Delhi District Court
Under Armour Inc vs Ashok Kumar on 1 June, 2024
CS No.797/2023: Under Armour Inc. V/s Ranbir Singh & Ors.: DOD: 01.06.2024
IN THE COURT OF VINOD YADAV:
DISTRICT JUDGE (COMMERCIAL COURT)-02:
NORTH-WEST DISTRICT: ROHINI COURTS: NEW DELHI
CNR No.DLNW01-009697-2023
Civil Suit (Comm.) No.797/2023
In the matter of:
Under Armour, Inc
(A corporation organized and existing
under the Laws of the state of Maryland)
Having its office at 102 Hull Street,
Baltimore, MD 21230
United States of America
Through its Authorised Representative
Mr. Bhaskar Bhasin
.....Plaintiff
Versus
1.Shri Ranbir Singh, Proprietor of M/s Akash Garment, CB-74, Shopping Mall, Arjun Marg, DLF Phase-I, Gurugram-122002, Haryana.
.....Defendant No.1 (Matter amicably settled with D-1 vide order dated 27.02.2024)
2. Shri Arjun Bakshi, Proprietor of M/s Queeny / M/s KENO, Shop No.CB-81, DLF Shopping Mall, DLF Phase-I, Gurugram, Haryana-122002.
Also At:
Shop No.47, Shopping Mall, Arjun Marg, DLF Phase-1, Gurugram-122002.
.....Defendant No.2 (Matter amicably settled with D-2 vide order dated 01.06.2024) Decreed U/o XIII-A CPC: Page 1 of 14 CS No.797/2023: Under Armour Inc. V/s Ranbir Singh & Ors.: DOD: 01.06.2024
3. Shri Rohit Munjal, Proprietor of M/s Export Surplus / Style-N-Style, CB-63, The Shopping Mall, Arjun Marg, DLF Phase-1, Gurugam, Haryana-122002.
.....Defendant No.3 (Matter amicably settled with D-3 vide order dated 01.06.2024)
4. Shri Arun Sachdeva, Proprietor of M/s Denims & More, A-46, Shopping Mall, DLF Phase-1, Arjun Marg, Gurugram, Haryana-122002.
.....Defendant No.4
(Ex-parte vide order dated 27.02.2024)
Date of Institution of Suit : 21.10.2023
Date of hearing arguments on application U/o XIII-A CPC : 01.06.2024
Date of judgment : 01.06.2024
SUIT FOR PERMANENT INJUNCTION, RESTRAINING INFRINGEMENT OF TRADEMARK(S), COPYRIGHT, PASSING OFF, DAMAGES, RENDITION OF ACCOUNTS, DELIVERY UP ETC.
01.06.2024 JUDGMENT IN TERMS OF ORDER XIII-A CPC
1. This is a suit for permanent injunction, restraining infringement of trademark(s), passing off, damages, rendition of accounts, delivery up etc., filed by plaintiff against the defendants.
2. The facts of the case in brief, as borne out from the record are that plaintiff is a company registered under the laws of Maryland, United States of America and engaged in manufacturing, sale and distribution of footwear, sports and casual wear including t-shirt, lower, jackets, caps, Decreed U/o XIII-A CPC: Page 2 of 14 CS No.797/2023: Under Armour Inc. V/s Ranbir Singh & Ors.: DOD: 01.06.2024 other apparel and accessories across the world under the trademark/label/logo "UNDER ARMOUR", "UA", "UA RECORD", "
", and " ", which are well known mark in India and around the world. The plaintiff company is owner/designer/creator of the said trademarks and its logo which are registered under the provisions of the Trademarks Act, 1999 in India. It is further averred that the plaintiff got registered its trademarks/logos under the various classes of the Trade Mark Rules, 2002, which are stated to be valid and subsisting till date, the details whereof have been mentioned in para No.11 of the plaint.
