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The Coca-Cola Company vs Arun Kumar Jaiswal on 2 June, 2022

Author: Navin Chawla

Bench: Navin Chawla

                     $~10
                     *    IN THE HIGH COURT OF DELHI AT NEW DELHI
                     +    CS(COMM) 410/2022
                          THE COCA-COLA COMPANY                   ..... Plaintiff
                                        Through: Ms.Anuradha Salohtra, Mr.Naval
                                                 Kastia, Ms.Kriti Rathi, Mr.Akshay
                                                 Bhardwaj, Advs.
                                        versus

                           ARUN KUMAR JAISWAL                       ..... Defendant
                                              Through: nemo.
                           CORAM:
                           HON'BLE MR. JUSTICE NAVIN CHAWLA
                                              ORDER

% 02.06.2022 IAs 9351-52/2022 (Exemption) Allowed, subject to all just exceptions.

1. This is an application filed on behalf of the plaintiff seeking permission to file additional documents at a later stage.

2. The plaintiff may file the additional documents strictly in accordance with the law.

3. The application stands disposed of.

4. This application has been filed seeking exemption from filing pre- institution mediation under Section 12A of the Commercial Courts Act, 2015.

5. Having perused the contents of the application, the same is allowed. The application stands disposed of.

6. This application has been filed seeking exemption from filing the Signature Not Verified Digitally Signed By:SHALOO BATRA Signing Date:25.06.2022 original documents.

7. Having perused the contents of the application, the same is allowed, subject to the condition that in case the defendant requests for inspection of any documents, the same shall be granted. The original documents shall also be produced as and when directed by this Court.

8. The application is disposed of.

9. This is an application seeking exemption from making advance service of the paper book of the suit to the defendants.

10. Having considered the contents of the application, the same is allowed. The plaintiff is exempted from making an advance service of the paper book of the suit to the defendant.

CS(COMM) 410/2022

11. Let the plaint be registered as a suit.

12. Issue summons to the defendant to be served through all permitted modes, returnable on 15th September 2022.

13. The summons to the defendant shall indicate that the written statement 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, the defendant shall also file the affidavit of admission/denial of the documents of the plaintiff, without which the written statement shall not be taken on record.

14. Liberty is given to the plaintiff to file replication within a period of 15 days of the receipt of the written statement. Along with the replication, if any, filed by the plaintiff, the affidavit of admission/denial of documents of the defendant be filed by the plaintiff, without which the replication shall not Signature Not Verified Digitally Signed By:SHALOO BATRA Signing Date:25.06.2022 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. IA 9346/2022 (Stay)

15. Issue Notice.

16. On the plaintiff taking steps, let notice be served on the defendant through all permissible modes, returnable on 15th September 2022.

17. Let reply to the application be filed by the defendant within four weeks of receipt of notice. Rejoinder thereto, if any, be filed within three weeks thereafter.

18. It is the case of the plaintiff that the plaintiff is the registered proprietor of the trade dress DANUBE BOTTLE shape and the TWO DROP design label, details whereof have been given by the plaintiff in paragraph 6 of the plaint. It is further contended that the petitioner's rights with regard to the above marks have been protected by way of various litigations, details whereof have also been given by the plaintiff in paragraph 9 of the plaint.

19. The plaintiff contends that it has tremendous goodwill and reputation in the above marks. The plaintiff has given its figures of sales as also the expenses on advertisements in the plaint. The plaintiff alleges that it is only in the month of February, 2022 that the plaintiff came to the know of the defendant's product being sold under the brand of 'RELIABLE FRESH', however, bearing the same trade dress/label of the DANUBE BOTTLE shape and TWO DROP design label. The entire get up of the bottle is deceptively similar to that of the plaintiff. The plaintiff further asserts that upon service of cease and desist notices, the defendant has, in fact, applied for registration of the mark, clearly evidencing that it wishes to continue the use of the offending label/marks.

20. The plaintiff has given a pictorial depiction of the two labels and the shape of the bottles as under:

21. The learned counsel for the plaintiff has produced the original bottles before this Court in support of her submission.

22. Having perused the contents of the plaint, the documents filed, as also having heard the learned counsel for the plaintiff, in my opinion, the plaintiff has been able to make out a prima facie good case and the balance of convenience is also in favour of the plaintiff and against the defendant. The plaintiff will also suffer an irreparable loss and injury in case an ad interim injunction is not granted in favour of the petitioner and against the defendant.

23. Accordingly, the defendant, its agents, and/or any other person associated with him are restrained from marketing or selling his/their Signature Not Verified Digitally Signed By:SHALOO BATRA Signing Date:25.06.2022 products, including bottled water, under the DANUBE BOTTLE shape and/or TWO DROP design label of the plaintiff as mentioned hereinabove, or any other deceptively similar design/mark to that of the plaintiff's bottle/label, till the next date of hearing.

24. Compliance with Order XXXIX Rule 3 the Code of Civil Procedure, 1908 be made within two weeks from today.

25. By this application, the plaintiff prays for appointment of a Local Commissioner to visit the premises of the defendant at the following address:

M/S. RELIABLE FRESH 59, NEAR AMBEDKAR CHOWK BUS STAND, BARHALGANJ, TAHSIL GOLA, GORAKHPUR, UTTAR PRADESH - 273 402, INDIA

26. For the reasons recorded hereinabove, I am of the opinion that the plaintiff has been able to make out a case for an appointment of a Local Commissioner to visit the premises of the defendant, details whereof are given hereinabove.

27. I appoint Mr. Ninad Dogra, Adv., Address: C-13, Basement, Panchsheel Enclave, New Delhi-110017, Mob. No.9990090052 as a Local Commissioner to visit the abovementioned premises of the defendants.

28. The Local Commissioner shall seize all products and packaging material found in the defendant's premises (whether finished or unfinished) along with cartons, packaging material, advertisement material, labels, logos, stationery, bills/invoices, stickers, publicity material, and other Signature Not Verified Digitally Signed By:SHALOO BATRA Signing Date:25.06.2022 material in power and control of the defendant in the DANUBE BOTTLE shape and/or bearing the TWO DROP design label of the plaintiff as mentioned hereinabove, or any other deceptively similar design/mark to that of the plaintiff's bottle/label. The Local Commissioner shall, after making inventory of the seized material, release the same to the defendants on superdari basis with an undertaking by the defendant that the defendant shall not use the same and shall produce the same as and when directed by this Court. The Local Commissioner shall sign all account books including vouchers, ledgers, purchase and sale records et cetera. The Local Commissioner shall be entitled to break open locks and/or doors, if the need so arises. The Local Commissioner shall be at liberty to seek police assistance, if the need so arises. The report of the Local Commissioner be filed within two weeks of the inspection. The report shall be accompanied by the sample copies of the seized material.

29. Two representatives of the plaintiff may also accompany the Local Commissioner during the inspection.

30. The fee of the Local Commissioner is fixed at Rs.1,50,000/- (Rupees One Lakh Fifty Thousand Only), apart from out of pocket expenses to be paid by the plaintiff at the first instance.

31. The application is allowed in the above terms.

32. This order may not be uploaded on the website of the Delhi High Court for a period of two weeks.

33. Dasti.

NAVIN CHAWLA, J JUNE 2, 2022/Rn/U Signature Not Verified Digitally Signed By:SHALOO BATRA Signing Date:25.06.2022