Delhi High Court - Orders
Divay Hygiene Private Limited vs Kamal Garg & Anr on 13 October, 2022
Author: Navin Chawla
Bench: Navin Chawla
$~32
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(COMM) 706/2022
DIVAY HYGIENE PRIVATE LIMITED ..... Plaintiff
Through: Mr.Junaid Alam, Mr.Nishant Mahtta
& Ms.Neha Malik, Advs.
versus
KAMAL GARG & ANR. ..... Defendants
Through: None.
CORAM:
HON'BLE MR. JUSTICE NAVIN CHAWLA
ORDER
% 13.10.2022
I.A. 16682/2022
1. Allowed, subject to all just exceptions.
2. Accordingly, the application stands disposed of. I.A. 16680/2022
3. This application has been filed by the plaintiff, seeking exemption from instituting pre-litigation mediation under Section 12A of the Commercial Courts Act, 2015.
4. Having perused the contents of the application, the same is allowed.
I.A. 16681/20225. 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.
6. The plaintiff may file the additional documents strictly in accordance with the provisions of the law.
7. The application stands disposed of.
Signature Not Verified Digitally Signed By:SHALOO BATRA Signing Date:20.10.2022 17:12:09 I.A. 16683/20228. This is an application seeking exemption from making advance service of the suit paper book to the defendants.
9. Having considered the contents of the application, the same is allowed. The plaintiff is granted exemption from making advance service of the suit paper book to the defendants.
CS(COMM) 706/2022
10. Let the Plaint be registered as a suit.
11. Issue summons to the defendants, to be served through all permitted modes, including electronically, returnable on 15th December, 2022 before the learned Joint Registrar (Judicial).
12. The summons to the defendants 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 defendants 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.
13. Liberty is given to the plaintiff to file the replication within a period of 15 days of the receipt of the written statement(s). Along with the replication, 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. 16678/202214. Issue Notice.
Signature Not Verified Digitally Signed By:SHALOO BATRA Signing Date:20.10.2022 17:12:0915. On the plaintiffs taking steps, let notice be served on the defendants through all permissible modes, including electronically, returnable on 15th December, 2022 before the learned Joint Registrar (Judicial).
16. Let reply(ies) to the application be filed by the defendant within a period of four weeks of receipt of the notice. Rejoinder thereto, if any, be filed within a period of two weeks thereafter.
17. It is the case of the plaintiff that the plaintiff was incorporated on 27.05.2016 and over a period of time has become one of the leading sanitary napkins manufacturing unit in North India.
18. It has been selling its products in the brand name AMMY/ , with various sub marks such as AMMY KOOL KIDS, AMMY ADULT DIAPERS, AMMY NATURAL BABY WIPES, AMMY ULTRA THIN etc. It has a presence in 4 countries and 17 States in India, with a current turnover of more than Rs. 38 Crore (Rupees Thirty Eight Crore Only) per annum. The plaintiff's goods are also stated to be available on various e-commerce websites.
19. The plaintiff has given the details of the registrations of its trade mark as also the pending applications in paragraph 9 of the Plaint. The plaintiff states that it has also obtained registration of its mark in United Arab Emirates (UAE) as also in Nepal, the details whereof are given in paragraph 10 of the Plaint.
20. The plaintiff further states that its representation of the mark has also been registered under the Copyright Act, 1957 vide registration bearing No. A-132298/2019.
21. The plaintiff states that it is aggrieved of the adoption of the Signature Not Verified Digitally Signed By:SHALOO BATRA Signing Date:20.10.2022 17:12:09 deceptively similar mark ANNY/ by the defendant no. 1 for similar goods, that is, sanitary napkins.
22. The plaintiff states that it is only in the last week of August 2022 that the plaintiff gained knowledge of the adoption of the mark by the defendant no. 1. Upon further inquiry, it came to know that the defendant no.2 has applied for the registration of the impugned mark vide application No. 5520255 on 07.07.2022, on a "proposed to be used basis".
