Delhi District Court
Levi Strauss And Co vs Tasleem Ahmad on 21 December, 2024
DLCT010129922022
IN THE COURT OF MS. ILLA RAWAT :
DISTRICT JUDGE COMMERCIAL COURT- 03:
(CENTRAL) : TIS HAZARI (EXTENSION BLOCK) : DELHI.
CS (COMM) No. 2167/22
CNR No. DLCT010129922022
In the matter of :-
Levi Strauss & Company
1155 Battery Street, San Francisco
State of California,
United States of America,
Also at:-
Levi Strauss India Pvt. Ltd.
Tower-A, Signature Tower,
5th Floor, Sec.-30, Gurgaon-122002
Through its Authorized Representative
Mr. Narendra Singh ...Plaintiff
Versus
Mr. Tasleem Ahmad
Building No. 3/6979,
Dev Nagar, Karol Bagh,
New Delhi-110005.
Ph: 9717264163 ...Defendant
Date of Institution : 12.09.2022
Order reserved on : 10.12.2024
Order passed on : 21.12.2024
SUIT FOR MANDATORY AND PERMANENT INJUNCTION,
INFRINGEMENT OF TRADEMARK AND COPYRIGHT,
PASSING OFF AND RENDITION OF ACCOUNTS.
TM No. 2167/2022 Levi Strauss & Co. Vs. Tasleem Ahmad Page No. 1 of 23
Digitally signed
ILLA by ILLA RAWAT
Date:
RAWAT 2024.12.21
16:18:14 +0530
EX-PARTE JUDGMENT
1.Vide this judgment I shall dispose off the suit for mandatory and permanent injunction in respect of infringement of trademark and copyright, passing off and rendition of accounts, filed by the plaintiff against the defendant.
2. Brief facts of the case are that plaintiff is a company registered under the laws of California, United States of America (USA), having its registered office at 1115, Battery Street, San Francisco, State of California, USA. The present suit has been instituted through Mr. Narendra Singh, who has been duly authorized by way of power of attorney and is competent to file, sign and verify the plaint and to institute the present suit on behalf of plaintiff.
3. It is averred in the plaint that the plaintiff company is engaged in the business of manufacturing and marketing of clothing of all kinds, readymade garments and clothing and leisure shoes, spectacle glasses, sunglasses, bags and other accessories under the trademark "Levi's" and other trademarks and is carrying on its business in Delhi through its exclusive franchise and showrooms in various parts of Delhi.
4. It is further averred that plaintiff company is operating across the globe and its products are available in India as well. The plaintiff company has been innovating since 1873, the year it created and patented the world's first blue jeans, while the patent has long expired, the plaintiff company's commitment TM No. 2167/2022 Levi Strauss & Co. Vs. Tasleem Ahmad Page No. 2 of 23 Digitally signed ILLA by ILLA RAWAT Date:
RAWAT 2024.12.21 16:18:15 +0530 to innovation continues. The plaintiff company operates in more than 110 countries worldwide and throughout its long history, the plaintiff company has inspired change in the market place, the workplace and the world.
5. It is further averred that brand "Levi's" was known in India even before its launch in the country because of its global presence. The plaintiff company ventured into the youth segment in India in 1994 by launching its products under the iconic brand name "Levi's" and the company has even built a strong retail and distribution network across India. It is further averred that "Levi's" in India is being built as the most definitive, the trendiest and the most premium apparel brand targeted at trendsetter and early adopters and the company has own exponentially over the last few years in India, helped by a huge retail thrust.
6. It is further averred in the plaint that the plaintiff company is owner of trademarks "Levi's" and "Levi's (Housemark)", "Two Horse Logo" and the "Arcuate Stitching Design" (hereinafter referred to as "Levi's marks") and the trademarks of the plaintiff company are registered under the provisions of Trademarks Act, 1999 and are subsisting. The plaintiff has given details of its trademarks, their registration numbers and period of validity in para 6 of the plaint. It is stated that the plaintiff company has exclusive right to use its registered trademark in respect of its goods in the classes for which registration has been taken and that no one is entitled to use the said trademark or/ any identical and/or deceptively or confusingly similar trademark in respect of goods maintained by TM No. 2167/2022 Levi Strauss & Co. Vs. Tasleem Ahmad Page No. 3 of 23 Digitally signed ILLA by ILLA RAWAT Date:
RAWAT 2024.12.21 16:18:11 +0530 the plaintiff. With respect to apparels bearing trademark "Levi's marks" it is stated that the said logos are embossed and written on its products. The products sold under these trademarks are very prominent in the trade.
7. It is then stated that on account of excellent quality and standard of manufacturing as well as efforts made by the plaintiff in advertising and marketing, the goods sold under above noted trademarks, the plaintiff company has acquired unique distinction and enviable reputation and goodwill in India. The plaintiff has given details of steps taken by it for advertising and promotion of its goods in para 10 of the plaint. The net revenue generated by plaintiff company from sale of its products under the trademark "Levi's marks" is also given in para 10 of the plaint.
8. Referring to the defendant it is stated that the defendant is engaged in manufacturing, storing, distributing and selling of counterfeit goods bearing the falsified trademarks "Levi's marks" from its premises situated at Building no. 3/6979, Dev Nagar, Karol Bagh, New Delhi-110 005.
