Delhi District Court
Allahabad Law Agency vs Amazon Seller Services Private Limited ... on 13 September, 2024
IN THE COURT OF Ms. NIRJA BHATIA
DISTRICT JUDGE (COMM. COURT-07) (DIGITAL),
SOUTH-EAST DISTRICT, SAKET COURT, NEW DELHI
CS (Comm) 389/2022
Allahabad Law Agency
having its registered office at
Plot No. 33, 16/5, Karkhan Bagh,
Opposite Delhi Public School,
Mathura Road, Near Aarti Gas Flames,
Faridabad-121002.
..... Plaintiff
Vs.
1. Amazon Seller Services Pvt. Ltd.
Block E, 14th Floor,
International Trade Tower, Nehru Place,
New Delhi-110019.
2. M/s Devi Books; C/o Umesh Singh,
Shishodia Niwas, House No. 3371/11,
Block-B, Street No. 88,
Sant Nagar, New Delhi-110084.
3. Deepak Kumar
G-22/240/1, Ground Floor,
Sector-7, Rohini, Delhi-110085.
4. M. K. Book Distributor
also known as Kirti Prakashan
4853-54, Basement, Gali No. 24,
Near Sanjeevan Hospital,
Daryaganj, New Delhi-110002.
..... Defendants
Date of Institution: 23.04.2022
NIRJA Arguments concluded on: 13.09.2024
BHATIA Date of Judgment: 13.09.2024
Digitally signed
by NIRJA BHATIA
Date: 2024.09.13
16:35:56 +0530
Allahabad Law Agency Vs. Amazon and others Page No. 1 of 19
JUDGMENT
Brief facts of the case By this judgment, I shall decide the present suit filed by Allahabad Law Agency, a partnership firm, (hereinafter to be referred as plaintiff), through its partner Sh. Aman Narula. The gist of the claim is as under:
(i) Plaintiff claims that M/s Allahabad Law Agency is a partnership firm which was established in 1950 by late Mr. B. L. Nirula at Allahabad, UP. The reputation of plaintiff has been painstakingly built for over the last 72 years.
(ii) The plaintiff agency is engaged in creating, commissioning, curating, printing, distributing and selling a wide range of legal works, authored by highly qualified and respected members of Indian academia and the Bar and the Bench.
(iii) Plaintiff maintains a high quality standards impacting the kind of page, cover art, advertisement, publicity, revision, author etc. to maintain plaintiff's brand as top publishers in the field of legal publication in India.
(iv) Plaintiff claims that though it is using the trademark and logo since 1950, an application for registration of the trademark and logo has been filed only on 23.12.2021 by way of an application No. 5259057 in Class 41.
(v) Plaintiff apart from other publications is the publisher of original work of Dr. R. K. Bangia titled as "Law of Torts". The above work qualifies as literary work under Copyright Act 1957 and is protected under the Act.
(vi) Plaintiff claims copyright in the artistic work, comprising the NIRJA depiction of the mark "Allahabad Law Agency" and the cover of BHATIA Digitally signed the literary works as the plaintiff has adopted a unique and by NIRJA BHATIA Date: 2024.09.13 16:36:06 +0530 Allahabad Law Agency Vs. Amazon and others Page No. 2 of 19 distinctive trade dress/ packaging for its books. For the edition of Law of Torts, packaging/ label of the book has 'Law of' in teal colour, 'Torts' in white colour and depicts the brand 'Allahabad Law Agency' in Black on base colour white. Alongwith this label, the product has trademark of plaintiff consisting of words 'ALA' within a circle.
(vii) Plaintiff asserts that it has been promoting these trade dresses since many years which have become synonyms with the products/ books of the plaintiff. Plaintiff being the leading national publisher of legal books in India, its name "Allahabad Law Agency" has become synonymous with quality legal books and all distributors and consumers across India associate with its high quality for legal books.
(viii) Plaintiff has acquired 'distinctiveness' associated with the source/ origin, i.e. plaintiff's agency with the trademark "Allahabad Law Agency" and trade dress with the logo of Allahabad Law Agency. Plaintiff has applied for and obtained ISBN for all editions of concerned title including present edition and all the titles and works i.e. Allahabad Law Agency since 2006 and had received the letter dated 17.05.2006 issued by Raja Ram Mohan Roy National Agency for ISBN, Government of India.
