Delhi District Court
Devender Kumar Jain vs Solanki Industries Pvt Ltd on 9 April, 2025
IN THE COURT OF SH. AMIT KUMAR : DISTRICT JUDGE
(COMMERCIAL COURT-01)
NORTH DISTRICT: ROHINI COURTS: DELHI
CS (COMM.) No.6/2023
CNR No. DLNT01-012117-2022
IN THE MATTER OF :-
1. DEVENDER KUMAR JAIN
SOLE PROPRIETOR OF
M/S VIHAN ELECTRICALS
5, BEHIND GAMDEVI MANDIR
OPP. SAI SERVICES, SATIVALI VILLAGE
VASAI (EAST), DIST. THANE, MUMBAI-401208.
EMAIL: [email protected].
2. VIHAN ELECTRIC PRIVATE LIMITED
301, SHOBHNA APARTMENT,
ABOVE SARASWAT CO. OP. BANK LTD.
CHANDRAVARKAR LANE, BORIVALI (W),
MUMBAI-400092.
EMAIL: [email protected].
.....PLAINTIFFS
VS
SOLANKI INDUSTRIES PVT. LTD.
GALA NO.118 & 119,
JAI VIJAY INDUSTRIAL ESTATE,
NEAR VISHRAM PETROL PUMP,
VILLAGE BAPANE,
NAIGAON EAST, DISTRICT PALGHAR,
MAHARASHTRA-401208.
ALSO AT :-
NO.22/120, MOTILAL NAGAR 1,
GOREGAON (W), MUMBAI-400104.
EMAIL: [email protected].
....DEFENDANT
Digitally signed
by AMIT Page No.1 of 8
AMIT KUMAR
KUMAR Date:
2025.04.09
16:17:46 +0530
Date of institution of case : 22.12.2022
Date of arguments : 09.04.2025
Date of pronouncement of judgment : 09.04.2025
JUDGMENT:
1. Present is a suit under section 22 of The Designs Act, for permanent injunction seeking restraining the infringement of registered designs, infringement of registered designs, passing off under Trade Marks Act, delivery up, damages and rendition of account etc. The brief facts necessary for the disposal of the suit as averred in the plaint are that the plaintiff no.1 is the proprietor of his firm and plaintiff no.2 is a company promoted by plaintiff no.1. Plaintiff no.1 has permitted plaintiff no.2 to use his registered designs vide agreement and assigning the rights vide agreement dated 31.03.2019. The plaintiffs are engaged in the business of manufacturing and trade of wide range of electrical goods, appliances, switches, cover plates, fittings, wires and cables, emergency lights and other allied goods etc. In 1997, plaintiff no.1 started trading in the name of M/s Vihan Electricals in relation to manufacturing and trade of these goods. Plaintiff no.2 was incorporated in 2012. The plaintiffs in course of their business developed "Sleek Designed Switch" and "Flyover Designed Switch" as detailed in para 8 of the plaint. The Sleek designed switch was registered under the Design Act on 04.12.2014 in the name of plaintiff no.1. Similarly, Flyover designed switch was registered in the name of plaintiff no.1 on 07.04.2015. By virtue of these registrations, plaintiffs have obtained exclusive copyright in the said designs registration. It is Digitally signed AMIT by AMIT KUMAR Page No.2 of 8 KUMAR Date: 2025.04.09 16:17:52 +0530 claimed that the plaintiffs have built handsome revenues and recognition in the market for these designs which are distinctive and acquired secondary significance with the plaintiffs.
2. The defendant Solanki Industries Pvt. Ltd. is engaged in manufacturing and selling of electrical goods and in relation to Switches has adopted same/similar design, shape,configuration and surface pattern under the series name Lexi Pro 11, V-9 Wave Modular (sleek designed) and V-7 series, V-7 series silky finish (flyover designed) and overall dress, get-up, packaging, colour is similar to that of the plaintiffs. It is claimed that the impugned adoption and use by the defendant of the designs similar to that of the plaintiffs is violating the plaintiffs' right and infringing the registered designs of the plaintiffs due to which plaintiffs have suffered huge losses. This suit has been filed seeking injunction against the defendant from infringing the plaintiffs' registered design and other reliefs.
