Delhi District Court
The Complaint ... vs . on 2 April, 2012
1
IN THE COURT OF MS. NAVITA KUMARI BAGHA, MM, NEW DELHI
CC No.7/2/09
Anchor Health and Beauty Care Pvt. Ltd.
2226, Panchal Udyog Nagar,
Daman 396 210.
Regd. Office at :
201, Innova 'C' Wing, Marathon Nextgen,
Off G.K. Marg, Lower Parel (W), Mumbai400013.
........... Complainant
Versus
1. K.V. Vaidyanathan
C/o ColgatePalmolive (India) Limited
Main Street, Hiranandani Gardens,
Powai, Mumbai400 076.
...... Accused No.1
2. Dinesh Catellino
C/o ColgatePalmolive (India) Limited
Main Street, Hiranandani Gardens,
Powai, Mumbai400 076.
...... Accused No.2
3. Sanjeev Krishna Srivastav
C/o ColgatePalmolive (India) Limited
Main Street, Hiranandani Gardens,
Powai, Mumbai400 076.
...... Accused No.3
4. R.A. Shah
C/o ColgatePalmolive (India) Limited
Main Street, Hiranandani Gardens,
Powai, Mumbai400 076.
...... Accused No.4
5. Mr. Ian Cook
Chairman, President and Chief Executive Officer
C/o ColgatePalmolive Company
300 Park Avenue,
CC No.7/2/09
Anchor Health and Beauty Care Pvt. Ltd.
Vs.
K.V. Vaidyanathan & Ors.
2
New York, USA
...... Accused No.5
6. Mr. Michael J. Tangney
Chief Operating Officer,
ColgateEurope, Greater Asia and Africa
C/o ColgatePalmolive Company
300 Park Avenue,
New York, USA
...... Accused No.6
7. Stephen C. Patrick
Chief Financial Officer
C/o ColgatePalmolive Company
300 Park Avenue,
New York, USA
...... Accused No.7
8. Mr. Mitchell Abrahamsen
VP, Hill's Pet Nutrition
C/o ColgatePalmolive Company
300 Park Avenue,
New York, USA
...... Accused No.8
9. Mr. Manuel Arrese
VP, Chief Procurement Officer
C/o ColgatePalmolive Company
300 Park Avenue,
New York, USA
...... Accused No.9
10. ColgatePalmolive Company
300 Park Avenue,
New York, USA
...... Accused No.10
11. ColgatePalmolive (India) Limited
Colgate Research Centre
Main Street, Hiranandani Gardens,
Powai, Mumbai400 076.
...... Accused No.11
CC No.7/2/09
Anchor Health and Beauty Care Pvt. Ltd.
Vs.
K.V. Vaidyanathan & Ors.
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12. Mr. G.L. Verma
C/o The Registrar of Trade Marks
Trade Marks Registry
Boudhik Samapada Bhavan,
Near Antop Hill Head Post Office,
S.M. Road, Mumbai400037.
...... Accused No.12
COMPLAINT FOR THE COMMISSION OF OFFENCES PUNISHABLE U/SEC.
197/463/464/465/469/470/471 R.W. SEC.34 IPC
ORDER:
1. The complaint U/Sec.197/463/464/465/469/470/471 r. w. Sec.34 IPC was filed by complainant against accused persons on 23.09.2009. The brief facts of the case as narrated in the complaint are as follows: Accused no.4 is the Director of accused no.11 and is responsible for the conduct of its affairs. Accused no.5 to 9 are the Directors and/or principal officers of accused no.10 and are responsible for the conduct of its business and affairs. Accused no.1 is the wholetime Director and Company Secretary of accused no.10. Accused no.2 is the Deputy Company Secretary of accused no.11. Accused no.3 is the authorized signatory and constituted attorney of accused no.10 and legal officer of accused no.11.
A suit bearing no. C.S. (OS) no. 1709/05 was instituted by accused no.10 and accused no.11 before the Hon'ble High Court of Delhi on 14.12.2005 alleging infringement of copyright, trade marks, passing off, etc. The plaint in the said suit was signed and verified by accused no.1 claiming himself to be the wholetime Director and Company Secretary of accused no.11 and also authorized signatory/constituted attorney of accused no.10. The plaint was also instituted, signed and verified by accused no.2 claiming himself to be the CC No.7/2/09 Anchor Health and Beauty Care Pvt. Ltd.