(ix) Plaintiff claims that Dr. R. K. Bangia the original author was the owner of the copyright and literary work under the 'Law of Torts' and by virtue of an arrangement between Dr. R. K. Bangia and plaintiff, the plaintiff was assigned by its owner, the NIRJA exclusive rights as regards to original literary work titled 'Law of BHATIA Torts' by Dr. R. K. Bangia for reproducing the literary work in Digitally signed by NIRJA BHATIA any form including the storing of it in any medium by electronic Date: 2024.09.13 16:36:12 +0530 Allahabad Law Agency Vs. Amazon and others Page No. 3 of 19 means, to issue copies of literary work to public (not being copies already in circulation) and to communicate the work to the public.
(x) After demise of Dr. R. K. Bangia in the year 2005, Sh.
Narendra Kumar revised the aforesaid title 'Law of Torts' by Dr. R. K. Bangia and the royalty with respect to the said book is paid to the legal heir of Dr. Bangia i.e., Ms. Sanskriti Jawa, who has offered no objection to the revision of book by Dr. Narendra Kumar. Plaintiff states that neither Dr. R. K. Bangia, during his lifetime nor his LRs, after his demise have authorised any entity to use their copyright "Law of Torts", by Dr. R. K. Bangia which is being revised by Dr. Narendra Kumar in collaboration with plaintiff.
(xi) Plaintiff claims that during October-November 2021, several complaints were received with respect to the quality of book, including the book 'Law of Torts' by Dr. R. K. Bangia pertaining to the plaintiff's agency having been purchased through e- commerce websites but not limited to Amazon Seller Services (P) Ltd. On receiving such complaints, plaintiff's agency searched the available publications on various e-commerce website including Amazon Seller Service Pvt. Ltd. and was shocked and surprised to learn that several such complaints existed with respect to books on website of Amazon Seller Service Pvt. Ltd as well. Whereafter, plaintiff placed order for the book titled 'Law of Torts' from Amazon Seller Service (P) Ltd. (defendant No. 2) and from defendants No. 3 and 4, other sellers who were NIRJA registered on the website of Amazon Seller Services Pvt. Ltd. BHATIA Digitally signed Plaintiff was shocked to know that book titled 'Law of Torts' by by NIRJA BHATIA Date: 2024.09.13 Dr. R. K. Bangia delivered by the defendants although identical 16:36:18 +0530 Allahabad Law Agency Vs. Amazon and others Page No. 4 of 19 to the book published by the plaintiff was not published by the plaintiff and the books contained copyrighted content and trademarks of the plaintiff and were claimed to be published by plaintiff as per the front and back cover and were pirated copy of the book published by the plaintiff.
2. Plaintiff claims that it came to know that several unknown persons are indulging in infringing the assigned copyright of plaintiff, in its original literary work titled 'Law of Torts' by Dr. R. K. Bangia and passing of their products/ books as that of plaintiff using plaintiff's trademark.
3. Plaintiff claims that the books sold by defendant are causing violation to its copyright and trademark in the manner that the title of the infringing book is entirely identical to the title of plaintiff's publication 'Law of Torts' by Dr. R. K. Bangia 26 th Edition, the infringing book is falsely attributed to have been published by plaintiff and plaintiff's imprint name and mark 'Allahabad Law Agency' appeared prominently on the front, cover, spine and title pages of the book. It is falsely attributed to have been authored by Dr. R. K. Bangia and revised by Dr. Narendra Kumar while Dr. R. K. Bangia's name is appearing prominently on the front and back cover, spine and title pages of the book. The entire content of the infringing book including inner page, publication credits, preface are verbatim reproduced without the permission from the plaintiff's current as well as preceding publication i.e. 25th and 26th Edition. The author and publication credits page falsely notes the infringing book being NIRJA published by plaintiff with its contact and printing details. The BHATIA front and back cover of the infringing book is an unauthorised Digitally signed by NIRJA BHATIA Date: 2024.09.13 identical reproduction of cover of 25th Edition of plaintiff's book, 16:36:25 +0530 Allahabad Law Agency Vs. Amazon and others Page No. 5 of 19 wherein the copyright in artwork comprising the cover vest with plaintiff who commissioned and directed its creation by Raazi Udaan. The ISBN number of the plaintiff's book for 26 th Edition which is unique international standard number purchased by plaintiff from Raja Rammohan Roy National Agency for ISBN was unauthorizedly reproduced verbatim on the back cover of the infringing book as well as on the inner page.
