Delhi District Court
Levi Strauss And Company vs Ashok Kumar And Another on 30 August, 2024
THE COURT OF MS NEHA PALIWAL SHARMA
DISTRICT JUDGE-03, CENTRAL DISTRICT,
TIS HAZARI COURTS, NEW DELHI
CNR No. DLCT01-000788-2018
CS (COMM) 564/2020
In the matter of :-
Levi Strauss & Company
1155 Battery Street, San Francisco
State of California,
United States of America
Also at:
Levi Strauss India Pvt. Ltd.
Tower-A, Signature Tower,
5th Floor, Sector-30,
Gurgaon-122002
Through its Authorized Representative
Sh. Narendra Singh
......Plaintiff
Versus
1. Sh. Pawan Jeet Singh
Shop No. 11821/6, Sat Nagar,
Opposite HDFC Bank,
Karol Bagh, New Delhi-110005
2. Puran Chand
WZ-78, Todapur,
Dusghara, New Delhi-110012
......Defendants
Date of institution : 16.01.2018
Reserved for Judgment : 20.08.2024
Date of decision : 30.08.2024
CS (COMM) No: 564/2020 Page No. 1/ 21
Digitally signed by NEHA
NEHA PALIWAL PALIWAL SHARMA
SHARMA Date: 2024.08.30 16:46:54
+0530
SUIT FOR MANDATORY AND PERMANENT INJUNCTION,
INFRINGEMENT OF TRADEMARK AND COPYRIGHT, PASSING OFF
AND RENDITION OF ACCOUNTS
JUDGMENT
(1) This is a suit for mandatory and permanent injunction, infringement of trademark and copyright, passing off and rendition of accounts, filed by the plaintiff against the defendants.
(2) Succinctly put, the case of the plaintiff, as per the plaint, is that it is a company duly registered under the of law of California, United States of America having its registered office at the aforementioned address. It had duly authorized Sh. Narendra Singh S/o Sh. S.S. Fauzdar through power of attorney to institute, sign, depose, verify and pursue the present suit. It is engaged in the business of manufacturing and marketing of clothing of all kinds, readymade garments, leisure shoes, spectacle glasses, sunglasses, bags and other accessories under the trademark "Levi's" and other trademarks. It carries on its business in Delhi through its exclusive franchises and showrooms in various parts of Delhi and has its warehouse and distributors in Delhi.
(3) It is further the case of the plaintiff that the brand "Levi's" was known in India even before its launch in the country because of its global presence and the plaintiff company ventured into the youth segment in India in 1994 by launching its products under the iconic brand name "Levi's". The Company has ever since built a strong retail and distribution network across India and Levi's in India is being built as the most definitive, the trendiest and the most premium apparel brand targeted at trend-setters and CS (COMM) No: 564/2020 Page No. 2/ 21 Digitally signed by NEHA NEHA PALIWAL PALIWAL SHARMA SHARMA Date: 2024.08.30 16:47:01 +0530 early adopters. The Company has grown exponentially over the last few years in India, helped by a huge retail thrust.
(4) It is further the case of the plaintiff company that it is the owner of trademark "Levi's" and "Levi's (Housemark)", "Two Horse logo" and the "Arcuate Stitching Design", which trademarks are registered under the provisions of the Trade Marks Act, 1999 in Trademark Registry of India. The registration of the above trademarks stands renewed from time to time by the Trademark Registry and the said trademarks, on account of renewal, are valid and subsisting in favour of the plaintiff company till date. The plaintiff company has the exclusive right to use the aforesaid trademarks with respect to its goods and no one is entitled to use the said trademarks or any deceptively similar trademark in respect of the goods without a valid license or assignment etc. by the plaintiff company. The apparels of the plaintiff company comprises of the labels bearing the trademark "Levi's"
and "Levi's (Housemark)", "Two Horse logo" and the "Arcuate Stitching Design" logos embossed and / or written on its products which products have become very prominent in the trade. On account of excellent quality and standards of manufacturing and untiring efforts in advertising and marketing by the plaintiff on their goods under the above trademarks, the plaintiff company has acquired unique distinction and enviable reputation and goodwill in India. Its net revenue in the year 2016 was 4.6 billion dollars.
