Delhi District Court
Pneumo Care Health P Ltd vs Oxygun Health P Ltd on 5 November, 2024
CS No.523/2023: Pneumo Care Health Pvt. Ltd. & Anr. V/s M/s Oxygun Health Pvt. Ltd. & Ors.:
DOD: 05.11.2024
IN THE COURT OF VINOD YADAV:
DISTRICT JUDGE (COMMERCIAL COURT)-02:
NORTH-WEST DISTRICT: ROHINI COURTS: NEW DELHI
CNR No.DLNW010065862023
CS (Comm.) No.523/2023
In the matter of:-
1. Pneumo Care Health Pvt. Ltd.,
F-11, 2nd Floor, East of Kailash, New Delhi,
Delhi-110065.
.....Plaintiff No.1
2. Shri Deepak Chander,
C-464, Yojna Vihar,
New Delhi-110092.
.....Plaintiff No. 2
Versus
1. M/s. Oxygun Health Pvt. Ltd.,
5/735 , S F-2 , Vaishali,
Ghaziabad -201010,
E-mail [email protected]
.....Defendant No.1
2. Shri Vinay Kumar Singh, Director
M/s. Oxygun Health Pvt. Ltd.,
5/735 , S F-2 , Vaishali, Ghaziabad -201010.
E-mail [email protected]
.....Defendant No.2
3. Shri Suneet Kumar Tiwari, Director
M/s. Oxygun Health Pvt. Ltd.,
5/735 , S F-2 , Vaishali, Ghaziabad -201010.
E-mail [email protected]
.....Defendant No.3
4. Shri Vikram Singh,
5 / 735, S F-2 , Vaishali, Ghaziabad -201010,
E-mail [email protected]
.....Defendant No.4
5. Shri Punit Tiwari,
5 / 735, S F-2 , Vaishali, Ghaziabad -201010.
E-mail [email protected]
.....Defendant No. 5
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Date of Institution of Suit : 19.07.2023
Date of hearing arguments : 05.11.2024
Date of judgment : 05.11.2024
SUIT FOR PERMANENT INJUNCTION RESTRAINING INFRINGEMENT
OF TRADEMARK & DESIGN, PASSING OFF, DAMAGES AND
RENDITION OF ACCOUNTS ETC.
05.11.2024
JUDGMENT UNDER ORDER VIII RULE 10 CPC
1. By way of instant suit, plaintiffs have sought a decree of
permanent injunction, restraining infringement of trademark, infringement
of registered design, passing off, delivery up, rendition of accounts, etc.,
against the defendant(s).
2. The facts of the case in brief, as borne out from the record are
that plaintiff No.1 is a company registered and incorporated under Indian
Companies Act, 1956. Plaintiff No.1 company through its
Director/plaintiff No.2 has filed the instant commercial suit for permanent
injunction restraining the infringement of trade mark & desig, passing off,
damages and rendition of accounts against the defendants.
3. The plaintiff company is engaged in the business of
manufacturing, trading and marketing of medical and surgical apparatus
and instruments, orthopedic articles, limbs restraints and other
cognate/allied goods under different trademarks, including HOSPIGRIP
and HOSPICUFF and is the registered proprietor thereof. It is stated that
plaintiffs have created unique shape and design of ankle and wrist
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restrainer and have also acquired ISO 9001:2015, ISO 13485:206 & CE
quality certifications for its high standard quality products and have been
using the same in the course of trade and business since the year 2016.
4. It is averred that plaintiffs have designed a unique shape and
configuration of the ankle and wrist restrainer with unique shape, size,
pattern, configuration and ornamentation, which has been lying registered
under No.325003-001, dated 26.12.2019. The products manufactured by
plaintiff are well acclaimed in the markets and hospitals for their high class
quality, class and hygiene.
5. (i) It is stated that on account of its good quality and standards of
manufacturing and untiring efforts in advertising and marketing, the
products of the plaintiff have acquired enviable reputation and goodwill in
India and other foreign countries. Further, plaintiff company spends huge
amount of money in advertising and promotion of its products under the
said trade marks/logos, due to which the products of plaintiffs under the
said trade marks/logos enjoy huge goodwill and reputation in business
community and public in general in India and other foreign countries. It is
averred that plaintiff company has a huge turnover against sale of its
products.