4. The title page of the book contained an unauthorized reproduction of artwork comprising the artwork comprising the logo of plaintiff. The preface written by Dr. Narendra Kumar of infringing book is direct copy of plaintiff's book.
5. Plaintiff states that perusal of contents of the book reveal that the same is an unauthorised adaption of Dr. R. K. Bangia, 'verbatim' from the plaintiff's 26th Edition of 'Law of Torts' and also falsely and incorrectly claim the plaintiff's publication.
6. It is alleged that the infringed book was glued together in stark contract to the thread bound books of the plaintiff. It is stated that the quality of paper and ink are of extremely poor quality.
7. Plaintiff claims that it lodged a complaint with Amazon Sellers Service Pvt. Ltd. and pointed the glaring error on infringed books which was showing 'Low of Torts' instead of 'Law of Torts', which sufficiently indicated that incorrectly printed and plagiarized content, with little or no concern for material and content standard was sold on the platform, harming plaintiff financially and significantly damaging its hard earned goodwill and reputation. Plaintiff wrote email dated 16.02.2022 NIRJA to Amazon Seller Service Pvt. Ltd., however, to no avail. BHATIA Digitally signed by NIRJA BHATIA Date: 2024.09.13 16:36:33 +0530 Allahabad Law Agency Vs. Amazon and others Page No. 6 of 19
8. Plaintiff claims that defndants substantially reproduced plaintiff's work 'Law of Torts' with mala fide intentions to surreptitiously and illegally benefit from immense popularity of plaintiff's work titled 'Law of Torts' deliberately printed and distributed intending to mislead the general public/ students/ institutions into buying fake book, presuming it to be genuine publication of plaintiff. While doing so, the defendants have also applied the trademark and logo of plaintiff on the front and back cover of the books and its spine. It is claimed that defendants despite being well aware of immense popularity and goodwill attached to the plaintiff's work have sought to take direct advantage of plaintiff's popularity without authorization mala fidely to reap illegal profits.
9. The defendants have been offering steep discounts to the extent of 45% to the customers through the website Amazon Seller Services Pvt. Ltd. and other e-commerce platforms.
10. Plaintiff claims that defendants are bound to cause confusion, deception among the public at large, consumers, business, students research scholars and is likely to suggest that there is some nexus between plaintiff and defendants. By doing above, the defendants have caused huge loss to the plaintiff and are affecting the business of plaintiff for which they are liable to pay damages for harm and injury brought to the plaintiff's goodwill and reputation comprised in 'Allahabad Law Agency'. Plaintiff claims relief based on the aforementioned.
Note of the proceedings
11. The suit was filed on 23.04.2022. Submissions on NIRJA BHATIA application under Order 39 Rule 1 and 2 and Order 26 Rule 9 Digitally signed by NIRJA BHATIA Date: 2024.09.13 Allahabad Law Agency Vs. Amazon and others Page No. 7 of 19 16:36:39 +0530 CPC were heard by Ld. Predecessor and ad interim exparte injunction as well appointment of Local Commissioner was then granted vide order dated 04.08.2022. Subsequently, defendants No. 1, 2 and 3 caused appearance through Counsels. Written statement was filed by defendants No. 1 and 3. An application for deletion was also made over by defendant No. 1 under Order 1 Rule 10 CPC. Ld. Predecessor observed that defendant No. 4 despite service has not filed the reply, the opportunity to file written statement was then closed vide the same order of 03.11.2022. As observed against the proceedings dated 06.01.2023, proprietor of defendant No. 2 M/s Devi Books namely Sh. Umesh caused appearance. During the course of proceedings on 24.01.2023, replication to written statement of defendant No. 3 and rejoinder to reply under Order 39 Rule 1 & 2 CPC was filed. At which stage, it is stated by counsel for defendant No. 1 that they are likely to move an application for deletion as the plaintiff has not instituted the proceedings against correct entity. He has moved application under Order 1 Rule 10 CPC on behalf of ASSPL (Amazon Seller Service (P) Ltd.) as he intends to file the vakalatnama on behalf of ARIPL (Amazon Retail India Pvt Ltd.). At which stage, for no objection the deletion of defendant No. 1 and substitution of ASSPL was allowed, however, prayer of deletion of ASSPL was opposed. Amended