Delhi District Court
M/S. Swatantra Gramodyog Sansthan vs Mr. Umesh Kumar on 4 July, 2022
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IN THE COURT OF MS. NIVEDITA ANIL SHARMA
DISTRICT JUDGE
COMMERCIAL COURT-01, SHAHDARA,
KARKARDOOMA COURTS, DELHI
CNR No. DLSH01-007744-2019.
CS (Comm) No. 280 of 2019.
M/s. Swatantra Gramodyog Sansthan
24, Birtiyan, Mandhana,
Kanpur, Uttar Pradesh
..........................................................................................Plaintiff.
versus
Mr. Umesh Kumar
Trading as M/s Sai Enterprises
Tetariya, P.S. Rajapur,
East Champaran-845436, Bihar.
.....................................................................................................................Defendant.
Date of institution of the case : 28.11.2019.
Date of consideration of the case : 29.11.2019.
Date of transfer of this case to this Court : 07.12.2019.
Date of conclusion of the final arguments : 04.07.2022.
Date of judgment : 04.07.2022.
Appearances : Mr. Sanjeev Singh, counsel for the plaintiff.
Defendant has already been proceeded ex-parte vide order dated
12.10.2020.
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JUDGMENT
1. This is a suit for permanent injunction restraining infringement of trademark and copyright, passing off, damages, rendition of accounts, CS (Comm) No. 280 of 2019. M/s Swatantra Gramudyog Sansthan v. Umesh Kumar. -:: Page 1 of 25 ::-
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delivery up, etc. filed by M/s Swatantra Gramodyog Sansthan (hereinafter referred to as the plaintiff) against Mr. Umesh Kumar, trading as M/s Sai Enterprises (hereinafter referred to as the defendants).
2. The plaintiff has filed the suit along with an application under order 39 rules 1 and 2 read with section 151 of the Civil Procedure Code (hereinafter referred to as the CPC) and an application under order 26 rule 9 read with section 151 of the CPC for appointment of local commissioner.
3. In the plaint, it has been averred on behalf of the plaintiff, that the plaintiff is a society registered under the Society Registration Act, 1860 and carries on the trade and business of manufacturing and marketing of detergent powder, detergent cake, oil soap, laundry shop, bartan bar and other allied and cognate goods (hereinafter referred to as said goods) for the last four decades. The plaintiff is one of the leading manufacturer and seller of detergent powder and detergent cake under the trade mark/label. The plaintiff, in order to distinguish its products from those of the others, conceived and adopted DHAMAL as a trademark in the year 2004, being arbitrary to the goods with respect to it has been used; is inherently distinctive. The plaintiff adopted DHAMAL in isolation or in association with other words/artistic features as a label (herein after referred to as said trademark/label/packaging/trade dress) and has been using the same continuously, commercially, openly, exclusively and extensively in the course of trade and business. The plaintiff in order to acquire statutory rights with regard to the said trademark/label DHAMAL filed several CS (Comm) No. 280 of 2019. M/s Swatantra Gramudyog Sansthan v. Umesh Kumar. -:: Page 2 of 25 ::-
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trademark applications for their registration in respect of the said goods in accordance with the provisions of the Trade Marks Act, 1999 (hereinafter referred to as the TM Act). The first application under number 1286421 was filed which was duly registered however due to miscommunication could not get renewed. The plaintiff society got registered as Swatantra Gramodyog Sansthan in place of S. K. Gramodyog Samiti, the proposed name of the society in whose name the trademark earlier filed and registered. However, after registration of the plaintiff society, the plaintiff continued to use the said trademark/label/packaging/trade dress in the course of trade and business. The plaintiff has subsequently filed other trademark applications for the registration of the said trademark/label in isolation or in conjunction with other artistic features. The aforesaid registrations of the said trade mark/label are effective as early as from the year 2004. Accordingly, the registrations of the said trade mark/label DHAMAL is legal, valid and regular and is still subsisting in law. The plaintiff has filed the other applications in other classes also and the same is also registered. The details of the said trademarks/labels are reproduced herein below:
Application Trademark/ Date of Class Status
No. Label Application
1286421 DHAMAL 26.05.2004 3 Reg. In the
(L) name of the
founder of
society /Not
renewed
1808527 DHAMAL 18.04.2009 3 Registered
(L)
2683730 DHAMAL 20.02.2014 35 Registered
(L)
CS (Comm) No. 280 of 2019. M/s Swatantra Gramudyog Sansthan v. Umesh Kumar. -:: Page 3 of 25 ::-
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4. The copies of the registration certificate, status, journal copy of the trade mark/label DHAMAL of the plaintiff are filed with the plaint. The plaintiff has applied for Legal Proceedings Certificate and will file the same after receipt of the same. Due to urgency, the suit is filed without Legal Proceedings Certificate and the plaintiff undertakes to file the same after receipt of the same. The plaintiff has filed a suit against one Aashish Chemicals being suit number 7 of 2014, as a counterblast M/s. Aashish Chemicals filed rectification petition against the registration of the said trademark/label of the plaintiff. The suit finally settled as the plaintiff was prior in adoption and user and the lawful proprietor of the said trademark and hence, the defendant therein was restrained to use the impugned trademark. Aashish Chemicals subsequently filed withdrawal of the Rectification Petition, the letter whereof is filed along with the plaint.