(ii) The goods of the plaintiffs are also advertised, sold, available
and delivered through its website https://www.pneumocare.com/hospicuff
and other online e-commerce marketplace including but not limited to
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https://www.amazon.in/Pneumo-Care-Health-HospiCuff-Restraint/dp/
B07RSJTWDD?th=1 and social media pages. The websites are claimed to
be interactive in nature and freely accessible.
6. 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, it 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.
7. (i) It is further averred that defendants No.4 and 5 are the
erstwhile employees of plaintiff No.1 company, as they had joined the
same in the year 2011 and 2015 respectively and had been its mouthpiece
for the products under trademark HOSPIGRIP and HOSPICUFF as well as
for the registered design of wrist and ankle restrainer.
(ii) Defendant No.1 resigned from the plaintiff No.1 company on
07.07.2021, while the services of defendant No.5 were terminated on
06.04.2022 on account of violating fiduciary activity and acting against the
interest of plaintiffs.
8. The plaintiffs have alleged that defendant No.1 company has
been incorporated by defendants No.2 and 3 with a view to divert the
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business of plaintiffs under the trademark HOSPIGRIP. The defendants
No.4 and 5 have joined hands with defendants No.1, 2 and 3 with a view to
encash and ride piggy bag to the goodwill and reputation of plaintiff No.1
company in relation to the trademark and design of ankle and wrist
restrainer.
9. (i) It is averred that during a market survey in the third week of
July' 2022 plaintiffs came to know that defendants have been
commercially using identical and deceptively similar trademarks/labels
and design of ankle and wrist restrainer in respect of impugned goods and
business. The products being manufactured by defendants are identical
with and deceptively similar in each and every respect including
phonetically, visually, structually in its basic idea and in its essential
features. Thus, the defendants have made a deliberate attempt and taken
undue advantage of the plaintiffs' goodwill and reputation, by adopting the
impugned marks/label and design only to reap illegal monetary benefits.
The defendants No.4 & 5 were very well aware of the proprietary rights of
the plaintiffs in the trademark/label and ownership of the plaintiffs in the
registered design of ankle and wrist restrainer. The plaintiff's business and
goods under the said trademarks/labels HOSPIGRIP and HOSPICUFF
have acquired such goodwill and reputation that it has become distinctive
of its products and the defendants' use of the identical and exactly similar
marks/labels HOSPIGRIP for their "impugned products", tends and
threatens and will tend to mislead the public to believe that the defendants
business and goods are that of the plaintiffs.
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(ii) It has been averred that by doing so, the defendants have been
not only damaging the reputation and goodwill of the plaintiff No.1
company by passing off its 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. The defendants have been making
clandestine and surreptitious sales, offering for sale, and are also soliciting,
the customers with all the intention to sell their impugned goods and
business under the impugned trade mark/label in North-West Delhi areas
namely Shalimar Bagh, Rohini, Netaji Subhash Place etc.
10. (i) As such, the plaintiffs have filed the instant suit against the
defendant(s), inter alia praying a decree of permanent injunction,
restraining the defendants by themselves as also through their individual
partners/proprietors, directors, agents, representatives, distributors, dealers,
assigns, stockiest etc., and all others acting for and on their behalf from
manufacturing, selling, using, displaying, advertising, importing/exporting
or by any other mode or manner dealing in medical devices including
medical and surgical apparatus and instruments, orthopedic articles, limbs
restraints and other cognate/allied goods and other cognate/allied goods
bearing the impugned marks/labels HOSPIGRIP and design of ankle and
wrist restrainer or any other trade mark/label and design of ankle and wrist
restrainer identical with or deceptively similar to the plaintiffs' said
trademarks/ label HOSPIGRIP and HOSPICUFF and design of ankle and
wrist restrainer in relation to all medical and surgical apparatus and
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instruments, orthopedic articles, limbs restraints and other cognate/allied
goods and other cognate/allied good(s) or from doing any other acts or
deeds, thereby amounting to:
(a) Infringement of plaintiff's registered trademark
"HOSPIGRIP" and "HOSPICUFF";
(b) Infringement of registered design bearing No.325003-001 in
Class 24-04 of the plaintiff in any manner; and
(c) Passing off and violation of the plaintiff's said trademark/
label "HOSPIGRIP" and "HOSPICUFF".
