Delhi District Court
Adidas A.G. vs . Prashant Goswami on 30 October, 2018
IN THE COURT OF ANIL ANTIL, ADDITIONAL DISTRICT JUDGE05,
SOUTH EAST DISTRICT, SAKET COURTS, ND.
TM No. 62/17
Adidas A.G. Vs. Prashant Goswami
Adidas A.G
AdiDasslerStrasse 12, 91074, Herzogenaurach
Germany
Through
Gurjeet Sigh
Costituted Attorney
96, Sukhdev Vihar, Mathura Road,
New Delhi110028 ..........Plaintiff
Versus
Prashant Goswami
S/o Sh. Harish Goswami
17/66, Than Singh Nagar,
New Rohtak Road,
Anand Parbat
New Delhi10005
..........Defendant
Date of institution of the suit : 05.07.2017
Date reserved for judgment : 30.10.2018
Date of pronouncement of judgment : 30.10.2018
Decision Suit Decreed
TM No.62/17 Adidas A.G. Vs. Prashant Goswami Page no. 1 of 8
JUDGMENT
1 The present suit was filed by the plaintiff for permanent injunction restraining infringement of trade marks, copyright, passing off, restrain of use of domain name damages, unfair competition rendition of account, delivery UP, ETC.
2 Plaintiff's version as per averments in the plaint : 2.1 Succinctly, the plaintiff company is engaged in manufacturing, sale and distribution of large variety of goods including footwear, athletic shoes, boots, clothing, bags of all kinds, sporting goods, watches and other timing devices, eyewere, including sunglasses and protective eyewear for the practice of sports, consumers electronic products, spots balls, sports equipment and other allied/related products across the world.
2.2 That the plaintiff company is the owner of trademarks "ADIDAS" and logos "3Stripes", " Trefoil"(hereinafter referred as plaintiff's trademark/logo) and many other words mark/ label/device and the said marks and logos are registered under the provisions of the Trademarks Act, in India. The word mark "adidas" and its logo are an artistic work under definition of Copyright Act owing to their unique design effect and style, the plaintiff company have the copyright over the logos of "adidas", since it's the original and pristine creation of the plaintiff. Thus, plaintiff is entitled to all relief pertaining to infringement of copyright in logo of "adidas", under the Copyright Act, 1957. 2.3 That the plaintiff's trademark/logo are registered under various TM No.62/17 Adidas A.G. Vs. Prashant Goswami Page no. 2 of 8 classes of Trademarks Rules in India. Plaintiff company has thus exclusive right to use said trademark and logos with respect to its products and no one is entitled to use the said trademarks/ label/ device/logo or any mark deceptively and confusingly similar to "Adidas" and logos "3Stripes", " Trefoil" without a licence or assignment by the plaintiff company.
2.4 That the plaintiff owns, uses and is the registered proprietor of its said ADIDAS Trade Mark/ Label/ device in numerous jurisdictions of the world including in India.
2.5 That the defendant engaged in the business of stocking, distribution and selling spurious goods from its shop/ godown/premises. On 04.06.2017 as commission was executed in suit bearing TM 45/2017 titled as Nike Innovate C. Vs. Vs. Ashok Kumar vide order dated 02.06.2017 before this court. While executing the commission and searching and seizing there impugned goods of mark/ label "NIKE", the impugned goods under the trademark/label/device "ADIDAS" were also found at defendant's premises. The Local Commissioner had submitted its report in the said regard.
2.6 That the marks used by the defendant are identical and/or confusingly or deceptively similar to the registered trademarks of the plaintiff company. The use of marks which are confusingly or deceptively similar to the registered trademarks of plaintiff in relation to similar goods with respect to which the marks are registered are likely to cause confusion in the mind of general public.