23. The learned counsel for the plaintiff submits that the colour scheme and the manner of presentation of the mark of the defendant is deceptively similar to the plaintiff's mark. The comparison of the two marks is given by the plaintiff is as under:-
"
Plaintiff's Impugned mark
Trademark/Earlier
trademarks
Trademark Impugned Mark
AMMY ANNY
Stylization & Font Stylization & Font
Overall representation of Overall representation of label label Signature Not Verified Digitally Signed By:SHALOO BATRA Signing Date:20.10.2022 17:12:09 Plaintiff's goods Impugned goods Sanitary Napkin Sanitary napkin Colour Combination Colour Combination The word "AMMY" is written The word "ANNY" is written in White Colour. in White Colour.
Use of Pink, light pink and Use of Pink, light pink and
Orange colour in the Orange colour in the
background. background.
Font Font
The cursive font and artistic The cursive font, artistic representation and stylization. representation and stylized manner of writing have been copied identically by the Defendants Placement Placement The placement of the image of The placement of the image of sanitary napkin is on the right sanitary napkin is on the right side. side is blatantly copied.
Product Kind Product Kind The MAXI Sanitary pad has The MAXI Sanitary napkin been mentioned just below the has been mentioned just below trademark AMMY the trademark ANNY which identically copied.
"
24. Having considered the contents of the Plaint and the documents filed therewith, as also having heard the learned counsel for the plaintiff, I am of the opinion that 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 a grave irreparable injury, in case an ad interim ex-parte injunction as prayed for is Signature Not Verified Digitally Signed By:SHALOO BATRA Signing Date:20.10.2022 17:12:09 not granted.
25. Accordingly, an ad interim ex-parte injunction in favour of the plaintiff and against the defendants in terms of prayers made in paragraph 12
(a) and (b) of the application is granted till further orders.
26. Compliance with Order XXXIX Rule 3 of the Code of Civil Procedure, 1908, be made within a period of one week from today.
I.A. 16679/202227. By this application, the plaintiff prays for the appointment of a Local Commissioner to visit the following premises of the defendants:-
"M/S GARG TRADING COMPANY Bhiwani Road, Jind-126102 Haryana"
28. For the reasons stated hereinabove, I am of the opinion that the plaintiffs have been able to make a case for the appointment of a Local Commissioner.
29. Accordingly, I appoint Mr. Vaibhav Kukreja, Advocate, Address:
AD-9/D, Shalimar Bagh, Mobile No.- 9811638326 as a Local Commissioner, who shall the visit the abovementioned premises of the defendants and such other premises upon ascertaining the address or acquiring knowledge during the visit to the premises mentioned hereinabove from where the Defendants, their agents, retailers, stockists and/or anyone acting for or on their behalf are indulging in illegal acts amounting to infringement and/or passing off of the impugned mark.
30. The Local Commissioner shall be empowered to:
a) visit the addresses, premises/place of business of the defendants and seize and seal all the impugned and infringing/incriminating materials like stationary, banners, pamphlets, stickers, advertising Signature Not Verified Digitally Signed By:SHALOO BATRA Signing Date:20.10.2022 17:12:09 material, wrappers and any other documents bearing the impugned trademark/label or any other trademark/label identical with or deceptively similar to the Plaintiff's said trademark/labels. The Local Commissioner shall thereafter give custody of such sealed goods/material to the defendants on supardari with an undertaking that the same shall be produced as and when so directed by this court;
b) take photographs of the offending/infringing goods so seized and released on Superdari as also of the premises of the Defendants;
c) sign the account book including ledgers, cash register, stock register, invoices, books etc., of the defendants;
d) break open the locks/seal of the premises, if found locked;
e) seek assistance, from the Station House Officer (SHO) of the concerned local Police Station to render all assistance required to enter the premises of the defendants and for the execution of the Commission. The SHO of the concerned Police Station is directed to render all assistance and protection to the Local Commissioner.
31. The fee of the Local Commissioner is fixed at Rs. 1,50,000/- (Rupees One Lakh and Fifty Thousand Only) apart from the out of pocket expenses that he may incur, to be paid by the plaintiff at the first instance.
32. The application is disposed of.
33. This order may not be uploaded on the website of the Delhi High Court for a period of one week.
34. Dasti under the signature of the Court Master.
NAVIN CHAWLA, J OCTOBER 13, 2022/rv Signature Not Verified Digitally Signed By:SHALOO BATRA Signing Date:20.10.2022 17:12:09