Delhi District Court
Timex Group India Ltd. & Anr. vs . Mohammed Naseem & Anr. on 13 November, 2018
IN THE COURT OF SH. ANIL ANTIL, ADJ05 SOUTH EAST
DISTRICT, SAKET COURTS, NEW DELHI.
TM No. 123/17
Timex Group India Ltd. & Anr. Vs. Mohammed Naseem & Anr.
1.Timex Group India Ltd.
106107, Ambadeep, 14, Kasturba Gandhi Marg, New Delhi110001 ..........Plaintiff no. 1
2. M/s Timex Group USA, Inc., 555, Christian Road, PO Box 310, Middlebry, CT USA 067620310 New ..........Plaintiff no. 2 V E R S U S
1. Mohammed Naseem, Proprietor, Sonam Enterprises, F193, Gali No. 7, Shastri Park New Delhi110053 Also at:
93, Gali No. 14, Shastri Park New Delhi110053 Also at:
H.N. 2, Mauhalla Bakkalan, Police StationPatiyali, TahasilPatiyali, DisttKasganj, TM No. 123/17 Timex Group India Ltd. & Anr. Vs. Mohammed Naseem & Anr. Page no. 1 of 11 Pin code 207243 .......Defendant no. 1
2. Mohd. Jameer H.N. 2, Mauhalla Bakkalan, Police StationPatiyali, TahasilPatiyali, DisttKasganj, Pin code 207243 .......Defendant no. 2 Date of institution of the suit : 14.11.2017 Date of reserved for judgment : 13.11.2018 Date of pronouncement of judgment: 13.11.2018 SUIT DECREED EXPARTE JUDGMENT
1. The plaintiff has filed the suit for permanent injunction for restraining the defendant from passing off and infringing their trademarks, copyright, passing off, Delivery up, and for renditions of accounts.
2. Plaintiff's version as per averments in the plaint : 2.1 That the case of the plaintiff as set out in the plaint in nutshell is that plaintiff is owner of registered Trademark "Timex" for the purpose of high quality wrist watches, wrist strap, innovative timepieces and jewelery globally, horological instruments, time pieces of all kinds and devices for keeping, controlling and recording, time, including watches, clocks, chronometers, time daters and time dating machines time etc. and parts thereof and cognate and allied goods and it has been using this marks since 1854.
TM No. 123/17 Timex Group India Ltd. & Anr. Vs. Mohammed Naseem & Anr. Page no. 2 of 11 2.2 That plaintiffs are engaged in the business of manufacturing and marketing of high quality wrist watches, writs straps, innovative timepieces and jewelery globally, horological instruments, time pieces of all kinds and devises for keeping, controlling and recording time, including watches, clocks, chronometers, time daters and time dating machines time etc. and parts thereof all cognate and allied goods, under various stylized/ artistic formats and label namely "TIMEX".
2.3 The plaintiff's goods under the said trademarks "TIMEX" are freely and commercially available not only in India but also throughout the world by way of direct sales and eretailing.
2.4 The details of the registration of trademarks in respect of various classes of goods as well as the registered trademarks have also provided in para 9 of the plaint.
2.5 That the plaintiffs have spent huge amount of funds and resources on advertisement and promotion of products under the trademark and trade name TIMEX particularly for wrist watches and related goods, which are extensively advertised on satellite television, magazines, electronic platforms and newspapers having wide circulation. Plaintiff expanded their wellknown trademark's prominence through its use across various domain names, i.e. www.timex.com, www.timeindia.com etc. which provide a direct access to information pertaining to the plaintiffs business and its goods/ services under the TIMEX trade mark disseminating information to general public.
2.6 That on account of highest standards of quality, safety, innovation and reliability plaintiff has acquired reputation and goodwill in TM No. 123/17 Timex Group India Ltd. & Anr. Vs. Mohammed Naseem & Anr. Page no. 3 of 11 India and the world leader in aforesaid goods. 2.7 That apart from this plaintiff's products are also available in Delhi through its wide network of dealers and distributors in jurisdiction of this court.
2.8 That defendant is engaged in the selling, manufacturing, marketing, purveying, supplying, soliciting trade of wrist watches, watch straps and bands and parts thereof., and other allied related products including their packaging.
2.9 That the defendant has adopted and started using the trademark TIMEX and logo in relation to their impugned goods and packaging in course of trade and business and has been using the same individually or in combination of each other in logo/label from Mohammed Naseem Proprietor, Sonam Enterprises, F193, Gali No. 7, Shastri Part New Delhi110053 also at: 93, Gali no. 14, Shastri Part New Delhi110053. The defendant is giving false trade description to its impugned goods. The impugned trade mark /label adopted and being used by the defendant in relation to the impugned goods and business is identical and deceptively similar to the plaintiff's said trade mark/label phonetically, visually, structurally, in its basic idea and in its essential features. 2.10 That the Defendant is also using false description on its impugned goods to wrongly link the impugned goods with the plaintiffs and to wrongly convey to the public and customers that the impugned goods are coming from the sources and origin of the plaintiffs. 2.11 That the defendant is not proprietor of the impugned trademark and has adopted and is so using the same in relation to its impugned goods TM No. 123/17 Timex Group India Ltd. & Anr. Vs. Mohammed Naseem & Anr. Page no. 4 of 11 and business and is otherwise dealing with it in the course of trade without the leave and license of the plaintiffs.