memo was directed to be filed. Ld. Predecessor on 24.03.2023 was pleased to allow the application under Order 1 Rule 10 CPC of ASSPL whereafter, it was deleted from the array of defendants and endorsement was directed to be made. The NIRJA detailed order on application under order 39 Rule 1 & 2 CPC was BHATIA passed restraining defendants No. 2 to 4 temporarily till the Digitally signed by NIRJA BHATIA Date: 2024.09.13 16:36:46 +0530 Allahabad Law Agency Vs. Amazon and others Page No. 8 of 19 disposal of the suit. The plaintiff then sought time for filing the revision but claimed it could not be filed due to illness. The issues came to be framed vide order dated 16.08.2023 as below:
1. Whether the Defendants have infringed the copyright of the Plaintiff in the literary work and artistic works with respect to the books published by the Plaintiff? OPP
2. Whether the Defendants are passing off their products as that of the Plaintiff? OPP
3. Whether the Plaintiff is entitled to a decree of permanent injunction restraining the Defendants from printing, reproducing, distributing, hosting, selling, offering for sale the infringing book and other protected literary works in relation to which the Plaintiff has exclusive rights? OPP
4. Whether the Plaintiff is entitled to a decree of permanent injunction restraining the Defendants from passing off their products as that of the Plaintiff using the trademark and trade dress of the Plaintiff using the trademark and trade dress of the Plaintiff or any other mark that is deceptively similar to Plaintiff's trademark? OPP
5. Whether the Plaintiff is entitled to a decree of mandatory injunction against the Defendants to deliver up all infringing labels and marks associated with the Plaintiff-brand to the Plaintiff for enabling their destruction or erasure? OPP
6. Whether the Plaintiff is entitled to damages from the Defendants for loss of reputation and goodwill due to the illegal acts of the Defendants? If so, to what extent? OPP NIRJA BHATIA 7. Whether the Plaintiff are entitled to rendition of Digitally signed accounts? OPP by NIRJA BHATIA Date: 2024.09.13
8. If the Plaintiff succeed in the aforesaid issues, what 16:36:52 +0530 relief is the Plaintiff entitled to? OPP Allahabad Law Agency Vs. Amazon and others Page No. 9 of 19
9. Whether the Plaintiff is entitled to pendente lite and future interest on the decreetal amount? If so, at what rate? OPP
10. Whether the Plaintiff is entitled to costs of the suit? OPP
11. Whether the defendants or any one of them is entitled for cost of the suit? OPD
12. Relief."
12. The matter then was listed for evidence. Plaintiff cited three witnesses and sought time for filing the evidence. Case management was conducted whereafter, plaintiff filed its evidence by way of affidavit. As no appearance on behalf of defendants No. 2 and 4 was received, they were proceeded exparte vide order dated 19.01.2024. At the same time, defendant No. 3 who appeared in person and made a separate statement conceding to the claim of injunction for which a decree was passed as plaintiff agreed to waive of the right to seek the compensation of cost and reliefs in clause D, E, F and H. At the stage of evidence plaintiff moved another application under Order 11 Rule (5) r/w Section 151 CPC for filing of record additional documents, which was allowed vide order dated 19.02.2024. The additional evidence was then filed consequent to application for leading additional evidence was moved and allowed.
Plaintiff's evidence
13. PW-1 Sh. Aman Narula tendered his evidence by way of NIRJA an affidavit and exhibited the following documents:
BHATIA Digitally signed by NIRJA BHATIA Date: 2024.09.13 16:36:59 +0530 Allahabad Law Agency Vs. Amazon and others Page No. 10 of 19 (1) Partnership deed dated 01.04.2000 along with modification deeds is Mark B. Ex.PW1/1 stands de-exhibited as original is not on record.
(2) Board resolution dated 03.12.2021 passed by plaintiff is Ex.PW1/2.
(3) Application No. 5259057 dated 23.12.2021 for Trade Mark Registration of Allahabad Law Agency in Class 41 is Ex.PW1/3.
(4) List of books published by the plaintiff is Ex.PW1/4. (5) Letter dated 17.05.2006 issued by Raja Ramohan Roy National Agency for ISBN, GOI is Ex.PW1/5. (6) Copy of Book details submitted by the plaintiff for allotment of ISBN is Mark A. (7) Ex.PW1/6 will dated 16.04.2021 stands de-exhibited. (8) Ex.PW1/7 affidavit dated 03.03.2022 on behalf of Sanskriti Jawa stands de-exhibited. (9) Affidavit dated 22.03.2022 on behalf of Mr. Narender Kumar is Ex.PW1/8.