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Deputy Company Secretary of accused no.11. They duly verified the averments made in the plaint and also filed their affidavits alongwith the plaint. In para 12B(ii) of the said plaint, following statements were made and affirmed on oath by accused no.1, 2, 10 and 11: "The plaintiffs' red and white colour trademark applied to a carton for "toothpaste, toothpowder, non medicate mouthwash and dentifrices" and identified by the title "Colgate Strong Teeth" is subject matter of registration No.1223059 in class 3 dated 14th August 2003 under the Trade Marks Act 1999. A certificate for use in legal proceedings pertaining to the said registration has been applied for and the plaintiffs undertake to file the same as soon as it is received from the Trade Marks Registry. A true copy of certificate of registration along with colour representation of the mark on form TM1 are annexed hereto collectively marked as ANNEXURE XX."
Similarly, in paragraph 13 of the plaint, the accused no.1, 2, 10 and 11 made the following statement: "The use of a toothpaste pack in identical red and white colours as the plaintiffs' carton registered under No. 1223059 by the Defendant amounts to an infringement of the said registration."
In the said plaint the accused persons sought the relief of injunction restraining the Defendant (complainant herein) from manufacturing, selling, offering for sale, exporting, directly or indirectly dealing in toothpaste in the Anchor "All round Protection" packaging by alleging that the same was substantially comprising the colour scheme which was similar to the "Colgate Strong Teeth" carton registered under No. 1223059 in class 3 and/or comprising an Arrow design which is deceptively similar to the plaintiffs' CC No.7/2/09 Anchor Health and Beauty Care Pvt. Ltd.
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"Spectrum Arrow" device mark registered under No. 626424 in class 3 amounting to infringement of the said trademark registration of the accused. Similar statements and affirmations on oath were made by accused no.1, 2, 10 and 11 in application under Order 39 Rules 1 & 2 C.P.C. being I.A. No. 10243 of 2005. Earlier in the year 1996, accused no.10 and 11 had filed a suit no. 4118/96 before the Hon'ble High Court of Bombay and in the said suit the Hon'ble High Court of Bombay declined to pass an order of interim injunction to restrain the use of combination of red and white colour in respect of Anchor Tooth Paste carton. The claims made by the accused no.10 & 11 to the proprietary right in the carton of Colgate Tooth Powder predominantly consisting of red and white colours were not accepted so as to constitute any act of infringement or passing off. An appeal preferred by accused no.10 & 11 before the Division Bench of the Hon'ble High Court of Bombay was also dismissed. After the dismissal of their application for grant of interim injunction in suit no. 4118/96, the accused no.10 and 11 through accused no.1 and 2 instituted a number of suits before the Hon'ble High Court of Delhi alleging infringement and/or of passing off against the complainant for use of combination of red and white colour in respect of Anchor Dental Care Products including suit no. 1468/02, suit no. 691/03, suit no. 1804/03 and suit no. 304/04. In none of those proceedings, the accused persons were granted any order of interim injunction except in I.A. No. 3502 of 2003 in Suit no. 691/03. The said order of interim injunction was also modified by the Hon'ble Division Bench of the Hon'ble High Court of Delhi in FAO (OS) No. 347/03 and the complainant was allowed to sell tooth powder in containers having colour combination of red and white with a blue band till the disposal of the appeal. The said interim order passed in appeal was made final order in the appeal by the Hon'ble Division Bench vide order dated 15.10.2008.
Thus, it is apparent that the accused persons had miserably failed to make any prima facie case for grant of interim injunction though they had filed multiple litigations in one form or the other against the complainant. CC No.7/2/09 Anchor Health and Beauty Care Pvt. Ltd.
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The suit no. C.S. (OS) No. 1709/05 was instituted by the th accused no. 10 & 11 through accused no.1 and 2 on 14 December, 2005 by pleading a fresh cause of action, different from the cause of action on which suit 4118/96 was earlier instituted and was pending before the Hon'ble High Court of Bombay, by stating that the cause of action has arisen in their favour on the basis of new registration of trade mark under no. 1223059 in class 3 th dated 14 August, 2003 under the Trade Marks Act, 1999, and the certificate of registration whereof was purportedly issued by the Registrar of Trade Marks th only on 15 September, 2005. Alongwith the plaint, accused persons produced on record a copy of certificate of registration of trade mark no. 1223059 attaching their with coloured representation of the mark to support their statements made in the plaint and affidavit. The complainant, herein, took various objections in the written statement filed in the said suit before Hon'ble High Court of Delhi regarding the maintainability of the suit. During the course of hearing of the interim injunction application in C.S. (OS) 1709/2005, it was discovered by the complainant that the subject matter of registration of trade mark No. 1223059 was, as a matter of fact, not the red and white colour trade mark applied to carton for toothpaste, toothpowder, nonmedicated mouthwash and dentifrices and identified by the title "Colgate Strong Teeth" but was only in respect of black and white label in which no specific right to combination of red and white colour was granted by the Registrar of Trade Marks while processing the registration thereof. In order to meet the objections, raised by the complainant, about the subject matter of registration of trademark no. 1223059, the accused persons obtained and filed a document purported to be the "certified copy of registration no. 1223059 for use in legal proceedings" in which the subject matter of registration being red and white combined colours was specifically added/inserted/interpolated despite being not the subject matter of advertisement of the mark in the "Trade Mark Journal and/or original registration number".