9. It is further averred that during a market survey in the last week of August 2022, plaintiff come to know that the defendant is manufacturing, stocking, distributing and selling jeans under the trademark "Levi's marks" which are deceptively similar and confusingly identical with the trademarks of plaintiff and are of much inferior in quality than the products of plaintiff. The labels attached and the trademarks embossed on the impugned products of defendants are same/similar in design and TM No. 2167/2022 Levi Strauss & Co. Vs. Tasleem Ahmad Page No. 4 of 23 Digitally signed ILLA by ILLA RAWAT Date:
RAWAT 2024.12.21 16:18:13 +0530 appearance, as those used by the plaintiff company and thus, the defendant is blatantly counterfeiting the registered trademarks of plaintiff company in complete contravention of the law of the land.
10. The plaintiff has relied upon comparative photographs of its original product, displaying trademarks and logs of plaintiff company, as well as that of infringing products to point out as to how defendant is manufacturing and selling goods which are deceptively similar to the goods of the plaintiff , but of much inferior quality. The plaintiff has given similar as well as distinguishing features of its product and the product of defendant in para 19 of the plaint.
11. It is stated that defendant has infringed the registered trademarks and logos of plaintiff with malafide name by affixing same/similar trademarks "Levi's marks". The said adoption by defendant is not by a random or chance occurrence but outcome of devious scheming and meticulous planning with ultimate object of deceiving and misleading the public and customers by the defendant.
12. It is further averred that defendant apparently want to represent to the members of trade and public that its products are in some manner associated with that of plaintiff, but no such association exists and that the said representation is with intention to mislead the consumers and persons in the trade. The conduct of defendant is targeted to earn unlawful and easy profit at the cost of misusing the goodwill and reputation vesting with the plaintiff. It is further alleged that defendant is not the only TM No. 2167/2022 Levi Strauss & Co. Vs. Tasleem Ahmad Page No. 5 of 23 Digitally signed ILLA by ILLA RAWAT Date:
RAWAT 2024.12.21 16:18:12 +0530 entity carrying out illegal business of selling infringing goods and that defendant is aware of other persons involved in similar activity. It is thus necessary that defendant be called upon to disclose names of other persons who are engaged in similar activities in connivance with the defendant.
13. Thus aggrieved by infringement and passing of its trademark "Levi's marks", the plaintiff has filed the present suit praying that :-
(i) plaintiff be granted an order for permanent injunction thereby restraining the defendant, its associates and agents, employees, manufacturers, distributors, franchisee, representatives and assigns from using the trademark "Levi's marks" and/or any other trademark and logos deceptively and confusingly similar to the registered trademarks and logos of the plaintiff company on any apparels including jeans, t-shirts and other accessories thereby infringing plaintiff's registered trademark.
(ii) plaintiff be granted an order for permanent injunction thereby restraining the defendant, its associates and agents, employees, manufacturers, distributors, franchisee, representatives and assigns from using copyright in the artistic work vested in the "Levi's marks" and/or any other copyright and logos deceptively and confusingly similar to the artistic logo of the plaintiff company on any apparels including jeans, t-shirts and other accessories thereby infringing plaintiff's copyright of the plaintiff company.
(iii) plaintiff be granted an order for permanent injunction thereby restraining the defendant, its associates and agents, officers, employees, manufacturers, distributors, franchisee, representatives and assigns from passing off its goods as that of TM No. 2167/2022 Levi Strauss & Co. Vs. Tasleem Ahmad Page No. 6 of 23 Digitally signed ILLA by ILLA RAWAT Date:
RAWAT 2024.12.21 16:18:12 +0530 the plaintiff's good.
(iv) plaintiff be granted an order for permanent injunction thereby restraining the defendant, its partners associates and agents, employees, manufacturers, distributors, importers, stockiest representatives, assigns and all other persons acting on its behalf and /or all other persons claiming through or under them or controlled by them, from importing, marketing, distributing, selling, offering to sale, the impugned goods bearing "Levi's marks" or any mark deceptively and confusingly similar to "Levi's marks" of the plaintiff company on jeans or/and other apparels on any platform (whether wholesale or retail, physical or online), in any form and manner thereby entering into unfair competition and diluting or tarnish the goodwill and reputation of the trademark of the plaintiff.
(v) an order for damages or in the alternative rendition of accounts by the defendant for the profits received by selling the infringing goods of the plaintiff company.
(vi) grant an order for delivery up of all the infringing finished and unfinished materials bearing infringing and violative trademark of Levi's or any deceptively similar mark for the purposes of destruction and erasure.
(vii) grant an order to provide complete discovery of any and all documents and information relating to any and all transaction concerning the infringement of the trademarks of the plaintiff.
(viii) pass a decree of punitive damages against the defendant.
(ix) grant an order for the costs of proceedings.
