Delhi District Court
Intex Enterprises Private Limited vs Apm Overseas on 25 April, 2018
IN THE COURT OF MS. TWINKLE WADHWA: LD. ADDITIONAL DISTRICT
JUDGE03:PATIALA HOUSE COURT:NEW DELHI DISTRICT
TM No. 13764/16
1.Intex Enterprises Private Limited D18/2, Okhla Industrial Area, PhaseII, New Delhi110020
2. Intex Technologies (India) Ltd.
D18/2, Okhla Industrial Area,
PhaseII, New Delhi110020 .....Plaintiffs
Versus
1. APM Overseas
Shop No.117, Ist Floor,
Network Plaxa, Saraswati Marg,
Karol Bagh,
New Delhi, Delhi110005.
2. World Tech
Shop No.102, Ist Floor,
Network Plaxa, Saraswati Marg,
Gali No. 1718, Karol Bagh,
New Delhi, Delhi110005. ....Defendants
Date of Institution : 30.08.2016
Date of Final Arguments : 03.04.2018
Date of Decision : 25.04.2018
TM No. 13764/16 Page 1 of 8
JUDGMENT
The Case
1. The suit has been filed by the plaintiff Company seeking permanent
injunction restraining infringement, passing off, delivery up, rendition of accounts etc. against the defendants.
Appearance
2. I have heard arguments of ld. counsel for the plaintiff Shri Amit Pratap Shaunak and I have perused the case file.
Plaintiff's Case
3. The case of the plaintiffs is that it is they are owners of registered Trademark "INTEX" for the purpose of computers, computer hardware, peripherals, computer accessories, UPS Software, Telecommunication, Electrical and Electronic items including mobile handsets and landlines, electrical and electronic items. Plaintiff also own the trademark "INTEX Demand More" and they have been using these marks since 1996.
4. The plaintiff companies are engaged in the business under five separate segments namely Mobile phones, IT Accessories, Consumer Durable Retail and Enterprise Solution Group.
5. The plaintiffs have business exposure in 30 products groups containing 296 items including Mobile Phones, Multimedia Speaker, LCD/LED TVs, DVD Player, Computer UPS, Cabinets, Headphones, Web Cameras, DATA Card, to name a few. The plaintiffs have been using the said trade marks honestly, bonafidely, extensively, exclusively, continuously, commercially and in course of TM No. 13764/16 Page 2 of 8 trade. The plaintiffs' goods under the said trademarks are freely and commercially available not only in India but also throughout the world by way of direct sales and eretailing. The details of the registration of trademarks in respect of various classes of goods as well as the registered trademarks have also been provided in the plaint. The plaintiff has been regularly and continuously promoting its distinctive trademark through extensive advertisements, publicities promotions and marketing research and has been spending enormous amounts of money, efforts, skills and time thereon. The plaintiffs represent their Trademark/label in an artistic manner including its getup, lettering style, color schemes, placement of words and artistic features etc. and holds Copyright under Section 14 of Copyright Act, 1957 and the same has been registered under artistic work having no. A 112771/2014. They have been providing latest technology and products to the people and also spending a lot on R&D (Research & Development) and are known for innovation and reliability.
6. The plaintiffs' companies have Pan India presence having self owned 30 branches apart from 8,700 plus service points. They have also network of 80,000 retailers and their products are sold in reputed hyper markets, stores, TV shopping channels and ecommerce site. They also have their own dedicated websites namely www.intextechnologies.com, www.intex.in and www.intexcare.com.
7. It is alleged that the defendant No.1 a private ltd company is engaged in software development, mobile App and website development apart from web applications customized softwares and other allied services. The defendant nos. 2 to 5 are its Directors.
TM No. 13764/16 Page 3 of 88. The defendants have developed a Mobile App by infringing the plaintiff's Trademark/Tradename "INTEX by the name INTEX MARKET" which is listed in the google play store, an open source APP Market. Through this APP the defendants are selling infringing/impugned articles of the plaintiff company part from other electrical and electronic products. Defendants also own, run and manages a website www.mzoosoftware.com. Through this interactive site defendants are displaying, advertising and showing unauthorized ad illegal association with plaintiffs and selling products using the plaintiffs' trade name "INTEX" in an illegal and unauthorized manner.
9. It is alleged that the defendants's impugned mark is deceptively identical and similar to the plaintiff's trademark/labels in each and every respect including phonetically, visually, structurally, in its basic idea and in its essential features and that the defendants has been using the same in the course of trade without the leave and license of the plaintiffs.
10. The defendants have also infringed plaintiff's copyrights involved in the said trademarks and is also using the same trade dress. The defendants are also passing off their impugned goods and business as that of the plaintiffs. He is using all kinds of false descriptions on its impugned goods to wrongly link the impugned goods with those of the plaintiff and mislead common people and customers.
11. It is alleged that the defendant has adopted and started using the impugned trade mark dishonestly, fraudulently and out of positive greed with a view to take advantage and to trade upon the established good will, reputation TM No. 13764/16 Page 4 of 8 and proprietary rights of the plaintiff in the plaintiff's said trade mark/label/trade name. Because of such activities of the defendants, the plaintiff is suffering huge losses both in business and in reputation which cannot be compensated in terms of money. The photographs of the specimen of the products have been filed on record by the plaintiff.
