Delhi High Court - Orders
Onduline Societe Par Actions ... vs M/S. Blooms India Incorporation ... on 26 May, 2023
Author: C.Hari Shankar
Bench: C.Hari Shankar
$~33
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(COMM) 547/2021 & I.A. 10422/2023
ONDULINE SOCIETE PAR ACTIONS SIMPLIFIEE & ANR.
..... Plaintiffs
Through: Mr. Siddharth Bambha and Ms.
Harshi Thakur, Advs.
versus
M/S. BLOOMS INDIA INCORPORATION (THROUGH ITS
PROPRIETOR/PARTNERS) & ANR. ..... Defendants
Through: Mr Rishabh Manocha, Adv.
CORAM:
HON'BLE MR. JUSTICE C.HARI SHANKAR
O R D E R (O R A L)
% 26.05.2023
1. The dispute between the parties stand settled and a joint application has been filed by the parties under Order XXIII Rule 3 of the Code of Civil Procedure, 1908 (CPC).
2. The parties are represented by learned Counsel. The terms of settlement read thus:
"(i) That the Defendants hereby acknowledge and recognize that the Plaintiff no. 1 is the exclusive and sole proprietor of the registered trademark and 'ONDURA' in respect of roofing sheets, roofing materials and materials for use in covering walls.
(ii) That the Defendants hereby acknowledge and recognize that the Plaintiff no. 1 is the exclusive and sole proprietor of prior adopted, prior used and prior registered the trademark/house mark ONDULINE/ and 'ONDU' family of marks having 'ONDU' as prefix including 'ONDURA', ONDUVILLA', ONDUBAND', ONDUCASA' and 'ONDUSHIELD', in respect of CS(COMM) 547/2021 Page 1 of 5 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 25/09/2023 at 09:19:45 roofing sheets.
(iii) That the Defendants undertake and agree not to, at any point of time in the future, manufacture, market, offer for sale, sell, import, export, distribute, advertise and/or in any manner deal directly and/or indirectly in roofing sheets, roofing materials and materials for use in covering walls or any other goods identical to that of Plaintiffs under the impugned trademark 'ONDULA' of the Defendants and/or any other trademark(s) which are identical/similar to the Plaintiff no. 1's aforesaid trademarks /'ONDURA'/ONDULINE/ /'ONDU' family of marks as aforesaid either physically in the market or through any e-commerce websites/portals.
(iv) The Defendants also declare that Defendants have destroyed and do not have any stock of packaging, printed material, visiting cards, goods, stickers, dies, blocks, labels, articles, letter heads, pamphlets and/or any other material of the aforesaid impugned trademark "ONDULA"/ of the Defendants and/or any other trademark(s) which are identical/similar to the Plaintiff no.1's aforesaid trademarks /"ONDURA"/ONDULINE/ /"ONDU " family of marks as aforesaid with the manufacturing unit, servants, stockiest and/or distributors etc. of the Defendants.
(v) The Defendants agree and undertake to voluntarily withdraw the Application no. 3918638 dated 17.08.2018 for registration of the impugned trademark "ONDULA"/ in respect to roofing tiles and other allied and cognate goods falling in Class 19 on a "proposed to be used" basis, within 15 (fifteen) days of signing the present memorandum of settlement along with the proof of the same to the Plaintiffs or their counsels.
(vi) The Defendants agree and undertake not to apply for registration of aid impugned trademark "ONDULA"/ / or any other trademark(s) which are identical/similar to the Plaintiff no.1's aforesaid trademarks /"ONDURA"/ONDULINE/ /"ONDU " family of marks as aforesaid having "ONDU" as prefix including ONDURA", ONDUVILLA", ONDUBAND", ONDUCASA"
AND "ONDUSHIELD" at any point of time.CS(COMM) 547/2021 Page 2 of 5
This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 25/09/2023 at 09:19:45
(vii) The Defendants agree and undertake to take down/remove its website www.ondula.in as well as lndiaMart website listing at https://www.indiamark.com/bloomsindia/roofing-sheet.html as well as any other third party website listing of the impugned trademark "ONDULA"/ as well as deactivate and delete any other social media accounts including Instagram Profile and Facebook Profile which feature the impugned trademark "ONDULA"/ / or any other trademark(s) which are identical/similar to the Plaintiff no. 1's aforesaid trademarks /"ONDURA"/ONDULINE/ /"ONDU " family of marks as aforesaid having "ONDU" as prefix including ONDURA", ONDUVILLA:, ONDUBAND", ONDUCASA" and "ONDUSHIELD" within 15 (fifteen) days of signing the present memorandum of settlement along with the proof/written confirmation of the same to the Plaintiffs or their counsels and undertake not to revive the same at any point in future.