Hence the registration of the plaintiff is free from all encumbrances.
5. It is further averred that the artistic work involved in the said trademark/label/packaging/trade dress of the plaintiff is original under the provision of the Copyright Act (hereinafter referred to as the CR Act) and is liable to be protected. The plaintiff is also the owner and proprietor of the artistic features/work involved in the DHAMAL and the plaintiff holds copyright therein and is also registered proprietor of the copyright under no. A-123936/2018. The plaintiff claims to be proprietor of the said trade mark/label DHAMAL in respect of said goods on account of its prior, honest and bonafide adoption and continuous user thereof. The plaintiff being the originator and owner of the trade mark/label DHAMAL is also entitled to protection of the copyright involved therein. The plaintiff has been honestly, bonafidely and in the course of trade using its said trade CS (Comm) No. 280 of 2019. M/s Swatantra Gramudyog Sansthan v. Umesh Kumar. -:: Page 4 of 25 ::-
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mark/label as proprietor thereof continuously, commercially, openly, exclusively and to the exclusion of others in the course of trade without any interruption or interference from any corner whatsoever and has built up envious, enormous and valuable trade, goodwill and reputation in respect thereof.
6. It is further averred that the plaintiff is the proprietor, prior and senior user of its trade mark/label DHAMAL. The said goods and business being carried on by the plaintiff under its said trade mark/label is very extensive one and the goods and the business there under are being practically distributed in major parts of the country. The said goods and business there under are identified as exclusively originating from the plaintiff's source and are identified with the plaintiff. The said trade mark/label has already become distinctive and associated with the plaintiff and plaintiff said goods and business on account of its long, continuous, extensive and exclusive user thereof since the year, 2004. The plaintiff goods and business under its said trade mark/label has acquired tremendous goodwill and envious reputation in the global market and the plaintiff has already built up a handsome and valuable trade there under. The plaintiff under the said trade mark/label has already commanded handsome sales since its said adoption and user. The particulars of sales achieved by the plaintiff are reproduced below:
FINANCIAL YEAR AMOUNT IN RUPEES
2004-05 NIL
2005-06 11,98,325.00
2006-07 2,01,24,209.00
CS (Comm) No. 280 of 2019. M/s Swatantra Gramudyog Sansthan v. Umesh Kumar. -:: Page 5 of 25 ::-
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2007-08 2,22,35,549.00
2008-09 2,81,15,186.00
2009-10 3,46,74,461.00
2010-11 5,27,87,186.00
2011-12 6,41,94,997.00
2012-13 6,83,40,818.00
2013-14 6,08,32,074.00
2014-15 6,62,75,894.00
2015-16 9,83,48,114.00
2016-17 7,52,98,780.00
2017-18 10,84,19,850.00
2018-19 10,62,98,789.00
The copies of sale bills in respect of user of the said trade mark/label DHAMAL from the year 2004 are filed with the plaint.
