Delhi High Court - Orders
Great Galleon Ventures Limited vs Champa Prema Tandel Sole Proprietor Of ... on 25 May, 2023
Author: Sanjeev Narula
Bench: Sanjeev Narula
$~30
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(COMM) 343/2023
GREAT GALLEON VENTURES LIMITED ..... Plaintiff
Through: Mr. Kapil Wadhwa, Ms. Surya
Rajappan, Ms. Tejasvini and
Ms. Vasanthi Hariharan, Advocates.
versus
CHAMPA PREMA TANDEL SOLE PROPRIETOR OF
DHARMESH DISTILLERY & ANR. ..... Defendants
Through: None.
CORAM:
HON'BLE MR. JUSTICE SANJEEV NARULA
ORDER
% 25.05.2023 I.A. 10182/2023 (seeking exemption from filing certified/ original and/or clean/ typed/ translated/ legible copies with proper margin of documents)
1. Exemption is granted, subject to all just exceptions.
2. The Plaintiff shall file legible and clearer copies of exempted documents, compliant with practice rules, before the next date of hearing.
3. The application is disposed of.
I.A. 10181/2023 (seeking leave to file additional documents)
4. This is an application seeking leave to file additional documents under the Commercial Courts Act, 2015.
5. Plaintiff, if it wishes to file additional documents at a later stage, shall do CS(COMM) 343/2023 Page 1 of 9 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 25/09/2023 at 06:28:22 so strictly as per the provisions of the said Act.
6. Disposed of.
I.A. 10180/2023 (for exemption from filing notice under Section 80 of the Code of Civil Procedure, 1908)
7. Upon filing of process fee, issue notice to Defendant No. 2, by all permissible modes, returnable for the next date of hearing.
8. Re-notify on 17th October, 2023.
I.A. 10178/2022 (u/ Section 151 of CPC for exemption from instituting pre- litigation mediation)
9. Having regard to the facts of the present case and in light of the judgement of Division Bench of this Court in Chandra Kishore Chaurasia v. R.A. Perfumery Works Private Ltd.,1 exemption from attempting pre- institution mediation is allowed.
10. Accordingly, the application stands disposed of.
I.A. 10179/2023 (seeking exemption from advance service upon Defendants)
11. Plaintiff seeks an injunction restraining Defendant No. 1 from selling counterfeit goods and also prays for an ex-parte appointment of Local Commissioner. Considering the peculiar facts and circumstances of the case, the application is allowed and Plaintiff is exempted from effecting advance service on the Defendants.
12. The application is disposed of.
1DHC Neutral Citation: 2022/DHC/004454.
CS(COMM) 343/2023 Page 2 of 9This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 25/09/2023 at 06:28:22 CS(COMM) 343/2023
13. Let the plaint be registered as a suit.
14. Upon filing of process fee, issue summons to the Defendants by all permissible modes. Summons shall state that the written statement(s) shall be filed by the Defendants within 30 days from the date of receipt of summons. Along with the written statement(s), the Defendants shall also file affidavit(s) of admission/denial of the documents of the Plaintiff, without which the written statement(s) shall not be taken on record.
15. Liberty is given to the Plaintiff to file replication(s) within 15 days of the receipt of the written statement(s). Along with the replication(s), if any, filed by the Plaintiff, affidavit(s) of admission/denial of documents of the Defendants, 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.
16. List before the Joint Registrar for marking of exhibits on 29th August, 2023. It is made clear that any party unjustifiably denying documents would be liable to be burdened with costs.
17. List before Court for framing of issues thereafter.
I.A. 10176/2023 (for grant of interim injunction)
18. The case set up in the plaint is as follows:
18.1. Plaintiff is engaged in manufacture and sale of Indian Made Foreign Liquor [IMFL] inter-alia under the "GOA" brand, including the registered trademark "GOA SPIRIT OF SMOOTHNESS",2 which was coined and adopted by them in 2002. They obtained the first excise license for said CS(COMM) 343/2023 Page 3 of 9 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 25/09/2023 at 06:28:23 brand of liquor in 2003-04, whereafter, Plaintiff commenced continuous and uninterrupted use thereof under the labels " ", " ", " " and " ".
Plaintiff has secured copyright registrations for the labels
" " and " ".
18.2. Plaintiff has garnered enormous goodwill and reputation amongst the members of the trade and public, as is evidenced by annual sales ranging up to Rs. 90,89,10,399 in 2021-22. Chartered Accountants' certificate(s) have been annexed with the plaint to support the said figures. The afore-noted trade dress and colour combination of Plaintiff's products are exclusively associated with the Plaintiff and therefore, use of identical or deceptively 2 Details of registration of Plaintiff's "GOA" trademarks are set out in paragraph No. 16 of the plaint.
CS(COMM) 343/2023 Page 4 of 9This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 25/09/2023 at 06:28:23 similar mark/ packaging would amount to infringement and passing off of Plaintiff's trademark and copyright.
18.3 In March 2023, the Plaintiff learnt of manufacture and sale of counterfeit whiskey under the mark "GOA BEACH SPIRIT OF SMOOTHNESS" by Defendant No. 1, which is virtually identical/deceptively similar to Plaintiff's "GOA SPIRIT OF SMOOTHNESS" mark. The impugned products are purportedly manufactured in Daman and thereafter sold in Delhi, Goa, Maharashtra, Gujarat, etc. through bootleggers. Further inquiry revealed that Defendant No. 1, along with five other Daman distillers, were previously booked and searched by the Central Bureau of Investigation in relation to a duty-evasion scam as they were engaged in unauthorised sale of under-reported liquor bottles.
