Judgment:
35 $~ * + % IN THE HIGH COURT OF DELHI AT NEW DELHI CS(COMM) 1219/2018 & I.A. Nos. 15189/2018 AND151912018 SHRI VED PRAKASH GARG TRADING AS M/S PARUL FOOD PRODUCTS Through: Mr. Umesh Mishra, Advocate ..... Plaintiff versus M/S GURUDEV INDUSTRIES Through: None Date of Decision:
20. h December, 2018 ..... Defendant CORAM: HON'BLE MR. JUSTICE MANMOHAN JUDGMENT
MANMOHAN, J: (Oral) 1. It is pertinent to mention that the present suit has been filed for permanent injunction restraining infringement of trademark and passing off of trade mark, copyright, damages, delivery up, etc. The prayer clause is reproduced hereinbelow:-
"“32. It is, therefore, most respectfully prayed to this Hon‟ble Court that a decree be passed in favour of the plaintiff and against the defendant to the following effects:-
"(a) That this Hon‟ble Court may kindly be pleased to restrain the defendant, its proprietor, partners, associates, sister concerns, dealers, distributors, manufacturers through itself and through servants, agents, assigns and representatives and all others acting for and on its behalf from marketing, selling, offering for sale, CS(COMM) 1219/2018 Page 1 of 8 advertising directly and indirectly dealing in impuged goods included in Class-30 bearing the impugned trademark/label FREEFUN or any the trademark as may be identical with or deceptively similar to plaintiff‟s said trademark FUNFINE, which results I infringement of the said trademark of plaintiff. (b) That this Hon‟ble Court may kindly be pleased to restrain the defendant, its proprietor, partners, associates, sister concerns, dealers, distributors, manufacturers through itself and through servants, agents, assigns and representatives and all others acting for and on its behalf from marketing, selling, offering for sale, advertising directly and indirectly dealing in impugned goods included in Class-30 bearing the impugned trademark/label FREEFUN or any other trademark as may be identical with or deceptively similar to plaintiff‟s said trademark/label FUNFINE, which results in passing off of the said trademark/label of plaintiff. (c) That this Hon‟ble Court may kindly be pleased to restrain the defendant, its proprietor, partners, associates, sister concerns, dealers, distributors, manufacturers through itself and through servants, agents, assigns and representatives and all others acting for and on its behalf from marketing, selling, offering for sale, advertising directly and indirectly dealing in impugned goods included in Class-30 bearing the impugned trademark/label FREEFUN or any other artistic work as may be identical with or deceptively similar to plaintiff‟s said artistic work FUNFINE, which results in infringement of the said artistic work of plaintiff. (d) That this Hon‟ble Court may kindly be pleased to restrain the defendant, its proprietor, partners, associates, sister concerns, dealers, distributors, manufacturers through itself and through servants, agents, assigns and representatives and all others acting for and on its behalf from marketing, selling, offering for sale, advertising directly and indirectly dealing in impugned goods included in Class-30 bearing the impugned trademark/label FREEFUN or any other artistic work as may be identical with or deceptively similar to plaintiff‟s said artistic work FUNFINE, which results in passing off of said artistic work of plaintiff. CS(COMM) 1219/2018 Page 2 of 8 2. (e) For an order for delivery by the defendant to the plaintiff all the offending goods bearing the impugned trademark/label/artistic work including the packaging materials, advertising materials, publicity materials, stationery, account books and other incriminating materials under the possession and control of the defendant for destruction or erasure purposes. (f) Pass a decree of damages in favour of the plaintiff and against the defendant on account of loss to the business and reputation caused to the plaintiff by illegally and unlawfully using the trade mark/label/artistic work FUNLINE by the defendant. (g) for an order for costs of the proceedings in favour of the plaintiff and against the defendant. (h) Pass such other or further orders as this Hon‟ble Court may deem fit and proper in the facts and circumstances of the preent case.” Vide order dated 02nd November, 2018, this Court granted an ex parte ad interim injunction in favour of the plaintiff and against the defendant. The relevant portion of the ex-parte injunction order is reproduced hereinbelow:-
"till further orders, the defendant, “Consequently, its proprietors, partners, agents, assigns, representatives, heirs, servants, dealers, distributors, manufacturers, franchisees and/or anyone acting for and on its behalf are restrained from using the impugned trademark/label/artistic work other trademark/label/artistic or deceptively/confusingly registered trademark/label/artistic work FUNFINE, in any manner whatsoever.” work, similar the plaintiff‟s identical FREEFUN or any which is to 3. On 02nd November, 2018, this Court also appointed a Local Commissioner. During the execution of the local commission, the defendant was found to be infringing the plaintiff’s trademark and was found in possession of 2472 infringing products and 2 infringing packaging rolls. The relevant portions of the Local Commissioner’s report is reproduced hereinbelow:-
"CS(COMM) 1219/2018 Page 3 of 8 “6. After inspecting the entire premises, the undersigned proceeded to seal the infringing goods i.e. Puff Packets and Packaging Rolls bearing the trademark/label – “FREEFUN” which were found in the Defendant‟s premises. The undersigned prepared an Inventory after counting the infringing goods, and sealed them in White-coloured sacks, in the presence of the representatives of the Plaintiff, Mr. Achal Jain, and the Police officials. A total number of 2472 Puff Packets and 2 Packaging Rolls bearing the mark “FREEFUN” were sealed in 5 separate sacks, each sack marked and signed by the undersigned. (Typed Copy of the Inventory is annexed herewith as ANNEXURE-C). Serial No.xxx xxx xxx the Quantity of the infringing goods Remarks the the of Details Package containing infringing goods FREEFUN Puffs (Sack marked as „FF-1‟) FREEFUN Puffs (Sack marked as „FF-2‟) FREEFUN Puffs (Sack marked as „FF-3‟) FREEFUN Packaging Label Roll (Sack marked as „FF-4‟) FREEFUN Puffs (Sack marked as „FF-5‟) Description of infringing goods Puff Packets Puff Packets Puff Packets Packaging Rolls Puff Packets 1.