3. The defendant was duly served through e-mode on whatsapp and email on 27.04.2024 but the defendant did not file WS within the stipulated period of 30 days and right of the defendant to file written statement stood closed and defense of the defendant was also struck off vide order dated 22.08.2024 and following issues were framed.
(i) Whether the Plaintiff is entitled to Decree of permanent injunction, as prayed for? .....OPP
(ii) Whether the Plaintiff is entitled to damages in the sum of Rs.6,00,000/- as prayed for? .... OPP Digitally signed AMIT by AMIT KUMAR Page No.3 of 8 KUMAR Date: 2025.04.09 16:18:02 +0530
(iii) Whether the plaintiff is entitled for rendition of accounts as prayed for? ...OPP
(iv) Relief.
4. Plaintiff in order to prove its case examined its Authorized Representative as PW-1. PW-1 proved on record the following documents:
(1) Representation of plaintiff's goods bearing designs as Ex.PW1/1.
(2) Representation of defendant's goods bearing impugned designs as Ex.PW1/2.
(3) Comparison chart of plaintiff and defendant goods under the respective designs as Ex.PW1/3. (4) Registration certificate of design under no.267928 in class 13-03 as Ex.PW1/4.
(5) Registration certificate of design under no.273365 in class 13-03 as Ex.PW1/5.
(6) Annual turnover and advertisement expenses of the plaintiff no.1's firm M/s Vihar Electricals certified by chartered accountant on 16.07.2022 as Ex.PW1/6. (7) Annual turnover and advertisement expenses of the plaintiff no.2's firm M/s Vihar Electricals certified by chartered accountant on 16.07.2022 as Ex.PW1/7. (8) Copy of invoices of the plaintiff for the design as Ex.PW1/8.
(9) Advertisement of plaintiff's goods as Ex.PW1/9. (10) Catalogue of plaintiff good as Ex.PW1/10. (11) Catalogue of defendant's impugned goods as Ex.PW1/11.
(12) Screenshot of defendant presence on www.indiamart.com and www.vimalswitches.com as Ex.PW1/12.
(13) Deed of assignment of design as Ex.PW1/13.Digitally signed
AMIT by AMIT KUMAR Page No.4 of 8 KUMAR Date: 2025.04.09 16:18:08 +0530
5. The testimonies of PW1 goes unrebutted. Further, vide order dated 22.12.2022, Local Commissioner was appointed in this case to visit the defendant's premises and inspect if any infringing material is found at its premises. The Local Commissioner visited the property of the defendant and filed his report. As per the report of the Local Commissioner, total 5934 infringing switches were recovered from the defendant apart from four dies for making these switches. The commission was carried out in the presence of three employees of the defendant and despite that neither defendant appeared nor the objections were filed by the defendant to the report of the Local Commissioner. The report of the Local Commissioner is admissible in evidence. I have heard the submissions and my issue wise findings is as under :-
ISSUE NO. (i) :-
6. The onus was on plaintiffs. The plaintiffs through PW-1 has proved on record that the plaintiffs are the registered owner of the designs in class 13-03 for the two switch designs vide Ex.PW1/4 and Ex.PW1/5. The annual turn over of the plaintiffs has also been proved on record alongwith their catalogs, invoices and advertisements. The plaintiffs have also proved the presence of the defendant on e-commerce website. The infringement has also been proved through unchallenged report of the Local Commissioner. The plaintiffs are continuous user of these trade designs and have established reputation in the market in respect of these designs. The defendant admittedly is using the similar designs as shown from their catalogue Ex.PW1/11 and the report Digitally signed Page No.5 of 8 AMIT by AMIT KUMAR KUMAR Date: 2025.04.09 16:18:14 +0530 of the Local Commissioner. The defendant cannot be permitted to infringe the registered designs of the plaintiffs. The plaintiffs have proved that the defendant has infringed the designs of the plaintiffs and the plaintiffs have proved through documents that plaintiffs are the owner of the registered designs 'Sleek Designed Switch and Flyover Designed Switch' as per Ex.PW1/4 and Ex.PW1/5. The issue is decided in favour of the plaintiffs.