(5) It is further the case of the plaintiff that defendant no.1 is a business entity engaged in the wholesale business of storing and selling counterfeit goods bearing the falsified trademarks "Levi's" and "Levi's (Housemark)", "Two Horse logo" and the "Arcuate Stitching Design" from CS (COMM) No: 564/2020 Page No. 3/ 21 Digitally signed by NEHA NEHA PALIWAL PALIWAL SHARMA SHARMA Date: 2024.08.30 16:47:09 +0530 its shop situated at 11821/6, Sat Nagar, Opposite HDFC Bank, Karol Bagh, New Delhi. Defendant no.2 is a finishing unit engaged in the business of finishing the counterfeit goods bearing the falsified trademarks and distributing and selling them from its premises situated at WZ-78, Todapur, Dusghara, Delhi-110012. Defendant no.2 attaches rivets, buttons, tags etc. bearing the falsified trademarks on the jeans and other apparels and distributes/ sell the same to various dealers across India. Defendant no.1 procures the counterfeit goods bearing the falsified trademarks from defendant no.2. Defendant no.1 is arrayed as Ashok Kumar, based on the John Doe principle as applicable in India, the same being an unknown identity.
(6) It is further the case of the plaintiff that during a market survey in the last week of January, 2018, it came to the knowledge of the plaintiff company that the defendants are clandestinely finishing, storing and selling jeans under the trademark "Levi's" and "Levi's (Housemark)", "Two Horse logo" and "Arcuate Stitching Design" logos deceptively similar trademarks which are much inferior in quality than the products of the plaintiff. The labels attached and the trademarks embossed on the impugned products of the defendants are same/ similar in design and appearance, as those used by the plaintiff company. The defendants are thus blatantly counterfeiting the registered trademarks of the plaintiff company in complete contravention of law of the land.
(7) It is further the case of the plaintiff that it had conducted an investigation through its investigator and had purchased counterfeit/ infringed goods bearing the impugned trademarks of the plaintiff company, after visiting the premises of the defendants and after studying the essential CS (COMM) No: 564/2020 Page No. 4/ 21 Digitally signed by NEHA NEHA PALIWAL PALIWAL SHARMA SHARMA Date: 2024.08.30 16:47:16 +0530 features of the products of the plaintiff and those of the defendants, it becomes obvious that the defendants are selling their products under the guise of products of the plaintiff and the finished apparels of the defendants are of much inferior quality than those marketed by the plaintiff company.
The products of the plaintiff company have certain characteristic features like all products bear standardized labeling such as security label, size and price label, each of these labels are informative and peculiar to each individual product of the plaintiff company and on close scrutiny of the products of the defendants' it was found that these labels are either missing or contain wrong information which does not pertain to the plaintiff company. The defendants with malafide intentions have infringed the registered trademarks and logos of the plaintiff by affixing same/ similar trademarks "Levi's" and "Levi's (Housemark)", "Two Horse logo" and the "Arcuate Stitching Design" logos of the plaintiff, which is evident from the fact that they have adopted all unique and distinctive features of the plaintiff's trademarks and logos. The adoption of plaintiff's trademark and logos by the defendants is not by a random or chance occurrence but has been the outcome of devious scheming and meticulous planning with the ultimate objective of deceiving and misleading the public and customers by the defendants.