14. The instant suit was initially filed by plaintiff against an unknown Ashok Kumar. Pursuant to application Under Order XXXIX Rule 1&2 CPC and Order XXVI Rule 9 CPC, this Court TM No. 2167/2022 Levi Strauss & Co. Vs. Tasleem Ahmad Page No. 7 of 23 Digitally signed ILLA by ILLA RAWAT Date:
RAWAT 2024.12.21 16:18:12 +0530 granted ex-parte stay in favour of plaintiff restraining defendant, its agent and authorized representatives from using 'Levi's' mark and selling, advertising or marketing its products under the trademark "Levi's marks" in any manner vide order dated 28.09.2022. The Court also appointed a Local Commissioner vide the said order. The Ld. Local Commissioner visited the premises of the defendant on 21.10.2022 and submitted his report on 02.11.2022. In his report Local Commissioner gave the names of the person found engaged in the infringing activities. On basis of the said report plaintiff filed an application Under Order 1 Rule 10 CPC for impleading defendant to the suit which was allowed vide order dated 15.11.2022 and Sh. Tasleem Ahmad was permitted to be impleaded as defendant with the suit.
15. It is a matter of record that defendant could not be served at given address through ordinary process and was ultimately served through publication in newspaper 'The Statesman' dated 22.12.2023. The defendant, however, did not appear before the Court to contest the case by filing Written Statement. Accordingly, opportunity of defendant to file Written Statement was closed vide order dated 30.04.2024 and he was was also proceeded ex-parte vide order of the same date.
16. In order to prove its case plaintiff examined its Authorized Representative Mr. Narendra Singh as PW-1. He has reiterated the averments made in plaint in his affidavit Ex.PW-1/A. He has relied upon following documents :-
Sr. Document Exhibit No.
No.
1 Copy of Certificate of Incorporation of Mark-A
the Plaintiff Company.
TM No. 2167/2022 Levi Strauss & Co. Vs. Tasleem Ahmad Page No. 8 of 23
Digitally signed
ILLA by ILLA RAWAT
Date:
RAWAT 2024.12.21
16:18:13 +0530
2 Copy of General Power of Attorney Ex.PW1/1
dated 02.09.2021
3 Renewed Power of Attorney dated Ex.PW-1/2
23.10.2023
4 Copy of Legal Proceedings Certificate Ex.PW1/3
of Trademark no.350738.
5 Copy of Legal Proceedings Certificate Ex.PW-1/4
of Trademark no.270875.
6 Copy of Legal Proceeding Certificate Ex.PW-1/5
of trademark No. 851933
7 Copy of Legal Proceeding Certificate Ex. PW-1/6
of trademark No. 301881
8 Copy of Legal Proceeding Certificate Ex.PW-1/7
of trademark No. 851936
9 Copy of Legal Proceeding Certificate Ex.PW-1/8
of trademark No. 290954
10 Copy of Legal Proceeding Certificate Ex.PW-1/9
of trademark No. 382357
11 Copy of Legal Proceeding Certificate Ex.PW-1/10
of trademark No. 851939
12 Copy of Legal Proceeding Certificate Ex.PW-1/11
of trademark No. 851717
13 Copy of Legal Proceeding Certificate Ex.PW-1/12
of trademark No. 540033
14 Copy of Legal Proceeding Certificate Ex.PW-1/13
of trademark No. 3626997
15 Copy of Legal Proceeding Certificate Ex.PW-1/14
of trademark No. 3569457
16 Photocopy of photograph of the Mark 'B'
infringing products of the defendant
bearing trademarks identical and/or
confusingly or deceptively similar to
the "Levi's marks" of the plaintiff
17 Photocopy of photograph of the 'Mark C'
original product of the plaintiff
18 Affidavit of investigator Somu Prabal 'Mark D'
Kumar
19 Report of the Local Commissioner Ex. PW-1/16
17. Plaintiff also examined Sh. Somu Prabal Kumar, Investigator of the plaintiff company, as PW-2. He has tendered his evidence affidavit, filed on 09.07.2024 as Ex. PW-2/A. He TM No. 2167/2022 Levi Strauss & Co. Vs. Tasleem Ahmad Page No. 9 of 23 Digitally signed ILLA by ILLA RAWAT Date:
RAWAT 2024.12.21 16:18:15 +0530 further deposed that he was unable to produce the pair of jeans purchased by him from defendant as he had misplaced the same. Before examination-in-chief of witness could be completed on that day, counsel for plaintiff sought permission to withdraw the affidavit of PW-2, dated 09.07.2024, and sought to file fresh evidence affidavit. The request made by counsel for plaintiff was allowed. On 27.08.2024 a fresh affidavit of PW-2/Sh.Somu Prabhal Kumar, was filed and was tendered in evidence as Ex. PW-2/A. The PW-2 exhibited his affidavit, filed with the plaint, as Ex.PW-2/1. Copy of photographs of jeans, which were purchased by him/PW-2 from the premises of defendant, which was already exhibited by PW-1, was again exhibited as Mark-'B'. The PW-2 reiterated that the pair of jeans which was purchased by him from defendant had been misplaced and hence he could not produce the same.
18. No other witness was examined on behalf of plaintiff.
19. Arguments were addressed by Ms. Jahanvi Sharma, Counsel for plaintiff. Written submissions were also filed on behalf of plaintiff. Following judgments have been relied upon by plaintiff in support of prayers made in the plaint:-
(i) Pepsico Inc & Anr. Vs. PSI Ganesh Marketing & Anr., 2014 (59) PTC 275(Del).