(ii) The plaintiffs have also prayed for rendition of account;
delivery up of all the impugned finished and unfinished material of the
defendants being impugned trademarks/label and damages @
Rs.25,00,000/- (Rupees Twenty Five Lakhs Only).
11. (i) It is worthwhile to note that alongwith the suit, plaintiff also
preferred two applications, one U/o 39 Rule 1 & 2 CPC, seeking ad-
interim ex-parte injunction against the defendants and another 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
counterfeit/infringed goods recovered therefrom.
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(ii) Vide order dated 24.07.2023, both the aforesaid applications
were allowed. An ad-interim ex-parte injunction order was passed, thereby
restraining the defendants by themselves as also through their individual
partners/proprietors, directors, agents, representatives, distributors, dealers,
assigns, stockist etc., and all others acting for and on their behalf are
restrained from manufacturing, selling, using, displaying, advertising,
importing/exporting or by any other mode or manner dealing in medical
devices including medical and surgical apparatus and instruments,
orthopedic articles, limbs restraints and other cognate/allied goods and
other cognate/allied goods bearing the impugned marks/labels
HOSPIGRIP and design of ankle and wrist restrainer or any other trade
mark/label and design of ankle and wrist restrainer identical with or
deceptively similar to the plaintiffs' said trademarks/label HOSPIGRIP and
HOSPICUFF and design of ankle and wrist restrainer in relation to all
medical and surgical apparatus and instruments, orthopedic articles, limbs
restraints and other cognate/allied goods, thereby infringing plaintiff's
registered trade marks and copyright; and passing off its goods and
business as that of the goods and business of the plaintiff.
(iii) Further, Ms.Mohini, Advocate was appointed as "Local
Commissioner" with the directions to visit the premises of defendant(s)
situated at M/s Oxygun Health Pvt. Limited at 5/735, SF-2, Vaishali,
Ghaziabad, Uttar Pradesh-201010, with the directions to search and seize
infringed goods therefrom.
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12. Pursuant to the directions issued by this Court vide order
dated 24.07.2023, the learned Local Commissioner accordingly visited the
aforesaid premises of defendant(s) on 08.08.2023 and seized following
infringed goods:
(a) 40 pc sheets of stickers (three sticker in each sheet) of
HOSPIGRIP;
(b) 29 pc Ankle Restrainer HOSPIGRIP;
(c) 62 pc Wrist Restrainer HOSPIGRIP;
(d) 4 pc Restrainer Design HOSPIGRIP;
(e) 3 pc stamps of M/s Oxygun Health Pvt. Ltd.;
(f) 5 pc Tax Invoices in favour of M/s Oxygun Health Pvt. Ltd.;
(g) Statement of Account of M/s Oxygun Health Pvt. Limited.
13. Thereafter, vide order dated 24.07.2023, summons in the suit
and notice of application U/o XXXIX Rule 1 & 2 CPC was issued against
the defendants. Pursuant to the service, written statement(s) was filed by
the defendants on 01.02.2024, however, the same were not accompanied
by Affidavit(s) of admission/denial of documents. Alongwith the written
statement(s), the defendants also preferred an application U/o 8 Rule 1
CPC, inter alia praying for condonation of delay in filing the written
statement.
14. As per the service report, the defendant(s) were served on
08.08.2023; whereas, the written statement(s) in the matter were filed on
01.02.2024, i.e much beyond the period of 120 days. Accordingly, relying
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upon the law laid down by Hon'ble Supreme Court of India in case
reported as, "Civil Appeal No.1638/2019)", titled as, "M/s SCG Contracts
India Pvt. Ltd. V/s K.S Chamankar Infrastructure Pvt. Ltd. & Ors." (DOD:
12.02.2019), vide order dated 16.05.2024, the written statement(s) filed by
the defendants were directed not to be taken on record and the matter was
notified for arguments under Order VIII Rule 10 CPC.
15. I have heard Shri Dharmendra Kumar Yadav, Advocate,
learned counsel for the plaintiff and Shri Ram Bhaduria, Advocate, learned
counsel for the defendants and perused the entire material on record. I
have also gone through the report of learned Local Commissioner lying on
record.