(8) It is further the case of the plaintiff that the products bearing the falsified trademarks and logos/ false trade descriptions are not the genuine merchandise of their manufacture and sale and the said spurious goods are in fact revealing a falsehood as to their origin, character and quality. The defendants by falsifying the trademarks and label are deceiving the public and making them part with their hard-earned money under wrong belief by CS (COMM) No: 564/2020 Page No. 5/ 21 Digitally signed by NEHA NEHA PALIWAL PALIWAL SHARMA SHARMA Date: 2024.08.30 16:47:24 +0530 the defendants. The defendants have represented to the members of the trade and public that their products are in some manner associated with that of plaintiff, whereas no such association exists, with an obvious intention to mislead the consumers and persons in the trade and are therefore, attempting to pass off their products and for the products of the plaintiff. The defendants' adoption and unauthorized use of the impugned trademarks including "Two House Logo" of the plaintiff company constitutes act of infringement of trademark, which is unambiguous since the defendants are using the said trademarks and logos with the sole motive to cause deception amongst consumers at large. The defendants have used the trademarks "Levi's" and "Levi's (Housemark)", "Two Horse logo" and the "Arcuate Stitching Design" logos of the plaintiff company without knowledge and prior permission of the plaintiff company and rendered itself liable for a legal action. The defendants have been trading upon the significant and valuable goodwill in the plaintiff's trade name; the nature of activity of the plaintiff and that of the defendants is the same and goods of the parties with which the trade name is associated are the same or similar and the sphere of activity and the market for consumption of the goods of the parties are same; have caused or are likely to cause public confusion as to the source or affiliation of their products; have injured and threaten to further injure the plaintiff's reputation and have diluted and threatened to further diminish the distinctive quality of well known products of the plaintiff and perception of excellence that is associated with the said mark. The defendants are earning illegal profits on account of the unlawful use of deceptively and confusing similar trademarks/ logos of the plaintiff company and hence, it is necessary for the defendants to render all their books of accounts, profits for ascertaining of the damages plaintiff had suffered. The plaintiff has earned CS (COMM) No: 564/2020 Page No. 6/ 21 Digitally signed by NEHA NEHA PALIWAL PALIWAL SHARMA SHARMA Date: 2024.08.30 16:47:32 +0530 its goodwill by selling a series of products under its trademark and any remedy will be unfulfilling until the counterfeit/ infringing goods are being destroyed or destructed and hence, it is necessary that the counterfeit/ infringing goods finished or unfinished, bear the infringing and violative trademark/ label and/ or any other deceptively similar trademark/ label including its labels, display boards, signboard, trade literature and goods etc. be delivered to the plaintiff for destruction and erasure. The defendants are not the only entity carrying out illegal business of selling counterfeit and infringing goods and thus, it is necessary that the the defendants to disclose all other names who are engaged and in connivance with the defendants' activities. The defendants are earning illegal profits on account of the unlawful use of deceptively and confusingly similar trademarks/ logos of the plaintiff company and if the defendants are not restrained from continuing the same, the plaintiff shall continue to have irreparable losses of business as well as injure the goodwill of its products and for these acts of the defendants, the plaintiff company is entitled for compensatory damages.
(9) Thus, the plaintiff has prayed that a decree of permanent and mandatory injunction be passed in its favour and against the defendants, thereby restraining the defendants, their associates and agents, officers, employees, distributors, franchisee, representatives and assigns from using the trademark "Levi's" and "Levi's (Housemark)", "Two Horse logo" and the "Arcuate Stitching Design" and/ or any other trademark and logos deceptively and confusing similar to the registered trademarks and logos of the plaintiff company on any jeans, shirts and other apparels infringing the registered trademarks of the plaintiff company. It is further prayed that a decree of permanent and mandatory injunction be passed in its favour and CS (COMM) No: 564/2020 Page No. 7/ 21 Digitally signed by NEHA NEHA PALIWAL PALIWAL SHARMA SHARMA Date: 2024.08.30 16:47:51 +0530 against the defendants, thereby restraining the defendants, their associates and agents, officers, employees, distributors, franchisee, representatives and assigns from using the copyright in the artistic work vested in the "Two Horse logo" and/ or any other copyright and logos deceptively and confusing similar to the artistic logo of the plaintiff company on any jeans, shirts and other apparels infringing the registered trademarks of the plaintiff company.
(10) The plaintiff has further prayed that a decree of permanent and mandatory injunction be passed in its favour and against the defendants, thereby restraining the defendants, their associates and agents, officers, employees, distributors, franchisee, representatives and assigns from passing off their goods as that of the plaintiff's goods, the defendants be also directed to rendition their account for the profits received by selling the counterfeit goods of the plaintiff company and be further directed to deliver all the infringing finished and unfinished materials bearing the infringing and violative trademark/ label "Levis" and / or any other deceptively similar trademarks/ label including its labels, display boards, signboard, trade literature and goods etc. to the plaintiff for the purposes of destruction and erasure. The defendants be further directed to disclose the name of all other persons who are engaged in storing, supply and selling of counterfeit products in the infringing packaging materials bearing mark/ logo from using the trademark and deceptively and similar marks "Levi's" and "Levi's (Housemark)", "Two Horse logo" and the "Arcuate Stitching" logos. The defendants be further directed to pay punitive damages along with costs to the plaintiff.
