Delhi High Court - Orders
Campus Activewear Ltd vs Mr. Subhash Chand Bansal & Ors on 20 September, 2022
Author: Navin Chawla
Bench: Navin Chawla
$~29
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(COMM) 335/2022
CAMPUS ACTIVEWEAR LTD ..... Plaintiff
Through: Mr.Sudeep Chatterjee, Mr.Tejveer
Singh Bhatia, Mr.Kunal Vats,
Ms.Tanya Arora, Advs.
versus
MR. SUBHASH CHAND BANSAL & ORS. ..... Defendants
Through: Mr.Manoj Chauhan, Mr.Sujay
Chhikara, Mr.Ujjwal Singh Parmar,
Mr.Raj Shahi, Advs. for D-1 & 3.
CORAM:
HON'BLE MR. JUSTICE NAVIN CHAWLA
ORDER
% 20.09.2022 I.A. 10578/2022 (exemption)
1. Allowed, subject to all just exceptions.
I.A. 15450/20222. By this application, the plaintiff seeks to amend the plaint by adding allegations regarding further designs that it claims are being infringed by the defendants, as also the marks adopted for the shoes by the defendant.
3. The learned counsel for the defendants fairly does not oppose this application, however, submits that this concession be not considered as an admission of the averments made in the application.
4. In view of the above, the application is allowed. The plaintiff shall file the amended plaint within a period of one week from today.
5. It is made clear that the concession given by the learned counsel for Signature Not Verified Digitally Signed By:SHALOO BATRA Signing Date:21.09.2022 18:57:05 the defendant shall not in any manner be construed as an admission of the defendant to the contents of the application or the amended plaint.
I.A. 7943/20226. By this application, the plaintiff prays for the following reliefs:
"Pass an ad interim ex-parte order of injunction restraining the Defendants, their C&F Agents, dealers, distributors, retailers, representatives' agents, assignees or anyone acting on their behalf in any manner from manufacturing, selling (including online platforms) using the impugned mark/logo/ device CHAMPS, AIR CAPTURE/ DUAL AIR CELL/ ULTIMAFIT/ and/ or any other nearly identical/ deceptively similar mark/ logo/ device/ artistic style in any manner (including on online platforms) so as to infringe the rights of the Plaintiff in its registered trademarks/ logos/ device/ artistic works CAMPUS/ Active Cell/ , Springy Fit/ , Air Capsule/ , and their variants thereof, especially with respect to footwear or in any other form whatsoever including the packaging, printed literature, brochures, advertisement. sign board etc., so as to result in infringement of Plaintiff's statutory rights;
b) Pass an ad interim ex-parte decree of injunction restraining the Defendants their C&F Agents, dealers, distributors, retailers, representatives', agents, assignees or anyone acting on their behalf in manner from manufacturing, selling (including online platforms) using the impugned Signature Not Verified Digitally Signed By:SHALOO BATRA Signing Date:21.09.2022 18:57:05 mark/ logo/ device CHAMPS, AIR CAPTURE/ DUAL AIR CELL/ ULTIMAFIT/ and/ or any other nearly identical/ deceptively similar mark/ logo/ device/ artistic style in any manner (including on online platforms) so as to infringe the rights of the Plaintiff in its registered trademarks/ logos/ device/ artistic works CAMPUS/ and their variants thereof, especially with respect to footwear or in any other form whatsoever including the packaging, printed literature, brochures, advertisement. sign board etc., so as to result in passing off, acts of unfair competition, dilution of the rights of the Plaintiffs;
c) Direct the Defendants to disclose on affidavit details of the sales of the product by the Defendant bearing the impugned impugned mark/ logo/ device CHAMPS, AIR CAPTURE/ DUAL AIR CELL/ and/ or any other nearly identical/ deceptively similar mark/ logo/ device/ artistic style in Signature Not Verified Digitally Signed By:SHALOO BATRA Signing Date:21.09.2022 18:57:05 any manner (including on online platforms) so as to infringe the rights of the Plaintiff in its registered trademarks/ logos/ device/ artistic works especially with respect to footwear or in any other form whatsoever including the packaging, printed literature, brochures, advertisement. sign board etc. so as to result in infringement of Plaintiff's statutory rights;
d) Pass an order directing the Defendants to recall all stocks of the impugned products, packaging thereof and any promotional material related thereto including brochures, price-lists, pamphlets etc. from all its dealers/ distributors/sellers etc.
e) Pass an order directing Defendant to provide an undertaking on affidavit to the Plaintiff stating that they have complied with Prayer (e), upon the same been granted by this Hon'ble Court."
7. The learned counsel for the defendants, on instructions from the defendant nos.1 and 3, submits that the mark of 'CHAMPS' is a registered mark of the defendants, while the other marks mentioned hereinabove in the prayers are not used and shall not be used by the defendant nos.1 and 3.
