Apollo Tyres Limited vs Glory Enterprise & Ors on 25 November, 2022

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Delhi High Court - Orders

Apollo Tyres Limited vs Glory Enterprise & Ors on 25 November, 2022

Bench: Navin Chawla

                    $~14
                    *     IN THE HIGH COURT OF DELHI AT NEW DELHI
                    +     CS(COMM) 815/2022
                          APOLLO TYRES LIMITED                                 ..... Plaintiff
                                          Through: Ms.Priya Adlakha, Mr.Vikrant Ranan,
                                                       Ms.Tanvi Bhatnagar, Ms.Shilpi Sinha
                                                       & Mr.Raj Kumar Gupta, Advs.
                                          versus
                          GLORY ENTERPRISE & ORS.                          ..... Defendants
                                          Through: Nemo.
                          CORAM:
                          HON'BLE MR. JUSTICE NAVIN CHAWLA
                                                 ORDER

                          %                      25.11.2022
                    I.A. 19644/2022 (Exemption)
                    1.       Allowed, subject to all just exceptions.
                    I.A. 19645/2022

2. This is an application filed on behalf of the plaintiff seeking leave to file additional documents, which are not in the power, possession, control or custody of the plaintiff at the moment.

3. The plaintiff may file the additional documents strictly in accordance with the provisions of the law.

4. The application stands disposed of.

I.A. 19646/2022

5. This is an application seeking exemption from making advance service of the suit paper book to the defendants.

6. Having considered the contents of the application, the same is allowed. The plaintiff is granted exemption from making advance service of the suit paper book to the defendants.

Signature Not Verified Digitally Signed By:RENUKA NEGI Signing Date:07.12.2022 19:05:22 I.A. 19647/2022

7. This application has been filed seeking exemption from instituting pre-litigation mediation under Section 12A of the Commercial Courts Act, 2015.

8. Having perused the contents of the application, the same is allowed.

I.A. 19648/2022

9. This is an application seeking enlargement of time for filing of the Court Fee.

10. For the reasons stated in the application, the same is allowed and the time to file the Court Fee is extended by a period of one week. CS(COMM) 815/2022

11. Let the Plaint be registered as a Suit.

12. Issue summons to the defendants, to be served through all permitted modes, including electronically, returnable on 16th March, 2023 before the learned Joint Registrar (Judicial).

13. The summons to the defendants shall indicate that the written statement(s) to the plaint shall be positively filed within a period of 30 days from the date of receipt of summons. Along with the written statement(s), the defendants shall also file the affidavit(s) of admission/denial of the documents of the plaintiff, without which the written statement(s) shall not be taken on record.

14. Liberty is given to the plaintiff to file the replication(s) within a period of 15 days 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 defendants be filed by the plaintiff, without which the replication(s) shall not be taken on record. If any of the Signature Not Verified Digitally Signed By:RENUKA NEGI Signing Date:07.12.2022 19:05:22 parties wish to seek inspection of any documents, the same shall be sought and given within the timelines.

I.A. 19642/2022

15. Issue notice.

16. On the plaintiff taking steps, let notice be served on the defendants through all permissible modes, including electronically, returnable on 16 th March, 2023 before the learned Joint Registrar (Judicial).

17. Let the reply(ies) to the application be filed by the defendants within a period of four weeks of receipt of the notice. Rejoinder(s) thereto, if any, be filed within a period of two weeks thereafter.

18. It is the case of the plaintiff that the plaintiff is one of the largest manufacturer and the seller of a range of automotive tyres and tube for passenger cars and two wheelers, agriculture, trucks and buses and earth moving vehicle, and speciality applications like mining, re-treaded tyres and re-treading material, globally.

19. It adopted the mark 'APOLLO' in the year 1972 as a trade name as also a trade mark. It operates in the said mark in over a hundred countries across the world. It manufactures a wide range of tube-type and tubeless tyres, as well as tubes for passenger vehicles of various brands mentioned in paragraph 11 of the plaint. It gives its sales and advertisement figures in paragraph 19 of the plaint. Its mark 'APOLLO' is also registered as a trademark, the details of such registration are given in paragraph 15 of the plaint. It is also the copyright owner of the original artistic work of its logos, the details whereof are given in paragraph 16 of the plaint.

20. The plaintiff is aggrieved of the adoption of the mark 'OPOLLO' by the defendants, where the first alphabet 'O' is represented in a shape of a Signature Not Verified Digitally Signed By:RENUKA NEGI Signing Date:07.12.2022 19:05:22 tyre. It is asserted that the two marks are deceptively similar with that of the plaintiff and the use is also for the same goods as that of the plaintiff.

21. It is asserted that the plaintiff gained knowledge of the illegal activities of the defendant no.1 only in October, 2020, whereafter it appointed an investigator, who purchased three samples of different tube brands including of the impugned brand from the defendant no.1. On the packaging of the product it was mentioned that the same is manufactured by the defendant no.2, however, on further inquiry it was found that the address that is given was either incomplete or appeared to be fake. In fact, the ISI license number mentioned on said packaging is also fake.

22. The investigator also purchased the tubes bearing the impugned mark from defendant no. 4. The same claimed to have been manufactured by the defendant no.3. On inquiry, it was found that the defendant no.3. also manufactures tubes in its own brand names 'Rudraksh Gold' and 'Runway' as also the impugned mark.