CS (COMM) No: 564/2020 Page No. 8/ 21 Digitally signed by NEHA NEHA PALIWAL PALIWAL SHARMA SHARMA Date: 2024.08.30 16:47:58 +0530 (11) Vide order dated 17.01.2018 the Ld. Predecessor of this Court
granted ex-parte interim injunction and the defendants, their associates, agents, employees, distributors were restrained from selling, stocking, distributing any apparels, other products in infringement of registered trademark "Levi's" till the disposal of application under Order XXXIX Rule 1 and 2 CPC. Further, vide the same order the application moved by the plaintiff under Order XXVI Rule 9 CPC was disposed off and Sh. B.L. Gupta Advocate and Sh. Umang Mittal Advocate were appointed as Local Commissioners to conduct the search of premises of defendant no.1 and 2 respectively, with further directions to seize and secure all infringed/ counterfeit products, if any, and also any machinery employed in reproducing the plaintiff's artistic work infringing plaintiff's copyright or trademark. Ld. Local Commissioners were further directed to prepare inventory of the goods and material seized and to release the same to the defendants on superdari and produce sample of the impugned products in the Court. Summons of the suit were also issued to both the defendants.
(12) Report was filed by the Ld. Local Commissioner Sh. Umang Mittal before the Court on 05.04.2018, as per which, he visited the premises of defendant no.2 where he found defendant no.2 Sh. Puran Chand at the spot, who claimed himself to be the main person doing business of finishing and pressing of products/ jeans. During inspection, it was found that stock of jeans having branding in the name of the plaintiff company (i.e. "Levi") was lying in the premises and hence, in terms of orders passed by the Court, the available stock of jeans labeled in the name of the plaintiff company were sealed in bags and an inventory of the same was prepared. Upon enquiry, it was revealed that the available stock do not pertain to Sh. Puran CS (COMM) No: 564/2020 Page No. 9/ 21 Digitally signed by NEHA NEHA PALIWAL PALIWAL SHARMA SHARMA Date: 2024.08.30 16:48:06 +0530 Chand, rather the same belonged to one Sh. Manpreet Singh (Mob:
8700374140) who resides in Ashok Vihar, Delhi and the jeans were sent to Sh. Puran Chand for finishing work only. It was also revealed that Sh. Puran Chand was running business of finishing of Jeans under the name and style of "Pooja Finishings". Some accessories viz. buttons, labels etc. were also found in the premises which were approximately 2500 in numbers which were also sealed in a bag. A sample of jeans found in the premises of defendant no.2 was also taken by the Ld. Local Commissioner. As per the inventories prepared by the Ld. Local Commissioner, 332 pieces of counterfeit Levi's jeans were recovered besides accessories approximately 2500 in number.
(13) Report was also filed by the Ld. Local Commissioner Sh. B.L. Gupta before the Court on 08.05.2018, as per which, he visited the premises of defendant no.1 where he found defendant no.1 Sh. Pawanjeet Singh at the spot. He recovered 480 pieces of jeans having logos of "Levi's" and "Two Horse" infringing the copyright and trademark of the plaintiff and similar to packaging, from the spot, which jeans were sealed and one piece was taken as sample.
(14) As initially the suit was filed by the plaintiff against unknown entities by applying John Doe principle, later on 04.08.2018 an application under Order I Rule 10 CPC was moved by the plaintiff seeking impleadment of Sh. Pawanjeet Singh as defendant no.1 and Sh. Puran Chand as defendant no.2 on the ground that during execution of commission under Order XXVI Rule 9 CPC it was revealed that Sh.
Pawanjeet Singh is the owner/ proprietor of defendant no.1 and Sh. Puran Chand is the owner/ proprietor of defendant no.2. Pursuant to the same, CS (COMM) No: 564/2020 Page No. 10/ 21 Digitally signed by NEHA NEHA PALIWAL PALIWAL SHARMA SHARMA Date: 2024.08.30 16:48:16 +0530 vide order dated 04.08.2018 Sh. Pawanjeet Singh and Sh. Puran Chand were added as defendants no.1 and 2 respectively.
