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Aktiebolaget Volvo & Ors vs Woodol International & Ors on 22 April, 2022

Author: Prathiba M. Singh

Bench: Prathiba M. Singh

                                                             Signature Not Verified
                                                             Digitally Signed
                                                             By:DEVANSHU JOSHI
                                                             Signing Date:26.04.2022
                                                             13:01:24

$~6
*      IN THE HIGH COURT OF DELHI AT NEW DELHI
+                         CS (COMM) 7/2021
       AKTIEBOLAGET VOLVO & ORS.                            ..... Plaintiffs
                          Through: Mr. Karan Kamra, Advocate,
                                      (M:7838189329)
                          versus
       WOODOL INTERNATIONAL & ORS.                       ..... Defendants
                          Through: Mr. Rakesh Chandra Agarwal & Mr.
                                      Sandeep D., Advs. (M:9891903838)
       CORAM:
       JUSTICE PRATHIBA M. SINGH
                   ORDER

% 22.04.2022

1. This hearing has been done through hybrid mode. I.A. 209/2021 (u/O 11 Rule 1(4))

2. This is an application filed by the Plaintiffs seeking leave to file additional documents. The Plaintiffs are permitted to file additional documents at a later stage, if they wish to do so, strictly in accordance with the provisions of the Commercial Courts Act, 2015.

3. I.A. 209/2021 is disposed of.

I.A. 211/2021 (seeking interrogatories)

4. This is an application filed by the Plaintiffs seeking discovery by interrogatories. Reply is stated to have filed but the same is not on record. Let the same be taken on record.

5. The Court has perused the questions contained in the interrogatories sought to be served as also the affidavit filed by Defendant no.2. In view of the affidavit filed by the Defendant no.2, most of the questions appear to have been answered. Any other information sought would be the subject matter of trial.

6. I.A.211/2021 is disposed of in the above terms.

7. This is an application seeking directions. I.A. 6075/2021 is dismissed as not pressed by Mr. Agarwal.

I.A. 6076/2021 (u/O I Rule 10)

8. This is an application seeking deletion of the names of Mr. Mayank Garg and Defendant No.2-Vaibhav Garg from the array of parties. I.A. 6076/2021 is dismissed as not pressed by Mr. Agarwal. I.A. 6077/2021 (u/O VII Rule 11)

9. This is an application seeking rejection of the Plaint. I.A. 6077/2021 is dismissed as not pressed by Mr. Agarwal.

I.A. 8808/2021 (u/O XXV Rule 1)

10. This is an application seeking directions to furnish security for costs. I.A. 8808/2021 dismissed as not pressed by Mr. Agarwal. I.A. 8809/2021 (u/O VI Rule 2)

11. This is an application seeking striking off evidence filed by the Defendants. I.A. 8809/2021 dismissed as not pressed by Mr. Agarwal. CS(COMM) 7/2021 & I.A. 8806/2021 (u/O XIII-A, Rules 2,3&6 CPC), CRL.M.A. 6875/2021

12. This is an application filed on behalf of the Plaintiffs seeking summary judgment. The Plaintiffs are engaged in the business of manufacturing, advertising and selling a range of industrial oil and lubricants under the registered trademark 'VOLVO' and its variants. The grievance of the Plaintiffs is that the Defendant Nos.1-3 are also manufacturing, selling and supplying automotive engine oil, lubricants and grease under the mark 'VOLVO'.

13. The Defendant No.2 has filed an affidavit dated 11th February, 2021 stating that he is not interested in manufacturing or trading in any products under the mark 'VOLVO' and that no stocks bearing the said mark are available with it. Extracts of the said affidavit are set out below:

"3. That as per the sales register the defendant no1 start sales of the lubricant w.e.f. 1st December, 2020 to 31st December, 2020 in which defendants have not sold or deal any products under the Trade name of plaintiffs in fact, the defendants are dealing in the flowing oils and products such as:-

            a.      Lubricating Oil
            b.      Woodol Lubricating
            c.      Grease Case

A copy of sales register w.e.f. 1st December, 2020 to 31st December, 2020 of the defendants is hereby annexed and the same is marked as Annexure-D-2 to this Affidavit.