8. As far as the right of the plaintiff to use the mark 'CHAMPS' is concerned, the same shall be considered while considering the subsequent application filed by the plaintiff, that is, I.A. No.15449/2022.
9. Binding the defendant nos.1 and 3 to the statement made today, the present application is disposed of.
Signature Not Verified Digitally Signed By:SHALOO BATRA Signing Date:21.09.2022 18:57:05 I.A. 7944/202210. The learned counsel for the plaintiff does not press this application.
11. This application is dismissed.
I.A. 9364/202212. By this application, the plaintiff prays for the following reliefs:
"a. Pass an ad interim ex-parte decree of injunction restraining Defendant no. 1-3, their C&F Agents, dealers, distributors, retailers, representatives, agents, assignees or anyone acting on their behalf in any manner from manufacturing, selling (including online platforms) using the impugned mark/ logo/ device / trademarks CHAMPS, AIR CAPTURE/ DUAL AIR CELL/ ULTIMAFIT/ and/ or any other nearly identical/ deceptively similar trademarks/ logo/ device/ artistic style in any manner (including on online platforms) so as to infringe the rights of the Plaintiff in its registered trademarks/ logos/ device/ artistic works CAMPUS/ Springy Fit/ , Air Capsule/ and their variants thereof, especially with respect to footwear as given in Para 23 of the I.A. no. 7943/2022 or in any other form whatsoever including the packaging, printed literature, brochures, advertisement. sign board etc., so as to result in infringement of Plaintiff's statutory rights;
b. Pass an ad interim ex-parte decree of injunction restraining the Defendant no. 1-3 their Signature Not Verified Digitally Signed By:SHALOO BATRA Signing Date:21.09.2022 18:57:05 C&F Agents, dealers, distributors, retailers, representatives, agents, assignees or anyone acting on their behalf in any manner from manufacturing, selling (including online platforms) using the impugned design bearing no. 317363-001, 337557- 003 and 331302-001 in any manner including the footwear as mentioned in Paras 26 and 29 of I.A. No. 7943/2022 or any other footwear which are either identical or deceptively similar to the Plaintiff's series of footwear or any other footwear which are colourable imitation or substantial reproduction of the Plaintiff's get-up, layout, trade dress, pattern, shape, design, configuration and packaging in its footwear so as to result in passing off, acts of unfair competition, dilution of the rights of the Plaintiff; c. Pass an ad interim ex-parte decree of injunction restraining the Defendant no. 1-3 their C&F Agents, dealers, distributors, retailers, representatives, agents, assignees or anyone acting on their behalf in any manner from manufacturing, selling (including online platforms) using the impugned marks CHAMPS, AIR CAPTURE/ DUAL AIR CELL/ ULTIMAFIT/ BRAZIL-
ON, BALENO-ON, CRYSTAL-ON, ARMOUR-ON, CARGO-ON, RECALL-ON, NASA-ON, TAKE OFF, HUBLE, ARMUR-ON, NORTH-ON, UNIK- ON, BRAZIL-ON, HATTRICK-ON, RECALL-ON, BELGIUM-ON, STONEX-ON, BRAVE, PANTHER-ON, BALENO-ON, THAR-ON, CRYSTAL-ON, NASA-ON, AGENDA-ON, HOPP, SALUTE and/ or any other nearly identical/ deceptively similar trademark/ logo/ device/ artistic style in any manner (including on online platforms) or colourable imitation/ substantial reproduction of the Plaintiff's get-up, layout, trade dress, pattern, shape, design, configuration and packaging of Signature Not Verified Digitally Signed By:SHALOO BATRA Signing Date:21.09.2022 18:57:05 Plaintiff's products so as to infringe the rights of the Plaintiff in its registered and unregistered trademarks/logos/ device/ artistic works especially with respect to footwear mentioned in Paras 25 and 26 of I.A. No.7943/2022 or in any other form whatsoever including the packaging, printed literature, brochures, advertisements, sign board etc. so as to result in passing off, acts of unfair competition, dilution of the rights of the Plaintiff; d. Pass an ad interim ex-parte decree of injunction restraining Defendant no. 1 and 2, their C&F Agents, dealers, distributors, retailers, representatives, agents, assignees or anyone acting on their behalf in any manner from manufacturing, selling (including online platforms) using the impugned mark/ logo/ device CHAMPS, AIR CAPTURE/ DUAL AIR CELL/ ULTIMAFIT/ and/ or any other nearly identical/ deceptively similar mark/ logo/ device/artistic style which result in the infringement of copyright on the Plaintiff's artistic work;
e. Pass an order directing the Defendant No.1-3 to withdraw/transfer/cancel all trademark and copyright applications/registrations bearing the infringing mark CHAMPS, AIR CAPTURE/ DUAL AIR CELL/ ULTIMAFIT/ or any other of its derivatives and/or formatives or any other mark/logo, nearly identical/ deceptively similar to the Plaintiff's registered trademarks; f. Pass a decree of delivery-up of all the infringing products bearing the impugned mark/logos Signature Not Verified Digitally Signed By:SHALOO BATRA Signing Date:21.09.2022 18:57:05 CHAMPS, AIR CAPTURE/ DUAL AIR CELL/ , ULTIMAFIT/ BRAZIL-ON, BALENO-