(ii) Sandisk LLC & Anr. Vs. M/s B-One Mobile & Ors., 2019(78) PTC 363 (Del)
(iii) Cartier International AG & Ors. Vs. Gaurav Bhatia & Ors. , 2016 (65) PTC 168 (Del)
(iv) Baker Oil Tools (India) Pvt. Ltd. Vs. Baker Hughes Ltd.
TM No. 2167/2022 Levi Strauss & Co. Vs. Tasleem Ahmad Page No. 10 of 23 Digitally signed ILLA by ILLA RAWAT Date:
RAWAT 2024.12.21 16:18:14 +0530 & Anr. [RFA No. 583/2004]
(v) Citibank N.A. Vs. Juggilal Kakmlapat Jute Mills Co. [AIR 1982 Delhi 487]
(vi) Jugraj Singh & Anr. Jaswant Singh & Ors [1971 AIR 761, 1971 SCR (1) 38]
(vii) Himalaya Wellness Company & Ors Vs. Abony Healthcare Limited Through its Directors & anr. [CS Comm 476/2021, I.A. 12699/2021, & I.A. 2201/2023]
(viii) United Bank of India Vs. Sh. Naresh Kumar and Ors. [AIR 1997 SUPREME COURT 3]
(ix) National Fertilizers Limited Vs. Indo Gulf Industries Ltd.
[CS COMM No. 143/2016]
(x) Absogain Retail Solutions vs. Puma SE [RFA (COMM) 39/2023 & CM APPLs. 10166/2023]
20. I have heard Ld. Counsel for plaintiff. I have also gone through the record as well as written submissions filed on behalf of plaintiff.
21. Since the instant matter proceeded against defendant on basis of the report Ex. PW-1/16, of Sh. Mayank Bhardwaj, Ld. Local Commissioner, the observations made therein are very relevant for the present suit. More particularly in view of the judgment in case of Levi Strauss & Co. Vs Rajesh Agarwal 246 (2018) DLT 577 wherein it has been held:-
"9. The Local Commissioner is in fact a representative of the court itself and it is for this reason that Order 26 Rule 10 (2) of CPC clearly provides that once the Commis- sioner has filed the evidence along with his report the same shall be treated as evidence in the suit and form part of the record.
10. It is a settled proposition that the Local Commissioner need not be examined in every matter. If any party wishes to examine the Commissioner for whatsoever reason or if TM No. 2167/2022 Levi Strauss & Co. Vs. Tasleem Ahmad Page No. 11 of 23 Digitally signed ILLA by ILLA RAWAT Date:
RAWAT 2024.12.21 16:18:13 +0530 the court wishes to seek any clarification in respect of the Commissioner's report, then the option to examine the Commissioner exists. In Misrilal Ramratan & Ors. Man- sukhlal & Ors Vs. A. S. Shaik Fathimal & Ors., 1995 Supp (4) SCC 600 the Supreme court categorically holds that the Commissioner's report cannot be rejected on the specious plea of non-examination of the Commissioner. The relevant portion of the judgment reads as under: "It is now settled law that the report of the Commissioner is part of the record and that therefore the report cannot be overlooked or rejected on spacious plea of non-examina- tion of the Commissioner as a witness since it is part of the record of the case."
Similar is the view taken by a Ld. Single judge of this Court in Harbhajan Singh Vs. Smt. Shakuntala Devi Sharma & Anr. MANU/DE/0058/1976: AIR 1976 DELHI 175.
16. The impugned judgment/order dated 28th November, 2006 is set aside. The plaintiff is entitled to permanent in- junction in terms of prayers (i), (ii) & (iii) of the plaint. Learned counsel for the Appellant does not press the relief
(iv) for damages. The Local Commissioner found only 57 pairs of jeans in the Defendant shop bearing the infringing marks. The Court fee deposited by the plaintiff is to the tune of Rs. 7,400/- in the suit and Court fee deposited in the present appeal is to the tune of Rs. 7350/- i.e. a total of Rs. 14,750/- is awarded as costs. The suit is decreed in terms of prayer clauses (i), (ii) & (iii) of the plaint with costs of Rs. 14,750/-. Decree sheet be drawn. The appeal is allowed in the above terms. All miscellaneous applica- tions are disposed of as infructuous."
22. It was further held in case of ML Brother LLP Vs Maheshkumar Bhuralal Tanna 2022 (91) PTC 270 (Del) that:-
"11. In Levi Strauss & Co. Vs. Rajesh Agarwal MANU/DE/ 0019/2018 : 2018 IAD (Delhi 622, this Court examined the said provision and held that once the Commissioner has filed the evidence along with his report, it becomes evidence in the suit itself. Under Order 26 Rule 10(2) CPC it is not manda- tory to examine the Commissioner to admit the report of the Commissioner as evidence in the suit. The relevant observa- tions are as under:
8. The Local Commissioner is in fact a representative of the Court itself and it is for this reason that Order 26 Rule 10 (2) of CPC clearly provides that once the Commissioner has filed the evidence along with his report the same shall be treated as evidence in the suit and shall form part of the record.