4. That deponent further submitted that defendant never interested to manufactured or trading any products under tradename and style of the plaintiff and any other trade name or device or wordmark those are similar in nature of the tradename of the plaintiff nor they are going to adopt the tradename of the plaintiff in any manner whatsoever.

5. That the deponent is further states that defendants manufactured just on the trail basis i.e. "Only Container of The Oil" under the Tarde name of plaintiff and put the same on "Indiamart" and when defendants came to know that the same is a "Well- Known" trademark then immediately defendants remove the same advertisement from the register or website of "India Mart".

6. That no stock and material in any from and containers under the name and style of plaintiff tradename are available with the defendants as till date the defendants never manufactured or trading under the name and style of "Volvo".

7. That in in view of the facts and circumstances of the CS(COMM) 7/2021 Page 3 of 5 Signature Not Verified Digitally Signed By:DEVANSHU JOSHI Signing Date:26.04.2022 13:01:24 present case the defendants are hereby undertake that they will not deal or manufacture or trading any oil and its related products or any other products under name and style "Volvo" and any other trade name those are similar in nature."

14. A perusal of the written statement filed on behalf of the Defendants shows that the Defendant has made a categorical statement therein to the effect that the Defendant has never manufactured or traded in any product, under the mark or name 'VOLVO'. The relevant extract reads:

"12. It is submitted by the answering defendant that the suit is absolutely without any cause of action in as much as that there has been absolutely no infringement of either of the alleged rights of the plaintiffs, which has miserably failed to set out any just or reasonable cause for bringing in the present suit. Hence, the plaint clearly suffers from such infirmity and hence, present suit is liable to be dismissed with cost and damages in favour of the answering defendant no 1 and against the plaintiffs. It is submitted by the answering defendant that in view of non-compliance of the provision of commercial courts act i.e., Section 12-A, Pre-Institution Mediation and Settlement of The Commercial Courts Act, 2015 the defendants have no authority to institute present unless plaintiffs exhaust the remedy of pre- institution mediation. In fact, the entire suit of the plaintiffs based on believe not on the base of concreate facts, and information and as per the provisions of the law no suit shall be instituted on the bases of believes. in fact, answering defendant never manufactured or trading any product under the name and trademark of 'VOLVO'."

In view of the above affidavit dated 11th February, 2021, as also, the plea taken in the written statement, the present suit stands decreed in terms of paragraph 62 (i.), (ii.), (iii.) and (iv) of the prayer clause as set out in the CS(COMM) 7/2021 Page 4 of 5 Signature Not Verified Digitally Signed By:DEVANSHU JOSHI Signing Date:26.04.2022 13:01:24 Plaint.

15. The Plaintiffs shall also inform any directories and online listing platforms on which the Defendants' products are listed, to take down the said listings. Copy of the present order be also supplied to the said directories and online listing platforms, who shall take down the said listings, within 36 hours of receiving the intimation by the Plaintiffs.

16. I.A. 8806/2021 is disposed of.

17. The Plaintiff wishes to press for the remaining reliefs in respect of damages and rendition of accounts in the present case.

18. Accordingly, the present suit shall proceed to trial on the following issue:

1. Whether the Plaintiff is entitled to rendition of accounts and profits or damages on account of unauthorized use of the Plaintiff's mark "VOLVO"? OPP

2. Costs.

3. Relief.

19. The Plaintiffs are permitted to lead evidence in the matter. Let the affidavits in evidence be filed, within eight weeks.

20. List before the Joint Registrar for recording of the examination in chief and cross examination, on 19th July, 2022. List before the Court thereafter.

21. The application under Section 340 Cr.P.C. being CRL.M.A. 6875/2021 shall be taken up along with the final adjudication of the suit.

PRATHIBA M. SINGH, J.

APRIL 22, 2022/aman/ad CS(COMM) 7/2021 Page 5 of 5