23. The learned counsel for the plaintiff submits that the adoption of the similar mark by the defendant is clearly dis-honest and intended to deceive the general public.

24. Having considered the contents of the plaint, the documents filed therewith, as also having heard the learned counsel for the plaintiff, I am of the opinion that the plaintiff has been able to make out a good prima facie case in its favour for the grant of an ad-interim ex-parte injunction. The balance of convenience is also in favour of the plaintiff and against the defendants. The plaintiff and the general unwary consumers are likely to suffer grave irreparable injury, in case, an ad-interim ex- parte injunction is not granted to the plaintiff.

Signature Not Verified Digitally Signed By:RENUKA NEGI Signing Date:07.12.2022 19:05:22

25. Accordingly, by way of an ad-interim ex-parte order of injunction, the relief prayed for by the plaintiff in terms of paragraph 34 of the present application is granted in favour of the plaintiff and against the defendants, till further orders.

26. Compliance with Order XXXIX Rule 3 of the Code of Civil Procedure, 1908, be made within a period of ten days from today.

I.A. 19643/2022

27. By this application, the plaintiff prays for appointment of Local Commissioner(s) to visit the premises of the defendant nos. 1 and 3. 27A. For the reasons stated in the application, I find merit in the prayers made by the plaintiff. Accordingly, I appoint Ms. Ananya Sikri, Advocate, Mobile No. 9811175375 to visit the premises of the defendant no.1 situated at Plot No. A-2, Aman Estate, Near Railway Crossing, Sanand Road, Sarkhej, Ahmedabad, Gujarat-380010 and Ms. Aditi Saraswat, Advocate, Mobile No. 7708746786 to visit the premises of the defendant no.3 situated at Plot Nos. 188+189+197, G.I.D.C, Talod (Rampura), District Sabarkantha (S.K.), Gujarat - 383215.

28. The Local Commissioner(s) shall visit the above premises of the defendants and any other premises, that is manufacturing unit/shop/warehouse/residential premises located in Districts of Sabarkantha and Ahmedabad, where the counterfeit goods under the names 'OPOLO/OPOLLO' and/or its packaging/promotional material are manufactured/printed/stored/displayed or sold, belonging to the defendant nos. 1, 2, 3, 4 and/or their suppliers/dealers/distributors, and any other premises where the defendants' account books are/or likely to be maintained or stored, for the purpose of inspection, preparing an inventory thereof, Signature Not Verified Digitally Signed By:RENUKA NEGI Signing Date:07.12.2022 19:05:22 seizing and sealing them.

28A. The Local Commissioner(s) shall also carry out the following mandate:-

i. Search and seize the Butyl tubes bearing the names/marks 'OPOLO/OPOLLO' and any variations of 'APOLLO'; machines; molds; dies; blocks; and/or any other material/ equipment, which facilitate the manufacturing/storage of the said counterfeit tubes, including packaging and promotional material, rate lists etc.; ii. Prepare an inventory, mark and seize the infringing goods/equipment's/material and handover the same to the defendants' representatives on superdari, on the production of the identity and address-proof documents and also the property papers of his shop/residence, for keeping in safe custody;

iii. Enquire the source of procurement of the counterfeit 'OPOLLO/OPOLO' tubes from the defendant no. 1, obtain necessary information and documents and file the same along with the report.;

iv. Take photographs and video films of the proceedings; v. Access the CCTV, computer systems/servers/cloud or any third party storage used by the defendants, where the account book, promotional material, price list, brochures or any other information relating to the infringing products' is maintained/hosted/stored/saved and to make soft copies thereof in an external storage device or hard copies depending on the volume of documents/information; vi. Sign the books of accounts, bank statements and stock registers of the defendants pertaining to the sale of infringing goods and Signature Not Verified Digitally Signed By:RENUKA NEGI Signing Date:07.12.2022 19:05:22 promotional material under the impugned trade marks 'OPOLO/OPOLLO' and any variations of the plaintiff's mark 'APOLLO';

vii. take assistance of the local Police Station, in whose jurisdiction the defendants are carrying on business and or where the infringing goods are placed/ stored/ sold, and the DCP and SHO of the concerned Police Station is directed to render their assistance to the Local Commissioner(s) for the peaceful execution of the commission, on immediate basis, without fail;

viii. Break open the locks, if access to the aforesaid premises and/or any other premises under the control of the Defendants, where the infringing goods are placed/stored/sold and their account books are stored in print or electronic form, are obstructed;

29. The fee of the Local Commissioner(s) is fixed as Rs.1,50,000/- (Rupees One Lakh Fifty Thousand only) each, apart from the out-of-pocket expenses that may be incurred by them, to be paid at the first instance by the plaintiff. In case, the Local Commissioners are to visit any premises other than the one mentioned herein above, they shall be paid an additional fee of Rs. 50,000/- (Rupees Fifty Thousand only) for each of such additional premises.

30. The application is disposed of.

31. This order may not be uploaded on the website of the Delhi High Court for a period ten days from today.

32. Dasti.

NAVIN CHAWLA, J NOVEMBER 25, 2022/rv Signature Not Verified Digitally Signed By:RENUKA NEGI Signing Date:07.12.2022 19:05:22

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Delhi High Court - Orders