Delhi High Court - Orders
M/S. Cp Century Hardware Pvt. Ltd vs Divyam Gupta on 20 October, 2023
Author: Prathiba M. Singh
Bench: Prathiba M. Singh
$~3
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(COMM) 758/2023, I.A. 20880/2023, 20881/2023, 20882/2023
& 20883/2023
M/S. CP CENTURY HARDWARE PVT. LTD. ..... Plaintiff
Through: Mr. Satish Kumar & Mr. Vishal Patel,
Advs. (M. 9711023307)
versus
DIVYAM GUPTA ..... Defendant
Through: None.
CORAM:
JUSTICE PRATHIBA M. SINGH
ORDER
% 20.10.2023
1. This hearing has been done through hybrid mode.
I.A.20882/2023 (for exemption)
2. This is an application filed by the Plaintiff seeking exemption from filing Original/certified copies of documents with proper margins, etc. Original documents shall be produced/filed at the time of Admission/Denial, if sought, strictly as per the provisions of the Commercial Courts Act, 2015 and the DHC (Original Side) Rules, 2018.
3. Exemption is allowed, subject to all just exceptions. Accordingly, the application is disposed of.
I.A.20883/2023 (exemption from advance service to the Defendant)
4. In view of the fact that the Plaintiff has sought an urgent ex parte ad- interim injunction, the exemption from advance service to the Defendant is granted.
5. Application is disposed of.
CS(COMM) 758/2023 Page 1 of 9This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 22/10/2023 at 04:32:11 I.A. 20881/2023 (u/S 12A of the Commercial Courts Act)
6. This is an application filed by the Plaintiff seeking exemption instituting pre-litigation mediation.
7. The Plaintiff is seeking an urgent ex-parte interim relief in this matter as the Plaintiff is the owner of the marks 'CENTURY' & 'CENTURY PLUS' used in respect of Modular kitchen hardware, cabinet hardware, wire baskets, locks, telescopic slider etc.
8. The Defendant in the present case is not only copying the trademark 'CENTURY' but also the logo, and has filed two trademark applications, which have already been advertised in the journal. In September, 2023 the Plaintiff came to know that the Defendant has been selling hinges and telescopic sliders under deceptively similar mark 'CENTUARY PLUS/ACE CENTUARY PLUS'. The Plaintiff is in the process of filing oppositions to the said trademark applications.
9. There is a clear threat that the Defendant may obtain the registrations and may also cause damages to the Plaintiff's business. Moreover, the products in question are household items and appliances. The products include kitchen hinges, plastic products etc. which are used in the kitchen. Consumers are also likely to be confused owing to the reputation of the Plaintiff. The mark of the Plaintiff has also been upheld by the ld. Division Bench of this Court in multiple suits.
10. The Court is satisfied that in terms of the judgment of the Supreme Court in Yamini Manohar v. T.K.D Keerthi, SLP(Civil) 023488/2023, the suit contemplates urgent interim relief. In these facts, the exemption under Section 12A is granted to the Plaintiff. Accordingly, the application is disposed of.
CS(COMM) 758/2023 Page 2 of 9This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 22/10/2023 at 04:32:11 CS(COMM) 758/2023
11. Let the plaint be registered as a suit.
12. Issue summons to the Defendant through all modes upon filing of Process Fee.
13. The summons to the Defendant shall indicate that the written statement to the plaint shall be positively filed within 30 days from date of receipt of summons. Along with the written statement, the Defendant shall also file an 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 the replication within 15 days of the receipt of the written statement. Along with the replication, if any, filed by the Plaintiff, an affidavit of admission/denial of documents of the Defendants, be filed by the Plaintiff, without which the replication shall not 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.
15. List before the Joint Registrar for marking of exhibits on 11th December, 2023. It is made clear that any party unjustifiably denying documents would be liable to be burdened with costs.
16. List before Court on 7th March, 2024.
I.A.20880/2023 (u/O XXXIX Rules 1 & 2 CPC)
17. Issue notice in the application.
18. The Plaintiff- M/s CP Century Hardware Pvt. Ltd. has filed the present suit for permanent injunction seeking protection of its mark 'CP Century' and 'CWPL Century' which is used in respect of various kitchen related items such as Modular Kitchen Hardware, Cabinet Hardware, Wire Baskets, Hinges, Baskets, Locks, Telescopic Slider, Modular Kitchen CS(COMM) 758/2023 Page 3 of 9 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 22/10/2023 at 04:32:12 Accessories, Household & Kitchen Containers (Made of Stainless Steel), Steel Pullout Basket goods etc. registered in Classes 6,35,21 against the Defendant- Mr. Divyam Gupta.