3. It is stated that in India, the plaintiff company carries out its business through medium of internet and its website http://www.underarmour.com./ provides sale and delivery of the Plaintiff Company's product range as also through third party websites, i.e., Amazon:- https://www.amazon.in/Sports-Fitness-Outdoors-Under- Armour/s?rh=n%3A1984443031%2Cp_89%3AUnder+Armour, Flipkart:-
https://www.flipkart.com/search?q=under %20armour&otracker=search&otracker1=search&marketplace=FLIPKAR T&as-show=on&as=off. It is further averred that plaintiff Company is the originator of performance apparel-gear engineered to keep athletes cool, dry and light throughout the course of game, practice or workout. The technology behind Plaintiff Company's diverse product assortment for men, women and youth is complex, but achieving benefits is simple: wear HeatGear when its hot, Cold Gear when its cold, and all SeasonGear Decreed U/o XIII-A CPC: Page 3 of 14 CS No.797/2023: Under Armour Inc. V/s Ranbir Singh & Ors.: DOD: 01.06.2024 between the extremes". With a simple mission to make all athletes better through passion, design and relentless pursuit of innovation the Plaintiff Company's employs various effective and pioneering means to outgrow itself.
4. It is further stated that on account of its quality of goods and standards of manufacturing and untiring efforts in advertising and marketing, the products of the plaintiff have acquired enviable reputation and goodwill across the world including India. Further, plaintiff spends huge amount of money in advertising and promotion of its products under the said trade marks/ logos in India and around the world, due to which the products of plaintiff under the said trade marks/ logos enjoy huge goodwill and reputation in business community and public in general in India and across the world. The plaintiff company has a huge turnover against sale of its products, worldwide and details thereof has been mentioned in para no.9 of the plaint. It is further stated that in view of the Plaintiff's proprietary rights both under statutory and common law in its said trademarks, its goodwill & reputation, and its copyrights, the Plaintiff has the exclusive right to the use thereof and nobody can be permitted to use the same or any other deceptively similar trademark/label in any manner whatsoever in relation to any specification of goods without the leave and license of the plaintiff.
5. Defendants are stated to be engaged in the same/similar trade and business as that of plaintiff, i.e manufacture and retail of caps and accessories and other related allied and cognate goods.
Decreed U/o XIII-A CPC: Page 4 of 14CS No.797/2023: Under Armour Inc. V/s Ranbir Singh & Ors.: DOD: 01.06.2024
6. It is the case of plaintiff company that in the first week of October' 2023, it came to its knowledge that the defendants had been carrying out trade and business by soliciting, offering for sale, storing, distributing and selling caps and other accessories in the area of Ashok Vihar, Aman Vihar, Pitampura, Mangolpuri, Rani Bagh, Rithala, Netaji Subhash Place, Sultanpur, Udhyog Nagar etc. as also other parts of Delhi bearing "UNDER ARMOUR" mark, which is confusingly similar to the registered trademarks of plaintiff "UNDER ARMOUR", "UA", "UA RECORD" and , thereby causing confusion and deception amongst the unwary purchasing public and traders by making them believe that the origin of those goods is the plaintiff company. It is averred that by doing so, the defendants are not only damaging the reputation and goodwill of the plaintiff company by passing off their substandard products as that of the plaintiff company but is also causing financial loss to the plaintiff company by reaping unfair advantage of the repute and distinctive character of the trademark of the plaintiff company.
7. It is worthwhile to note that pursuant to filing of instant suit, plaintiff moved an application U/o 26 Rule 9 CPC, inter alia seeking appointment of "Local Commissioner" in the matter to visit the premises of defendant(s) and and seize the infringed goods recovered therefrom. Vide order dated 26.10.2023, application filed U/o 26 Rule 9 CPC was allowed, whereby the learned Local Commissioner was appointed to visit the premises of defendant(s). The learned Local Commissioner accordingly visited the premises of defendant(s) and seized infringed goods therefrom.
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8. It is pertinent to mention here that initially the suit was filed against unknown defendant(s) on the principle of "John Doe", however, pursuant to visit of Local Commissioner to the spot/premises of defendant(s), the names of defendants were revealed as, (i) Shri Ranbir Singh, proprietor of M/s Aakash Garments (defendant No.1 herein); (ii) Shri Arjun Bakshi, proprietor of M/s Queeny/ M/s KENO (defendant No.2 herein); (iii) Shri Rohit Munjal, proprietor of M/s Export Surplus/Style N Style (defendant No.3 herein); and Shri Arun Sachdeva, proprietor of M/s Denims & More (defendant No.4 herein). The plaintiff accordingly moved an application U/o 6 Rule 17 CPC in this regard which was duly allowed vide order dated 13.12.2023 and this is how the aforesaid four persons came to be impleaded as defendants in the matter.