ISSUE NO.(ii) :-
7. The plaintiffs have claimed damages of Rs. 6,00,000/-. As far as the damages are concerned, the Hon'ble Delhi High Court in case titled as Imaging Marketing Pvt. Ltd. Vs. M/s. Green Accessories through its proprietor and Anr. passed in CS (Comm.) 564/2020 dated 21.03.2022 has awarded damages against an ex-parte defendant depending upon quantum of counterfeit products seized and on that basis, decreed damages against defendant no. 1 for Rs. 5 Lac and against defendant no. 6, for Rs. 10 Lac and none against defendant no. 3 from whose premises, nothing was seized. Similarly, Hon'ble Delhi High Court in another case M/s. Blue Heaven Cosmetics Pvt. Ltd. Vs. Shivani Cosmetics through its partner in CS (Comm) 702/2021 dated 18.05.2022 awarded damages of Rs. 10 Lac against the ex parte defendant with Rs. 2 Lac as cost. Ld. Counsel for the plaintiff also relied upon the judgments passed by the Hon'ble Delhi High Court in the case Super Cassettes Industries Vs. M/s. Rachna Television Pvt. Ltd., CS (OS) No. 1742/2009 dated 13.05.2013, Pepsico Inc. & anr. Vs. PSI Ganesh Marketing & Anr., CS (OS) No. 157/2013 dated 19.05.2014 and Cartier Page No.6 of 8 Digitally signed AMIT by AMIT KUMAR KUMAR Date: 2025.04.09 16:18:19 +0530 International AG & Ors. Vs. Gaurav Bhatia & Ors., CS (OS) 1317/2014 dated 04.01.2016.
8. In view of the same, considering the fact that the plaintiffs have proved that the defendant has infringed their registered designs and huge quantity of switches and four dyes for making the infringing switches were recovered from the defendant, the damages for a sum of Rs.6,00,000/- (Rs. Six Lac only) are granted in favour of the plaintiffs and against defendant for infringement the designs of the plaintiffs.
ISSUE NO.(iii):
9. The onus of proving this issue was on the plaintiffs. During the trial, the plaintiffs did not make any effort to summon the books of account of the defendant. Nor there is anything on record to suggest that since when the defendant is infringing the designs of the plaintiffs. The plaintiffs, therefore, has failed to prove this issue. Otherwise also, in an ex-parte matter, the prayer for rendition of account cannot be granted as defendant is not present to produce the books. The issue is decided accordingly.
RELIEF :-
10. In facts, suit is decreed in favour of the plaintiffs and against the defendant. Defendant, its servants, agents, employees, directors, proprietors, assignees etc. are restrained from infringing the designs of the plaintiffs in their switches under the category 'Sleek Designed Switch and Flyover Designed Switch' Digitally signed AMIT by AMIT KUMAR Page No.7 of 8 KUMAR Date: 2025.04.09 16:18:24 +0530 under variants such as Sleek Copo, Flyover Stalo etc. or any other design which is deceptively similar to the plaintiffs' designs. The defendant is further directed to deliver up all finished and unfinished goods, dyes, blocks and labels bearing 'Sleek Designed Switch and Flyover Designed Switch' to the plaintiffs, the defendant is directed to remove 'Sleek Designed Switch and Flyover Designed Switch' or deceptively similar designs from e-commerce websites.
11. The plaintiff shall also be entitled to damages for a sum of Rs.6,00,000/- (Rs. Six Lac only) against the defendant.
12. Plaintiff shall also be entitled to the cost of the suit.
13. Copy of the judgment be sent to both the parties by electronic mode, if available or otherwise.
14. Decree sheet be prepared.
Digitally
15. File be consigned to Record Room. AMIT signed by AMIT KUMAR Date:
KUMAR 2025.04.09
16:18:30
+0530
(AMIT KUMAR)
District Judge, Comm. Court-01
North, Rohini Courts, Delhi
09.04.2025
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