IN THE HIGH COURT OF DELHI AT NEW DELHI
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Date of Decision: 09.01.2018
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CS(OS) 3837/2014
M/S ADITYA BIRLA NUVO LIMITED .....
Plaintiff
Through Mr.Ajay Amitabh Suman, Mr.Pankaj
Kumar, Mr.Kapil Giri, Mr.Vinay
Shukla and Mr.S.K.Bansal, Advs.
versus
MR.SANWAR LAI AJMERA ALIAS MANISH & ORS.
....... Defendants
Through
None.
CORAM:
HON’BLE MR. JUSTICE JAYANT NATH
JAYANT NATH, J. (ORAL)
1.
This suit is filed by the
plaintiff seeking a decree of permanent injunction to restrain the defendants,
etc. from manufacturing, marketing, purveying, supplying, exporting, selling,
offering for sale or dealing in readymade clothing and other allied/related
products etc. under the trade mark/label PETER ENGLAND or any other mark
identical or deceptively
similar to the plaintiff’s aforesaid trade mark. Other connected reliefs
are also sought regarding the said trademarks/label PETER ENGLAND.
2.
It is averred that plaintiff was
incorporated on 26.09.1956 under the name and style of M/s Indian Rayon Corporation
limited. Subsequent to this on 23.01.1987 the name was again changed to M\s
Indian rayon industries limited. Finally, on 27.10.2005 the plaintiff adopted
the present name of the company i.e M/S Aditya Birla Nuvo Limited having its
registered situated at
CS(OS) 3837/2014 Page 1 of 4
Indian Rayon Compound, Veraval 362266, Gujarat,
India. It was also averred that plaintiff is acting through its division in the
present suit namely, Madura Fashion & Lifestyle. It is relevant to mention
here that vide order dated 25.02.2016 in an application being I.A no. 2641/2016
the court permitted and allowed the name of plaintiff to be substituted as
Aditya Birla Fashion & Retail Limited.
3.
On 07.04.2015 this court noted
that the defendants have been served. The said defendants have neither entered
appearance not have they filed their Written statements. Accordingly, they were
proceeded ex-parte and an injunction order was also grant against the
defendants.
4.
In the plaint, it is pleaded by
the plaintiff that it adopted the trademark PETER ENGLAND in the year 1889. The
plaintiff has been using the said trade mark/label/trade name in relation to
its goods and business since 1997 and has built up a valuable trade, goodwill
and reputation. Plaintiff has the registered trademark PETER ENGLAND since
1995. Plaintiff has also registration of the said trademark in respect of other
classes details of which are being given at para 7 of the plaint.
5.
Hence, it is the case of the
plaintiff that the trademark PETER ENGLAND have acquired distinctive character
and is capable of distinguishing goods sold and manufactured by the plaintiff.
The artwork involved in this trademark/label is the original art work of the
plaintiff and is duly protected under the copyright act. Thus, it is pleaded
that the plaintiff has the sole and exclusive right to use the said
trademark/label/trade dress, etc. Reliance is also placed on various injunction
orders passed in favour of plaintiff.
6.
It is pleaded by the plaintiff that in the month of
May, 2014, the
CS(OS) 3837/2014 Page 2 of 4
plaintiff came to know that the defendants are
manufacturing and marketing goods being readymade garments under the identical
trade mark PETER ENGLAND written in identical manner with identical colour
scheme as that of the plaintiff in Bhilwara (Rajasthan). It is also stated that
the defendants have used the said trade mark/label which is an essential
feature of the registered trade mark of the plaintiff as detailed above and
infringed the trade mark PETER ENGLAND (Label). Hence, the present suit.
7.
It is also pleaded by the
plaintiff that as soon as they learnt about the defendants’ illegal activities
a criminal complaint was filed and FIR was lodged. Raids were conducted at
defendants’ premises at Bhilwara where
huge quantity of goods were seized from the
premises of the defendants bearing the impugned trademark/label PETER ENGLAND.
The plaintiff now claims punitive damages of Rs.20,00,000/- against the
defendants.
8.
The plaintiff led ex-parte
evidence and examined Mr. Rishi Bansal as PW-1 who has reiterated the
submissions as stated in the plaint. The power of attorney in his favour is
marked as PW-1/13. Copies of applications filed before trademark registry is
marked as PW-1/3. True representation of plaintiff’s trademark is marked as
PW1/2. The copies of the trade mark registration certificates of the plaintiff
is marked as PW-1/3. The sales and advertisement figures of the plaintiff is
marked as PW-1/7. The documents pertaining to the criminal proceedings in Bhilwara
is marked as PW-1/8.
9.
Even otherwise, defendant Nos. 1,
2 and 3 have not appeared in the matter and neither have filed any written
statement. The pleas, of the plaintiff stands uncontested and un-rebutted.
10.
It is quite clear that on account
of a prior user of the trade mark PETER ENGLAND and the goodwill generated by
the plaintiff on account
CS(OS) 3837/2014 Page 3 of 4
of extensive user, the plaintiff has common law
rights in the said trade mark. The plaintiff also has statutory rights in the
said trade mark. The action of defendants No.1, 2 and 3 in trying to sell
garments, cloth, etc. using the said trade mark is clearly in violation of the
rights of the plaintiff.
11.
Learned counsel for the plaintiff
has stressed that this court may award punitive damages to the plaintiff. It
has been pleaded that a decree of damages to the tune of Rs.20,01,000/- be
passed. Reliance is placed on a seizure report to submit that more than
20,000/- meters of cloth bearing the
trademark ‘Peter England’ has been seized. The
product of the defendant was of inferior quality and tarnished the goodwill and
reputation of the plaintiff. Reliance is also placed on the judgment of this
Court in Time Incorporated v. Lokesh Srivastava &
Anr., 2005 (30) PTC 3 (Delhi).
12.
Keeping in view the conduct of
the defendant, in my opinion, it is a fit case to grant punitive damages
amounting to Rs.5 lacs in favour of the plaintiff and against the defendant.
13.
Accordingly, the suit is decreed
in favour of the plaintiff and against Defendant Nos. 1, 2 and 3 in terms of
prayer 31(a) of the plaint. A decree is also passed in favour of the plaintiff
and against the defendants for a sum of Rs.5 lacs. The plaintiff shall also be
entitled to costs.
14.
The suit stands disposed of.
(JAYANT
NATH)
JUDGE
JANUARY 9, 2018
Twinkle
corrected & released on 30.07.2018.
CS(OS) 3837/2014 Page 4 of 4