On discovery of the said material facts that the accused persons CC No.7/2/09 Anchor Health and Beauty Care Pvt. Ltd.
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have willfully, intentionally and deliberately made statements in application U/O.39 R.1&2 of the CPC and supporting affidavits and also fabricated the certificate of registration of trade mark no.1223059 by attaching a colour representation of the mark in an illegal and unauthorized manner and also produced the same as well as certified copy of the entry relative thereto which accused persons knew to be false entry and contrary to official records and original registration, the complainant filed a Writ (Civil) Petition bearing No. W.P. (C) No. 416566 of 2006 before the Hon'ble High Court of Delhi. In the said writ petition, the complainant pleaded and established that the subject matter of registration no.1223059 in class 3 was not red and white colour trade mark applied to a carton identified by the title "Colgate Strong teeth" and the Hon'ble High Court while issuing notice to the opposite party, was pleased to pass an exparte order restraining the accused persons from acting in pursuance to the certificate of registration no.1223059. In reply to the said writ petition, the accused persons reaffirmed their claim and again made false statements and declaration. The Registrar of Trade Marks, being a party to writ petition no. 41654166 of 2006, also filed his reply/counter reply in which he categorically stated that the subject matter of the registration no.1223059 was not the red and white colour as applied to carton identified by the title "Colgate Strong teeth". When the said writ petition came up for final hearing before the Hon'ble High Court on 09.02.2009, the accused No.11 admitted that the subject matter of registration trademark no.1223059 was not red and white colour trademark as applied to a carton for toothpaste, tooth powder, non medicated mouthwash and dentifrices and identified by the title "Colgate Strong Teeth" and consented to surrender the original certificate of registration of trademark no.1223059 and certified copy thereof for cancellation. The accused No.11 also admitted that the certified copy of the certificate of registration of trademark no.1223059 was false, forged, illegal, procured, filed and relied upon in the judicial proceedings. The Hon'ble High Court vide order dated 09.02.2009 directed that the original certificate of registration of CC No.7/2/09 Anchor Health and Beauty Care Pvt. Ltd.
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trademark no.1223059 be surrendered for cancellation and that fresh certificate of registration be issued in lieu thereof strictly in conformity with advertisement in relation to the said mark in the trademark Journal no.1325 (Suppl.1) dated 20.12.2004. The Hon'ble High Court further directed the Registrar to suitably delete the conditions concerning registration of colour combination indicated in the certified copy from the database of Trade Mark registry. Though as per the order of the Hon'ble High Court, the accused persons were required to surrender the original certificate of registration, but complainant was surprised to see the copy of letter dated 01.06.2009 from Anand & Anand, Advocates of accused persons, addressed to the Registrar of Trade Marks claiming the loss of the original certificate of registered trade mark no.1223059. Thus the accused persons did not surrender the original certificate of registration of trademark no.1223059 in terms of the order dated 09.02.2009 of Hon'ble High Court of Delhi. On the request made by the accused persons, a duplicate certificate of registration no.1223059 was allegedly issued by the Registrar of Trade Marks which also demonstrates that the original certificate of registration (purported copy whereof was produced on record before the Hon'ble High Court) was clearly a fabricated document as the representation of the mark attached to duplicate certificate is in black and white and the label stands pasted on the face of the certificate of registration itself and not an annexure in the form of representation sheet. The copy of certificate of registration of the trademark no.1223059 as has been produced on record by the accused persons consists of two sheets whereas the duplicate certificate of registration of the same trademark consists of one sheet only. It is apparent that the colour representation of the mark as is attached to the photocopy of the certificate of registration by the accused persons at the time of institution of the suit was never made an attachment to the original certificate of registration by the Registrar of Trade Marks. The dishonesty of the accused persons did not end there. Having full knowledge of the fact that the red and white colour trademark applied to CC No.7/2/09 Anchor Health and Beauty Care Pvt. Ltd.