7. It is further averred that the plaintiff has been continuously promoting its sale of said goods and business under its said trade mark/label through different media and modes such as advertisement in newspaper, trade magazines, distribution of trade literatures, trade novelties and through sales promotional schemes. The plaintiff has always been engaged in sales promotional activities by participating in exhibitions, giving special discount offer and also participation with big and renowned retailers. As such the plaintiff has already spent substantial amount of money on the publicity of the said trade mark/label and in consequence thereof the said trade mark/label enjoys indelible, envious, solid, enduring and first class reputation in the markets. Copies of advertisement materials and advertisement bills are filed with the plaint. The plaintiff maintains the highest standard of quality and sale of its goods and business and in furtherance has obtained all necessary Governmental licenses including CS (Comm) No. 280 of 2019. M/s Swatantra Gramudyog Sansthan v. Umesh Kumar. -:: Page 6 of 25 ::-
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with the Sales Tax, Income Tax Department, GST etc. The plaintiff's said trade mark/label has already become distinctive indicium of the plaintiff and the plaintiff's said goods and business there under. The purchasing public, trade and public at large associates, identifies and distinguishes the said trade mark/label with the plaintiff and plaintiff's goods and business alone. The sale of plaintiff's goods and business are dependent on its said trade mark/label. The said trade mark/label of the plaintiff has acquired secondary significance denoting the said goods and business of the plaintiff and is recognized with the plaintiff's source alone. It has become universally synonymous with the goods and business of the plaintiff in consequence thereof the plaintiff's said trade mark/label DHAMAL has become distinctive and well known trade mark within the meaning of Section 2 (1) (zg) and also relevant provisions section 11 of the TM Act in relation to said goods and business and in trade to be capable of protection.
8. It is further averred that the plaintiff is the lawful proprietor of its said trade mark/label under statutory law as well as common law being the registered proprietor thereof. The plaintiff has the exclusive rights to use, publish, reproduce or otherwise deal with its said trade mark/label in relation to the said goods and no body can be permitted to use the same or identical with or deceptively similar trade mark and/or label for the same/ similar/ allied/ cognate goods and business as that of the plaintiff or for that matter for any specification of goods and business without the leave and license of the plaintiff. Any such user would amount to infringement of plaintiff's proprietary rights in the said trade mark/label. The plaintiff CS (Comm) No. 280 of 2019. M/s Swatantra Gramudyog Sansthan v. Umesh Kumar. -:: Page 7 of 25 ::-
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has been in order to protect their trademark/label DHAMAL has filed a suit being Suit No. 7 of 2014 against one Aashish Chemicals which has been settled and the defendant has been restrained from using the impugned trademark/label DHAMAL.
9. It is further averred on behalf of the plaintiff that the defendant is also engaged in the same nature of business and is carrying on the trade and business of soaps and detergents, laundry detergent, powder laundry detergents and synthetic detergents for clothes and other allied and cognate goods (herein after referred to as impugned goods). The defendant has recently adopted DHAMAL (herein after referred to as impugned trademark/label) which is identical with and/or deceptively similar to the said trademark of the plaintiff and is alleged to have been used in the course of trade and business in relation to impugned goods. The plaintiff does not know the exact constitution of the defendant and their inter se relation with the other in collusion whereof he is engaged in the nefarious activity of infringement and passing off. The plaintiff seeks leave of the Court to amend the plaint after any disclosure made by the defendant. The defendant has adopted an identical trade mark/label which is so close to the trade mark/label of the plaintiff that one cannot differentiate and distinguish from the other. The defendant has made miniscule and facsimile changes in the impugned trademark/label by adding "super" which is petite and insignificant, which makes no difference at all as the prominent part of the impugned trademark/label of the defendant is DHAMAL. The defendant has also copied the entire artistic work and colour combination of the plaintiff. The plaintiff adopted CS (Comm) No. 280 of 2019. M/s Swatantra Gramudyog Sansthan v. Umesh Kumar. -:: Page 8 of 25 ::-
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the mark/label DHAMAL as a fancy adoption as no other trader was using or had registered or applied for registration of a same or similar trademark in respect of said goods. The motive of the defendant is to wrongfully usurp the plaintiff's mark as well as to trade upon the goodwill and reputation accrued to the plaintiff for the use of the said trademark.