(15) During the course of proceedings, plaintiff and defendant no.1 had arrived at a settlement vide settlement deed Ex.C-1. In terms of the settlement, defendant no.1 Sh. Pawanjeet Singh had handed over a cheque of Rs.3,00,000/- to the AR of the plaintiff towards full and final settlement of the present case and defendant no.1 had also undertaken not to use the trademark "Levi's" deceptively or confusingly similar to that of the plaintiff company. In view of the settlement arrived at between the plaintiff and defendant no.1, vide order dated 18.09.2018 the matter was disposed off as settled between plaintiff and defendant no.1 and a compromise decree was drawn-up.
(16) So far as defendant no.2 Sh. Puran Chand is concerned, he remained unserved by way of ordinary process and was served by way of substituted service under Order V Rule 20 CPC by way of publication in newspaper 'The Statesman' dated 20.09.2019. As none appeared on behalf of defendant no.2, he was proceeded with ex-parte vide order dated 17.03.2020 and the plaintiff was directed to lead ex-parte evidence.
(17) At the stage of ex-parte plaintiff's evidence, the plaintiff company had examined its AR namely Narendra Singh as PW1. PW1 tendered his evidence by way of affidavit Ex.PW1/A and relied upon the following documents in his evidence by way of affidavit:-
1. General power of attorney in his favour dated 08.11.2017 and 11.11.2019, Ex.PW1/1 (OSR) and Ex.PW1/2 (OSR).CS (COMM) No: 564/2020 Page No. 11/ 21 Digitally signed by NEHA
NEHA PALIWAL PALIWAL SHARMA
SHARMA Date: 2024.08.30 16:48:24
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2. The legal proceeding certificates in respect of the trademark nos.
301881, 851936, 290954, 382357, 851939, 851717, 350738, 270875 and 851933, Ex.PW1/3 to Ex.PW1/11 (OSR) respectively.
3. Copy of certificate of incorporation, Mark A.
4. Copies of photographs of the infringing products displaying the falsified marks, Mark B (colly).
5. Copies of photographs of the original product, Mark C (colly).
6. Affidavit of investigator, Ex.PW1/14.
(18) Pursuant to an application under Section 151 CPC moved on behalf of the plaintiff, the Ld. Predecessor of this Court vide order dated 07.11.2023 allowed the plaintiff to lead additional evidence. PW1 had tendered his additional evidence by way of affidavit Ex.PW1/A1.
(19) Ex-parte plaintiff's evidence was closed on 07.11.2023 and the matter was fixed for final arguments.
(20) Final arguments heard as advanced by the Ld. Counsel for the plaintiff and material available on record perused.
(21) As already observed in forgoing paragraphs, the present matter was settled by the plaintiff with defendant no.1 Pawan Jeet Singh whereas defendant no.2 Puran Chand neither filed written statement nor contested the suit and was proceeded ex-parte.
CS (COMM) No: 564/2020 Page No. 12/ 21 Digitally signed by NEHA NEHA PALIWAL PALIWAL SHARMA SHARMA Date: 2024.08.30 16:48:30 +0530 (22) In order to prove its case, the plaintiff had examined its AR
namely Sh. Narendra Singh as PW1 who had tendered his evidence by way of affidavit Ex.PW1/A and additional affidavit Ex.PW1/A-1. PW1 in his evidence by way of affidavit had reiterated and affirmed the contents of the plaint and had deposed in consonance with the plaint. He had further deposed that for the purpose of damages, he relies upon 332 counterfeit apparels and 2500 tags and labels seized from the premises of defendant no.2 bearing the trademark of the plaintiff company by the Ld. Local Commissioner. The plaintiff had also paid fees of the Ld. Local Commissioner to the tune of Rs.40,000/- and thus, the total amount comes to Rs.21,30,000/- which is inclusive of attorney fees of Rs.1,30,000/-. He had also claimed punitive damages worth Rs.5,00,000/-. As defendant no.2 Puran Chand had never entered appearance before the Court and was proceeded with ex-parte, the testimony of PW1 had remained non- controverted, non-rebutted and non-challenged.
