASK" qua friction products in Two-Wheeler Segment, three wheeler segments, four wheeler segments and commercial vehicles such as brake assemblies, brake shoe, brake linings, clutch plate and aluminum casting products like panels, hubs, non CS (COMM.) No 343/2021 ASK Automotive Ltd Vs Neeraj Kumar Page No.23 of 33 automotive parts, crank case, engine parts, grip engine parts etc., which trade marks are still subsisting in its favour being renewed from time to time.
35.Accordingly, the Plaintiff has substantiated its claim as the reg- istered holder of the "ASK" trademark under multiple registra- tions (Ex. PW-1/3 to Ex. PW-1/11) under the Trade Marks Act, 1999, and the copyright in "ASK" (Ex. PW-1/12) under the Copy- right Act, 1957. These registrations confer exclusive rights un- der Section 28 of the Trade Marks Act, 1999, which grants the registered proprietor the exclusive right to use the trademark and seek relief against infringement. Similarly, Section 14 of the Copyright Act, 1957, grants the copyright owner exclusive rights to reproduce, distribute, and communicate the work to the public.
36.Furthermore, The Local Commissioner's report dated 17.08.2021, confirms that 3,547 brake shoes bearing the "ASK" marks were seized from the Defendant's premises at Building No. 6/13, Indus- trial Area, Kirti Nagar, New Delhi-110015. The inventory of seized goods and superdarinama bear the Defendant's signature, corroborating the Plaintiff's claim of unauthorized use. Addition- ally, photographs of the infringing products (Ex. PW-1/15) com- pared with the Plaintiff's original products (Ex. PW-1/14) demon-
CS (COMM.) No 343/2021 ASK Automotive Ltd Vs Neeraj Kumar Page No.24 of 33 strate that the Defendant's products bear marks identical or decep- tively similar to the Plaintiff's "ASK" marks which is likely to cause confusion among consumers.
37.The Defendant, in his written statement and affidavit of evidence as DW-1, denies manufacturing or selling infringing goods, claim- ing to be engaged only in repair work on a job basis. However, the Defendant has failed to produce any documentary evidence to substantiate this claim or refute the Local Commissioner's find- ings. In the absence of a credible defense by defendant and the positive evidence of infringement by plaintiff, including the seizure of infringing goods, a clear case of infringement of trade- mark and copyright under Section 29 of the Trade Marks Act, 1999, which prohibits the unauthorized use of a registered trade- mark that is identical or deceptively similar, causing confusion in the course of trade, is established by the plaintiff.
38.Also, reliance can be placed upon the judgment of the Hon'ble Supreme Court titled as Midas Hygiene v. Sudhir Bhatia (2004) 3 SCC 90, wherein it was held that in case of infringement injunc- tion needs to follow, relevant paragraph of which is reproduced as under:-
"5. The law on the subject is well settled. In cases of infringement either of Trade Mark or of Copyright normally an injunction must follow. Mere delay in bringing action is not sufficient to defeat CS (COMM.) No 343/2021 ASK Automotive Ltd Vs Neeraj Kumar Page No.25 of 33 grant of injunction in such cases. The grant of injunction also be- comes necessary if it prima facie appears that the adoption of the Mark was itself dishonest."
39. In view of the above, the plaintiff has been able to substantiate its claim and entitlement for decree of permanent injunction restraining the defendant, its agents, etc. from using any trade dress / mark identical, deceptively and confusingly similar to their trademark ASK relating to automotive components, etc. ISSUE NO. 2 "2 . Whether the plaintiff is entitled for decree order for delivery of all the impugned finished, unfinished material and lable, etc. relating to the plaintiff's trademark? OPP"
40.The onus to prove this issue was on the plaintiff.
41.During the course of arguments, ld Counsel for the plaintiff has claimed that the infringing products seized by the Local Commissioner were released to the defendant on the superdari and therefore the plaintiff is entitled to the relief of delivery of finished as well unfinished material bearing its registered trade mark as the products so seized by Local Commissioner were infringing and were entitled to be destroyed. In this regard, Ld counsel for the plaintiff also placed reliance on the case titled as Christian Louboutin Sas vs. Ashish Bansal & Anr., 2018 (75) PTC 353 (Del).