10. It is further averred that the plaintiff has at all times zealously safe-
guarded and protected its trademark/label DHAMAL from unscrupulous persons like the defendant. The plaintiff adopts stringent quality control measures for making its goods acceptable in the market so that it can compete with the already existing numerous variants in the market. In such a scenario, the defendant can not be allowed to make similar goods under the same trademark/label over which the plaintiff does not have and in fact can not have any control as it will tarnish its well-established image and will also have a deterrent effect on its sales. The plaintiff states that one trader cannot use the trademark/label of another trader and that strict measures ought to be taken. The defendant has mischievously and deliberately adopted and/or copied the plaintiff's trademark/label DHAMAL which is identical/deceptively similar to the plaintiff's well- known trade mark/label DHAMAL and is being used for identical and/or similar goods/services viz. detergent powder and cake. The said trademark/label of the defendant is visually, phonetically and structurally identical to the plaintiff's trade mark/label DHAMAL. Not only the customers but also the dealers are being deceived by the trade mark/label DHAMAL of the defendant and are purchasing the same by presuming it to be trade mark/label DHAMAL of the plaintiff. The plaintiff CS (Comm) No. 280 of 2019. M/s Swatantra Gramudyog Sansthan v. Umesh Kumar. -:: Page 9 of 25 ::-
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categorically says that confusion and deception is arising at the first impression since goods of both the plaintiff and the defendant are same. Apart from the actual confusion and deception arising in the minds of the consumers, there exists greater degree of prospective confusion and deception due to the fact that the plaintiff's trade mark/label DHAMAL has accrued more distinctiveness and is a well-known one. For the sake of evidencing confusing, the rival trademarks/labels/packagings are juxtaposed herein below:
Plaintiff's Trademark/Label Defendant's Trademark/label DHAMAL (in devnagari) DHAMAL (in devnagari) prominently prominently displayed in red displayed in red letters wherein sound letters wherein sound DH DH and L in same line MA sound in and L in same line MA middle bit below to the alignment of sound in middle bit below to DH and L. A diamond shape device the alignment of DH and L. above MA sound. Detergent Powder in A diamond shape device red letters in yellow background, above MA sound. Detergent prominence of blue colour in over all Powder in red letters in packaging, sliced lemon and tiny yellow background, flowery devices in the lower part of the prominence of blue colour packaging. Except 'super' in petite font in over all packaging, sliced above MA sound everything on the lemon and tiny flowery packaging including words and devices devices in the lower part of have been copied in exactitude. the packaging.
CS (Comm) No. 280 of 2019. M/s Swatantra Gramudyog Sansthan v. Umesh Kumar. -:: Page 10 of 25 ::-
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DHAMAL prominently DHAMAL prominently displayed in red displayed in red letters letters wherein sound DH and L in wherein sound DH and L in same line MA sound in middle bit same line MA sound in below to the alignment of DH and L. A middle bit below to the diamond shape device above MA alignment of DH and L. A sound. Detergent Powder in red letters diamond shape device above in yellow background, prominence of MA sound. Detergent blue colour in over all packaging, a Powder in red letters in white box type device in bottom left and yellow background, other two tiny devices above the white prominence of blue colour box, except a tiny 'super' above sound in over all packaging, a DH, the copy is in exactitude. white box type device in bottom left and other two tiny devices above the white box.
11. It is further averred in the plaint that the misrepresentation made by the defendant is of such nature as it is likely to cause confusion not only to an ordinary consumer but also to the dealers and distributors. The probability of confusion and deception is very high due to identity of not only trademark/label but also goods in question. In the instant case, since two similar products of the same name and similar nature are involved, confusion between the plaintiff's product and the defendant's product is inevitable, which may prove hazardous to human life. Stringent measures should be adopted in the instant case where products of human use are CS (Comm) No. 280 of 2019. M/s Swatantra Gramudyog Sansthan v. Umesh Kumar. -:: Page 11 of 25 ::-
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involved. Immense reputation and goodwill is attached to plaintiff's trade mark/label DHAMAL and the same is distinctive in respect of its impugned goods/services. Under such circumstances, the use of the impugned trade mark/label DHAMAL by the defendant in relation to impugned goods would certainly lead to deception, for the public are likely to buy the defendant's products under its infringing trade mark/label DHAMAL, believing the same to be originating from the plaintiff's source in some way or the other.