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toothpaste, tooth powder, nonmedicated mouthwash and dentifrices and identified by the title "Colgate strong teeth" was not the subject matter of the registration no.1223059 and also having admitted the same before the Hon'ble Single Judge in writ petition No. W.P.(C) No.416566/06, the accused No.10 and 11 through accused No.3 filed an interim application being I.A. No. 2331/09 under the provisions of Order 6 Rule 17 CPC on 16.02.2008 alongwith proposed amended plaint and affidavit of accused No.3. Despite having knowledge of order dated 09.02.2009 of the Hon'ble High Court, the accused made the following averments in Para 12B(ii) of proposed plaint; "The Plaintiffs red and white colour trademark applied to a carton for "toothpaste, tooth powder, nonmedicated mouthwash and dentifrices" and identified by the title "Colgate Strong Teeth" is subject matter of registration no. 1223059 in class 3 dated 14.08.2003 under the Trade Marks Act, 1999. A certificate for use in legal proceedings pertaining to the said registration have been applied for and the plaintiffs undertake to file the same as soon as it is received from the Trade Marks Registry. Copy of the certificate of registration alongwith colour representation of the mark on Form TM1 are annexed hereto collectively marked as Annexure XX".
The accused persons have not only fabricated the copy of the original certificate of registration and produced the same on judicial record, but also fabricated the certified copy thereof in collusion and in conspiracy with others in which a false entry and interpolations have been made in the entry relating to trademark no.1223059 and have thus committed offences as are punishable U/Sec.197/463/464/465/469/470/471 IPC.
2. In presummoning evidence the complainant examined Mr. Mayur S. Gala who has deposed on similar lines as stated in the complaint and also exhibited the certified copies of all the relevant documents.
3. I have heard the arguments from the counsel for complainant on the point of CC No.7/2/09 Anchor Health and Beauty Care Pvt. Ltd.
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summoning and perused the entire record. The present complaint case has been primarily filed by the complainant against accused persons on the ground that the accused persons have malafidely and intentionally forged, fabricated, procured and filed the certified copy of registration certificate issued by the Registrar of registration trademark no.1223059. The said forgery is alleged to be committed by the accused persons prior to the filing the said document on record of Hon'ble High Court of Delhi. It is settled law that if the forgery is committed with respect to a document prior to filing of the same in the Court proceedings, the bar of Sec. 195 Cr.P.C. is not applicable. It is held by Hon'ble Supreme Court in Iqbal Singh Marwah Vs. Meenakshi Marwah, AIR 2005 SC 2119, "Criminal Procedure Code, Sections 195(1)(b)(ii) and 340 Offence with regard to forgery of document If a document was forged and thereafter produced in the Court, then aggried party can file a complaint Bar of Section 195(1)(b)(ii) will not apply Section 195(1)(b)(ii) Cr.P.C. would be attracted only when the offences enumerated in the said provision have been committed with respect to a document after it has been produced or given in evidence in a proceeding in any court i.e. during the time when the document was in custodia legis." Since in the present case the forgery is alleged to have been committed prior to filing of the documents before the Court, so in view of abovesaid caselaw, the bar of Sec.195(1)(b)(ii) Cr.P.C. is not attracted in the present case.
4. In view of the averments made in the complaint as well as the testimony of CW1, it is primafacie established that the trademark registration no.1223059, relied upon by the accused persons in the suit No.1709/05 before Hon'ble High Court of CC No.7/2/09 Anchor Health and Beauty Care Pvt. Ltd.
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Delhi, was not for red and white colour label but the same was in respect of black and white colour label in which no specific right to combination of colour was granted by Registrar of Trade Marks while processing the said registration. The accused no.11 had admitted before the Hon'ble High Court of Delhi on 09.02.2009 that the said registration no.1223059 was not for red and white colour combination trademark and hence consented to surrender the original certificate of registration and certified copy thereof for cancellation and also admitted that the certified copy of the registration was false, forged, illegal, procured, filed and relied upon in the judicial proceedings. The Registrar of Trade Marks i.e. accused no.12, in his reply to the writ petition i.e. Ex.CW1/U, has admitted that the said registration of trade mark no.1223059 was not pertaining to red and white colour as applied in carton titled "Colgate Strong Teeth". In para 2(xiii) of the said reply, he has stated - That in reply to contents of this subpara (xii) it is submitted that the application on Form TM1 filed by the respondent Colgate Palmolive Co. contained the conditions as Form TM1, however, the condition was not published in Journal or reflected in CD because hearing officer has not imposed colour condition in his order. In para (B) of REPLY TO GROUNDS of the said reply he stated - In reply it is submitted that the hearing officer has passed the order without the colour condition consequently the mark was published in black and white. And in para 2(xxx) of the said reply he stated - In reply to contents of this subpara, it is submitted that the Registration Certificate was issued. However, in the instant case, if the Hon'ble High Court so directs, the Registrar may issue a notice under Section 57(4) of the Act. Thus primafacie it is made out that the CC No.7/2/09 Anchor Health and Beauty Care Pvt. Ltd.
