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Filmtec Corporation & Anr vs Anil Kumar Ashok Bhaivaswani Owner At ... on 20 September, 2022

Author: Navin Chawla

Bench: Navin Chawla

                    $~25
                    *    IN THE HIGH COURT OF DELHI AT NEW DELHI
                    +    CS(COMM) 653/2022
                         FILMTEC CORPORATION & ANR.
                                                                       ..... Plaintiffs
                                       Through: Ms.Nancy Roy, Ms.Jyotideep Kaur,
                                                Ms.Prakriti Varshney, Ms.Aastha
                                                Kakkar & Mr.Prashant, Advs.

                                                versus

                             ANIL KUMAR ASHOK BHAIVASWANI OWNER AT MESSRS
                             JAL BLUE IMPEX & ORS.
                                                               ..... Defendants
                                           Through: Nemo.

                          CORAM:
                          HON'BLE MR. JUSTICE NAVIN CHAWLA
                                                ORDER

                          %                     20.09.2022
                    I.A. 15435/2022 (Exemption)
                    1.       Allowed, subject to all just exceptions.
                    I.A. 15430/2022

2. This application has been filed seeking exemption from instituting pre-litigation mediation under Section 12A of the Commercial Courts Act, 2015.

3. Having perused the contents of the application, the same is allowed.

4. Allowed, subject to all just exceptions and on the condition that the plaintiffs shall produce the subject documents as and when so directed by this Court as also provide inspection of the same to the defendants, if so requested for.

5. This is an application seeking exemption from effecting advance service of the suit on the defendants.

6. Having considered the contents of the application, the same is allowed. The plaintiffs are granted exemption from effecting advance service of the suit to the defendants.

7. This is an application filed on behalf of the plaintiffs seeking leave to file additional documents, which are not in the power, possession, control or custody of the plaintiff at the moment.

8. The plaintiffs may file the additional documents strictly in accordance with the provisions of the law.

9. The application stands disposed of.

10. This is an application filed by the plaintiffs seeking extension of time to deposit the Court Fee.

11. For the reasons stated in the application, the same is allowed and the plaintiffs are directed to deposit the balance Court Fee within a period of two weeks.

12. The application is disposed of.

CS(COMM) 653/2022

13. Let the plaint be registered as a suit.

14. Issue summons to the defendants to be served through all permitted modes, including electronically, returnable on 19th December, 2022 before the learned Joint Registrar (Judicial).

15. The summons to the defendants shall indicate that the written Signature Not Verified Digitally Signed By:SHALOO BATRA Signing Date:06.10.2022 03:37:29 statement(s) to the plaint shall be positively filed within a period of 30 days from the date of receipt of summons. Along with the written statement(s), the defendants shall also file the affidavit(s) of admission/denial of the documents of the plaintiffs, without which the written statement(s) shall not be taken on record.

16. Liberty is given to the plaintiffs to file the replication(s) within a period of 15 days of the receipt of the written statement(s). Along with the replication(s), if any, filed by the plaintiffs, the affidavit(s) of admission/denial of documents of the defendants be filed by the plaintiffs, without which the replication(s) 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.

17. Issue Notice.

18. On the plaintiffs taking steps, let notice be served on the defendants through all permissible modes, including electronically, returnable on 19th December, 2022 before the learned Joint Registrar (Judicial).

19. Let reply(ies) to the application be filed by the defendants within a period of four weeks of receipt of the notice. Rejoinder thereto, if any, be filed within a period of two weeks thereafter.

20. It is the case of the plaintiffs that the plaintiffs are a part of the DuPont group of companies and are wholly-owned subsidiaries of 'DuPont de Nemours, Inc.'. They use the trade marks FILMTEC®, DUPONT and DUPONT OVAL LOGO / for its water purification, reverse osmosis (in short, 'RO') and nano-filtration (in short, 'NF') membranes. The Signature Not Verified Digitally Signed By:SHALOO BATRA Signing Date:06.10.2022 03:37:29 same are sold in India under the plaintiff no. 1's trade marks FILMTEC® and stylized mark / (hereinafter referred to as the 'FilmTec Marks') in conjunction with the plaintiff no. 2's mark DUPONTTM and DUPONT OVAL LOGO/ (hereinafter referred to as the 'DuPont Marks') The representation of the RO membranes bearing the plaintiffs' aforesaid trade mark is reproduced hereinbelow:-

21. The plaintiffs also give the details of the registrations obtained by them in the above trade marks in paragraph 9 of the plaint. The plaintiff asserts that the mark 'FILMTEC®' was adopted by it for its products in the year 1977. The same is used for various models of membranes launched by the plaintiffs, the details whereof are given in paragraph 23 of the plaint. The plaintiffs give their global revenue in the products with the marks in question in paragraph 26 of the plaint.