ON, CRYSTAL-ON, ARMOUR-ON, CARGO-ON, RECALL-ON, NASA-ON, TAKE OFF, HUBLE, ARMUR-ON, NORTH-ON, UNIK-ON, BRAZIL- ON, HATTRICK-ON, RECALL-ON, BELGIUM- ON, STONEX-ON, BRAVE, PANTHER-ON, BALENO-ON, THAR-ON, CRYSTAL-ON, NASA- ON, AGENDA-ON, HOPP, SALUTE and/or which are colourable imitation or substantial reproduction of the Plaintiff's get-up, layout, trade dress, pattern, shape, design, configuration and packaging especially with respect to footwear including the packaging material, moulds and dyes, promotional materials/ display board/ dangles, fliers etc. for the purpose of destruction;
g. Pass an order directing the Defendants to recall all stocks of the impugned products, packaging thereof and any promotional material related thereto including brochures, price-lists, pamphlets etc. from all its dealers/ distributors/sellers etc; h. Pass an order directing Defendant to provide an undertaking on affidavit to the Plaintiff stating that they have complied with Prayer (e) and (g), upon the same been granted by this Hon'ble Court; i. Pass an order directing the Defendants to provide the sales and manufacturing details of the impugned footwear as mentioned in the Plaint on an affidavit."
13. As far as the relief with respect to the marks mentioned in Clause (a) of the prayer is concerned, the learned counsel for the defendant nos.1 and 3 has already made a statement that except the mark 'CHAMPS', the defendants are not using and will not use the other marks mentioned therein.
Signature Not Verified Digitally Signed By:SHALOO BATRA Signing Date:21.09.2022 18:57:0514. As far as prayer (b) is concerned, the learned counsel for the plaintiff submits that the impugned designs are mentioned in paragraph 26 of I.A. No.7943/2022.
15. The learned counsel for the defendant nos.1 and 3, on instructions submits that none of these designs are presently in use by the said defendants and shall not be used in future as well.
16. As far as the brands mentioned in paragraph (c) of the prayer clause are concerned, the learned counsel for the defendant nos.1 and 3 submits that except for the brands/names pictorially depicted hereinbelow, the other shoes brand names have been adequately changed:
"
"
17. Binding the defendant nos.1 and 3 to the statement made above, the Signature Not Verified Digitally Signed By:SHALOO BATRA Signing Date:21.09.2022 18:57:05 present application is disposed of.
I.A. 15449/202218. Issue notice. Notice is accepted by Mr. Manoj Chauhan, the learned counsel appearing on behalf of the defendant nos.1 and 3. He prays for and is granted two weeks to file the reply. Rejoinder, thereto be filed within a period of two weeks thereafter.
19. The learned counsel for the plaintiff submits that he shall be moving an application seeking deletion of the defendant no.2 from the array of parties.
20. Accordingly, notice need not be issued to the defendant no.2 on the present application.
21. The learned counsel for the defendant nos.1 and 3 submits that the impugned design and the marks have been used by the said defendants much prior to filing of the suit. The same is disputed by the learned counsel for the plaintiff.
22. List on 20th December, 2022.
CS(COMM) 335/2022
23. On the plaintiff filing the amended plaint, the defendant nos.1 and 3 shall file their written statement(s) to the amended plaint within a period of 30 days along with the affidavit(s) of admission/denial of documents filed, without which the written statement(s) shall not be taken on record.
24. Liberty is given to the plaintiff to file the replication(s) within a period of two weeks of the receipt of the written statement(s). Along with the replication(s), if any, filed by the plaintiff, the affidavit(s) of admission/denial of documents of the defendant nos.1 and 3 be filed by the plaintiff, without which the replication(s) shall not be taken on record. If any Signature Not Verified Digitally Signed By:SHALOO BATRA Signing Date:21.09.2022 18:57:05 of the parties wish to seek inspection of any documents, the same shall be sought and given within the timelines.
25. List on 20th December, 2022.
26. The parties are again referred to the Delhi High Court Mediation and Conciliation Centre, where they shall appear on 27.09.2022 at 4.00 p.m.
27. The Delhi High Court Mediation and Conciliation Centre is requested to appoint the same Arbitrator as was earlier appointed.
NAVIN CHAWLA, J SEPTEMBER 20, 2022 RN Signature Not Verified Digitally Signed By:SHALOO BATRA Signing Date:21.09.2022 18:57:05