2.12 That the plaintiffs came across the impugned business activities and goods of the defendant when through private investigator of plaintiffs', who had placed an order for purchase of impugned watches which were delivered on 10.11.2017.
2.13 That plaintiffs caused an inquiry in the market, which revealed that the defendant has just about in First weeks of November 2017 adopted and starting using the impugned trade mark/ label in relation to their impugned goods. The plaintiff's also learnt that the defendant is carrying on its impugned activities under the impugned trade mark in a clandestine and surreptitious manner from their premises and that too without issuing formal sale bills. Defendant is not only making the retail sales but is also supplying the impugned goods bearing the impugned trade marks of various other dealers/shopkeepers/ retailers in various parts of Delhi includes South East Delhi.
3. Process was issued to both the defendants. Defendants were duly served. Despite service none of the defendant has appeared to contest the suit, nor the WS was filed. Defendant no. 1 was proceeded exparte vide order dated 07.05.2018 and defendant no. 2 was proceeded exparte vide order dated 04.06.2018 accordingly.
4. The plaintiff has led exparte evidence by way of an affidavit, reiterating the averments made in the plaint. In exparte evidence, AR of the plaintiff company Sh. Vipul Sharma stepped into the witness box and deposed vide affidavit of evidence exhibited as Ex.PW1/A reiterating the TM No. 123/17 Timex Group India Ltd. & Anr. Vs. Mohammed Naseem & Anr. Page no. 5 of 11 contents of the plaint and relied upon he documents which already stands exhibited as Ex.PW1/1 to Ex.PW1/15.
5. For the sake of brevity and to avoid repetition the contents are not reproduced. The AR of plaintiff relied upon the documentary evidence Ex.
PW1/1 to Ex. PW1/15 i.e.:
S. Particulars of Documents Documents exhibited/marked
No. as
1 Photographs/representation of the Ex.PW1/1 (colly)
original product/trademarks of the
plaintiffs
2 Photographs of
Counterfeit Ex. PW1/2
(colly)
product/trademark of the defendant
3 Copies of the trademark registration Ex. PW1/3 (colly)
certificates in favour of plaintiff no. 2
along with renewal certificates and
TM33
4 Copy of License User Agreement Ex. PW1/4
Between plaintiffs
5 Copy of CS certified sales figure of Ex. PW1/5
the plaintiff no. 1 for financial year
20102016
6 Copy of certificate of incorporation of Ex. PW1/6
plaintiff no. 1
7 Copies of Sales Invoices of the Ex. PW1/7
plaintiff no. 1
8 Copies of the invoice issued by the Ex. PW1/8
TM No. 123/17 Timex Group India Ltd. & Anr. Vs. Mohammed Naseem & Anr. Page no. 6 of 11
defendant to consumer alongwith the
copies of the email exchanged by the
consumers with plaintiff
9. Plaintiff's promotional material Ex. PW1/9 including advertisements and articles in national newspapers and pamphlets
10. Copy of the letter of authority in Ex. PW1/10 favour of plaintiff no. 1 by plaintiff no. 2
11. Copy of board resolution of plaintiff Ex. PW1/11 no. 1
12. Copy of the lease agreement of the Ex. PW1/12 registered office address of the plaintiff
13. Copy of the Government Account Ex. PW1/13 (Receipt & Payment) on behalf of the plaintiff
14. Two reports of Ld. LC Ex. PW1/14 & Ex. PW1/15
6. Heard. Perused the records meticulously. I am of the considered view, plaintiff is entitled to a decree in his favour and against the defendants for the reasons stated as under.
7. Perusal of the documents and Pleadings filed by the plaintiff transpires that plaintiff's trademark are all registered and valid as on the date of filing of the suit. The registration gives exclusive rights to the plaintiff to TM No. 123/17 Timex Group India Ltd. & Anr. Vs. Mohammed Naseem & Anr. Page no. 7 of 11 protect their rights in said marks and take infringements actions against any party in violation thereof. By virtue of long, extensive and continuous use of trademark, plaintiff's marks have become inseparable and synonymous with the goods and services of the plaintiff.