12. It is further averred that the plaintiff is the prior adopter, user and registered proprietor of the trade mark/label DHAMAL. It is an admitted position that the defendant is subsequent to adopt the trade mark/label DHAMAL as the defendant has filed a trademark application under no. 4309495 in class 3 on 01.10.2019 falsely claiming user since 2017. The defendant is fully aware of the goodwill and reputation enjoyed by the plaintiff in respect of its trade mark/label DHAMAL. It is clear that the defendant adopted the impugned trademark/label only to deceive the public and make them believe that the defendant's products are the products of the plaintiff sold under the reputed trade mark/label DHAMAL or it is connected thereto and the same is probable as the defendant has been the distributor of the plaintiff. The defendant is not entitled to represent its goods as the goods of the plaintiff and the defendant is not permitted to use plaintiff's trade mark/label DHAMAL. Apart from making a direct false representation itself to a purchaser/dealer who purchases the products from the defendant to sell the same to customers, the defendant is enabling such purchaser to tell a lie or to make CS (Comm) No. 280 of 2019. M/s Swatantra Gramudyog Sansthan v. Umesh Kumar. -:: Page 12 of 25 ::-
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a false representation to the ultimate customer. The defendant has, appropriated the plaintiff's reputed trademark/label for similar/identical goods with no other intention but to cause confusion and deception in the minds of purchasers and to infringe the registered trademark and copyright of the plaintiff and pass-off their inferior quality goods as and for those of the plaintiff's. The defendant, in order to take advantage and to encash upon the goodwill and reputation of the said well-known registered trade mark/label DHAMAL of the plaintiff, has adopted and is using an identical trademark/label to sail close to the plaintiff and therefore, the defendant purported to adopt and use the plaintiff's trade mark/label DHAMAL only to defraud and deceive. The said illegal acts by the defendant is amounting to infringement and passing off. The plaintiff has suffered damage and injury due to the use of trade mark/label DHAMAL by the defendant. The defendant has or had no valid reason and/or justification whatsoever to adopt the plaintiff's trademark/label for impugned products. The defendant has purportedly adopted and is using the said plaintiff's trademark only to defraud and deceive. As such and even otherwise, the defendant is not entitled and in fact cannot be permitted at any cost to use the trade mark/label DHAMAL or any other trademark/label, which resembles the plaintiff's trade mark/label DHAMAL because the defendant has no connection with the plaintiff. The defendant is not entitled to use the plaintiff's trade mark/label DHAMAL or any other marks/labels which so resembles the plaintiff's trade mark/label DHAMAL so as to represent and suggest that their business or products are associated with the plaintiff's. The use of the plaintiff's trademark/label by the defendant has caused confusion among CS (Comm) No. 280 of 2019. M/s Swatantra Gramudyog Sansthan v. Umesh Kumar. -:: Page 13 of 25 ::-
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the public. The use of the plaintiff's trade mark/label DHAMAL by the plaintiff as their trademark for goods of similar description is devious, slanted, suggestive and self-serving. The defendant invaded and/or threatens to invade the right of the plaintiff to exclusively use of the trade mark/label DHAMAL in relation to impugned goods. For selling its products, the plaintiff uses a unique colour combination for its distinctive packaging with a particular kind of get-up wherein its trade mark/label DHAMAL is written in a stylized manner. Thus the plaintiff is the owner of the copyright in the said artistic work, because of its unique and distinctive label, its goods are identified with the plaintiff only. By their impugned adoption and use of the impugned trade mark/label/packaging/trade dress, the defendant is infringing plaintiff's registered trade mark, copy right, passing off and are enabling others to pass off their impugned goods as that of the plaintiff's. The defendant is thus also violating plaintiff's proprietary rights and are diluting plaintiff's trademark and copyright. The defendant cannot even be exonerated from the charges of falsification, unfair and unethical trade practices. The facts and circumstances brought and placed on record clearly establish that the impugned adoption and user by the defendant is improper, sinister, ill motivated, dishonest and fraudulent and the defendant by such questionable adoption and user is disseminating deception and confusion in the markets, business and trade amounting, inter-alia, to passing off and infringement. The plaintiff is suffering huge losses both in business and reputation. The losses being suffered by the plaintiff is incapable of being assessed in monetary terms. Defendant's gains are the plaintiff's losses. Unwary purchasers are being deceived as to the origin of goods. The CS (Comm) No. 280 of 2019. M/s Swatantra Gramudyog Sansthan v. Umesh Kumar. -:: Page 14 of 25 ::-