9. Pursuant to their service in the suit, appearance was put forth on behalf of defendant No.1/Ranbir Singh. During the course of proceedings, matter stood amicably settled between plaintiff and defendant No.1 namely Ranbir Singh, proprietor of M/s Aakash Garment. A joint application U/o 23 Rule 3 CPC in this regard was also moved on behalf of plaintiff and defendant No.1. Thereafter, vide order dated 27.02.2024, matter between plaintiff and defendant No.1 was disposed off as having been amicably settled/compromised.
10. On the other hand, defendants No.2 to 4 despite service neither appeared in the Court nor filed any written statement(s) in the matter. Accordingly, vide order dated 27.02.2024, defendants No.2 to 4 were proceeded "ex-parte" and the matter was notified for ex-parte PE.
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11. Before ex-parte PE in the matter could be led, on 01.06.2024 it was submitted by learned counsel for the plaintiff that matter stood amicably settled between plaintiff and defendants No.2 and 3 as well. Accordingly, the parties moved two applications, both U/o XXIII Rule 3 CPC in the matter. The statements of learned counsel for the plaintiff and defendants No.2 and 3 to this effect were recorded on 01.06.2024 itself, whereby the applications U/o XIII Rule 3 CPC were exhibited as Ex.PA and Ex.PB respectively. As such, on the basis of Ex.PA and Ex.PB, the matter between plaintiff and defendants No.2 and 3 was disposed off as having been amicably settled/compromised.
12. (i) Since, defendant No.4 namely Shri Arun Sachdeva, proprietor of M/s Denims & More had already been proceeded "ex-parte" in the matter vide order dated 27.02.2024, learned counsel for the plaintiff moved an application U/o XIII-A CPC, inter alia praying for passing of summary judgment in the matter against him.
(ii) It is noted that no notice of the said application is required to be issued to the aforesaid defendant, as despite service in the main suit he neither appeared before the Court nor filed any written statement and was accordingly proceeded ex-parte vide order dated 27.02.2024.
13. It is further not out context to mention herein that during the raid conducted by learned Local Commissioner at the premises of defendant No.4/Arun Sachdeva, proprietor of M/s Denims & More, 250 pieces of counterfeit/infringed products, i.e lowers and T-shirts were recovered therefrom.
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14. I have heard Shri Gautam Bhasin and Shri Varun Khanna, Advocates, learned counsels for the plaintiff and gone through the entire material on record.
15. It has been very vehemently argued by learned counsel for the plaintiff that there is no need to record evidence in the matter. In support of his contentions, he has relied upon the following judgments:
(a) Case reported as, "CS (Comm.) No.1203/2018", titled as, "AKTIEBOLAGET VOLVO & Ors. V/s Gyan Singh & Anr."
(DOD: 25.04.2023);
(b) Case reported as, "CS (Comm.) No.478/2019", titled as, "Sandisk LLC V/s Amit & Ors." (DOD: 01.03.2023);
(c) Case reported as, "CS (Comm.) No.564/2020", titled as, "Imagine Marketing Private Ltd. V/s M/s Green Accessories Through Its Proprietor & Anr." (DOD: 21.03.2022);
(d) Case reported as, "CS (Comm.) No.675/2019", titled as, "Dhani Loans And Services Limited & Anr. V/s WWW.Dhanifinance.Com & Ors." (DOD: 12.10.2022);
(e) Case reported as, "CS (Comm.) No.929/2018", titled as, "Sanofi & Anr. V/s Faisal Mushtaq & Ors." (DOD: 16.11.2018);
(f) Case reported as, "CS (Comm.) No.413/2021", titled as, "LT Foods Limited V/s Saraswati Trading Company" (DOD:
11.11.2022);
(g) Case reported as, "CS (Comm.) No.1219/2018", titled as, "Shri Ved Prakash Garg Trading As M/s Parul Food Products V/s M/s Gurudev Industries" (DOD: 20.12.2018) and;
(h) Case reported as, "CS (OS) No.3466/2012", titled as, "Disney Enterprises Inc. & Anr. V/s Balraj Muttneja & Ors." (DOD:
20.02.2014).Decreed U/o XIII-A CPC: Page 8 of 14
CS No.797/2023: Under Armour Inc. V/s Ranbir Singh & Ors.: DOD: 01.06.2024
16. The judgments in case of LT Foods (supra) and Shri Ved Prakash Garg (supra) have been referred to establish the point that the report of Local Commissioner in itself can be treated as evidence.