16. At the outset, learned counsel for the defendants submitted
that the defendants had preferred an appeal/petition before the Hon'ble
High Court of Delhi, thereby challenging the order dated 16.05.2024,
whereby the written statement(s) of the defendants were directed not be
taken on record. However, it was categorically admitted by learned counsel
for the defendant(s) that there is no stay of the further proceedings in the
matter by the Hon'ble High Court of Delhi.
17. The scope of Order VIII Rule 10 CPC in commercial suits
particularly under the New Commercial Courts, Commercial Division and
Commercial Appellate Division of the High Court Act, 2015 has been
examined by Hon'ble High Court of Delhi in case reported as,
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"235(2016)DLT 354", titled as, "Nirog Pharma Pvt. Ltd. vs. Umesh Gupta
& Anr.", whereby the Hon'ble High Court has been pleased to lay down as
under:
xxxxx
"11. Order VIII Rule 10 has been inserted by the
legislature to expedite the process of justice. The
courts can invoke its provisions to curb dilatory
tactic, often resorted to by defendants, by not filing
the written statement by pronouncing judgment
against it. At the same time, the courts must be
cautious and judge the contents of the plaint and
documents on record as being of an unimpeachable
character, not requiring any evidence to be led to
prove its contents.
..........
28. The present suit is also a commercial suit within the definition of the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 and it was the clear intention of the legislature that such cases should be decided expeditiously and should not be allowed to linger on. Accordingly, if the defendant fails to pursue his case or does so in a lackadaisical manner by not filing his written statement, the courts should invoke the provisions of Order VIII Rule 10 to decree such cases."
xxxxxx
18. (i) Further the power and authority of the Courts to straightway decree a suit on the basis of averments made in plaint in terms of Order VIII Rule 10 CPC, in the absence of a written statement filed by the defendant is well settled by the Hon'ble Supreme Court in case reported as, "(1999) 8 SCC 396", titled as, "Balraj Taneja V/s Sunil Madan".
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(ii) Furthermore, the Hon'ble High Court of Delhi in case reported as, "CS (Comm.) No.618/2019", titled as, "Parsvnath Developers Limited V/s Vikram Khosla" (DOD: 03.03.2021), has been pleased to lay down as under:
xxxxx
9. Having heard the learned counsel for the plaintiff, it is noted that the defendant has not cared to appear before this Court and was proceeded ex-
parte. The law with regard to Order VIII Rule 10 CPC is clear, which stipulates that where any party from whom a written statement is required under Rule 1 or Rule 9, fails to present the same within time permitted or fixed by the Court as the case may be, the Court shall pronounce judgment or make such orders in relation to the suit as it thinks fit and on the pronouncement of same, the decree sheet shall be drawn up. Accordingly, in view of the provisions of order VIII Rule 10 CPC, I proceed to decide the present suit. Further, I am in agreement with the judgments of the Coordinate Benches of this Court as relied upon by the plaintiff in paragraph 8 on the issue that in ex-parte matters no purpose would be served if evidence is directed to be led. There being no written statement filed, the averments in the Plaint being unrebutted, the same are deemed to be correct.
xxxxx
(iii) Recently, the Hon'ble High Court of Delhi in case reported as, "CS (Comm.) No.72/2022", titled as, "Kleenoil Filtration India Pvt. Ltd. V/s Udit Khatri & Ors." (DOO: 05.01.2023) has been pleased to clear the air regarding power and authority of Court to straightway decree the suit under Order VIII Rule 10 CPC.
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19. Further, on the aspect of Order VIII Rule 10 CPC, I am also duly conscious of the observations made by Hon'ble Supreme Court of India in case reported as, "Civil Appeal No.9695/2013", titled as, "Asma Lateef & Anr. V/s Shabbir Ahmad & Ors." (DOD: 12.01.2024), whereby the Hon'ble Apex Court has been pleased to categorically observe that a Court is not supposed to pass a mechanical judgment invoking Rule 10 of Order VIII CPC, merely on the basis of plaint, upon the failure of defendant to file a written statement. I am further conscious of the fact that a judgment, if pronounced by a Court under Rule 10 of Order VIII CPC, must satisfy the requirements of Rule 4(2) or Order XX CPC and thereby conform to its definition provided in Section 2(9) thereof.