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42.In view of aforesaid facts and findings to issue no. 1 and also in view of the judgment cited by Ld Counsel for the plaintiff, it is held that the plaintiff is entitled for order against defendant regarding delivery of infringing goods using trademark "ASK".
Accordingly, issue no. 2 is also decided in favour of the plaintiff and against the defendant, who is directed to deliver any such material to the plaintiff having the name "ASK" or destroy the same or deface the goods having said trademark in the presence of plaintiff or its authorized representative and not to use the same in future.
ISSUE NO. 3"3. Whether the plaintiff is entitled for rendition of accounts? (OPP)"
43. The onus to prove this issue was on the plaintiff.
44. The defendant has not filed any document pertaining to his sales and accounts. Per contra, plaintiff has claimed high sales figures in para 14 of its plaint. Admittedly, no statement of account with regard to sale of the product with infringing mark "ASK" of the plaintiff by the defendant has been filed on record, which could have been helpful to arrive at a figure in case plaintiff is held entitled to any damages after the trial is concluded and also since the same was in the domain and possession of the defendant, which he has withheld, therefore an adverse inference has to be drawn against the defendant on this aspect.
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45. During the course of arguments, Ld Counsel for the plaintiff submitted that the defendant has not filed any documents pertaining to his accounts and therefore the plaintiff is not claiming rendition of accounts. Since, the Plaintiff has opted not to pursue rendition of accounts and instead seeking damages based on the seized goods. Therefore, this issue is decided in favour of defendant and against the plaintiff.ISSUE NO. 4
"4. Whether the plaintiff is entitled for punitive damages from the defendant as alleged?(OPP)"
46. The onus to prove this issue was on the plaintiff.
47.The Plaintiff has opted not to pursue rendition of accounts and instead seeking damages based on the seized goods The Local Commissioner's report indicates that 3447 brake shoes were seized. The Plaintiff estimates that, given the fast-moving nature of the products, the Defendant's stock for 15 days suggests a two- month business value of Rs. 14,18,800. However, no concrete evidence, such as sales records or financial statements, supports this estimation, and the Plaintiff has not pursued a detailed rendition of accounts.
48.In Sandisk LLC & Anr. vs. M/s B-One Mobile & Ors. (2019 (78) PTC 363 (Del)), the court awarded damages based on estimated losses where rendition of accounts was impractical due to the defendant's failure to provide financial records. During the course CS (COMM.) No 343/2021 ASK Automotive Ltd Vs Neeraj Kumar Page No.28 of 33 of final arguments, Ld. Counsel for the plaintiff has claimed value of brake shoe as Rs. 100/- per piece, which is unchallenged and seems reasonable. Hence given the Defendant's lack of documentary evidence and the established infringement by him, the plaintiff is entitled to compensatory damages of Rs. 3,54,700/- as calculated based on the seized goods (3457 brake shoes @ Rs. 100 per piece).
49.As regards the Punitive Damages, punitive damages are discre- tionary and require evidence of flagrant, willful, or repeated in- fringement to justify deterrence beyond compensatory relief. In Hindustan Unilever Ltd. vs. Reckitt Benckiser India Pvt. Ltd. (2014 (57) PTC 495 (Del)), the Division Bench of Hon'ble High Court of Delhi emphasized that punitive damages must be propor- tionate and are not warranted for absent evidence of egregious conduct, malice, or significant harm beyond compensable losses. In the said judgment, the judgment titled as Time Incorporated vs. Lokesh Srivastava and Anr (Supra), relied upon by the Ld Coun- sel for the plaintiff during the course of arguments with regard to punitive damages, has been overruled.
50.In the said judgment viz. Hindustan Unilever Ltd. vs. Reckitt Benckiser India Pvt. Ltd. (supra), it has been held as under:-
"...........Consequently, this court declares that the reasoning and formulation of law enabling courts to determine punitive dama- ges, based on the ruling in Lokesh Srivastava and Microsoft Cor- poration v. Yogesh Papat and Another, 2005 (30) PTC 245 (Del) CS (COMM.) No 343/2021 ASK Automotive Ltd Vs Neeraj Kumar Page No.29 of 33 is without authority. Those decisions are accordingly overruled. To award punitive damages, the courts should follow the categori- zation indicated in Rookes (supra) and further grant such damages only after being satisfied that the damages awarded for the wrong- doing is inadequate in the circumstances, having regard to the three categories in Rookes and also following the five principles in Cassel. The danger of not following this step by step reasoning would be ad hoc judge centric award of damages, without discus- sion of the extent of harm or injury suffered by the plaintiff, on a mere whim that the defendant‟s action is so wrong that it has a "criminal" propensity or the case RFA (OS) 50/2008 Page 65 me- rely falls in one of the three categories mentioned in Rookes (to quote Cassel again - such event "does not of itself entitle the jury to award damages purely exemplary in character. ........".