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RAWAT 2024.12.21 16:18:15 +0530
10.The rationale behind Order 26 Rule 10 (2) of CPC is clear i.e. the Commissioner is appointed as a representative of the court and evidence collected by the Commissioner along with the report of the Commissioner would be evidence in the suit, subject to any objection raised by any party. If any party has any objection to Commissioner's report or to the evidence, such party has an option to examine the Commis-
sioner personally in open Court. Such examination is how- ever, neither compulsory nor required especially in cases were the party does not challenge the report. In the present case, a perusal of the written statement filed by the Defen- dant clearly reveals that the Defendant does not challenge the Commissioner's report. Para of the written statement is set out below..."
13. In view of Order 26 Rule 10 (2) CPC and the judgments discussed above, the settled legal position that emerges is that the report of the Local Commissioner can be treated as evidence in the suit where it is not challenged by any party. Accordingly, in the present case the report of the Local Com- missioner and the contents therein can be relied upon by the court as evidence as the same is unchallenged.
23. The relevant observations made by Sh. Mayank Bhardwaj, the Local Commissioner in his report dated 01.11.2022, are as under:-
"....We proceeded towards the second floor of the premises and handed over the copy of Hon'ble Court's orders to Mr. Mohd. Kurban and explained the reason of our visit to his premises thereafter he identified himself to be the representative of Mr. Mohd. Tasleen and was working alongwith 4 other persons at the premises. After seeking his permission to search the premises, I alongwith the Advocate of the Plaintiff Mr. Sachin Sharma searched the same and found counterfeit products of Plaintiff i.e. "Levi's". Thereafter Mr. Mohd. Kurban requested us that he would call the the owner Mr. Mohd. Tasleen himself and requested not to finish the local commission till he came.
The entire proceedings of the commission was being recorded by the authorized persons and advocate of the plaintiff (annexed with the report). Thereafter Mr. Mohd. Tasleen reached the premises at around 02.30 p.m., I further explained him the purpose of our visit and took his signature on the superdarinama as well as list of inventory which was handed over to the Advocate of the Plaintiff Mr. Sachin Sharma who undertook to produce the goods as when directed by the Hon'ble Court. Further I prepared the list of inventory (Annexed with TM No. 2167/2022 Levi Strauss & Co. Vs. Tasleem Ahmad Page No. 13 of 23 Digitally signed ILLA by ILLA RAWAT Date:
RAWAT 2024.12.21 16:18:14 +0530 the report) as well as superdarinama (Annexed with the report) and sealed the infringing materials in one gunny bag containing 67 jeans, approx. 150 tags of Levi's and approx 420 rivets (buttons) having the mark "Levi's"
and put the case number alongwith my signature on the same. Further that a copy of rivet(button) and jeans was also taken as a sample to present before the Hon'ble Court as when directed. Further I took a photograph of the Aadhar card of Mr. Mohd. Kurban and handed over the Hon'ble Court orders as well entire set of paper book of captioned suit for his perusal and further furnished him a copy of inventory of the seized goods.
I also prepared a rough proceedings sheet which was duly signed by Mr. Nitin (Police Staff), myself and Mr. Sachin (Advocate of the plaintiff)....... ....That despite searching the entire premises no books of account, cash registers, stock sheets etc was found...
24. It appears from the report of the Local commissioner that he counted the counterfeit goods, prepared an inventory of the seized material on the spot and thereafter placed the counterfeit items in a gunny bag and sealed the gunny bag with his signatures. The seized goods were handed over to the advocate of the plaintiff Mr. Sachin Sharma. The Original Inventory Lists, Superdginamas as well as Photographs of the counterfeit goods form part of the report of the Ld. Local Commissioner. As per the inventories prepared by the Ld. Local Commissioner, the recovered infringing materials have been placed in one gunny bag containing 67 jeans, approx. 150 tags of Levi's and approx. 420 pieces of rivets (buttons).
25. The report Ex. PW-1/16 submitted by Local Commissioner and perusal of the photographs of infringed goods annexed with it clearly reveals that defendant was dealing in infringed goods bearing trademark of the plaintiff.
26. For the purposes of rendition of accounts/damages TM No. 2167/2022 Levi Strauss & Co. Vs. Tasleem Ahmad Page No. 14 of 23 Digitally signed ILLA by ILLA RAWAT Date:
RAWAT 2024.12.21 16:18:13 +0530 plaintiff has relied upon the inventory prepared by the Local Commissioner. The PW-1/Sh. Narendra Singh has given calculation of damages, in para 38 of his affidavit Ex. PW-1/A, as under:-
"38. ......Plaintiff relies on 637 pieces of infringing goods including 67 infringing jeans, 150 pieces of tags and 420 pieces of rivets (buttons), all bearing "Levi's Marks" seized from the premises of Defendant amounting to Rs. 1,76,650/- (Rupees One Lakh Seventy Six Thousand Six Fifty Only) (67 pairs of jeans * Rs. 2,500/- + 150 Labels * Rs. 5 + 420 rivets(buttons)* Rs. 20). I state that if the quantity seized by the local commissioner was the stock for 15 days (considering the fastmoving nature of the products), and the Defendant has been doing business for at least 2 months before the institution of the present suit and the grant of ex-parte ad interim injunction by this Hon'ble Court, then the value of the Defendant's products comes to be Rs. 7,06,600/- (Rupees Seven Lakh Six Thousand and Six Hundred Only).