19. The case of the Plaintiff is that the said mark was first adopted in the year 2010 by one of the promoters of the Plaintiff, namely Mr. Pradeep Kumar. The mark was also registered by Mr. Pradeep Kumar, details of which are as under:
Application Trade Mark User Class Status
4395053 Centuries 1/04/2010 06 Registered
with Device
of CP
4395054 Centuries 1/04/2010 21 Registered
with Device
of CP
20. Thereafter, Mr. Anil Kumar, trader and brother of Mr. Pradeep Kumar adopted the mark 'CP Century' in 2018, for their new proprietorship firm that they started, namely-M/s CP Century Hardware Pvt. The other relevant registrations under the Trade Marks Act, 1999 which are in the name of Mr. Anil Kumar are as under:
CS(COMM) 758/2023 Page 4 of 9This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 22/10/2023 at 04:32:12 Trademark Application Class Date of Status no. Application CP Century 3812151 06 20/04/18 Registered (Device) CWPL' 4029562 06 17/12/18 Registered Century CP Century 4394564 35 31/12/19 Registered CWPL' 4197221 21 04/06/19 Registered Century
21. Mr. Anil Kumar also has copyright registrations in the artistic work of the mark bearing no. 'A-135144/2020' & 'A-
135699/2020'. Thereafter, Mr. Pradeep Kumar and Mr. Anil Kumar incorporated the Plaintiff-company named M/s. CP Century Hardware Private Limited on 5th April 2021 to expand and give a corporate shape to their business. They became directors of the Plaintiff-company. On 15th October 2022, Mr. Pradeep Kumar assigned the trademark/device 'CP CENTURIES/Centuries' to the Plaintiff-company, and Mr. Anil Kumar also assigned the trademark/device 'CP CENTURY & CWPL CENTURY' to the CS(COMM) 758/2023 Page 5 of 9 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 22/10/2023 at 04:32:12 Plaintiff-company. The Plaintiff-company then filed TM-P before the Trade Marks Registry and became the registered proprietor of the trademarks, claiming user since 2010 and 2018.
22. After the business was taken over by the Plaintiff, Mr. Anil Kumar, Mr. Pradeep Kumar, and Smt. Premwati (mother of Mr. Anil Kumar & Pradeep Kumar) assigned their trademarks/devices/copyrights to the plaintiff through an assignment deed dated 7th June 2023.
23. The Plaintiff claims long and continuous use of the mark 'Century' and 'C P Century' as word marks as also as device/logo marks. The turnover of the Plaintiff is stated to be more than Rs.25 crores in the financial year 2022-23 with there being substantial turnover from the years 2017 to 2023. The Plaintiff also operates its website through the domain name https://centuryhardwares.in which bears all the information related to the Plaintiffs business. The plaintiff asserts that the products under the mark 'CP CENTURY & CWPL CENTURY' are also promoted on various online platforms i.e., Facebook, Amazon, Flipkart, Google, India Mart etc.
24. According to the Plaintiff, the marks of the Plaintiff 'CP CENTURY & CWPL CENTURY' 'CP CENTURIES/Centuries' are all exclusively associated with the Plaintiff and its predecessor. It is pointed out by ld. Counsel for the Plaintiff that the Defendant has filed two trademark applications bearing no.5831087 & 5975141 in class 6 on 2nd March, 2023 and 12th June, 2023 respectively for products like modular kitchen, modular metal stables, furniture fittings, fittings of metal for furniture, claiming user since 13th February, 2023 and 1st May, 2023. The details of the said applications are as under:
CS(COMM) 758/2023 Page 6 of 9This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 22/10/2023 at 04:32:13 S. Mark Application Class User No. No. Details 1 5831087 6 13/02/2023 2 5975141 6 01/05/2023
25. The user claimed in the above applications is recent. The Defendant also has another trademark 'ROKANE' bearing no. 4719035 in class 6, since the year 2020 over which the Plaintiff has no objection. That in the third week of September, 2023 the Plaintiff came to know about the Defendant's adoption of the mark 'CENTUARY PLUS/ACE CENTUARY PLUS' for selling hinges and telescopic sliders. The adoption of the Defendant is very recent, on the other hand, the Plaintiff has been using the mark for a substantial period of time and is also a registered proprietor of the mark 'CENTURY' as held by the ld. Division Bench in M/s. Shivam Hardware Store v. M/s. Century World bearing FAO (COMM) 102/2022 which states that 'CENTURY' forms a significant and essential part of the Plaintiff's mark. A comparative table of the Plaintiff's and Defendants mark is set out below:
CS(COMM) 758/2023 Page 7 of 9This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 22/10/2023 at 04:32:13
26. The Defendant has now applied for an identical mark/logo 'CENTUARY PLUS'. The product packaging of the Defendant has also been handed over, which shows that the Defendant's intention is clearly to ride on the statutory and common law rights of the Plaintiff. A prima facie case has been established by the Plaintiff, balance of convenience also lies in favour of the Plaintiff, if the same is not granted irreparable loss/ harm would be caused not only to the Plaintiff but also to the customers.
CS(COMM) 758/2023 Page 8 of 9This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 22/10/2023 at 04:32:13
27. Accordingly, the Defendant shall stand restrained from using the mark 'CENTUARY PLUS/ACE CENTUARY PLUS' or any other mark, which is deceptively similar to the Plaintiff's marks 'CP CENTURY & CWPL CENTURY' 'CP CENTURIES/Centuries' in respect of kitchen and household items such as hinges, plastic products and any other allied and cognate products till the next date of hearing.
28. Compliance of Order XXXIX Rule 3 CPC be made within one week.
29. Let a reply to this application be filed within four weeks after receiving the complete paper book of the suit.
30. List before the Court on the date fixed.
PRATHIBA M. SINGH, J.
OCTOBER 20, 2023/dk/ks CS(COMM) 758/2023 Page 9 of 9 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 22/10/2023 at 04:32:13