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Sotkon Sp Slu vs Western Imaginary Transcon Pvt. Ltd. & ... on 5 October, 2021

Author: Jayant Nath

Bench: Jayant Nath

                          $~OS-28
                          *    IN THE HIGH COURT OF DELHI AT NEW DELHI
                          +    CS(COMM) 484/2021 & I.As. 13004-13007/2021
                               SOTKON SP SLU                              ..... Plaintiff
                                               Through    Ms.Shwetasree Majumder, Ms.Tanya
                                                          Varma and Ms.Devyani Nath, Advs.
                                               versus
                               WESTERN IMAGINARY TRANSCON PVT.
                               LTD. & ORS.                                ..... Defendants
                                               Through
                               CORAM:
                               HON'BLE MR. JUSTICE JAYANT NATH
                                         ORDER

                          %              05.10.2021
                          CS(COMM) 484/2021
                                 Let the plaint be registered as suit.

Issue summons to the defendants by speed post and e-mail, returnable for 10.12.2021.

I.As. 13005-13006/2021 Allowed subject to just exceptions.

This is an application under Section 12A of the Commercial Courts, Act.

In view of the urgency of the matter, the application is allowed.

1. This is an application under Order 39 Rules 1 and 2 CPC seeking following reliefs:

"i.Restraining the defendants, their directors/proprietor/ partners, heirs, legal representatives, successors-in-business, agents, affiliates, distributors, servants, representatives, affiliates or any other person Signature Not Verified Digitally Signed By:NIRMLA TIWARI Signing Date:07.10.2021 12:15:59 claiming under or through them or acting in concert with them from infringing the Plaintiff's registered patent no. IN 329620; ii. Restraining the Defendants, their directors, partners, proprietors, servants, agents and all others in active concert or participation with the Defendants from using photographs and literature from Plaintiff's brochures and technical specification of the products that amount to infringement of the Plaintiff's copyrights;"

2. It is the case of the plaintiff that the plaintiff is a company organised under the laws of Spain and is doing business in India through its distributor-cum-manufacturing partner. Plaintiff is said to be a pioneer in underground and semi-underground waste management systems. The plaintiff is said to be the proprietor of Indian Patent No. 329620 titled as 'Subsurface System for the Collection of Refuse' ('the suit patent'). The Plaintiff has licensed the said suit patent in India and to other third parties in Angola, Brazil and Israel for the purpose of manufacturing the patented product.

3. The plaintiff filed a suit patent application in India on 08.10.2008. Plaintiff's suit patent was published in 2011 under Section 11A of the Patents Act. On 17.01.2020, the plaintiff was granted patent protection for the said suit patent IN 329620.

4. It is stated that in November, 2020, defendants submitted a bid offer with Gandhinagar Municipal Corporation in the tender floated for engineering, supply, construction, installation, testing and commission and comprehensive operation and maintenance of underground bins for collection and storage of solid waste. The said act of defendants, it is pleaded, amounts to infringement of the patent and copyright of the plaintiff. Hence, the plaintiff addressed legal notices to defendant no.1 and defendant Signature Not Verified Digitally Signed By:NIRMLA TIWARI Signing Date:07.10.2021 12:15:59 No.2 on 04.12.2020.

5. It is the case of the plaintiff that on analysis of the tender bid and the documents submitted by defendants, the plaintiff discovered that the defendants have misused the photographs of the plaintiff's products, drawings and illustrations from the plaintiff's brochure and also copied the technical specifications of the plaintiff's products which are being offered by defendants. It is pleaded that the said offer/proposed project is an infringement of the plaintiff's suit patent. A comparison of the photographs / illustrations accompanying the defendants tender bid and the plaintiff's original copyrighted work has been depicted in para 33 of the plaint as follows:-

PLAINTIFF DEFENDANT'S MISUSE Signature Not Verified Digitally Signed By:NIRMLA TIWARI Signing Date:07.10.2021 12:15:59

6. A comparison of the defendants' technical specifications and the plaintiff's suit patent has also been placed on record to show that the defendants have copied common elements of the plaintiff's suit patent. The same are reproduced in para 35 of the plaint.

7. The plaintiff has made out a prima facie case. Balance of convenience is in favour of the plaintiff.

8. The defendants', their proprietors, partners etc. are restrained by an ex parte injunction from infringing the plaintiff's registered patent IN 329620. Defendants are also restrained from using the photographs, illustrations from the plaintiff's brochure and the technical specifications of the products that amount to infringement of plaintiff's copyright.

9. Plaintiff to comply with Order 39 Rule 3 CPC within five days from today.

10. Issue notice to the defendants by speed post and e-mail, returnable for 10.12.2021.

JAYANT NATH, J.

OCTOBER 5, 2021/st Signature Not Verified Digitally Signed By:NIRMLA TIWARI Signing Date:07.10.2021 12:15:59