17. The learned counsel has further very vehemently argued that in the teeth of material available on record in the form of plaint, documents and the report of leaned Local Commissioner, no useful purpose would be served asking the plaintiff to lead evidence with regard to the grant of prayer qua damages and cost.
18. In case reported as, "AKTIEBOLAGET VOLVO" (supra), the Hon'ble High Court of Delhi has been pleased to observe as under:
xxxxx
10. At the hearing on 19thApril, 2023, the counsels for the defendants on instructions submitted that the defendants were agreeable to a decree of permanent injunction being passed against the defendants.
Counsel for the plaintiffs also pressed for costs and damages of Rs.10,00,000/- to be apportioned between the defendants.
xxxxx xxxxx
17. I am of the opinion that no purpose would be served by directing the plaintiffs to lead evidence by filing examination-in-chief by way of affidavit. The defendants have no reasonable prospect of succeeding in the present suit. Therefore, in my opinion, this is a fit case where a Summary Judgment in terms of Order XIII-A of the CPC, as applicable to commercial disputes of a specified value, read with Rule 27 of the Decreed U/o XIII-A CPC: Page 9 of 14 CS No.797/2023: Under Armour Inc. V/s Ranbir Singh & Ors.: DOD: 01.06.2024 IPD Rules, deserves to be passed in favour of the plaintiffs and against the defendants.
xxxxx
19. The Hon' ble High Court, thereafter in paragraphs No.22 and 23 of the aforesaid judgment has been pleased to lay down as under:
xxxxx
22. Clearly, the customers are being misled by the defendants and the entire effort is deliberate and dishonest. This amounts to dilution of the reputation and goodwill of the plaintiffs' marks and causing loss to the plaintiffs in business and reputation. The members of the public are bound to confuse bicycles manufactured and sold by the defendants under the mark VOLVO as emanating from the plaintiffs. The defendants have been making unlawful gains at the expense of the plaintiffs. I am convinced that this is nota case of innocent adoption by the defendants. The Court cannot ignore such flagrant misuse of the plaintiffs' marks by the defendants. Even though the claim of the plaintiffs for damages, based on the recoveries made at the premises of the defendant no.2 and the invoices placed on record, is close to Rs.20,00,000/-, I deem it appropriate to award a sum of Rs.10,00,000/-towards damages and costs to the plaintiffs.
23. Taking into account that the defendants no. 3 and 4 are the manufacturers and suppliers of the aforesaid goods and the defendants no.1and 2 were selling the goods supplied by the defendants no.3 and 4, out of the aforesaid amount, the defendants no.3 and 4 shall be liable to pay Rs.6,50,000/- in favour of the plaintiffs and the defendants no.1 and 2 shall be liable to pay Rs.3,50,000/- in favour of the plaintiffs.
xxxxx Decreed U/o XIII-A CPC: Page 10 of 14 CS No.797/2023: Under Armour Inc. V/s Ranbir Singh & Ors.: DOD: 01.06.2024
20. The other judgment(s) sought to be relied upon by learned counsel for the plaintiff also lays down the same law.
21. Amended Order XIIIA of CPC, as applicable to commercial disputes, enables the Court to decide a claim or part thereof without recording oral evidence. Order XIIIA of CPC seeks to avoid the long drawn process of leading oral evidence in certain eventualities. Consequently, the said provision enables disposal of commercial disputes in a time bound manner and promotes the object of the Commercial Courts Act, 2015.