(10) Printout of Screenshots of the reviews of the infringing books on the website of Amazon Seller Services is Ex.PW1/9.
(11) Invoice dated 27.01.2022 raised by Defendant no. 2 is Ex.PW1/10.
(12) Invoice dated 17.02.2022 raised by defendant no. 3 is Ex.PW1/11.
NIRJA (13) Invoice dated 10.02.2022 raised by defendant no. 4 is BHATIA Digitally signed Ex.PW1/12.
by NIRJA BHATIA Date: 2024.09.13 16:37:09 +0530 Allahabad Law Agency Vs. Amazon and others Page No. 11 of 19 (14) The book delivered by the defendant no. 2 to plaintiff is already in the custody of Hon'ble Court court and is Ex.PW1/13.
(15) The book delivered by the defendant no. 3 to plaintiff is already in the custody of Hon'ble Court court and is Ex.PW1/14.
(16) The book delivered by the defendant no. 4 to plaintiff is already in the custody of Hon'ble Court court and is Ex.PW1/15.
(17) The original book titled " Law of torts by Dr. R.K. Bangia"
published by plaintiff is also in the custody of Hon'ble Court is Ex.PW1/16.
(18) Pictures of the earlier editions of the plaintiff's book is Ex.PW1/17.
(19) Email dated 16.02.2022 is Ex.PW1/18.
14. PW-1 again tendered his additional affidavit and exhibit on record the additional documents as below:
(1) Letter dated 31.08.2011, signed by Sh. Vipin Nagpal, accountant, as Ex.PW1/18.
(2) Copy of Letter dated 13.09.2012 issued by the Plaintiff to Smt. Shashi Prabha Bangia as Ex. PW1/19. (3) Copy of Letter dated 03.04.2014 issued by the Plaintiff to Smt. Shashi Prabha Bangia as Ex. PW1/20. (4) Copy of Letter dated 01.04.2015 issued by the Plaintiff to Smt. Shashi Prabha Bangia is marked as Mark C. (5) Copy of Letter dated 01.04.2016 issued by the Plaintiff to Digitally signed by Smt. Shashi Prabha Bangia is marked as Mark D. NIRJA NIRJA BHATIA BHATIA Date:
2024.09.13 16:37:17 +0530 Allahabad Law Agency Vs. Amazon and others Page No. 12 of 19 (6) Copy of Letter dated 24.08.2016 issued by the Plaintiff to Smt. Shashi Prabha Bangia is marked as Mark E. (7) Copy of Letter dated 27.10.2017 issued by the Plaintiff to Smt. Shashi Prabha Bangia along with calculations is marked as Mark F. (8) Copy of Letter dated 19.04.2018 issued by the Plaintiff to Smt. Shashi Prabha Bangia along with calculations is marked as Mark G. (9) Copy of Letter dated 27.09.2018 issued by the Plaintiff to Smt. Shashi Prabha Bangia along with calculations is marked as Mark H. (10) Copy of Letter dated 04.03.2019 issued by the Plaintiff to Smt. Shashi Prabha Bangia along with calculations is marked as Mark I. (11) Copy of Letter dated 21.09.2019 issued by the Plaintiff to Smt. Shashi Prabha Bangia along with calculations is marked as Mark J.
(12) Copy of Letter dated 18.03.2020 issued by the Plaintiff to Smt. Shashi Prabha Bangia along with calculations is marked as Mark K. (13) Copy of Letter dated 25.09.2020 issued by the Plaintiff to Smt. Shashi Prabha Bangia along with calculations is marked as Mark L. (14) Copy of Letter dated 30.01.2021 issued by the Plaintiff to Smt. Shashi Prabha Bangia is marked M. (15) Copy of Letter dated 22.06.2021 issued by the Plaintiff to Smt. Shashi Prabha Bangia along with calculations is NIRJA BHATIA marked as Mark N. Digitally signed by NIRJA BHATIA Date: 2024.09.13 16:37:24 +0530 Allahabad Law Agency Vs. Amazon and others Page No. 13 of 19 (16) Copy of Letter dated 08.03.2022 issued by the Plaintiff to Ms. Sanskriti Jawa along with calculations is Ex. PW-1/21. (17) Copy of Letter dated 27.05.2022 issued by the Plaintiff to Ms. Sanskriti Jawa is Ex. PW-1/22.