He has further deposed in Para 39 of his affidavit, Ex. PW-1/A, as under:-
39."I state that Fees of the Local Commissioner:- Rs. 75,000/- (Rupees Seventy Five Thousand Only), Court Fees: Rs. 7,400/- (Rupees Seven Thousand Four Hundred Only), Other expenses: Rs. 15,000/- (Rupees Fifteen Thousand Only), Attorney Fees: Rs. 1,00,000/- (Rupees One Lakh Only) totaling to Rs. 1,97,400/- (Rupees One Lakh Ninety Seven Thousand Four Hundred Only) is also to be awarded to the Plaintiff as cost of the proceedings".
27. The counsel for plaintiff has relied upon case laws, which are summarized briefly in following paragraphs, in support of prayer for grant of damages, punitive damages and costs of the suit.
28. In case of Time Incorporated Vs Lokesh Srivastava:
116 (2005) DLT 599 it was held as under:-
"17. Coming to the question of damages, it may be stated at the outset that in the absence of the defendants, it may not be of any use to pass a decree of rendition of accounts. How- ever, still damages can be awarded on the basis of estimation. Courts in this country have started adopting appropriate yard- TM No. 2167/2022 Levi Strauss & Co. Vs. Tasleem Ahmad Page No. 15 of 23 Digitally signed ILLA by ILLA RAWAT Date:
RAWAT 2024.12.21 16:18:14 +0530 sticks for awarding of the damages even in the absence of the defendants.
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19. Reading of the judgments in the aforesaid cases would manifest that the courts have frowned upon the conduct of the defendants "willfully calculated to exploit the advantage of an established mark" and held that in such circumstances, the plaintiff would be entitled to compensation. It was also found that the defendants were enough business savvy to en- gage in a successful, albeit illegal business venture. Even as- suming, arguendo, that they had no knowledge of Microsoft licensing products, knowledge is not an element of copyright infringement. The Courts came heavily upon the defendants where it was found that irrefutable evidence give rise to an influence of the defendants international, knowing and will- ful infringement.
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24. Coming to the legal position in India, a positive trend has started. Here also as Courts are becoming sensitive to the growing menace of piracy and have started granting punitive damages even in cases where due to absence of the defen- dant's exact figures of sales by the defendants under the in- fringing copyright and/or trade mark, exact damages are not available."
29. It has also been held in the case of Super Cassettes Industries Vs Rachana Television Pvt. Ltd.: 2013/DHC/2461; 201 (2013) DLT 329 that:-
"16. The defendant has deliberately stayed away from this Court proceeding with a view to frustrate the plaintiff's claim of damages. The said act is unjustified. This Court is also in agreement with the submission of learned counsel for plain- tiff that defendant's illegal activities have a cascading effect and set a bad example for other licencees of the plaintiff. Consequently, the plaintiff is also held entitled to punitive damages against the defendants for failing to appear and evading the necessity to present accounts.
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19. Also, in the case of Times Incorporated Vs. Lokesh Sri- vastava and Ors., MANU/DE/0104/2005: 2005 (3) PTC 3 Del this Court has held as under:-
Thwart of compensatory damages to a plaintiff is aimed at compensating him for the loss suffered by him whereas puni- tive damages are aimed at deterring a wrong doer and the like minded from indulging in such unlawful activities. Whenever an action has criminal propensity also the punitive damages are clearly called for so that the tendency to violate the laws and infringe the rights of others with a view to make money is curbed. The punitive damages are founded on the philoso-
TM No. 2167/2022 Levi Strauss & Co. Vs. Tasleem Ahmad Page No. 16 of 23 Digitally signed ILLA by ILLA RAWAT Date:
RAWAT 2024.12.21 16:18:12 +0530 phy of corrective justice ad as such, in appropriate cases these must be awarded to give a signal to the wrong doers that law does not take a breach merely as a matter between rival parties but feels concerned about those also who are not party to the list but suffer on account of the breach. In the case in hand itself, it is not only the plaintiff, who has suf- fered on account of the infringement of its trade mark and Magazine design but a large number of readers of the defen- dants' Magazine "TIME ASIA SANSKARAN" also have suffered by purchasing the defendants' Magazines under an impression that the same are from the reputed publishing house of the plaintiff company. This Court has no hesitation in saying that the time has come when the Courts dealing ac- tions for infringement of trade marks, copy rights, patents etc. should not only grant compensatory damages but award punitive damages also with a view to discouraged dishearten law breakers who indulge in violations with impunity out of lust for money so that they realize that in case they are caught, they would be liable not only to reimburse the ag- grieved party but would be liable to pay punitive damages also, which may spell financial disaster for them... This Court is of the view that the punitive damages should be really punitive and not flee bite and quantum thereof should depend upon the flagrancy of infringement...."