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defendant is called upon to explain as to how it hit upon the impugned trade mark/label/packaging/trade dress. The defendant is liable to render their full account to the plaintiff for ascertainment of profits earned by the defendant by their impugned activities and payment thereof to the plaintiff. The damage caused to the plaintiff is incalculable. However, damages alone would not be an adequate remedy, as injury is being caused to the plaintiff's reputation and goodwill. The defendant is carrying out the impugned trade and business in clandestine and surreptitious manner and selling the goods without issuing proper bills. Hence, the necessity for an order of permanent injunction to be passed by this Court besides other reliefs as prayed for by the plaintiff. The defendant's act of copying the impugned trademark and copyright in verbatim speaks in volume and is motivated by earning illegally on the goodwill and reputation of the plaintiff and hence the efficacious remedy warrants an ex-parte injunction followed by appointment of local commissioner else the defendant may erase and destroy the goods under the impugned trademark/label and falsify their involvement in the impugned activity. The said acts of the defendant not only constitute misrepresentation but also lead to misappropriation of goodwill and reputation that vest exclusively with the plaintiff and undoubtedly results in blurring. It is trite in law that the test of comparison to be adopted in a case of trademark infringement is one of man of average intelligence and imperfect recollection wherein the marks are not compared side-to-side inasmuch as a customer will seldom have the two marks together before him/her. In the context of the present case, the confusion will be immense when a customer will search for the plaintiff products, and the results will be CS (Comm) No. 280 of 2019. M/s Swatantra Gramudyog Sansthan v. Umesh Kumar. -:: Page 15 of 25 ::-
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either the products of the plaintiff or of the defendants or both together which will lead to the inference that the two are of the same origin. The eye is not an accurate recorder of every single detail and the mind will only remember the most significant detail of a mark. A consumer is always presumed to be an average person with imperfect recollection and owing to the similarity between the trademark the trademark of the plaintiff and that of the defendant, an average person will only remember the significant part of the plaintiff's trademark and the confusion will be significant when trademark/label DHAMAL of the plaintiff and impugned trademark/label DHAMAL of the defendant are displayed together and distinction between the two will be impossible. The proliferation of any identical/deceptively similar marks would lead to complete tarnishment of the plaintiff's goodwill which would be irreparable and un-compensable in the form of damages. The intentions of the defendants are to ride piggy back on the success of the plaintiffs' services. Blurring and confusing of the plaintiffs' services with that of the defendant will enormously prejudice the time and effort expended by the plaintiff to establish itself in the relevant market. The credentials of the defendant's business are extremely suspicious and do not inspire any confidence and is in fact causing harm and injury to the legitimate business activities of the plaintiff.
13. To establish dilution (a) the plaintiff has to merely show that the mark enjoys substantial reputation in India; (b) the impugned mark is identical/deceptively similar; (c) the goods are either identical or similar/allied/cognate/related or there is an identical trade channel. In the CS (Comm) No. 280 of 2019. M/s Swatantra Gramudyog Sansthan v. Umesh Kumar. -:: Page 16 of 25 ::-
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present case, the tests on dilution enshrined under section 29 of the TM Act stand satisfied. Such acts of unfair competition are also liable to be injuncted. The plaintiff became aware of the adoption and use of the impugned trademark of the defendant when the marketing people of the plaintiff came across the identical packaging in the market in the first week of November, 2019. The plaintiff also caused a search on the website of the Trade Marks Registry and found that the defendant has recently filed a trademark application under no. 4309495 in class 3 for the impugned trademark/label on 01.10.2019. The adoption is malafide and in exactitude and in contravention of statutory and common law rights of the plaintiff in the said trademarks/label.
14. The cause of action for instituting the instant suit first accrued in favour of the plaintiff when it came to know from the marketing people about the impugned adoption on encounter of the impugned product bearing the identical trademark/label in the first week of November, 2019. The cause of action further arose against the defendant when the plaintiff found by online search on the website of the Trade Marks Registry about the adoption of the impugned trademark/label and filing of trademark application for the registration of the impugned trademark/label. It further accrued when the plaintiff came to know that the defendant is continuing to use the same openly and brazenly without any permission, license or authority from the plaintiff on the pan-India basis wherein the plaintiff is already present. The cause of action is a continuing one and arise each time the defendant's goods under the infringing trade mark/label DHAMAL is offered for sale or is actually sold anywhere.
CS (Comm) No. 280 of 2019. M/s Swatantra Gramudyog Sansthan v. Umesh Kumar. -:: Page 17 of 25 ::-
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15. The case and claim of the plaintiff has been elaborated in the paragraphs numbers 1 to 23 of the plaint and the role and misconduct of the defendant has been elaborated in paragraphs numbers 24 to 26 of the plaint. The main grievance of the plaintiff is voiced in paragraphs numbers 27 to 31. of the plaint. The cause of action and the jurisdiction (territorial and pecuniary) have been detailed in in paragraphs numbers 32, 33 and 34 respectively of the plaint.
