Delhi District Court
Through Its Authorized Representative vs Chaudhary Food Products on 5 November, 2022
IN THE COURT OF MS SAVITA RAO, DISTRICT JUDGE
COMMERCIAL COURT-04, SHAHDARA,
KARKARDOOMA COURTS, DELHI
CNR No. DLSH01-005684-2020
CS (Comm) No. 455/2020
In the matter of :-
M/s Prataap Snacks Limited
Khasra no. 378/2, Nemawar Road
Near Makrand House, Indore, M.P. - 452020
Also At :-
B-1/4, 3rd Floor, Community Centre
Near Sai Mandir, Janak Puri, New Delhi - 110058
Through its Authorized Representative
Mr. Rohit Bisht
............Plaintiff
Vs.
Chaudhary Food Products
Chitrakut Nagar RD-5
BB Ganj, Bhagwanpur,
Muzaffarpur (Bihar) - 842001
.........Defendant
Date of institution of the case : 01.10.2020
Date of final arguments : 02.11.2022
Date of judgment : 05.11.2022
EX-PARTE JUDGMENT
1.This is suit for permanent injunction restraining infringement of copyright, infringement and passing off trade marks, delivery CS (Comm) No. 455 of 2020 1 /7 up , damages and rendition of accounts filed by plaintiff against the defendant.
2. As stated, plaintiff is a company duly incorporated under Indian Companies Act which through its predecessors originally conceived, coined, adopted and have been continuously using the trade mark/label "Yellow Diamond" since the year 2004 in respect of wide range of snacks food items including Namkeens, Potato Chips, Rings, Puff, Chulbule etc. Plaintiff represent its said trade mark/label in an artistic manner including lettering style, colour scheme, placement of words, artistic features etc and the art of work involved in the plaintiff's said trade mark/label is original within the meaning of Copyright Act 1957. In order to acquire statutory rights, plaintiff filed numerous applications for registration of said trade mark/label under the provisions of Trade Marks Act, many of which have already been allowed and some of them are still pending. Plaintiff's goods bearing the said trade mark/label are highly demanded in the market on account of standard quality and precision and plaintiff has been continuously advertising and promoting the said trade mark/label and punch lines through different means and modes.
3. As further stated, defendant is engaged in the business of manufacturing and marketing same kind of Chips, Chulbule form snacks, rings, puff and Ringo etc. and in the course of trade are using the trademark/label Rings, Puff and Ringo . The aforesaid impugned trademark/label Ring, Ringo and Puff also has the same colour combination of Yellow Diamond Ring, Ringo and Puff. The plaintiff is aggrieved by the use of the word/mark Ring, Crunchy Twist, Tangy Tomato, Cream and Onion and Puff and the impugned trade mark/label/trade dress/colour scheme which is CS (Comm) No. 455 of 2020 2 /7 same/similar/identical to the plaintiff's trade mark/labels in each and every manner. The impugned trade mark/label/trade dress of defendant is identical with and deceptively similar to the trademark/label of the plaintiff. As stated, they are identical and deceptively similar in each and every respect including visually, structurally, in its basic idea and essential features which are bound to cause confusion and deception in the normal course of business activities and any person not knowing clearly the relationship between the parties is bound to be confused by the defendant's impugned adoption and use and might well do business with the defendant thinking that he is dealing with the plaintiff or that some strong vital and subtle link exists between the plaintiff and the defendant. Thereby defendant, as stated, has infringed and passed off and are also infringing and passing off and are enabling other to infringe and pass off and violate the plaintiff's proprietary rights in his trademark and copy right involved in the label.
4. As further stated, defendant is not the proprietor of impugned trademark/labels and have adopted and are using the same without the leave and license of the plaintiff due to which plaintiff is suffering huge losses both in business and in reputation. Hence, the instant suit was filed alongwith application under order 39 rules 1 & 2 CPC r/w section 151 CPC.
5. After filing of the suit, vide order dated 06.10.2020 ex- parte injunction was granted in favour of plaintiff and against the defendant and the matter was listed for issuance of summons and notice of application to the defendant for 27.10.2020.
6. On 27.10.2020, counsel for defendant appeared and sought time to file written statement and reply to the application of plaintiff under order 39 Rules 1 & 2 CPC and section 135 of TM CS (Comm) No. 455 of 2020 3 /7 Act. Thereafter written statement was filed on 07.12.2020 alongwith application for condonation of delay, however the same was not signed on every page and statement of truth as well as affidavit of admission and denial of documents had also not been filed. Vide order dated 23.09.2021, another opportunity was granted to the defendant to file fresh copy of written statement signed on every page along with statement of truth, affidavit of admission and denial of documents as well as reply to the pending applications of plaintiff. Subsequent thereto defendant stopped appearing in the matter and after giving many opportunities to defendant for appearance, finally defendant was declared ex- parte on 17.05.2022 by Predecessor of this court.