(23) The plaintiff besides the testimony of PW1, had also placed reliance upon the report of the Ld. Local Commissioner namely, Sh. Umang Mittal Advocate. The Ld. Local Commissioner was not examined as a witness before the Court nor was the report of the Ld. Local Commissioner exhibited before the Court. However, it is held by the Hon'ble High Court of Delhi in case titled as Levi Strauss & Co. v. Rajesh Agarwal, 246 (2018) DLT 577 that as the Ld. Local Commissioner is a representative of the Court, his report shall be treated as evidence in the suit and shall form part of the record. It was held by the Hon'ble Supreme Court of India in the case of Misrilal Ramratan & Ors. Mansukhlal & Ors v. A. S. Shaik Fathimal & Ors., 1995 Supp (4) SCC 600 that the report of the Commissioner is part CS (COMM) No: 564/2020 Page No. 13/ 21 Digitally signed by NEHA NEHA PALIWAL PALIWAL SHARMA SHARMA Date: 2024.08.30 16:48:39 +0530 of the record and therefore, cannot be overlooked or rejected on spacious plea of non-examination of the Commissioner as a witness since it is part of the record of the case.
(24) It was further held by the Hon'ble High Court of Delhi in the case of Levi Strauss & Co. Vs. Rajesh Agarwal (Supra) that if any party has any objection to the Commissioner's report or to the evidence, such party has an option to examine the Commissioner personally in open Court. Such examination is, however, neither compulsory nor required especially in cases were the party does not challenge the report. The report of the Local Commissioner can be treated as evidence in the suit where it is not challenged by any party.
(25) In the present case in hand, defendant no.2 had chosen not to appear and contest the claim of the plaintiff. Therefore, as the report of the Local Commissioner has not been challenged by either defendant no.2 or the plaintiff and the Local Commissioner was appointed by the Court as its representative, therefore, the evidence collected by the Local Commissioner along with its report are evidence before this Court.
(26) The Ld. Local Commissioner in his report had observed that 332 counterfeit "Levi's" jeans and approximately 2500 accessories such as buttons, labels etc. were found and seized from the premises of defendant no.2 during inspection conducted on 20.01.2018. The photographs of the inspection conducted and of seizure of goods have been placed on record. The accessories were seized and sealed in one gunny bag and the jeans were seized and sealed in five white gunny bags and they were handed over to defendant no.2 Sh. Puran Chand on superdari.
CS (COMM) No: 564/2020 Page No. 14/ 21 Digitally signed by NEHA NEHA PALIWAL PALIWAL SHARMA SHARMA Date: 2024.08.30 16:48:46 +0530 (27) Thus, it is evident from the report of Ld. Local Commissioner as
well as evidence of PW1 that counterfeited goods were seized from the premises of defendant no.2 and therefore, defendant no.2 was dealing in counterfeited goods which contained the registered trademarks and copyright of the plaintiff and thereby was infringing the trademark and copyright of the plaintiff.
(28) For the purposes of damages, the plaintiff had relied upon the inventory prepared by the Ld. Local Commissioner. The AR of the plaintiff company namely Sh. Narendra Singh, in his evidence by way of affidavit Ex.PW1/A and additional evidence by way of affidavit Ex.PW1/A1, had stated that for the purpose of rendition of accounts, they rely upon 332 counterfeit apparels, that is, counterfeited jeans and 2500 counterfeited accessories including tags, buttons and labels bearing the trademarks/ logo of the plaintiff company, seized from the premises of defendant no.2 at the time of commission and fees of Ld. Local Commissioner as well as the attorney fees, totalling to Rs.21,30,000/-. He had also claimed punitive damages to the tune of Rs.5,00,000/- for loss of its goodwill, reputation and business opportunity from defendant no.2.
(29) The Hon'ble High Court of Delhi in the case of Louis Vuitton Malletier v. Capital General Store & Ors., AIR 2023 Delhi 39 has held that counterfeiting is a commercial evil, which erodes brand value, amounts to duplicity with the trusting consumer, and, in the long run, has serious repercussions on the fabric of the national economy. A counterfeiter abandons, completely, any right to equitable consideration by a Court functioning within the confines of the rule of law. He is entitled to no sympathy, as he practices, knowingly and with complete impunity, CS (COMM) No: 564/2020 Page No. 15/ 21 Digitally signed by NEHA NEHA PALIWAL PALIWAL SHARMA SHARMA Date: 2024.08.30 16:48:54 +0530 falsehood and deception.
(30) In the case of Christian Louboutin Sas v. Ashish Bansal & Ors., 2018 VII AD (Delhi) 125, the Hon'ble High Court of Delhi had observed that where the defendants have reclused themselves from the proceedings, they cannot be permitted to enjoy the benefits of evasion or covert priorities.