20. Further in case reported as, "CS (OS) No.559/2010", titled as, "Indian Performing Rights Society Limited V/s Gauhati Town Club"
(DOD: 30.01.2013), the Hon'ble High Court of Delhi has been pleased to observe that where the defendant is "ex-parte" and the material before the Court is sufficient to allow the claim of the plaintiff, then the time of the Court should not be wasted in directing ex-parte evidence to be recorded and which mostly is nothing, but a repetition of the contents of the plaint.
21. Now, coming back to the facts of instant case. From the material placed on record by the plaintiff, it is clearly evident that the registration of said trade marks/logos HOSPIGRIP and HOSPICUFF are valid and subsisting in favour of plaintiff company till date. Further, a perusal of the registered trademark of the plaintiffs and the impugned Page 13 of 29 CS No.523/2023: Pneumo Care Health Pvt. Ltd. & Anr. V/s M/s Oxygun Health Pvt. Ltd. & Ors.:
DOD: 05.11.2024 trademark used by the defendants, as placed on record, shows that impugned trade HOSPIGRIP is identical to the registered trademark of the plaintiff 'HOSPIGRIP and HOSPICUFF' in all material particulars including the style, design, dress-code and colour combination and an unwary customer can be easily misled and deceived by the said infringed trademark and can be trapped in buying the infringed goods as that of the plaintiff. The photographs of the goods of the plaintiff and that of the defendants are reproduced hereunder for comparison:-
COMPARISON OF THE RIVAL MARKS PLAINTIFFS' DEFENDANTS' TRADEMARK/ TRADEMARK/ LABEL LABEL
1. HOSPIGRIP HOSPIGRIP
2. HOSPICUFF HOSPIGRIP COMPARISON OF THE DESIGN OF ANKLE AND WRIST RESTRAINER S.No Descriptio Plaintiff Defendant . n 1 Product Hospigrip/Hospicuff Hospigrip Name 2 Product Compariso n Page 14 of 29 CS No.523/2023: Pneumo Care Health Pvt. Ltd. & Anr. V/s M/s Oxygun Health Pvt. Ltd. & Ors.:
DOD: 05.11.2024 3 Packaging Printing on White Printing on white background with black background with black colour colour 4 Product Two Two Variants Wrist & Ankle Writ & Ankle 5 Colour Front-Black Front-Black Back-Black Back-Brown 6 Locking Double Locking System Double Locking System Page 15 of 29 CS No.523/2023: Pneumo Care Health Pvt. Ltd. & Anr. V/s M/s Oxygun Health Pvt. Ltd. & Ors.:
DOD: 05.11.2024 Black Connector Black Connector Anti Lock Velcro Anti Lock Velcro 7 Branding Position: Position:
Middle Lower half of Middle Lower half of product product STYLE: STYLE:
Fabric tape stitched on Fabric tape stitched on either side with product either side with product and company logo. and company logo.
8. Outer Stitched Stitched Lining
22. The comparison of the products as tabulated above clearly and unerringly suggest that the defendants have dishonestly adopted the impugned trademark/label 'HOSPIGRIP', which is visually, structurally and deceptively and confusingly similar to plaintiff's registered trademarks 'HOSPIGRIP and HOSPICUFF' in respect of identical goods which creates the same commercial impression. It is further evident that from the aforesaid action, the defendants have strained every nerve to pass off their products as those of the plaintiff's products by adopting visually, structurally and phonetically identical trademarks, trading name, packaging, trade dresses, etc. of the plaintiff's products, which in all probability is likely to confuse and deceive the consumers, thereby causing immense and irreparable harm to the plaintiff's goodwill and reputation as also pose a risk to the safety, health and well being of the consumers.
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23. I further find substance in the submissions of learned counsel for the plaintiff that instant is also a case of dilution and unfair competition as the defendants' activities are whittling away and eroding the distinctive character of the plaintiff's trade marks/logos HOSPIGRIP and HOSPICUFF.
24. The defendants cannot be allowed to piggy bag upon the reputation of plaintiff. The Hon'ble High Court of Delhi in a case involving somewhat similar facts, i.e in case reported as, "1992 SCC Online Del 122", titled as, "The Tata Iron & Steel Company Ltd. V/s Mahavir Steels & Ors." (DOD: 25.02.1992), has been pleased to hold as under:
xxxxx
14. .........An imitation remains an imitation whether it is done by one or by many. It acquires no legitimacy. A wrong is not righted by the following it musters. Infringement of trade mark by a trader cannot be justified on the ground that there are others like him who are doing the same. There is a growing tendency to copy the trade marks to cash upon some one else's business reputation . The pirates of trade marks are like parasites clinging to others for their growth. Imitators of trade marks have the sole object of diverting the business of others. This tendency must be curbed in the interest of the trade and the consumers.