22. The plaintiffs assert that the defendant no. 1 is engaged in the business of, inter alia, importing, manufacturing, selling etc. of RO membranes, water purifier etc. It is counterfeiting the RO membranes bearing the plaintiff no. 1's FilmTec Marks and the plaintiff no. 2's DuPont Marks mentioned hereinabove and selling, exporting and distributing such counterfeit RO membranes to third parties on a pan-India basis, including to the defendant nos. 2 and 3. The said products are being sourced and imported from a third-party based in China. The plaintiffs have placed the Signature Not Verified Digitally Signed By:SHALOO BATRA Signing Date:06.10.2022 03:37:29 photographs of the goods bearing the impugned marks. The plaintiffs assert that on investigation, it was found that the serial numbers on the goods were incorrect and fake and do not pertain to the genuine products of the plaintiffs. The defendant no. 2, on its part, is inviting trade enquiries from interested parties/potential customers for counterfeit 'DUPONT FILMTEC' RO membranes from all over India. The products of the defendant nos. 2 and 3 are also listed at www.indiamart.com thereby leading to an uncontrolled sale of the said counterfeit products.

23. Having considered the contents of the plaint, the documents filed therewith and having heard the learned counsel for the plaintiffs, I am opinion that the plaintiffs have been able to make out a good prima facie case in their favour for grant of an ad-interim ex-parte injunction. As contended by the plaintiffs, the goods supplied by the defendants are counterfeit; the same bear the marks of the plaintiffs and, therefore, can lead to irreparable loss and injury to the plaintiffs in terms of its reputation and goodwill. The balance of convenience is also in favour of the plaintiffs and against the defendants.

24. Accordingly, there shall be an ad-interim ex-parte injunction in favour of the plaintiffs and against the defendants in terms of the prayer made in paragraph A(i) to (v) and B(ii) and (iii) of the application.

25. Compliance with Order XXXIX Rule 3 of the Code of Civil Procedure, 1908, be made within a period of ten days from today.

26. By this application, the plaintiffs seek appointment of two Local Commissioners to visit the premises of the defendant nos. 1 and 2.

27. For the reasons stated hereinabove, I am of the opinion that the Signature Not Verified Digitally Signed By:SHALOO BATRA Signing Date:06.10.2022 03:37:29 plaintiffs have been able to make a case for the appointment of the Local Commissioners.

28. Accordingly, I appoint the following individuals as Local Commissioner(s) to visit the following addresses of the defendants:

                    S.No. Particulars                               Details of the Local
                                                                    Commissioners
                    1.        Anil Kumar Ashok Bhai Vaswani         Mr. Shubham Agarwal,
                              Owner at M/s. Jal Blue Impex          Adv., Add: D-608,
                              Padariya Street,                      Anand Lok Society,
                              Near Pavan Palace,                    Purvasha, Mayur Vihar
                              Adajan Gam, Surat - 395009,           Phase-I, New Delhi,
                              Gujarat                               Mob. No. 9953240238
                    2.        Sanjay Dudhat                         Ms. Tijil Thakur, Adv.,
                              Partner at M/s. Neer Water Tec        Add: D-II/69, Pandara
                              (DUKEN) Vidhata Industrial            Road, New Delhi, Mob.
                              Estate, Behind Prasad Group,          No. 7982304963
                              Near Chatrala Farm, Kadodara
                              Road, Haripura, Surat, Gujarat