(18) Copy of Letter dated 21.10.2022 issued by the Plaintiff to Ms. Sanskriti Jawa along with calculations is Ex. PW-1/23. (19) Copy of Letter dated 11.04.2023 issued by the Plaintiff to Ms. Sanskriti Jawa along with calculations is Ex. PW-1/24. (20) Copy of letter dated 12.10.2023 issued by plaintiff to Ms. Sanskriti Jawa alongwith calculations is Ex. PW-1/25.
15. Evidence was then closed and matter was posted for final arguments.
16. Ld. Sh. Raunak Nayak made his final submissions. I have heard the same and have carefully perused the record.
Reasons for decision below Issues No. 1 to 4:
17. The burden to prove the above issues was on the plaintiff, as it was plaintiff's claim that the defendant pirated its copyright in the literary and artistic work with respect to the books published by it and are passing of the products of the plaintiff as that of their own.
18. In order to establish its claim, PW-1 Aman Narula, partner, filed his examination affidavit and made statement of tendering, the documents were exhibited. Thereafter, the plaintiff was allowed opportunity to lead additional evidence.
19. The statement made by the plaintiff for the reason that NIRJA BHATIA defendant No. 1 (ASSPL) was deleted from the array of parties, Digitally signed by NIRJA BHATIA and defendants No. 2 and 4 were proceeded exparte and Date: 2024.09.13 16:37:31 +0530 Allahabad Law Agency Vs. Amazon and others Page No. 14 of 19 defendant No. 3 conceded to the claim of the plaintiff and suffered a decree of injunction, have remained unrebutted. Thus, the fact that the plaintiff is the prior user as the plaintiff by its own self admission is not the registered user of 'Allahabad Law Agency' which trademark he states to have applied for registration, which registration is still pending, has established its equitable right to seek protection of its trade mark 'Allahabad Law Agency' as well as artistic work as 'Law of' in teal colour, 'Torts' in white colour and depicts the brand 'Allahabad Law Agency' in Black on base colour white. Alongwith this label, the product has trademark of plaintiff consisting of words 'ALA' within a circle. as per the reliefs claimed. The above entitlement of plaintiff, is supported through the provisions of Section 34 of Trademark Act. Moreover, the provision of Sections 34 and 35 Trademark Act impart statutory protection to unregistered trademark safeguarding the interest of unregistered trademark on the ground of prior user who shall get the priority. Moreover, the protection under law to be made in favour of one who's goods are sold by someone else under the pretext as their's, which is the core of principle upon which an action against 'passing off' is based on. The law intends that one should not misrepresent the item of someone else's as his own, as a brand spends immense resources and time in creating trust in their customers which ultimately results in a brand's value. The law clearly in respect of 'passing off' is based on same terms as that of unfair trade practice through which one seeks to attract the consumers and NIRJA profits from the brand value created by another existing brand in BHATIA the market.
Digitally signed by NIRJA BHATIA Date: 2024.09.13 16:37:37 +0530Allahabad Law Agency Vs. Amazon and others Page No. 15 of 19
20. It becomes evident that from the facts that the defendants wanted to deceive and mislead the general public, in which case the essence and cause of relief prayed under issue No. 4 for 'passing off' is shown by preponderance of probabilities in favour of plaintiff who had shown in evidence the plagiarized books as Ex. PW-1/3 (the books delivered by defendant No. 1 to plaintiff), Ex. PW-1/4 (books delivered by defendant No. 3 to plaintiff), Ex. PW-1/15 (books delivered by defendant No. 4 to plaintiff) which are in contrast to the original book Ex. PW-1/16 and from the pictures of earlier edition of plaintiff's book as Ex. PW-1/17. The aforementioned relief being equitable relief arising out of common law principles are made in favour of plaintiff. In view thereof, the issues No. 1, 2, 3 and 4 are decided in favour of plaintiff.
Issue No. 5:
21. It be observed that while the plaintiff has prayed for the relief of delivering up of all infringing labels and marks associated with the plaintiff's brand to plaintiff for enabling destruction or eraser of books Ex. PW-1/9, Ex. PW-1/13, Ex. PW-1/14, Ex. PW-1/15 have been recovered from the possession of the defendants. Since no other material, as such, has been brought on record having been recovered and nothing has been hand over to any third party, the relief against the delivering up, is not shown to be made out. Thus, the issue No. 5 is accordingly decided against the plaintiff.