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25. Further in case reported as, "CS (Comm.) No.126/2022", titled as, "M.L Brother LLP V/s Mahesh Kumar Bhuralal Tanna" (DOD:
Page 17 of 29CS No.523/2023: Pneumo Care Health Pvt. Ltd. & Anr. V/s M/s Oxygun Health Pvt. Ltd. & Ors.:
DOD: 05.11.2024 12.05.2022), the Hon'ble High Court of Delhi has been pleased to lay down that Local Commissioner's report can be read in evidence in terms of Order XXVI Rule 10(2) CPC. For ready reference, the said observations are re-produced as under:
xxxxx
10. Order 26 Rule 10 (2) CPC stipulates that the report of the Commissioner and the evidence taken by the Commissioner shall be evidence in the suit and shall form part of the record. The said provision reads as under:
10. Procedure of Commissioner.-- (1) The Commissioner, after such local inspection as he deems necessary and after reducing to writing the evidence taken by him, shall return such evidence, together with his report in writing signed by him, to the Court.
(2) Report and depositions to be evidence in suit. Commissioner may be examined in person.--The report of the Commissioner and the evidence taken by him (but not the evidence without the report) shall be evidence in the suit and shall form part of the record; but the Court or, with the permission of the Court, any of the parties to the suit may examine the Commissioner personally in open Court touching any of the matters referred to him or mentioned in his report, or as to his report, or as to the manner in which he has made the investigation."
11. In Levi Strauss & Co. v. Rajesh Agarwal 2018 IAD (Delhi) 622, this Court examined the said provision and held that once the Commissioner has Page 18 of 29 CS No.523/2023: Pneumo Care Health Pvt. Ltd. & Anr. V/s M/s Oxygun Health Pvt. Ltd. & Ors.:
DOD: 05.11.2024 filed the evidence along with his report, it becomes evidence in the suit itself. Under Order 26 Rule 10(2) CPC it is not mandatory to examine the Commissioner to admit the report of the Commissioner as evidence in the suit. The relevant observations are as under:
8. The Local Commissioner is in fact a representative of the Court itself and it is for this reason that Order 26 Rule 10 (2) of CPC clearly provides that once the Commissioner has filed the evidence along with his report the same shall be treated as evidence in the suit and shall form part of the record.
xxx xxx xxxx
10. The rationale behind Order 26 Rule 10 (2) of CPC is clear i.e. the Commissioner is appointed as a representative of the Court and evidence collected by the Commissioner along with the report of the Commissioner would be evidence in the suit, subject to any objection raised by any party. If any party has any objection to 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 where the party does not challenge the report. In the present case, a perusal of the written statement filed by the Defendant clearly reveals that the Defendant does not challenge the Commissioner's report. Para of the written statement is set out below..."
12. This position of law has been reiterated by this Court in Vinod Goel v. Mahesh Yadav [RFA 598/2016 decided on 23rd May, 2018] wherein the Page 19 of 29 CS No.523/2023: Pneumo Care Health Pvt. Ltd. & Anr. V/s M/s Oxygun Health Pvt. Ltd. & Ors.:
DOD: 05.11.2024 Court observed as under:
"7. It is the settled proposition in law that when a Commissioner is appointed, he acts as the officer of the Court and it is not necessary for the Commissioner to be examined. This is clearly laid down by the Supreme Court in Misrilal Ramratan & Ors. Mansukhlal & Ors. v. A.S. Shaik Fathimal & Ors., 1995 Supp (4) SCC 600, wherein the Court held as under:
"It is now settled law that the report of the Commissioner is part of the record and that therefore the report 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."
8. Even this Court, recently in Levis Strauss v. Rajesh Agarwal [RFA 127/2007 decision dated 3rd January, 2018], held as under
"11. The rationale behind Order 26 Rule 10 (2) of CPC is clear i.e. the Commissioner is appointed as a representative of the Court and evidence collected by the Commissioner alongwith the report of the Commissioner would be evidence in the suit, subject to any objection raised by any party. If any party has any objection to 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 where the party does not challenge the report."