12. It is also argued that plaintiff had to get LC appointed and hence cost of litigation be also awarded.
13. The plaintiff has also presses for his application under Order 26 Rule 9 read with Section 151 CPC for appointment of Local Commissioner for preserving and protecting infringing evidence as per Section 135(2) (b) of the Trade Mark Act, 1999. Accordingly, the LC was appointed vide orders dated 30.08.2016. Case of defendants
14. Defendants chose not to appear despite service. Their defence was struck off on 20.12.2016 when no written statement was filed on behalf of them despite opportunity.
15. On completion of pleadings, following issues were framed on 20.12.2016 ISSUES
1. Whether the plaintiff is entitled to decree for permanent injunction restraining defendants, their agents, representatives, stockists etc. for using selling, soliciting etc. of impugned goods containing trademark/label 'INTEX' of the impugned goods? OPP.
2. Whether plaintiff is entitled to decree of injunction restraining the defendants and their subjects from dealing with or disposing of the merchandise containing trademark/label 'INTEX' of the impugned TM No. 13764/16 Page 5 of 8 goods? OPP.
3. Whether plaintiff is entitled to decree of delivery up of impugned goods containing trademark/label 'INTEX' ? OPP.
4. Whether plaintiff is entitled to rendition of accounts and damages on account of profits made by the defendants by sale of goods trademark/label 'INTEX' ? OPP.
5. Relief.
16. To prove its case, plaintiff examined Shri Mukesh Kumar, AR as PW1 and exhibited the following documents S.No. No. of Exhibits Details of the documents 1 Ex. PW1/1(colly) Representation/packaging of trademark of plaintiff 2 Ex.PW1/2(colly) Packaging of defendant's website 3 Ex.PW1/3(colly) Registration Certificate of plaintiff 4 Ex.PW1/4(colly) Copyright Registration certificate of plaintiffs' trademark 5 Ex.PW1/5 Copy of deed of assignment 6 Ex.PW1/6(OSR) Copy of license user agreement between the parties 7 Ex.PW1/7(OSR) Certified copy of certificate of incorporation 8 Mark B (colly) Plaintiff's promotional materials 9 Mark C Copies of Board Resolution Reasons for Decision
17. I have heard the ld. counsel for the plaintiff and have gone through the record.
18. On the basis of above, plaintiff has proved that they are registered users of the trademark 'INTEX' and the trademark as acquired distinct features and they TM No. 13764/16 Page 6 of 8 are regularly doing trade of goods under the said trade name along with label/device. It is further proved by plaintiff that while the Local Commissioner inspected the premises of defendant, products were found with trademark and trade dress deceptively similar to the tradename and trade dress of plaintiff.
19. Further report of LC is duly exhibited on record. Further I have gone through the photographs also filed by LC in order to show that the goods seized were carrying logo and mark of the plaintiff company. The report of LC stands unchallenged by the Court.
20. In view of above, where the testimony of the plaintiff is uncontroverted and unchallenged and facts are proved on record as defendant failed to appear, plaintiff has been able to prove its case against the defendants. Issue No.1 Whether the plaintiff is entitled to decree for permanent injunction restraining defendants, their agents, representatives, stockists etc. for using selling, soliciting etc. of impugned goods containing trademark/label 'INTEX' of the impugned goods? OPP.
21. In view of the above, the plaintiff is entitled to decree for permanent injunction restraining defendants, their agents, representatives, stockists etc. for using selling, soliciting etc. of impugned goods containing trademark/label 'INTEX' of the impugned goods because the defendants are selling infringing/ impugned articles of the plaintiff company apart from other electrical and electronic products.
Issue No.2Whether plaintiff is entitled to decree of injunction restraining the defendants and their subjects from dealing with or disposing of the merchandise containing trademark/label 'INTEX' ? OPP.
TM No. 13764/16 Page 7 of 822. In view of above, plaintiff is entitled to decree of injunction restraining the defendants and their subjects from dealing with or disposing of the merchandise containing trademark/label 'INTEX' of the impugned goods. Issue No.3Whether plaintiff is entitled to decree of delivery up of impugned goods containing trademark/label 'INTEX'? OPP.
23. In view of above, plaintiff is entitled to decree of delivery up of impugned goods containing trademark/label 'INTEX' of the impugned goods. Issue No.4Whether plaintiff is entitled to rendition of accounts and damages on account of profits made by the defendants by sale of goods trademark/label 'INTEX'? OPP.
24. In view of the above as plaintiff has not lead any positive evidence about damages and rendition of accounts, they are hereby awarded damages of Rs.1 lac from each defendant.
Issue No.5Relief
25. In view of the above, the present suit is decreed in favour of the plaintiff and against the defendants. Plaintiff is entitled to decree for permanent injunction restraining defendants, their agents, representatives, stockists etc. for using, selling, soliciting etc. of impugned goods containing Trade Mark 'INTEX'.
Decree sheet be prepared accordingly.
File be consigned to record room.
Announced in an open Court
On 25th April, 2018 (TWINKLE WADHWA)
ADJ03/ PHC/NEW DELHI
25.04.2018
TM No. 13764/16 Page 8 of 8