Issue No.6:
22. The plaintiff has claimed damages to the tune of Rs. Rs.
NIRJA Fifteen lacs as punitive damages for the loss of reputation and BHATIA goodwill due to illegal acts of defendants. However, no evidence Digitally signed by NIRJA BHATIA Date: 2024.09.13 Allahabad Law Agency Vs. Amazon and others Page No. 16 of 19 16:37:42 +0530 has been brought to prove any actual extent of damage having been suffered by the ends of the defendants, causing loss of reputation and goodwill. No material in terms of law laid in Sections 73 & 74 of Contracts Act has been brought to satisfy the requisite of establishing the entitlement.
23. It be observed that while plaintiff admits itself having its right based only being the prior user since the registration of trademark is yet to be accorded in favour of the plaintiff, in which background, no right of punitive damages, as such, is shown to be made out.
Issue No. 7:
24. The plaintiff has prayed for rendition of accounts and issue No. 7 has been framed accordingly, with onus on plaintiff to prove the same. However, during the proceedings defendant ASSPL has been deleted from the array of parties, while defendant No. 3 has conceded the claim of plaintiff and suffered a decree in respect of prayer clauses D, E, F and H and rest of the defendants were proceeded exparte and as plaintiff during submissions revealed that no books of accounts were recovered during the proceedings conducted upon the order dated 04.08.2022 passed on application under Order 26 Rule9 CPC, Advocate Amit Kumar Gupta and Advocate Mayank Atri were appointed Local Commissioners and as plaintiff did not make an effort to even prove the report of Local Commissioner showing any seizure of books of accounts of any of the defendants at whose places the local commission were conducted, in which case the burden upon the plaintiff remained undischarged. The NIRJA BHATIA plaintiff hence failed to prove the issue in its favour.
Digitally signed by NIRJA BHATIA Date: 2024.09.13 16:37:48 +0530Allahabad Law Agency Vs. Amazon and others Page No. 17 of 19 Issues No. 8, 9 & 10:
25. Plaintiff succeeded in the implementation of its entitlement towards the relief based on equitable principle for permanent injunction as discussed above. Plaintiff has not been able to prove any entitlement towards benefits, such as punitive damages however, plaintiff is entitled to the cost of suit on account of the counsel's fee. It is observed that though no certificate of cost is filed on record, plaintiff must have incurred some minimal amounts in pursuing the claim, in which wake, the plaintiff is held entitled to the amount of Rs. 15,000/- towards litigation expenses.
Issue No. 11:
26. Defendants have not come forward to claim the issue in their favour. In view thereof, the issue remains in favour of plaintiff and against defendants.
Reliefs:
27. In view of above discussions, the suit is decreed in above terms as the plaintiff is held entitled to the relief of permanent injunction against the defendants (except defendant No. 1 Amazon Seller Services Pvt. Ltd., as deleted from array of parties) and permanently restraining the remaining defendants, their directors, partners, promoters, employees, agents including distributors, wholesalers and retailers acting for and on behalf from printing, distributing, hosting, selling, offering for sale the infringing book titled "Law of Torts" by Dr. R. K. Bangia and NIRJA BHATIA other protected literary work.Digitally signed by NIRJA BHATIA Date: 2024.09.13 16:37:54 +0530
Allahabad Law Agency Vs. Amazon and others Page No. 18 of 19
28. The defendants, their directors, partners, promoters, employees, agents, advertisers, franchisees, representatives and assigns, wholesalers and retailers are restrained from using the plaintiff's trade mark "Allahabad Law Agency" or any other mark that is deceptively similar to plaintiff's trade mark for production, marketing, sale, trading, procurement of contracts.
They are also restrained from using plaintiff's trade dress and packaging of the book titled "Law of Torts" by Dr. R. K. Bangia or any other deceptively similar mark to the plaintiff's original artistic work comprised in "Allahabad Law Agency" and its trade dress in any of their products in the process of manufacturing, sale, trading, marketing, procurement of contract and/ or other associated activities. Decree sheet be drawn accordingly.
29. File be consigned to Record Room after completion of necessary formalities. Digitally signed by NIRJA NIRJA BHATIA BHATIA Date:
2024.09.13 16:38:00 +0530 Announced in open Court (Nirja Bhatia) today on 13th September, 2024 District Judge (Comm. Court) (Digital-07) South-East, Saket Court, New Delhi Allahabad Law Agency Vs. Amazon and others Page No. 19 of 19