9. Mr. Prag Chawla clearly concedes that there may Page 20 of 29 CS No.523/2023: Pneumo Care Health Pvt. Ltd. & Anr. V/s M/s Oxygun Health Pvt. Ltd. & Ors.:
DOD: 05.11.2024 be no requirement to examine the Local Commissioner once the Commissioner is appointed by a Court.
10. Under these circumstances, since the Commissioner had visited the suit property and had submitted the report, it is deemed appropriate that the matter is remanded back to the Trial Court to decide the matter afresh after taking into consideration the report of the Local Commissioner, Mr. Y.D. Nagar dated 5th January, 2000 in Suit No.2198/1999.
13. In view of Order 26 Rule 10(2) CPC and the judgments discussed above, the settled legal position that emerges is that the report of the Local Commissioner can be treated as evidence in the suit where it is not challenged by any party. Accordingly, in the present case the report of the Local Commissioner and the contents therein can be relied upon by the Court as evidence as the same is unchallenged.
xxxxx (underlining which is mine emphasized)
26. Further, on the settled position that Local Commissioner's report can be read in evidence, I also reminded of 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);Page 21 of 29
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(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).
27. 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 Page 22 of 29 CS No.523/2023: Pneumo Care Health Pvt. Ltd. & Anr. V/s M/s Oxygun Health Pvt. Ltd. & Ors.:
DOD: 05.11.2024 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 IPD Rules, deserves to be passed in favour of the plaintiffs and against the defendants.
xxxxx
28. 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 Page 23 of 29 CS No.523/2023: Pneumo Care Health Pvt. Ltd. & Anr. V/s M/s Oxygun Health Pvt. Ltd. & Ors.:
DOD: 05.11.2024 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
29. After considering the facts and circumstances of the case in totality, I am of the considered opinion that there is no real prospect of defendant(s) succeeding in proving their defence because of the aforesaid discussion and also the fact that the written statement is not on record. No useful purpose would be served by allowing the proceedings to meander mindlessly in Court and to clog the justice delivery system. Therefore, in my opinion, present is a fit case where the Summary Judgment in terms of Order VIII Rule 10 CPC, as applicable to commercial disputes, deserves to be passed in favour of the plaintiff and against the defendant.
30. Considering 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(s) which debars the plaintiff from claiming decree in the matter, as there is no real prospect of the defendant(s) successfully defending their claim.Page 24 of 29
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31. As regards the damages claimed for by the plaintiff, it is noted that The Delhi High Court Intellectual Property Rights Division Rules, 2022 provide guidance on the manner in which the damages could be calculated in such cases. Rule 20 of the IPD Rules, 2022 is set out below:
xxxxx "20. Damages/Account of profits:A party seeking damages/account of profits, shall give a reasonable estimate of the amounts claimed and the foundational facts/account statements in respect thereof along with any evidence, documentary and/or oral led by the parties to support such a claim. In addition, the Court shall consider the following factors while determining the quantum of damages:
(i) Lost profits suffered by the injured party;
(ii) Profits earned by the infringing party;
(iii) Quantum of income which the injured party may have earned through royalties/license fees, had the use of the subject IPR been duly authorized;
(iv) The duration of the infringement;
(v) Degree of intention/neglect underlying the infringement;
(vi) Conduct of the infringing party to mitigate the damages being incurred by the injured party; In the computation of damages, the Court may take the assistance of an expert as provided for under Rule 31 of these Rules.
xxxxx
32. Further, on the aspect of damages, in case reported as, "2019:DHC:2185", tilted as, "Koninlijke Philips and Ors. V/s Amazestore & Ors.", the Hon'ble High Court of Delhi has been pleased to lay down certain standards for grant of damages in following terms:
Page 25 of 29CS No.523/2023: Pneumo Care Health Pvt. Ltd. & Anr. V/s M/s Oxygun Health Pvt. Ltd. & Ors.:
DOD: 05.11.2024 xxxxx "41. Keeping in view the aforesaid, this Court is of the view that the rule of thumb that should be followed while granting damages can be summarized in a chart as under:--
# Degree of malafide conduct Proportionate award
(i) First time innocent infringer Injunction
(ii) First-time knowing infringer Injunction + partial costs
(iii) Repeated knowing infringer which Injunction + costs + partial causes minor impact to the plaintiff damages
(iv) Repeated knowing infringer which Injunction + costs+ causes major impact to the plaintiff compensatory damages
(v) Infringement which was deliberate Injunction + Costs + and calculated Aggravated damages (gangster/scam/mafia) + wilfful (compensatory + additional contempt of Court damages)
42. It is clarified that the above chart is illustrative and is not to be read as a statutory provision. The Courts are free to deviate from the same for good reason."
