Delhi High Court
Cisaco Technologies vs Shrikanth on 10 May, 2005
Author: Pradeep Nandrajog
Bench: Pradeep Nandrajog
JUDGMENT Pradeep Nandrajog, J.
Issue summons to the defendants by all prescribed modes of service contemplated by Order V Rule 9 CPC, returnable for 5th July, 2005. IA No. 3725/2005 Allowed subject to just exceptions. IA No. 3723/2005
1. Notice, returnable for 5th July, 2005.
2. Learned counsel for the plaintiff submits that 'CISCO' products such as routers and switches are mission and human critical hardware components used in network infrastructure. Counsel states that the product of the plaintiff is used in critical networks such as railways, air-traffic control, hospitals, air defenses etc. It is submitted that malfunctioning/failure of the product of the plaintiff would result in huge losses due to failure of these networks. Counsel submits that keeping in view the citical importance of the product in question, it becomes imperative to ensure that neither counterfeit sales nor sales by mis-representation take place. Counsel urges that public interest has to be kept in mind while determining the issue whether ex-pare ad interim relief should flow to the plaintiff at this stage or not.
3. Plaintiff is selling its products aforenoted used in computer hardware since the year 1984. Plaintiff is vending the product under the trademark 'CISCO' and is using a 'Bridge Device'.
4. Photograph of the product of the plaintiff bearing the trademark 'CISCO' and the 'Bridge Device' are documents at serial No. 1 and 2 of the list of documents filed by the plaintiff. Exception is taken by the plaintiff to the product being imported and sold by the defendants as per the photographs at pages No. 3 and 4 of the list of documents filed by the plaintiff.
5. A perusal of pages 1 and 2 vis-a-vis pages 3 and 4 respectively would reveal that the defendant has copied the product and the trade name of the plaintiff in identical terms. Further, defendant is using the word 'CISCO SYSTEMS' on its products. Defendant is also using the 'Bridge Device'.
6. Prima-facie case is made out for grant of ex-parte ad interim relief as prayed for. Delay occasioned by putting the defendants to prior notice is likely to defeat the purpose of injunction.
7. It is accordingly directed that till the present order is vacated or modified, the defendants, their employees, servants, agents, partners/proprietors or any person acting under their authority shall be restrained from marketing, selling, offering for sale, importing, manufacturing or dealing with in any manner, hardware components pertaining to computer or any electrical/electronic goods bearing the trademark 'CISCO' and/or using the 'Bridge Device' or any other trademark/mark deceptively similar the eto.
8. It is the obligation of all statutory and governmental authorities to ensure that laws are not violated by any person in this country. For persons who hold benefit of registered trademarks, Section 140 of the Trade Mark Act, 1999 makes statutory provisions whereunder the Collector of Customs could prohibit the importation of goods if the import thereof would infringe Section 29(vi)(c) of the Trade Marks Act. I see no reason why the statutory authorities should not prohibit import of such products, import whereof would result or abett in the violation of the proprietory interest of a person in a trademark/trade name.
9. Directions are accordingly issued to the Collector of Customs to notify at all ports that no consignment, other than that of the plaintiff, be permitted to be imported in respect of routers, switches and cards which bears the trade mark 'CISCO' and/or the 'Bridge Device'.
10. Compliance be made with Order 39 Rule 3 CPC within a week.
11. dusty.
IA No. 3724/2005In view of the order passed in IA No. 3723/2005, Sh. Sanjay Kumar Sharma, Private Secretary of this Court is appointed as a Local Commissioner with the mandate to execute a commission as follows:-
(a) To visit the premises of the defendant at 'Mathru Networks Pvt. Ltd., "Shree", Unit No. 117-A, 73, St. John's Road, Bangalore 42', or any other place which the plaintiff may identify.
(b) To prepare an inventory and take into custody all products bearing the trademark 'CISCO' and the 'BRIDGE DEVICE' or any other device or mark deceptively similar thereto.
(c) To break open locks of the premises and seek police asistance, if necessary, to implement this Court's orders.
(d) To retain a sample of the offending product, if any seized and thereafter to return the seized material to the defendant on superdari, failing which to deliver possession thereof on superdari to the representative of the plaintiff.
(e) To prepare an inventory and take into custody all packaging material, cartons, stationery, literature, dyes, blocks and moulds bearing the trademark 'CISCO' and/or the 'BRIDGE DEVICE'.
(f) To return the aforesaid material on superdari to the defendants and on refusal to the authorized representative of the plaintiff.
(g) To record statements of the defendants disclosing the names and address of parties to whom defendants are supplying goods as also to disclose the source from where defendants are procuring the offending material. (h) To prepare an inventory of all books of accounts including ledgers, cash books, purchase and sale records and initial the first and last page thereof.
(i) To seize the hard-disk of the computer and prepare computer print outs if defendants state that all accounts are being stored on the hard disk of the computer.
Fee of the Local Commissioner is fixed at Rs. 25,000/-.
SHO of the concerned police station where premises have to be visited by the Local Commissioner is directed to render all assistance to the Local Commissioner. Representative of the plaintiff would be permitted to accompany the Local Commissioner. Local Commissioner, if he desires, would be free to take assistance from a technical person.
Report be filed by the Local Commissioner within a week of execution of the commission.