7. Matter was fixed up for ex-parte final arguments while placing reliance upon Parsvanath Developers Ltd v. Vikram Khosla, CS Comm No. 618 of 2019 and C.M No. 8431 of 2020, decided on 03.03.2021, 2021 SCC Online DEL 3147 and Merck Sharp and Dohme Corp. v. Mr. Munish Thakur, 2017 SCC Online Del 11226, wherein it was held that " where the plaint has been verified and also supported with the affidavit/statement of truth on behalf of the plaintiff and the defendant having being proceeded ex-parte, no purpose would be served if the plaintiff is directed to lead ex-parte evidence. Arguments are to be addressed straightway and the judgment is to be passed on the basis of the material on record " . Relevant documents were given exhibit numbers.
8. I have heard Ld. Counsel for plaintiffs and have carefully perused the record.
9. Plaintiff, in support of its claim, has relied upon following documents:
CS (Comm) No. 455 of 2020 4 /7(1)Representation of Trade Mark/label of plaintiff is Ex. P1/4.
(2) Representation of Trade mark/label of the defendant is Ex. P1/5 (3) Copy of Power of Attorney from Pratap Snacks Ltd in favour of Sh. Rohit Bisht is Ex. P1/6 (4) Computer generated copy of Tax Invoices is Ex. P1/7 Other documents relied upon by plaintiff though not given exhibit numbers are:-
(5) Copy of plaintiff's trademark registrations. (6) Copy of Advertisements and Press Release. (7) List of plaintiff's authorized dealers/distributors in Delhi and within the Delhi Jurisdiction .
10. As already noted, defendant after appearing on some dates stopped appearing before the court and therefore was proceeded ex- parte. Written statement though was filed on record but was beyond the period of limitation for which application seeking condonation of delay was also filed . However, said application seeking condonation of delay was yet to be decided but the defendant stopped appearing, therefore, was proceeded ex-parte. Defence of defendant, therefore is not considered on record. Plaintiff has placed reliance upon documents Ex. P1/4 to Ex. P1/7.
11. The averments made in the plaint (which is supported with the affidavit and statement of truth) remained uncontroverted, unrebutted and unchallenged for the failure of defendant to put defence on record and to contest the matter. I do not find any reason to disbelieve the version of the plaintiffs and the averments made in the plaint supported by the documents on record. Coloured pictures of the original goods and fake goods have also been filed alongwith CS (Comm) No. 455 of 2020 5 /7 the plaint. From the perusal of documents on record, it is clear that the defendant has knowingly, intentionally and dishonestly infringed the impugned trademark/label/trade dress of plaintiff; passed of its goods and business as that of the plaintiff; infringed the plaintiff's copyright in the said Trademark/Label/Trade dress by using, publishing, reproducing the same and defendant apparently is guilty of falsification and unfair trade practices. The mis conduct of the defendant is in complete violation of plaintiff's statutory and common law rights and amounts to infringement of the registered trademark/label and copyright of the plaintiff.
12. As regards rendition of accounts of profits earned by the defendant, no document/material has been placed on record by the plaintiff . Hence, no order in this respect is passed.
13. Instant suit is accordingly decreed with cost in favour of the plaintiff and against the defendant, thereby :
(1) defendant is restrained by itself as also through its partners, agents, representatives, distributors, assigns, heirs, successors, stockists and all other acting for and on its behalf from using, selling, soliciting, exporting, displaying, advertising or by any other mode or manner dealing in or using the impugned trademark/label/trade dress namely RINGS, RINGO, PUFF or any other variant of the Plaintiff's trademark/label/trade dress which may be identical with and /or deceptively similar to the plaintiff's trademark/label/trade dress namely RINGS, PUFF, RINGO in relation to impugned goods and business and/or other allied/related products and from doing any other acts or deed amounting to or likely to:CS (Comm) No. 455 of 2020 6 /7
(i) infringing the registered Trade Marks of the plaintiff
(ii) passing off and enabling others to pass off its goods and business as that of the plaintiff.
(iii) infringing the plaintiff's copyright in the said Trade Mark/Label/Trade Dress by using, publishing, reproducing for the purpose of trade using the identical and deceptively similar impugned trade mark/label for the purpose of its impugned goods and business.
14. Decree sheet be prepared accordingly. After completion of formalities, file be consigned to record room.
SAVITA Digitally signed
by SAVITA RAO
RAO Date: 2022.11.05
14:45:45 +0530
Announced in the open (SAVITA RAO)
court on this 5th day DISTRICT JUDGE
of Nov 2022 (COMMERCIAL COURT)-04
SHAHDARA, KKD COURTS,
DELHI
CS (Comm) No. 455 of 2020 7 /7