xxxxx
33. (i) It is a matter of record that the learned Local Commissioner had seized following infringed goods:
(a) 40 pc sheets of stickers (three sticker in each sheet) of HOSPIGRIP;
(b) 29 pc Ankle Restrainer HOSPIGRIP;
(c) 62 pc Wrist Restrainer HOSPIGRIP;
(d) 4 pc Restrainer Design HOSPIGRIP;
(e) 3 pc stamps of M/s Oxygun Health Pvt. Ltd.;
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(ii) In her report dated 09.08.2023, the learned Local Commissioner has not mentioned the monetary value of the infringed goods seized from the premises of defendant(s), however, the plaintiffs have claimed damages @ Rs.25,00,000/- (Rupees Twenty Five Lakhs Only). The learned counsel for the plaintiff has failed to give suitable explanation as to on what basis he is claiming damages @ Rs.25,00,000/-, however, taking a holistic view of the matter vis-a-vis provisions as laid down under Rule 20 of the IPD Rules, 2022 and applying the ratio of law laid down by Hon'ble High Court of Delhi in case of "Koninlijke Philips" (supra), I am of the considered opinion that grant of damages @ Rs.3,00,000/- to the plaintiff would meet the ends of justice. I order accordingly.
34. Accordingly, suit of the plaintiff is decreed as under:
(i) A decree of permanent injunction is hereby passed in favour of plaintiff(s) and against the defendant(s) and the defendants by themselves as also through their individual partners/proprietors, directors, agents, representatives, distributors, dealers, assigns, stockist etc., and all others acting for and on their behalf are hereby restrained from manufacturing, selling, using, displaying, advertising, importing/exporting or by any other mode or manner dealing in medical devices including medical and surgical apparatus and instruments, orthopedic articles, limbs restraints and other cognate/allied goods and other cognate/allied goods bearing the impugned marks/labels HOSPIGRIP and design of ankle and wrist restrainer or any other trade mark/label and design of ankle and wrist Page 27 of 29 CS No.523/2023: Pneumo Care Health Pvt. Ltd. & Anr. V/s M/s Oxygun Health Pvt. Ltd. & Ors.:
DOD: 05.11.2024 restrainer identical with or deceptively similar to the plaintiffs' said trademarks/label HOSPIGRIP and HOSPICUFF and design of ankle and wrist restrainer in relation to all medical and surgical apparatus and instruments, orthopedic articles, limbs restraints and other cognate/allied goods, thereby infringing plaintiff's registered trade mark HOSPIGRIP and HOSPICUFF; infringement of registered design bearing No.325003-001 in Class 24-04; and doing any other thing, thereby leading to passing off and unfair competition of their goods as those of the plaintiff;
(ii) A decree of damages in the sum of Rs.3,00,000/- (Rupees Three Lakhs Only) is hereby passed in favour of plaintiff and against the defendants jointly and severally;
(iii) The plaintiffs are further entitled to delivery up of all the impugned finished and unfinished material of the defendants bearing impugned marks/label HOSPIGRIP and/or design of ankle and wrist restrainer identical with and deceptively similar to it including blocks and labels, display boards, sign boards, trade literature, advertisement material, wrapper, trade dress, packaging etc. for the purpose of destruction/erasure;
(iv) Plaintiff is also entitled to cost of the proceedings, which includes expenses incurred by the plaintiff in the suit, including photocopying expenses, travel expenses, fees of learned Local Commissioner, fees of learned counsel quantified as Rs.22,000/- and other miscellaneous expenses.
35. Decree Sheet be prepared accordingly.
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36. File be consigned to Record Room after completion of necessary formalities.
VINOD Digitally signed by VINOD YADAV YADAV Date: 2024.11.05 16:58:32 +0530 Dictated & Announced in the (Vinod Yadav) open Court on 05.11.2024 District Judge (Commercial Court)-02 North-West/Rohini Courts Page 29 of 29