8. As held by the Hon'ble High court of Delhi in "The Royal Bank of Scotland Group PLC Vs. Sharekhan Limited, 216(2015) DLT 197", that:
'In order to establish infringement, the main ingredients of Section 29 of the Act are that the plaintiff's mark must be registered under the Act; the defendant's mark is identical with or deceptively similar to the registered trade mark; and the defendant's use of the mark is in the course of trade in respect of the goods covered by the registered trade mark. The rival marks are to be compared as a whole. Where two rival marks are identical, it is not necessary for the plaintiff to prove further that the use of defendant's trade mark is likely to deceive and cause confusion as the registration show the title of the registered proprietor and the things speak for themselves. In an infringement action, once a mark is used as indicating commercial origin by the defendant, no amount of added matter intended to show the true origin of the goods can effect the question. If court find that the defendant's mark is closely, visually phonetically similar, even then no further proof is necessary.'
9. In the present case, comparison of the marks as detailed in para 27 of the plaint reflects the similarity between the impugned marks of defendants and the marks of the plaintiff; defendant's marks are structurally, TM No. 123/17 Timex Group India Ltd. & Anr. Vs. Mohammed Naseem & Anr. Page no. 8 of 11 visually and phonetically similar and identical to the plaintiff's marks. In fact it is a case of counterfeit goods, which the defendants are manufacturing and selling in a clandestine and surreptitious manner.
10. Customers base of the products of both the parties are same,or may not be same. But the representation of the marks by the defendant tends to cause confusion in the minds of the general public/customers as to the identity of source. If the defendant is permitted to use the impugned mark which are deceptively and confusingly similar to that of the plaintiff's trademark, it will not only cause wrongful loss to the plaintiff company, but it will also cause grave prejudice and harm to public. Not to mention about loss to the goodwill and reputation of the plaintiff. Besides there is all likelihood of 'dilution' of the trademark of the plaintiff and in terms thereof plaintiff is entitled to protection under clause 4 of Section 29 Trademarks Act.
11. Be that as it may be, defendants are exparte. Nothing has come on record to disbelieve the case of the plaintiff or to doubt the authenticity and veracity of the document filed on record. The defendant did not come forward to disprove the case of plaintiff his stand. Consequently plaintiff is entitled to a decree for injunction in his favour and against the defendant.
12. Damages 12.1 In the present suit plaintiff is also claiming rendition of account by the defendant and damages including punitive and exemplary damages in terms of prayer clauses 'd' , (f) and 'g' of the plaint. 12.2 A reference to the decision of Hon'ble High Court of Delhi titled as " The Heels V. Mr. V. K. Abrol and Anr. , CS (OS) No. 1385 of 2005 decided on 29.03.2006" would be profitable, wherein the Hon'ble court TM No. 123/17 Timex Group India Ltd. & Anr. Vs. Mohammed Naseem & Anr. Page no. 9 of 11 has held:
"This court has taken a view that where a defendant deliberately stays away from the proceedings with the result that on enquiry into the accounts of the defendant for determination of damages cannot take place, the plaintiff cannot be deprived of the claim for damages as that would amount to a premium on the conduct of such defendant. The result would be that parties who appear before the court and contest the matter would be liable to damages while the parties who choose to stay away from the court after having infringed the right of the plaintiff, would go scotfree. This position cannot be acceptable.
No doubt it not possible to give an exact figure of damages on the basis of actual loss, but certain token amounts on the basis of the sales of the plaintiff can certainly be made. The plaintiff is unnecessarily dragged into litigation and the defendants must bear consequences thereof. In fact in such a case both compensatory and punitive damages ought to be granted apart from the costs incurred by the plaintiff on such litigation. In view of the given sales figure of the plaintiff. I consider it appropriates to grant a decree of damages in favour of the plaintiff and against the defendants for a sum of Rs. 3 lakh apart from costs of the suit. ' 12.3 A useful reference to the decision of Hon'ble High Court of Delhi titled as " Time Incorporated V. Likesh Srivatava and Ors., CS (OS) No. 2169 of 1999 decided on 03.01.2005" be also made in this regard.
12.4 In view of my finding that the plaintiff is entitled to the relief of permanent injunction, also taking in to consideration the proposition of law TM No. 123/17 Timex Group India Ltd. & Anr. Vs. Mohammed Naseem & Anr. Page no. 10 of 11 stated above I am of the view plaintiff is entitled to compensatory and punitive damages to the tune of Rs. 5 lakhs in its favour and against the defendants.
13. Relief.
In view of my above discussion, the present suit is decreed in favour of the plaintiffs and against the defendants in terms prayer clauses (a) to (h) of the plaint with compensatory and punitive damages to the tune of Rs. 5 lakhs. The defendants shall be jointly and severally liable to pay the damages.
The suit stands disposed off as decreed.
Cost of the suit is awarded in favour of the plaintiffs and against Defendants.
Decree sheet be drawn accordingly.
File be consigned to record room.
Announced in the open court (Anil Antil) today ie. 13.11.2018 ADJ05/(SE)/Saket Court, New Delhi TM No. 123/17 Timex Group India Ltd. & Anr. Vs. Mohammed Naseem & Anr. Page no. 11 of 11