GUINESS WORLD RECORDS LIMITED Vs SABABBI MANGAL

IN THE HIGH COURT OF DELHI AT NEW DELHI
+	CS(OS) No.1180/2011 & connected matters
%			15th February, 2016
1.	CS(OS) No.1180/2011
GUINESS WORLD RECORDS LIMITED			..... Plaintiff
	Through:	Ms. Kripa Pandit, Advocate with Mr.
		Chander M. Lall, Advocate.
	versus
SABABBI MANGAL			..... Defendant
	Through:	Mr. Pankaj Agarwal, Advocate.

2. CS(OS) No.1438/2009
THE ECONOMIST NEWSPAPER LIMITED	..... Plaintiff
Through: Mr. Manav Kumar, Advocate.
versus
MR. SHIV HARIT	..... Defendant
Through:

3.	CS(OS) No.2599/2010
PEPSICO, INC AND ORS.		..... Plaintiffs
	Through:	Mr. Dheeraj Nair, Advocate with Mr.
		Kunal Mimani, Advocate.

versus

DUGAR SPICES AND EATABLES (P) LTD. AND ORS. ..... Defendants

Through:

CS(OS) No.550/2008 & conn. matters Page 1 of 15

4. CS(OS) No.2903/2012
DHANANJAY K THECKEDATH AND ANR.		..... Plaintiffs
Through:	Ms. Sarita Rout, Advocate.
versus
SANJAY SHARMA AND ANR.		..... Defendants
Through:	Mr. Umesh Mishra, Advocate.

5.TR. P. (C) No.1/2016

M/S NAV JAGRITI NIKETAN EDUCATION SOCIETY ..... Petitioner Through: Mr. S. K. Bansal, Advocate with Mr.

Ajay Amitabh Suman, Advocate.

versus

DELHI INTERNATIONAL SCHOOL AND OTHERS .....Respondents Through: Mr. Shailen Bhatia, Advocate with

Mr. Arun Kumar Jha, Advocate. Mr. Aman Sinha, Advocate with Mr. Sanjai Pathak, Advocate and Mr. Pravesh Thakur, Advocate for respondent No.2.

6. CS(OS) No.865/2012
GODFREY PHILLIPS INDIA LTD		..... Plaintiff
Through:	Ms. Namrita Kochhar, Advocate.
versus
DHARAMPAL SATYAPAL LTD AND ANR.		..... Defendants
Through:	Mr. Bishwajit Dubey, Advocate with
	Ms. Surabhi Khattar, Advocate.

7.CS(OS) No.2342/2010

CS(OS) No.550/2008 & conn. matters

Page 2 of 15

MUZAMMIL REHMAN	..... Plaintiff
Through:	Mr. S. K. Bansal, Advocate with Mr.
	Ajay Amitabh Suman, Advocate.

versus

M/S J WALTER THOMPSON COMPANY LIMITED (J.W.T) AND

OTHERS		..... Defendants
	Through:	Mr. Prashant Mehra, Advocate for
		defendant No.1.
		Mr. Ankur Gupta, Advocate for
		defendant No.2.
		Mr. Pravin Anand, Advocate with Ms.
		Vaishali Mittal, Advocate and Ms.
		Prachi Agarwal, Advocate for
		defendant No.3.
8.	CS(OS) No.550/2008
MARICO LTD.		..... Plaintiff
	Through:	Mr. Zeeshan Khan, Advocate.
	versus
DIVINE PHARMACEUTICALS		..... Defendant
	Through:

CORAM:

HON’BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

Yes

VALMIKI J. MEHTA, J (ORAL)

CS(OS) Nos. 1180/2011, 1438/2009, 2599/2010, 2903/2012, 865/2012, 2342/2010 & 550/2008

CS(OS) No.550/2008 & conn. matters

Page 3 of 15

(underlining added)

1. Irrespective of the reason why each individual suit or transfer petition or pending amendment application seeking enhancement of pecuniary jurisdiction is listed before this Court, the issue to be decided by this Court is the interpretation of the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 (in short the Act of 2015) when it uses the expression “filed or pending” in the first proviso of Section 7 thereof. The issue is that whether the expression

“filed or pending” means that this Court will entertain all pending matters even though this Court does not have pecuniary jurisdiction to entertain the suit.