(31) In the case titled as Microsoft Corporation v. Deepak Raval, MANU/DE/3700/2006: MIPR 2007 (1) 72, it was held by the Hon'ble High Court of Delhi that punitive damages can be granted even in cases where due to absence of defendant, the exact figures of sale made by them under the infringing copyright and/or trademark and exact damages are not available. The same should be granted for loss suffered by the plaintiff and to deter a wrong doer and like-minded from indulging in such unlawful activities.
(32) It has also been held by the Hon'ble, High Court of Delhi in the case of Time Incorporated v. Lokesh Srivastava, 116 (2005) DLT 599 and in the case of Microsoft Corporation v. Deepak Raval (Supra) that:
"17. Coming to the question of damages, it may be stated at the outset that in the absence of the defendants, it may not be of any use to pass a decree of rendition of accounts. However, still damages can be awarded on the basis of estimation. Courts in this country have started adopting appropriate yardsticks for awarding of the damages even in the absence of the defendants.
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19. Reading of the judgments in the aforesaid cases would manifest that the courts have frowned upon the conduct of the defendants "willfully calculated to exploit the advantage CS (COMM) No: 564/2020 Page No. 16/ 21 Digitally signed by NEHA NEHA PALIWAL PALIWAL SHARMA SHARMA Date: 2024.08.30 16:49:02 +0530 of an established mark" and held that in such circumstances, the plaintiff would be entitled to compensation. It was also found that the defendants were enough business savvy to engage in a successful, albeit illegal business venture. Even assuming, arguendo, that they had no knowledge of Microsoft licensing products, knowledge is not an element of copyright infringement. The Courts came heavily upon the defendants where it was found that irrefutable evidence give rise to an influence of the defendants international, knowing and willful infringement.
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24. Coming to the legal position in India, a positive trend has started. Here also as Courts are becoming sensitive to the growing menace of piracy and have started granting punitive damages even in cases where due to absence of the defendant's exact figures of sales by the defendants under the infringing copyright and/or trade mark, exact damages are not available."
(33) It was further held in the case of Times Incorporated Vs. Lokesh Srivastava and Ors. (Supra) that thwart of compensatory damages to a plaintiff is aimed at compensating him for the loss suffered by him whereas punitive damages are aimed at deterring a wrong doer and the like minded from indulging in such unlawful activities. Whenever an action has criminal propensity also the punitive damages are clearly called for so that the tendency to violate the laws and infringe the rights of others with a view to make money is curbed. The punitive damages are founded on the philosophy of corrective justice ad as such, in appropriate cases these must be awarded to give a signal to the wrong doers that law does not take a breach merely as a matter between rival parties but feels concerned about those also who are not party to the list but suffer on account of the breach.
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In the case in hand itself, it is not only the plaintiff, who has suffered on account of the infringement of its trade mark and Magazine design but a large number of readers of the defendants' Magazine "TIME ASIA SANSKARAN" also have suffered by purchasing the defendants' Magazines under an impression that the same are from the reputed publishing house of the plaintiff company. This Court has no hesitation in saying that the time has come when the Courts dealing actions for infringement of trade marks, copy rights, patents etc. should not only grant compensatory damages but award punitive damages also with a view to discouraged dishearten law breakers who indulge in violations with impunity out of lust for money so that they realize that in case they are caught, they would be liable not only to reimburse the aggrieved party but would be liable to pay punitive damages also, which may spell financial disaster for them. Punitive damages should be really punitive and not flee bite and quantum thereof should depend upon the flagrancy of infringement.
(34) In view of the above cited case laws, it is held that defendant no.2 herein had also chosen to stay away from the proceedings of the Court. No ledger of sale or record of accounts/cash registers, stock register, invoices etc. of defendant no.2 has been placed on record. It is deposed by PW1 that defendant does not used to give any receipt for its products. Accordingly, decree of rendition of accounts of profits made by defendant no.2 cannot be granted in favour of the plaintiff. Though in the absence of defendant no.2, a decree of rendition of accounts is useless, however, damages can be awarded on the basis of estimation. Defendant no.2 by infringing the registered trademark and copyright of the plaintiff company had harmed the goodwill, reputation of the plaintiff company and had caused damage to its CS (COMM) No: 564/2020 Page No. 18/ 21 Digitally signed by NEHA NEHA PALIWAL PALIWAL SHARMA SHARMA Date: 2024.08.30 16:49:18 +0530 business. He had also harmed the customers of the plaintiff who were made to believe that the goods sold by the defendant belong to the plaintiff company.