(viii) The Defendants agree and undertake not to use any images of the projects undertaken by the Plaintiffs in their promotional material/brochure/website/social media handle(s) at any point of time.
(ix) The Defendants agree and undertake to never use or apply to register any website/domain name/company name/trademark/social media handle(s)/third party website listing/profile containing or displaying impugned trademark "ONDULA"/ / or any other trademark(s) which are identical/similar to the Plaintiff no.1's aforesaid trademarks /"ONDURA"/ONDULINE/ /"ONDU " family of marks as aforesaid having "ONDU" as prefix including "ONDURA", ONDUVILLA", ONDUBAND", ONDCASA" and "ONDUSHIELD" at any point of time.
(x) That in view of the undertakings given and declaration made by the Defendants, Plaintiffs agree and are willing to give up reliefs sought in terms of Para 46 (iii), (iv) and (v) of the Plaint.
(xi) That the parties have agreed to pray before the Hon'ble Court that the said commercial suit for infringement being CS (Comm) No. 547 of 2021 be decreed by the Hon'ble High Court of Delhi in favour of the Plaintiffs and against Defendants in terms of prayers as sought Para 46 (i) and (ii) of the Plaint as reproduced CS(COMM) 547/2021 Page 3 of 5 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 25/09/2023 at 09:19:45 hereinbelow:
"46 (i) For an order for perpetual injunction restraining the Defendants their directors, principal officers, proprietors/partners as the case may be, manufacturers, servants, suppliers retailers, stockiest, distributors, representatives and agents from manufacturing, selling, offering for sale, stocking, advertising, promoting, directly or indirectly dealing in roofing sheets and other allied or cognate goods under the impugned trademark/house mark "ONDULA" or any other trade mark/marks which are identical or deceptively similar to the plaintiff no. 1's registered trademark under no. 534684 dated 06.08.1990 and the plaintiff no. 1's registered trademark ONDURA under no. 1776264 dated 20.01.2009 as mentioned in the Plaint amounting to infringement of the registered trademark of the Plaintiff;
(ii) For an order for perpetual injunction restraining the Defendants, their directors, principal officers, proprietors/partners as the case may be, manufacturers, servants, suppliers, retailers, stockiest, distributors, representative and agents from manufacturing, selling, offering for sale, stocking, advertising, promoting, directly or indirectly dealing in roofing sheets and other allied or cognate goods under the impugned trademark/house mark "ONDULA" or any other trademarks which are identical/similar to the Plaintiff no. 1's prior adopted, prior used and prior registered well-known and famous trademark ONDULINE/ and the prior adopted, prior used and prior registered "ONDU" family of trademarks, including the trademark "ONDURA", amounting to passing off their said goods as and for the goods of the Plaintiffs."
(xii) That the parties shall pay their own costs and attorneys' fees associated with the settlement of this matter. No other monetary relief shall be granted or exchanged in connection with this settlement or any actions that either Party may be required to undertake as part of compliance with its obligations under this Agreement.
(xiii) That the aforesaid undertakings have been given by the authorized signatory/authorized representative of the Defendants. The undertakings given herein shall be binding on all the legal heirs, representatives, assigns-in-business, sister concerns, successors in business etc. of the parties henceforth.
CS(COMM) 547/2021 Page 4 of 5This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 25/09/2023 at 09:19:45
(xiv) That in view of the undertakings given and declaration made by the Defendants, both Parties pray before this Hon'ble Court that a decree may be passed in favour of the Plaintiffs and against the Defendants in terms of the present memorandum of settlement and reliefs prayed for by the plaintiffs in Para 46(i) and
(ii) of the Plaint."
3. The Court has perused the terms of settlement and finds them to be lawful and in order.
4. Learned Counsel undertake on behalf of their respective clients to remain bound by the terms of settlement.
5. As such, nothing survives for adjudication in the present suit.
6. The suit stands decreed in terms of the afore-extracted terms of settlement.
7. Let a decree-sheet be drawn up accordingly.
8. The plaintiff would be entitled to refund of the court fee, if any, deposited by it.
9. Miscellaneous application does not survive for consideration and stands disposed of.
10. The date already fixed i.e., 11th August 2023 stands cancelled.
C.HARI SHANKAR, J MAY 26, 2023 ar CS(COMM) 547/2021 Page 5 of 5 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 25/09/2023 at 09:19:45