19. The Court has considered the afore-noted submissions. A comparison chart of the rival products is as under:
PLAINTIFF'S PRODUCT DEFENDANT NO. 1'S IMPUGNED
PRODUCT
CS(COMM) 343/2023 Page 5 of 9
This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 25/09/2023 at 06:28:23
20. Defendant No. 1's "GOA BEACH SPIRIT OF SMOOTHNESS" is nearly identical to Plaintiff's "GOA SPIRIT OF SMOOTHNESS". As can be seen from the comparison drawn above, the impugned packaging/ trade dress bear similarities in colour combination, placement, manner and style of use of the trademarks and text as well as graphic representation of tropical trees on the liquor bottles. The aforesaid similarities make it evident that Defendant No. 1 has adopted the mark and packaging of "GOA BEACH SPIRIT OF SMOOTHNESS" in an attempt to create unauthorised association with Plaintiff's trademark and copyright and ride upon the goodwill attached therewith. The impugned label/ mark is utilised for identical product i.e., whiskey, which furthers the likelihood that consumers of Plaintiff's products would be misled into purchasing Defendant No. 1's products.
21. In view of the above, the Court is of the opinion that Plaintiff has made CS(COMM) 343/2023 Page 6 of 9 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 25/09/2023 at 06:28:23 out a prima facie case in their favour and in case an ex-parte ad-interim injunction is not granted, they will suffer an irreparable loss; balance of convenience also lies in favour of the Plaintiff and against Defendant No. 1.
22. Accordingly, till the next date of hearing, an ex-parte ad-interim injunction is passed restraining Defendant No. 1 and anybody acting on their behalf from selling, manufacturing, advertising, promoting or in any other manner using the impugned "GOA BEACH SPIRIT OF SMOOTHNESS"
label or any other mark similar to Plaintiff's GOA trademarks and copyright in "GOA SPIRIT OF SMOOTHNESS LABEL" [bearing registration Nos. A-139673/2021 and A-135891/2021].
23. Compliance of Order XXXIX Rule 3 of CPC be done within two weeks from today.
24. List before the Court on 17th October, 2023.
I.A. 10177/2023 (seeking appointment of local commissioner)
25. Mr. Wadhwa seeks appointment of Local Commissioner, contending that Defendant No. 1 is likely to remove all physical evidence or deny their involvement in the infringing activities. Plaintiff believes that the infringing products are also sold/ stored at Defendant No. 1's premises situated at Dharmesh Distillery, 75/1 and 75/2, Daman Industrial Estate, Village Dori Kadaiya, Nani Daman, Daman, India - 396210. Accordingly, Mr. Manoj Kumar Sharma, Advocate [Phone No.: 9811139236] is appointed as a Local Commissioner to visit the aforesaid premises of Defendant No. 1.
26. The Local Commissioner, along with a representative of the Plaintiff and their counsel, shall be permitted to enter upon the premises of Defendant No. 1 mentioned above or any other location/ premises that may be CS(COMM) 343/2023 Page 7 of 9 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 25/09/2023 at 06:28:23 identified during the course of commission, in order to conduct the search and seizure. The Local Commissioner shall conduct a search of the premises and seize the impugned counterfeit goods that are deceptively similar to Plaintiff's "GOA SPIRIT OF SMOOTHNESS" label/ packaging and any labels, brochures, packaging material, pamphlets, price lists, account statements, invoices, excise records etc. bearing the impugned "GOA BEACH SPIRIT OF SMOOTHNESS" mark. After seizing infringing material, the same shall be inventoried, sealed and signed by the Local Commissioner, in the presence of the parties, and released on superdari to the Defendant No. 1 on their undertaking to produce the same as and when further directions are issued in this regard.
27. The Local Commissioner shall also be permitted to make copies of the books of accounts including ledgers, cash registers, stock registers, invoices, books, etc. insofar as they pertain to the infringing products. Further, the Local Commissioner is permitted to undertake/arrange for photography/ videography of the execution of the commission. Both the parties shall render full assistance to the Local Commissioner for carrying out the aforenoted directions.
28. In case any of the premises are found locked, the Local Commissioner shall be permitted to break open the lock(s). To ensure an unhindered and effective execution of this order, the SHO of the local police station is directed to render all assistance and protection to the Local Commissioner, if and when sought. Further, the local excise authorities/officers stationed at the premises of Defendant No. 1 shall also cooperate with the commission and provide the Local Commissioner access to the concerned premises for as long as is necessary to conclude the commission.
CS(COMM) 343/2023 Page 8 of 9This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 25/09/2023 at 06:28:23
29. The fee of the Local Commissioner, to be borne by the Plaintiff, is fixed at Rs. 1,25,000/-. The Plaintiff shall also bear expenses for travel and lodging of the Local Commissioner and other miscellaneous out-of-pocket expenses for the execution of the commission. Entire fee of the Local Commissioner shall be paid in advance by Plaintiff.
30. The report of the commission shall be filed by Local Commissioner within a period of six weeks from the date of its execution.
31. The application stands disposed of in the above terms.
32. Copy of this order shall not be uploaded for a period of two weeks from today.
33. Dasti under the signatures of Court Master.
SANJEEV NARULA, J MAY 25, 2023 nk CS(COMM) 343/2023 Page 9 of 9 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 25/09/2023 at 06:28:23