TM No.62/17 Adidas A.G. Vs. Prashant Goswami Page no. 3 of 8 2.7 That the defendant is also engaged in the manufacturing, marketing, soliciting and trade of lowers, readymade garments and / or apparels, sportswear, sportsrelated goods, footwear, shoes and other allied/ related/ cognate products and the apparels are deceptively and confusingly similar to plaintiff's trademark/label/device. 3 That on 06.07.2017 adinterim injunction was granted in favour of the plaintiff and against the defendant restraining him from using the impugned trademark/label/device.
4 Process issued to the defendants. Defendant has entered his appearance on 31.07.2017; matter was referred to Mediation Center for settlement which remained nonstarter. No WS was thereafter filed on behalf of defendant despite being given number of opportunities. Vide order dated 23.11.2017 right of the defendant to file WS was stands closed. Issues were framed vide order dated 12.01.2018 and matter listed for plaintiff evidence.
5 In the meantime, Ld. Counsel for plaintiff filed an application under O VII R 10 CPC stating that defendant was duly served, no WS has been filed, therefor plaintiff is entitled to a decree in terms of O VIII R 10 CPC against defendant. No reply to the said application was filed by the defendant.
5.1 Ld. Counsel for plaintiff relied upon the judgment passed by Hon'ble High Court of Delhi titled as Cisco Technology, INC. Vs. Yameen & Another 2010(45) PTC 269 (Del)' and another judgment titled as Burger Kind Corporation Vs. Burger Place 2015(64) PTC TM No.62/17 Adidas A.G. Vs. Prashant Goswami Page no. 4 of 8 308(Del.) to claim his relief in terms of O VIII R 10 CPC. 6 Heard. Perused the records meticulously. I am of the considered view, plaintiff is entitled to a decree in his favour and against the defendant 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 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 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", quoted with approval in the case relied upon by the plaintiff:
'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 TM No.62/17 Adidas A.G. Vs. Prashant Goswami Page no. 5 of 8 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 35 of the plaint reflects the similarity between the impugned marks of defendants and the marks of the plaintiff; defendant's marks are identical to the plaintiff's marks. It is the case of counterfeit goods. 10 Customers base of the products of both the parties may not be necessarily same. But plaintiff is entitled to protect its proprietary rights in the impugned trademarks under Section 29 (1) & (2) as well under the doctrine of dilution statutorily incorporated in clause 4 of Section 29 of Trademarks Act. The representation of the marks by the defendant tends to cause confusion in the minds of the general public as well as to the customers as to identity of the source of the impugned products. 11 If the defendant is permitted to use the impugned mark which are deceptively similar and confusingly to that of the plaintiff's company, 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 of the plaintiff.
12 Besides as stated above no WS has been filed by the defendant to deny and controvert the allegations of the plaintiff. The defendant did not come forward to disprove the case of plaintiff his stand. Consequently TM No.62/17 Adidas A.G. Vs. Prashant Goswami Page no. 6 of 8 plaintiff is entitled to a decree for injunction in his favour and against the defendant.
13 Damages 13.1 In the present suit plaintiff is also claiming rendition of account by the defendant and damages in terms of prayer clause 'd' of the plaint. 13.2 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 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 TM No.62/17 Adidas A.G. Vs. Prashant Goswami Page no. 7 of 8 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. '
14 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 stated above I am of the view plaintiff is entitled to punitive damages to the tune of Rs.1 lakhs rupees in its favour and against the defendant.
15 Relief.
In view of my above discussion the application is allowed and disposed of accordingly. The suit is decreed in favour of the plaintiff and against the defendant in terms of the para 30 prayer clauses (a) to (b) of the plaint with punitive /compensatory damages to the tune of Rs. 1 lakhs. The suit stands disposed off as decreed.
Cost of the suit is awarded in favour of the plaintiff and against defendant.
Decree sheet be drawn accordingly.
File be consigned to record room.
Announced in the open Court (Anil Antil) Today on 30.10.2018 ADJ05, South East, District(SE) Saket Court, New Delhi TM No.62/17 Adidas A.G. Vs. Prashant Goswami Page no. 8 of 8