29. The Local Commissioner(s) may be accompanied by the plaintiff's representatives/experts and shall:

a) Enter the aforementioned premises of the defendants or any other premises, which may be disclosed/located at the time of the Local Commission, where the defendants are present and/or where counterfeit products as well as all other materials are inter alia manufactured, stored, labelled, packaged, sold and/or offered for sale;

b) Inspect, seize and seal, take photographs of all such products and other material bearing the plaintiffs' FilmTec Marks and DuPont Marks and/or any other mark or logo which is identical or deceptively and confusingly similar to the plaintiffs' trade marks;

c) Store all the seized products at a location/premises as suggested by the plaintiffs and shall lock with a seal, such locations/premises as suggested by the plaintiffs and handover the keys to the plaintiffs with an undertaking that the plaintiffs shall not break open the seal and shall produce the keys before this Court as and when so directed;

d) Direct the defendants to produce and hand over the finished/unfinished, packaged/unpackaged counterfeit and/or infringing products, moulds, labels, stickers, packages, boxes, cartons, stationery, posters, brochures, business cards, business envelopes, letterheads, cartons, publicity material, pamphlets, hoardings, signboards, nameboards, on-pack advertising, point of sale material, packaging and promotional material and/or any other incriminating material, whatsoever, bearing the plaintiffs' FilmTec Marks and DuPont Marks and/or any other mark or logo which is identical or deceptively and confusingly similar to the plaintiffs' trade marks;

e) Seize and seal all counterfeit and/or infringing goods, materials, products, bearing the plaintiffs' FilmTec Marks and DuPont Marks and/or any other mark or logo which is identical or deceptively and confusingly similar to the plaintiffs' earlier trade marks and prepare an inventory of the same;

f) Take samples of the counterfeit products, finished/unfinished, packaged/unpackaged counterfeit and/or infringing products, moulds, labels, stickers, packages, boxes, cartons, stationery, posters, brochures, business cards, business envelopes, letterheads, cartons, publicity material, pamphlets, hoardings, signboards, nameboards, on-pack advertising, Point of Sale material, packaging and promotional material and/or any other Signature Not Verified Digitally Signed By:SHALOO BATRA Signing Date:06.10.2022 03:37:29 incriminating material bearing the plaintiffs' FilmTec Marks and DuPont Marks and/or any other mark or logo which is identical or deceptively and confusingly similar to the plaintiffs' trade marks and file at least one of each sample before this Court and handover at least one of each sample to the plaintiffs' representatives for examination purposes.

g) Visit any such other premises, which are revealed at the time of the local commission, where activities such as manufacturing, storing, stocking, labelling, packaging, selling, etc. of the counterfeit and/or infringing products bearing the plaintiffs' FilmTec Marks and DuPont Marks and/or any other mark or logo which is identical or deceptively and confusingly similar to the plaintiffs' trade marks are being carried and be empowered to do all such activities as enumerated in the preceding paragraphs.

h) Inspect, open, access, read, save, take print outs of/from, make copies of the data/information pertaining to this case, stored in the computers, laptops, tablets, mobile phones, cloud storage, storage devices including hard disks, USB drives, disks, dongles or in any other electronic devices, email accounts, business contacts, physical files, folders, banking records, etc. of the defendants, its employees, representatives, affiliates and assigns, and/or any other person who may be found to be storing information of the defendant, any identified person connected with the said defendants and/ or present at their premises and submit the same before this Court.

i) Take photographs and video recording of all the counterfeit products and incriminating material found at the premises of the defendants as well as any other premises located during commission and the entire process of the local commission as conducted.

j) Be empowered to take the assistance of the Police, to break open the Signature Not Verified Digitally Signed By:SHALOO BATRA Signing Date:06.10.2022 03:37:29 locks and/or seal in case any of the premises of the defendants, and/or any other premises as disclosed during the said local commission, is found locked and/or sealed or as may be required in the execution of the Commission at any given point of time. The SHO(s) of the concerned Police Stations, having the jurisdiction over the defendants' addresses as mentioned, or any other person of the same or similar rank and designation/in charge and in current position and a female constable, is directed to provide appropriate assistance and protection to each of the learned Local Commissioner(s), the plaintiffs' representatives and technical experts as may be required for the Commission.

30. The fee of the Local Commissioner(s) is fixed as Rs. 1,50,000/- (Rupees One Lakh and Fifty Thousand Only) each, apart from the out-of- pocket expenses that they may incur, to be paid by the plaintiffs at the first instance.

31. The application is disposed of.

32. This order may not be uploaded on the website of the Delhi High Court for a period of ten days.

33. Copy of this order be given dasti under signature of the Court Master to the learned counsel for the plaintiff.

NAVIN CHAWLA, J SEPTEMBER 20, 2022/rv Signature Not Verified Digitally Signed By:SHALOO BATRA Signing Date:06.10.2022 03:37:29