(35) From defendant no.1 with whom the plaintiff had settled the matter, 480 pieces of counterfeited Levi's jeans were recovered and the plaintiff had settled the matter for Rs.3,00,000/-. Considering the totality of facts and circumstances, quantum of recovery of infringed goods as well as the quantum of money for which plaintiff had settled the matter with defendant no.1 Sh. Pawan Jeet Singh, the calculation of punitive damages given by plaintiff appears to be on higher side. The plaintiff is thus awarded compensatory and punitive damages in sum of Rs.6,00,000/- to be paid by defendant no. 2.
(36) Besides the same, the plaintiff is also entitled to decree of permanent and mandatory injunction against defendant no.2. Accordingly, defendant no.2, his associates and agents, officers, employees, distributors, franchisee, representatives and assigns are hereby restrained from using the trademark and copyright "Levi's", "Levi's (Housemark)", "Two Horse Logo" and/or the "Arcuate Stitching Design" and/ or any other trademark and logos deceptively and confusingly similar to the registered trademarks and artistic logos of the plaintiff company on any jeans, shirts and other apparels infringing the plaintiff's registered trademark and copyright.
(37) Further defendant no.2, his associates and agents, officers, employees, distributors, franchisee, representatives and assigns are restrained from passing off its goods as that of the goods of the plaintiff.
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(38) Defendant no.2 had chosen not to appear, however, the goods
were handed over on superdari. Defendant no.2 is directed to handover to the plaintiff the infringed goods violative of the plaintiff's trademark and copyright or deceptively similar to the same for the purpose of destruction.
Relief:
(39) In view of above discussions and findings, the present suit is hereby decreed.
(40) It is held that the plaintiff is entitled to decree of permanent and mandatory injunction against the defendant. Accordingly, defendant no.2, his associates and agents, officers, employees, distributors, franchisee, representatives and assigns are hereby restrained from using the trademark and copyright "Levi's", "Levi's (Housemark)", "Two Horse Logo" and/or the "Arcuate Stitching Design" and/ or any other trademark and logos deceptively and confusingly similar to the registered trademarks and artistic logos of the plaintiff company on any jeans, shirts and other apparels infringing the plaintiff's registered trademark and copyright.
(41) Further, defendant no.2, his associates and agents, officers, employees, distributors, franchisee, representatives and assigns are restrained from passing off its goods as that of the goods of the plaintiff.
(42) Defendant no.2 is also directed to handover to the plaintiff the infringed goods violative of the plaintiff's trademark and copyright or deceptively similar to the same for the purpose of destruction.CS (COMM) No: 564/2020 Page No. 20/ 21 Digitally signed by NEHA
NEHA PALIWAL PALIWAL SHARMA
SHARMA Date: 2024.08.30 16:49:33
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(43) Defendant no.2 is further directed to pay damages to the tune of
Rs.6,00,000/- to the plaintiff along with cost of the suit. The cost will also include the fees of the Ld. Local Commissioner. Defendant no.2 is directed to pay damages to the plaintiff within 30 days of the judgment, failing which the plaintiff will be entitled to interest there upon @ 6% per annum till realization. Decree sheet be prepared accordingly.
(44) File be consigned to record room, after due compliance.Digitally signed by NEHA
NEHA PALIWAL PALIWAL SHARMA
SHARMA Date: 2024.08.30 16:49:41
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Pronounced in the Open Court (Neha Paliwal Sharma)
on 30.08.2024 District Judge-03, Central District,
Tis Hazari Courts, Delhi
It is certified that this Judgment contains 21 pages and each page bears my signatures.Digitally signed by NEHA
NEHA PALIWAL PALIWAL SHARMA
SHARMA Date: 2024.08.30 16:49:48
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(Neha Paliwal Sharma)
District Judge-03, Central District,
Tis Hazari Courts, Delhi
CS (COMM) No: 564/2020 Page No. 21/ 21