30. It has been further held in case of Pepsico Inc & Ors Vs PSI Ganesh Marketing & Ors.: 2014/DHC/2649; 2014 (59) PTC 275(Del) that:-
"29. In Microsoft Corporation Vs. Deepak Raval reported at MANU/DE/3700/2006: MIPR 2007 (1) 72, this Court ob- served that in our country the Courts are becoming sensitive to the growing menace of piracy and have started granting punitive damages even in cases where due to absence of De- fendant, the exact figures of sale made by them under the in- fringing copyright and/or trademark, exact damages are not available. The justification given by the Court for award of compulsory damages was to make up for the loss suffered by the plaintiff and deter a wrong doer and like-minded from in- dulging in such unlawful activities.
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32. I am in agreement with the aforesaid submission of learned counsel for the plaintiff that damages in such cases must be awarded and a defendant, who chooses to stay away from the proceedings of the Court, should not be permitted to enjoy the benefits of evasion of Court proceedings. Any view to the contrary would result in a situation where a defendant who appears in Court and submits its account books would be liable for damages, while another defendant who, chooses to say away from court proceedings would escape the liabil- ity on account of failure of the availability of account books. TM No. 2167/2022 Levi Strauss & Co. Vs. Tasleem Ahmad Page No. 17 of 23 Digitally signed ILLA by ILLA RAWAT Date:
RAWAT 2024.12.21 16:18:13 +0530 A party who chooses not to participate in court proceedings and stays away must, thus, suffer the consequences of dam- ages as stated and set out by the plaintiffs. There is a larger public purpose involved to discourage such parties from in- dulging in such acts of deception and, thus, even if the same has a punitive element, it must be granted R.C. Chopra, J. has very succinctly set out in Time Incorporated's case (supra) that punitive damages are founded on the philosophy of cor- rective justice."
31. In the case of Cartier International AG & Ors. Vs Gaurav Bhatia & Ors.: 2016/DHC/26; 226 (2016) DLT 662 it has been held that:-
"28. The defendants have not filed any written statement in this suit. They have also failed to admit or deny the docu- ments of the plaintiffs. They have also failed to cross-exam- ine PW-1. The evidence of the plaintiffs' has gone unrebut- ted. Therefore, the evidence of the plaintiffs and documents filed by the plaintiffs are deemed to be admitted under the provision of Order XII Rule 2-A CPC.
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62. In view of the facts of the present case, this Court is of the opinion that in the present case Rs. 1 Crore as punitive damages be granted in favour of the plaintiffs and against the defendants in terms of para 44 (g) of the plaint."
32. Further it has also been held in case of Sandisk LLC & Ors Vs B-One Mobile & Ors.: 2019 IX AD (Delhi) 509; 2019/DHC/2028 that:-
"22. Consequently, the suit is decreed in favour of the plain- tiff and against defendants in terms of clauses (a) and (b) of para 61 of the plaint along with costs. The costs shall amongst others include the lawyers' fees as well as the amounts spent on purchasing the court fees. The Bill of Cost already filed by the plaintiff shall be scrutinised by the learned Registrar. The plaintiffs are also held entitled to com- pensation of Rs. 7,47,900/- to be paid by the defendant no. 1, Rs. 2,06,280/- by the defendant no. 3, Rs. 11,05,518/- by the defendant no. 4, Rs. 2,15,622/- by the defendant no.5, Rs. 67,500/- by the defendant no.6, Rs. 34,200/- by the defendant no.7 and Rs. 6,65,280/- by the defendant no.8."
33. As far as the calculation of damages given in written submissions, filed on behalf of defendant, is concerned, there is TM No. 2167/2022 Levi Strauss & Co. Vs. Tasleem Ahmad Page No. 18 of 23 Digitally signed ILLA by ILLA RAWAT Date:
RAWAT 2024.12.21 16:18:15 +0530 no documentary evidence placed on record in support thereof. From the averments made in the plaint, it appears that Somu Prabal Kumar, investigator, had visited the premises of defendant at Building No.3/6979, Dev Nagar, Karol Bagh, New Delhi-110005 in the last week of August 2022, pursuant to market survey during which it came to the knowledge of plaintiff that defendant is engaged in storing/selling/marketing/ distributing products of plaintiff under falsified "Levi's marks". The said investigator purchased a pair of jeans from defendant. Although it is claimed that defendant did not issue any receipt, the price at which the investigator of the plaintiff had purchased the infringing product/pair of jeans has not been given.
34. The pair of jeans purchased by PW-2, was not produced before Court. It is brought out from testimony of PW-2 that the pair of jeans which he had purchased from defendant, was misplaced by him. Further, there is nothing mentioned in the report of the Local Commissioner or the affidavit of PW1/Sh. Narender Kumar nor has plaintiff placed on record any other document from which it can be ascertained as to what was the price at which defendant was selling each of the infringing pair of jeans bearing "Levi's marks". Apparently no books of account or invoices or any other document was seized from the premises of the defendant, during the visit by the Local Commissioner. Further, there is no document on record from which figures of sales made by defendant in a day or a week or in a month can be ascertained. The plaintiff has also not mentioned the price at which it was selling the original product but considering the averment in the plaint that defendant were selling identical and/or deceptively or confusing similar products, it can be safely TM No. 2167/2022 Levi Strauss & Co. Vs. Tasleem Ahmad Page No. 19 of 23 Digitally signed ILLA by ILLA RAWAT Date:
RAWAT 2024.12.21 16:18:14 +0530 concluded that the infringing goods must have been sold at comparatively lesser price than the original products of the plaintiff. Thus, it is not clear on what basis PW-1/Sh. Narendra Singh has given calculation of damages in para 38 of his affi- davit, Ex. PW-1/A.