16. The plaintiff, in its prayer in the plaint, has prayed for :
A. a decree of permanent injunction restraining the de-
fendant by themselves as also through their individual part- ners/proprietors, directors, agents, representatives, distribu- tors, assigns, stockiest etc., and all others acting for and on behalf of the defendant from manufacturing, selling, using, displaying, advertising, importing/exporting or by any other mode or manner dealing with the impugned trademark/ la- bel/ packaging/ trade dress DHAMAL or any other trade mark/label/packaging/trade dress identical with or decep- tively similar to the Plaintiff's said well known trademark/ label/ packaging/ trade dress of DHAMAL in relation to the impugned goods namely soaps and detergents, laundry detergent, powder laundry detergents and synthetic detergents for clothes and other allied and cognate goods or in relation to any other goods/products and/or services or from doing any other acts or deeds amounting to:
CS (Comm) No. 280 of 2019. M/s Swatantra Gramudyog Sansthan v. Umesh Kumar. -:: Page 18 of 25 ::-
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i. infringement of plaintiff's said well known trade-
mark/label DHAMAL;
ii. passing off or otherwise violation by way of passing off impugned goods of the defendant as the said goods of the plaintiff under the impugned trade-
mark/label DHAMAL which is replica of the well known trademark/label of DHAMAL of the plaintiff;
iii. infringement of plaintiff's copyrights in the artistic
work involved in plaintiff's well known
trademark/label/packaging/trade dress of
DHAMAL;
B. for an order for delivery up of all the impugned finished and unfinished material of the defendant bearing the impugned trademark/ label DHAMAL including any other trade mark/la- bel identical with and deceptively similar to it including blocks and labels, display boards, sign boards, trade literature, adver- tisement material etc. to the Plaintiff for purposes of destruc- tion/erasure;
C. for an order for rendition of accounts of profits earned by the defendant by their impugned illegal trade activities and a decree for the amount so found in favour of the plaintiff on such rendition of accounts.
D. For an order for damages and costs of the proceedings; and CS (Comm) No. 280 of 2019. M/s Swatantra Gramudyog Sansthan v. Umesh Kumar. -:: Page 19 of 25 ::-
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E. For such other and further relief(s) as this Court may deem fit and proper in the facts and circumstances of this case.
17. Vide order dated 09.12.2019, the ex parte injunction was granted in favour of the plaintiff and a local commissioner was appointed to visit the premises of the defendant. Matter was listed for issuance of summons and notice of the application XXXIX rules 1 and 2 read with section 151 of the CPC to the defendant for 16.01.2020.
18. On 04.03.2020, Ms. Jyoti Kasana, Advocate had appeared on behalf of defendant and had filed the power of attorney (vakalatnama) on behalf of defendant. The matter was adjourned for appearance of AR of the plaintiff and defendant for the purpose of settlement, if any in the alternative for filing of the written statement and reply and arguments on the application under order 39 rules 1 and 2 read with section 151 of the CPC for 31.03.2020.
19. The case was adjourned en-block several times due to the pandemic because of the spread of Corona Cirus Covid-19.
20. On 12.10.2020 the defendant was proceeded ex-parte and matter was adjourned for ex-parte evidence by way of affidavit.
21. On 23.01.2021 (between dates), the plaintiff had filed the evidence by way of affidavit of Mr. Abhinav Shukla, PW-1. On several dates, the plaintiff's witness had not appeared and the matter was CS (Comm) No. 280 of 2019. M/s Swatantra Gramudyog Sansthan v. Umesh Kumar. -:: Page 20 of 25 ::-
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adjourned for ex-parte evidence.
22. On 07.03.2022, the counsel for the plaintiff had filed the certificates of memo of fees and memo of expenses respectively.
23. The ex parte evidence has not been recorded, as elaborated in the order dated 07.03.2022, in terms of the judgments of the hon'ble High Court of Delhi in 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. It was observed therein 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 straightaway and the judgment is to be passed on the basis of the material on record.
24. I have heard the arguments at length and have given my careful thought and prolonged consideration to the material on record, relevant provisions of law and the precedents on the point.
25. The copies of legal proceeding certificates have been already been filed on 01.07.2022.
CS (Comm) No. 280 of 2019. M/s Swatantra Gramudyog Sansthan v. Umesh Kumar. -:: Page 21 of 25 ::-
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26. I have also carefully perused the certificate of fees which is for an amount of Rupees Two Lacs and Thirty Thousand only (Rs.2,30,000/-) and the certificate of expenses which is for an amount of Rupees One Lac and Twenty Seven Thousand only (Rs.1,27,0000/-).
27. The defendant, being ex parte, has not filed his written statement along with statement of truth, affidavit of admission and denial of documents as well as his own documents within the stipulated period of 30 days from its service and even upto 120 days from the date of his service along with an application for condonation of delay.