51.Defendant is a first-time offender with no prior record of infringement or warnings from the Plaintiff. While the seizure of 3547 brake shoes indicates deliberate infringement, the scale is not exceptionally large, and there is no evidence of widespread distribution or long-term operations. The Defendant's claim of operating a small repair business by deploying a small machine in his written statement and affidavit of evidence, coupled with lim- ited recovery of infringed articles, suggests a limited operation compared to large-scale counterfeiters. Hence considering the to- tality of facts and circumstances of the present case and aforesaid discussion, punitive damages are declined and compensatory dam- ages to the tune of Rs. 3,54,700/- is granted to the plaintiff, which adequately addresses plaintiff's losses.
CS (COMM.) No 343/2021 ASK Automotive Ltd Vs Neeraj Kumar Page No.30 of 33 ISSUE NO. 5 "5. Whether the suit is not maintainable? OPD"
52. The onus to prove this issue was on the defendant. Defendant has baldly claimed that there is no cause of action. However, defendant has failed to prove any fact or show any law on the basis of which it can be inferred that the suit is not maintainable. Also, defendant has not lead any specific evidence in this regard. In view of the same and in view of my findings to issue no. 1, this issue is decided against the defendant and in favour of the plaintiff.ISSUE NO. 6
"6. Whether the plaintiff has no cause of action? (OPD)"
53. The onus to prove this issue was on the defendant. However, except for baldly claiming so, defendant has not brought any convincing material on record to prove the said fact. Also, in view of my findings to issue no. 1, the issue is decided against the defendant and in favour of the plaintiff. ISSUE NO. 7.
"Whether the suit has been under valued for the purpose of Court fees and jurisdiction? (OPD)"
54.The onus to prove this issue was on the defendant.
55.Perusal of the file reveals that appropriate court fees has been paid CS (COMM.) No 343/2021 ASK Automotive Ltd Vs Neeraj Kumar Page No.31 of 33 by the plaintiff qua the reliefs sought by it and defendant except for baldly claiming so, has not been able to substantiate his said plea and therefore this issue is also decided against the defendant and in favour of the plaintiff.
RELIEF
56. In view of my findings to issue no. 1, a decree for permanent injunction is passed in favour of plaintiff thereby restraining thereby restraining Defendant, his associates and agents, officers, employees, distributors, franchisee, representatives and assigns from using any mark identical and / or deceptively and confusingly similar to the trademark/trade dress "ASK" of the Plaintiff Company on brake shoes and other automotive components manufactured and marketed by the Plaintiff under the trademark of "ASK" thereby infringing Plaintiff's registered trademarks / copyright, amounting to infringement of registered trade mark ASK of the plaintiff.
57. Plaintiff is also held entitled for delivery of infringing goods using trademark "ASK" by the defendant, who is directed to deliver any such material to the plaintiff having the name "ASK" or destroy the same or deface such goods in the presence of plaintiff or its authorized representative and not to use the same in future.
58. Plaintiff shall also be entitled to compensatory damages to the tune of Rs 3,54,700/- alongwith cost of the suit. It is to be noted CS (COMM.) No 343/2021 ASK Automotive Ltd Vs Neeraj Kumar Page No.32 of 33 that plaintiff shall first pay the court fees on the remaining amount (if any) of compensatory damages ordered and only then damages amount awarded shall be executable.
Suit is accordingly decreed in above terms.
Decree sheet be drawn accordingly.
File be consigned to record room. Digitally signed
by ASHUTOSH
ASHUTOSH KUMAR
KUMAR Date:
2025.07.29
15:46:14 +0530
Announced in open (Ashutosh Kumar)
Court on 29-07-2025 District Judge (Commercial Court)-01
West, Tis Hazari Courts, Delhi
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