22. Rule 3 of Order XIII-A of CPC empowers the Court to grant a summary judgment against a defendant where on an application filed in that regard, the Court considers that the defendant has no real prospect of successfully defending a claim, and there is no other compelling reason as to why the claim should not be disposed of before recording of oral evidence. Order XIIIA (3) of CPC, as applicable to commercial disputes, is reproduced herein below:-
xxxxx "3. Grounds for summary judgment.--The Court may give a summary judgment against a plaintiff or defendant on a claim if it considers that-
(a) the plaintiff has no real prospect of succeeding on the claim or the defendant has no real prospect of successfully defending the claim, as the case may be; and
(b) there is no other compelling reason why the claim should not be disposed of before recording of oral evidence."
xxxxx Decreed U/o XIII-A CPC: Page 11 of 14 CS No.797/2023: Under Armour Inc. V/s Ranbir Singh & Ors.: DOD: 01.06.2024
23. Touching the present case on the touchstone of the law laid down in the above referred judgments, I find that no useful purpose would be served, firstly by framing the issue with regard to grant of damages & cost and then asking the plaintiff to lead evidence in the matter. I am further of the considered opinion that there is no defence available on record on part of defendant No.4 which debars the plaintiff from claiming decree in the matter, as there is no real prospect of him successfully defending the claim since he is already lying proceeded "ex-parte" in the matter and no written statement on his behalf is on record. On the other hand, taking into account the documents relied upon by the plaintiff, it is observed that plaintiff has a good case and no useful purpose would be served by going to trial in the matter. In my considered opinion, this is a fit case where it can be held that defendant No.2 has no defence and a summary judgment in terms of Order XIII-A of the CPC is required to be passed. I order accordingly.
24. Accordingly, suit of the plaintiff is decreed as under:
(i) A decree of permanent injunction is hereby passed in favour of plaintiff and against defendant No.4/Arun Sachdeva, proprietor of M/s Denims & More, thereby restraining defendant No.4 by himself as also through its agents, representatives, distributors, assigns, heirs, successors, stockiest(s) and all others acting for and on his behalf from manufacturing, marketing, selling, storing, distributing and/or using the impugned trade mark and copyright vested in Decreed U/o XIII-A CPC: Page 12 of 14 CS No.797/2023: Under Armour Inc. V/s Ranbir Singh & Ors.: DOD: 01.06.2024 UNDER ARMOUR and its logo , or any trade mark/ logo/ label in any form and manner which is identical and/or confusingly or deceptively similar to trade mark and copyright vested in "UNDER ARMOUR", "UA", "UA RECORD"
or any other registered trademark and copyright vested in UNDER ARMOUR and its logo , or any trade mark/ logo/ label in any form and manner which is identical and/or confusingly or deceptively similar to trade mark and copyright vested in UNDER ARMOUR /or any other registered "UNDER ARMOUR marks" of the plaintiff in similar goods, thereby infringing plaintiff's registered trademarks, copyright and passing off its product(s) as that of plaintiff;
(ii) A decree in the sum of Rs.3,00,000/- (Rupees Three Lakhs Only) on account of damages sustained by the plaintiff due to loss of sale, reputation and goodwill as well as dilution of plaintiff's trademark is passed in favour of plaintiff and against defendant No.4/Arun Sachdeva; and
(iii) Plaintiff is also entitled to cost of the proceedings, which will include actual cost incurred by the plaintiff, cost incurred towards execution of Local Commission as also the counsel's fee which is quantified as Rs.22,000/-.Decreed U/o XIII-A CPC: Page 13 of 14
CS No.797/2023: Under Armour Inc. V/s Ranbir Singh & Ors.: DOD: 01.06.2024
25. Decree Sheet be prepared accordingly.
26. File be consigned to Record Room after completion of necessary formalities.
Dictated & Announced in the (Vinod Yadav)
open Court on 01.06.2024 District Judge (Commercial Court)-02
North-West/Rohini Courts
Decreed U/o XIII-A CPC: Page 14 of 14