2. 3.
4.
5. 72 x 12 = 864 72 x 12 = 864 72 x 8 = 576 2 24 x 7 = 168 Total:
2472. Packets & 2 Packaging Rolls CS(COMM) 1219/2018 Page 4 of 8 4. Since despite service of the injunction order by the Local Commissioner, the defendant has not entered appearance nor filed a written statement. Consequently it was proceeded ex-parte yesterday.
5. At the outset, learned counsel for plaintiff gives up prayers in prayer 32 (e) and (f) of the plaint. The statement made by learned counsel for plaintiff is accepted by this Court and the plaintiff is held bound by the same.
6. This Court is of the view that the present suit can be disposed of without any further delay. A Coordinate Bench of this Court in Satya Infrastructure Ltd. and Ors. Vs. Satya Infra & Estates Pvt. Ltd., 2013 SCC OnLine Del 508 has held as under:-
"“I am of the opinion that no purpose will be served in such cases by directing the plaintiffs to lead ex parte evidence in the form of affidavit by way of examination-in-chief and which invariably is a repetition of the contents of the plaint. The plaint otherwise, as per the amended CPC, besides being verified, is also supported by affidavits of the plaintiffs. I fail to fathom any reason for according any additional sanctity to the affidavit by way of examination-in-chief than to the affidavit in support of the plaint or to any exhibit marks being put on the documents which have been filed by the plaintiffs and are already on record. I have therefore heard the counsel for the plaintiffs on merits qua the relief of injunction.” The relevant facts of the present case as set out in the plaint are:-
"7. i. The plaintiff is engaged in the business of manufacturing and marketing of puffs, namkeen, biscuits, rusk, chips and confectionary goods since 2005 under the mark FUNFINE. ii. The plaintiff conceived and adopted the trademark/label/artistic work FUNFINE in 2005 and has since been continuously, extensively and openly using the same. CS(COMM) 1219/2018 Page 5 of 8 iii. The plaintiff is the registered proprietor of the trademark FUNFINE under Class 30 of the Trade Marks Act, 1999 and has several applications for other formative FUNFINE marks pending. iv. The plaintiff has been using the artistic work FUNFINE, having unique colour combination, layout and lettering style since 2005 and the same amounts to an “original artistic work” within the meaning of Section 2(c) of the Copyright Act, 1957. The plaintiff is the registered proprietor of the original artistic works FUNFIN and is entitled to copyright protection under the provisions of Section 14 of the Copyright Act, 1957. v. The annual sales generated by the plaintiff in the financial year 2017-18 was Rs. 13,88,74,144.07/-. vi. In the third week of October, 2018, in the course of a routine market survey in Delhi and NCR, the plaintiff’s sales person discovered the defendant’s puff packet bearing the trademark/label FREEFUN, the packaging bearing a mark/label identical to that of the plaintiff’s trademark/label FUNFINE along with lettering style and overall trade dress of the product. The defendant is a proprietorship firm, which conducts business on a large scale and the defendants’ products are available in Delhi as well. A pictorial representation of the plaintiff’s and defendants’ goods is reproduced herein below:-
"CS(COMM) 1219/2018 Page 6 of 8 vii. The defendant’s trademark/label/artistic work FREEFUN is identical/ deceptively similar to that of the plaintiff’s trademark/label/artistic work FUNFINE and is likely to cause confusion and/or deception in the minds of the consumers that the defendant’s products originate from the plaintiff. The defendant has adopted an identical/ deceptively similar trademark/label/artistic work FREEFUN to that of the plaintiff’s to take advantage of the goodwill and reputation of the plaintiff. CS(COMM) 1219/2018 Page 7 of 8 8. This Court is of the view that the plaintiff is the prior user and prior registered proprietor of the trademark/label/artistic work FUNFINE and due to extensive use, the plaintiff’s trademark/label/artistic work FUNFINE has acquired reputation and goodwill in India.
9. In the opinion of this Court, the defendant has no real prospect of defending the claim, as they have not entered appearance nor filed a written statement. Moreover, as the defendants are selling products bearing the trademark/label/artistic work FREEFUN which is identical/ deceptively similar to that of the plaintiff’s trademark/label/artistic work FUNFINE as is apparent from the report of the Local Commissioner on record, it is a clear case of infringement of the plaintiffs’ registered trade mark/trade dress/ get-up/colour combination.
10. In view of the above, the present suit is decreed in favour of the plaintiff and against the defendant in accordance with paragraph 32 (a) to (d) of the prayer clause of the present plaint along with actual cost and court-fees paid. The costs shall amongst others include lawyers’ fees as well as the amounts spent on purchasing the Court-fees. The defendant is directed to hand over infringing goods seized by the Local Commissioner to the plaintiff for destruction within 14 days of passing the order. Registry is directed to prepare a decree sheet accordingly. Consequently, the present suit and application stand disposed of. DECEMBER20 2018 mn/js MANMOHAN, J CS(COMM) 1219/2018 Page 8 of 8