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accused no. 12 by issuing a certified copy of the certificate of registration in respect of registration no. 1223059 knowing and believing such certificate containing entries not forming part of the original records of the said registration, committed the offence of forgery. Though accused no.12 i.e. Registrar of Trade Marks, is a public servant but the sanction U/Sec.197 Cr.P.C. is not required in the present case as the act of forgery committed by him could not be said to be committed by him while acting or purporting to act in discharge of his official duty. A public servant can only be said to act or purport to act in the discharge of his official duty, if his act is such as to lie within the scope of his official duty. It is held by Hon'ble Supreme Court in Govind Mehta Vs. State of Bihar, AIR 1971 SC 1708, "The Jurisdiction of the Court under S.190, to take cognizance of a complaint, filed by the Public Prosecutor against a magistrate under S. 197, for offences under Ss.167, 465, 466 and 471, Penal Code, for having interpolated in the order sheet, after an application for transfer of a case has been made, certain orders, containing the remark that the District magistrate was interfering with the proceedings in the case before him, in order to make it appear that they had been passed much earlier, and sending the order sheet as the true report in the case to the court dealing with the transfer application, is not barred S.195 or S.476 of the Code".
It is held by Hon'ble Supreme Court in Manohar Nath Kaul Vs. State of Jammu and Kashmir, AIR 1983 SC 610 , "Where a public servant commits the offence of cheating or abets another so to cheat, the offence committed by him is not one while he is acting or purporting to act in the discharge of CC No.7/2/09 Anchor Health and Beauty Care Pvt. Ltd.
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his official duty, as such offence has no necessary connection between it and the performance of the duties of a public servant, the official status furnishing only the occasion or opportunity for the commission of the offences".
Use of expression, 'official duty' implies that the act or omission must have been done by the public servant in the course of his service and that it should have been in discharge of his duty. The Sec.197 Cr.P.C. does not extent its protective cover to every act or omission done by a public servant in service but restricts its scope of operation to only those acts or omissions which are done by a public servant in discharge of official duty. A public servant is not entitled to indulge in criminal activities. To that extent the section has to be construed narrowly and in a restricted manner. In the present case also the protective cover of Sec.197 Cr.P.C. could not be extended to accused No.12 because the criminal act of forgery could not be stated to be part of his official duty which he had committed while acting or purporting to act in discharge of his official duty. Hence, no sanction is required to prosecute him in the present case.
5. The CW1 has categorically deposed that accused No.10 and 11, their directors including accused no.1, 2 and 3 had forged documents before institution of suit No.1709/05 and used the same in the said judicial proceedings with the full knowledge that the certificate of registration and certified copy thereof produced by them were forged and fabricated but yet they used the same in judicial proceedings in collusion with each other and in conspiracy with each other. He has further deposed that accused no.12 made a false document and also created false electronic record in respect of trade mark registration no. 1223059 with the CC No.7/2/09 Anchor Health and Beauty Care Pvt. Ltd.
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intention to cause damage and injury to the complainant and to support the false claim of title in red and white colour combination of accused no.1 to 11 in connivance and in conspiracy with them. He has further deposed that accused No.4 being instituted as attorney of accused No.10 and accused No.5 to 9 being Directors and principal officers of accused No.10 are responsible for the conduct of accused no.10 and hence are also liable to be prosecuted in the present case. Thus from the material on record, prima facie case U/Sec.197/465/466 IPC is disclosed against accused No.12 and case U/Sec.465/469/471/34 IPC is disclosed against accused No.1 to 11. So, accordingly they be summoned on filing P.F. and R.C. for 27.06.2012.
(Announced in open
Court on 02.04.2012) (Navita Kumari)
MM, New Delhi.
CC No.7/2/09
Anchor Health and Beauty Care Pvt. Ltd.
Vs.
K.V. Vaidyanathan & Ors.
15
CC No. 7/2/11/09
02.04.2012
Present : Sh. Mayur S. Gala, AR of the complainant for complainant.
Vide separate order on the point of summoning, it is held that primafacie case U/Sec.197/465/466 IPC is disclosed against accused No.12 and case U/Sec. 465/469/471/34 IPC is disclosed against accused No.1 to 11. So, accordingly they be summoned on filing P.F. and R.C. for 27.06.2012.
(Navita Kumari) MM/ND/02.04.12 CC No.7/2/09 Anchor Health and Beauty Care Pvt. Ltd.
Vs. K.V. Vaidyanathan & Ors.