28. The averments made in the plaint (which is supported with the affidavit and statement of truth) remain uncontroverted, unrebutted and unchallenged and can be presumed to be admitted as correct, as the defendant, who is ex parte, failed to appear before the Court, failed to file his written statement along with statement of truth, affidavit of admission and denial of documents of the plaintiff and failed to file his own documents as well as any application for condonation of delay within the stipulated period from the date of its service. The defendant has failed to contest the case or put up any defence.
29. As such, the Court shall be within its discretion to pronounce the judgment against such defendant which is as per law under order VIII rule 10 of the CPC which reads as follows:
"In case the defendant fails to present the written statement within the time permitted or fixed by the Court, the court shall pronounce judgment and on the pronouncement of such CS (Comm) No. 280 of 2019. M/s Swatantra Gramudyog Sansthan v. Umesh Kumar. -:: Page 22 of 25 ::-
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judgment a decree shall be drawn".
30. There is no reason to disbelieve the averments made in the plaint and the relevant documents which have been filed along with the plaint. The contents of the plaint and documents on record appear to be of an unimpeachable character. This appears to be a clear case of negligence and inaction on part of the defendant as it failed to appear before the Court despite due service and contest the case.
31. The averments made in the plaint remain uncontroverted, unrebutted and unchallenged as the defendant, which is ex parte, failed to appear before the Court and contest the case. All the relevant documents have been filed along the plaint.
32. As regards the prayer elaborated in paragraph number 41 (A) and (B) of the plaint, the plaintiff has been able to show with the contents of the plaint, documents annexed, video etc. that it is entitled to a decree of permanent and mandatory injunction.
33. As regards the prayer elaborated in paragraph number 41 (D) of the plaint, the cost of the proceeding i.e. attorney fees and expenses of the suit are being taken into consideration.
34. As regards the prayer elaborated in paragraph number 41 (C) of the plaint regarding rendition of accounts of profits earned by the defendant are concerned, the same is not pressed and has been disposed off accordingly, as CS (Comm) No. 280 of 2019. M/s Swatantra Gramudyog Sansthan v. Umesh Kumar. -:: Page 23 of 25 ::-
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elaborated in today's order sheet i.e. 04.07.2022.
35. Consequently, this commercial case is hereby decreed in favour of the plaintiff and against the defendant in terms of the prayer, as elaborated in paragraph number 41 (A) and (B) of the instant suit.
36. Further, as regards the costs and expenses, in terms of the prayer, as elaborated in paragraph number 41 (D) of the plaint, as the plaintiff has filed the certificate of fees and the certificate of expenses, the same are being taken into consideration and the defendant is also liable to pay the same to the plaintiff.
37. Further, towards the costs and expenses, as the certificate of fees for an amount of Rupees Two lacs and Thirty Thousand (Rs.2,30,000/-) has been filed on behalf of the plaintiff, the defendant is also liable to pay the fees of the counsel for the plaintiff, as per the provisions regarding the fees of the counsel, as provided in the High Court of Delhi Rules.
38. Also, towards the costs and expenses, as the certificate of expenses for an amount of Rupees One Lac and Twenty Seven Thousand only (Rs.1,27,0000/-) has been filed by the plaintiff, the defendant is also liable to pay the same i.e. Rupees One Lac and Twenty Seven Thousand only (Rs.1,27,0000/-).
39. Accordingly, the case is hereby decreed in favour of the plaintiff and against the defendant in terms of the prayer, as elaborated in paragraph CS (Comm) No. 280 of 2019. M/s Swatantra Gramudyog Sansthan v. Umesh Kumar. -:: Page 24 of 25 ::-
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number 41 (A) and (B) of the instant suit; along with costs and expenses i.e. the fees of the counsel for the plaintiff, as provided in the High Court of Delhi Rules as well as Rupees One Lac and Twenty Seven Thousand only (Rs.1,27,0000/-).
40. The defendant is liable to make the payment of the above stated amounts in favour of the plaintiff.
41. The decree sheet be prepared accordingly. The prayer, as elaborated in paragraph number 41 (A) and (B) of the instant suit shall also be part of the decree sheet.
42. In compliance to the provisions of Order XX Rule 1 of the Code of Civil Procedure (as amended up to date by the Commercial Courts Act, 2015), a copy of the judgment be issued to both the parties to the dispute through electronic mail, if the particulars of the same have been furnished or otherwise.
43. After completion of formalities, the Junior Judicial Assistant/Ahlmad of the Court shall consign the file to the record room.
Announced in the open Court (NIVEDITA ANIL SHARMA) on this 04th day of July, 2022. District Judge Commercial Court-01, Shahdara, Karkardooma Courts, Delhi. 04.07.2022.
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