35. It is noteworthy that alleged infringing goods which were seized by the local commissioner from the premises of defendant, were handed over to the counsel for plaintiff, by the local commissioner. Said seized property/case property was never produced before the Court. Even otherwise, all the infring- ing products which were seized by the Local Commissioner, dur- ing visit to the premises of defendant on 21.10.2022, are in pos- session of the plaintiff, through its counsel Sh. Sachin Sharma. The plaintiff would no longer be under apprehension that the said products would be circulated and sold in market to detriment of its branded product having "Levi's marks". Rather, the plaintiff can destroy the infringing material and ought to do so within 15 days of the passing of the judgment under intimation to the Court.
36. The plaintiff does not press for prayer for rendition of accounts, but has pressed for grant of punitive damages. The quantum of punitive damages has not been given in the prayer clause of the plaint or in the written submissions. The PW-1/Sh. Narendra Singh has given approximate calculation of sales made by defendant as Rs.7,06,600/-. As already observed in foregoing paragraphs, there is no cogent basis of calculation thereof.
TM No. 2167/2022 Levi Strauss & Co. Vs. Tasleem Ahmad Page No. 20 of 23 Digitally signed ILLA by ILLA RAWAT Date:
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37. It is a matter of record that the plaintiff had paid fee of Rs.75,000/- to the Local Commissioner, Court fees of Rs. 7400/- and must have incurred other expenses of approximately Rs. 15,000/-. It is claimed that Attorney fees of Rs. 1,00,000/- was also paid but no fee certificate has been filed. The plaintiff claims that a sum of Rs.1,97,400/- was incurred by it as cost of the proceedings and prays for grant of Rs. 1,97,400/- towards these expenses.
38. After considering totality of facts and circumstances, it is deemed appropriate to award punitive damages in sum of Rs.2,00,000/- to the plaintiff. Further, taking into account the approximate/actual expenses incurred by plaintiff towards counsel fee, typing of the pleadings, photocopies of the documents, arranging of the gunny bags and photographer at the time of execution etc., I deem it proper to grant sum of Rs.1,50,000/- towards cost of the suit.
39. No order for disclosure of information is passed, as nothing has been brought on record by plaintiff from which it can be ascertained that defendant had advertised/ places any links, posts, listings, pictures etc. directly associating defendant with plaintiff. Further as defendant is ex-parte directions to disclose information about his alleged suppliers selling infringing products of plaintiff company cannot be given.
40. In view of observations made above, the plaintiff is entitled to the following reliefs:-
(i) The plaintiff is entitled to decree of permanent injunction against defendant. Accordingly, the defendant, its TM No. 2167/2022 Levi Strauss & Co. Vs. Tasleem Ahmad Page No. 21 of 23 Digitally signed ILLA by ILLA RAWAT Date:
RAWAT 2024.12.21 16:18:11 +0530 associates and agents, employees, manufacturers, distributors, franchisee, representatives and assigns from using the trademark "Levi's marks" and/or any other trademark and logos deceptively and confusingly similar to the registered trademarks and logos of the plaintiff company on any apparels including jeans, t-shirts and other accessories thereby infringing plaintiff's registered trademark.
(ii) Further the defendant, its associates and agents, employees, manufacturers, distributors, franchisee, representatives and assigns from using copyright in the artistic work vested in the "Levi's marks" and/or any other copyright and logos deceptively and confusingly similar to the artistic logo of the plaintiff company on any apparels including jeans, t-shirts and other accessories thereby infringing plaintiff's copyright of the plaintiff company.
(iii) Further the defendant, his associates and agents, employees, distributors, representatives are restrained by passing a decree of permanent injunction, from passing off its goods and business as that of the goods and business of the plaintiff by using the trademark and copyright "Levi's marks"
and other registered trademarks of plaintiff on shoes and other accessories in any form and manner and/or trademarks identical and/or confusingly or deceptively similar to the trademark "Levi's marks".
(iv) The plaintiff is awarded punitive damages in the sum of Rs.2,00,000/- against the defendant.
(v) Costs of the suit in sum of Rs.1,50,000/-, as directed TM No. 2167/2022 Levi Strauss & Co. Vs. Tasleem Ahmad Page No. 22 of 23 Digitally signed ILLA by ILLA RAWAT Date:
RAWAT 2024.12.21 16:18:15 +0530 hereinabove, is also awarded in favour of plaintiff and against defendant.
41. Decree sheet be prepared accordingly and file be consigned to Record Room after due compliance.
Announced in the open Court on 21st December, 2024. (ILLA RAWAT) District Judge Commercial Court-03 Central District, THC, Delhi TM No. 2167/2022 Levi Strauss & Co. Vs. Tasleem Ahmad Page No. 23 of 23 Digitally signed ILLA by ILLA RAWAT Date:
RAWAT 2024.12.21 16:18:14 +0530