2. The Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Ordinance, 2015 (Ordinance, 2015) came into effect from 23.10.2015. Section 7 and the first proviso to Section 7 of the Ordinance, 2015 read as under:

“All suits and applications relating to commercial disputes of a Specified Value filed in a High Court having ordinary original civil jurisdiction shall be heard and disposed of by the Commercial Division of that High Court:

PROVIDED that all suits and applications relating to commercial disputes, stipulated by an Act to lie in a court not inferior to a District Court,and filed on the original side of the High Court, shall be heard and disposed of by the Commercial Division of the High Court:”

CS(OS) No.550/2008 & conn. matters

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3. The first proviso of Section 7 of the Ordinance, 2015 stated that the suits and applications relating to commercial disputes stipulated by a statute lie in a court not inferior to a District Court and filed on the original side of the High Court shall be heard and disposed by the Commercial

Division of the High Court. The words “and filed” used in the first proviso to Section 7 of the Ordinance, 2015 did refer to the cases which were filed in the High Court to be heard and disposed of by the High Court and which words in one manner can lead to the interpretation that as long as it was originally filed in the High Court, irrespective of the pecuniary jurisdiction of this pending suit not being of the specified value, High Court in its Commercial Division would, still continue to hear and dispose of the suit. However, equally another interpretation of the words ‘and filed’ could also be that if the suit was filed in the High Court, the High Court could only continue to hear and dispose of the suit if the High Court continued to have pecuniary jurisdiction i.e the suit had to be of a specified value as stated in the Ordinance, 2015. Therefore, possibly something was left unsaid by the legislature when it used the words “and filed” if these words were intended to continue to vest a Commercial Division of the High Court to try and dispose of the suit originally filed in the High Court although subsequently the High Court would not have pecuniary jurisdiction to try the matter

CS(OS) No.550/2008 & conn. matters

Page 5 of 15

including for the reason that the pecuniary jurisdiction of the suit was below the threshold limit of rupees one crore as required by the Ordinance, 2015.

4. On account of possibility of different interpretation of the words “and filed” found in the first proviso to Section 7 of the Ordinance, 2015, the appropriate authorities and the legislature moved in. This happened by two things. Firstly, the Government of India Cabinet, Press Information Bureau, issued a Press Note on 16.12.2015, i.e after passing of the Ordinance, 2015 and before passing of the Act of 2015 which succeeded the Ordinance, and in this Press Note which was issued it was made clear that the amendment was required to the first proviso to Section 7 of the Ordinance, 2015 so that there is no doubt remaining therein that the said first proviso to Section 7 will also apply to “pending cases” i.e the words used in the first proviso of Section 7 in the Ordinance 2015 being “and filed” were to be construed to be applicable even for the pending cases.

5. No doubt only a Press Note issued by the Press Information Bureau, Government of India, Ministry of Law and Justice stating that the amendment would be made to the first proviso to Section 7 of the Ordinance, 2015, may not have been of conclusive help, however, the issue has become further simple with respect to the interpretation of the

CS(OS) No.550/2008 & conn. matters

Page 6 of 15

expression “filed or pending” as found in the Act of 2015 because of the 78th

Report submitted to the Rajya Sabha by the Department-RelatedParliamentary Standing Committee on Personnel, Public Grievances, Law and Justice. This report contained the reasons for bringing in various provisions of the Act of 2015, and more importantly and particularly the reason for changing the words “and filed” found in the first proviso to Section 7 of the Ordinance 2015 to the expression “ and filed or pending” as found in the Act of 2015. The relevant para of this 78th Report containing the observations and recommendations of the Standing Committee is para 34 which reads as under:

“34. The Committee feels that the transfer of all pending commercial disputes to the proposed Commercial Court/Division may overburden the said courts and defeat the very purpose of establishing them. There may not be requirement of Commercial Courts in some States as they have limited number of such cases. The Committee recommends that instead of transferring the pending cases to Commercial Courts, a sunset clause may be inserted in the Bill whereby only fresh cases with a pecuniary limit may be transferred to Commercial Courts. However, the litigants may be given a choice to move Commercial Courts if the pending dispute is of commercial nature as per the Schedule of the Bill” (underlining added)

6. The underlined portion of para 34 of the report of the Standing Committee leaves no manner of doubt that there was to be a sunset clause whereby only fresh cases having the pecuniary limit were filed before the Commercial Divisions and so far as the pending cases were concerned, the

CS(OS) No.550/2008 & conn. matters

Page 7 of 15

same were not to be transferred and to be taken up by the CommercialCourts-Commercial Courts meaning the Commercial Division of the High Court so far as the High Courts having original jurisdiction.

7. Let me now therefore reproduce Section 7 which has been introduced by the Act of 2015 in its entirety and this provision reads as under:-

“7. Jurisdiction of Commercial Divisions of High Court–All suits and applications relating to commercial disputes of a Specified Value filed in a High Court having ordinary original civil jurisdiction shall be heard and disposed of by the Commercial Division of that High Court:

Provided that all suits and application relating to commercial disputes, stipulated by an Act to lie in a court not inferior to a District Court, and filed or pending on the original side of the High Court, shall be heard and disposed of by the Commercial Division of the High Court:

Provided further that all suits and applications transferred to the High Court by virtue of sub-section (4) of section 22 of the Designs Act, 2000 or section 104 of the Patents Act, 1970 shall be heard and disposed of by the Commercial Division of the High Court in all the areas over which the High Court exercises ordinary original civil jurisdiction.” (underlining added)

8. It is clear that the expression ‘and filed’ has been elaborated by the Legislature to mean those cases which are filed or pending i.e even if a case is pending as on the date of bringing in the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015, such pending cases will be continued to be tried by the

CS(OS) No.550/2008 & conn. matters

Page 8 of 15

Commercial Division of the High Court irrespective of these matters not being above the specified value and being below the specified value upto Rs.1 crore. There cannot be any other interpretation of the expression being of the words and ‘filed or pending’ as found in the first proviso to Section 7 of the Act of 2015. If these words are to be interpreted to mean that cases which are filed and pending will have to be transferred since their pecuniary value is less than rupees one crore, then the same will defeat the intention of the legislature in changing the language of the first proviso to Section 7 whereby the words ‘and filed’ has been amended to ‘and filed or pending’.

9. Of course, I must concede that the language contained in the first proviso to Section 7 could have been still better worded to have additional words ‘irrespective of the pecuniary jurisdiction’, however, in my opinion, the very intention of the legislature can be ganged enough by the adding of the words “or pending” in the first proviso to Section 7 of the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015.

10. At this stage, I am reminded of a very unforgettable rule used in a judgment dealing with the interpretation of statutes and which is that “the golden rule is that there is no golden rule”. This is stated inasmuch as,

CS(OS) No.550/2008 & conn. matters

Page 9 of 15

though there are various doctrines of interpretation whether of literal interpretation or purposive interpretation or Heydon’s Rule and so on, however, ultimately the issue of interpretation boils down to the specific statute and the reason why original words as found have been amended and finally that the context and setting where the words are used has to be read so as to give purpose to bringing in of the necessary words and expressions in the statute.

11. I may also note that the entire object of Section 7, whether as found in the Ordinance, 2015 or found in the Act of 2015, was that the subject matter of Section 7 was those suits which could not be filed in courts below the court of the District Judge. Suits which are the subject matter of Section 7 are all those suits which could not be filed in a court below the District Judge but could be filed only either before the court of the District Judge or before the High Court. These matters are those which are generally called as IPR matters, and which includes trademarks cases, copyright cases etc which are the subject matter of statutes which contain such provisions that suits under these Acts should not be filed and cannot be entertained by courts below the courts of the District Judge. The relevant provisions in this regard are Section 134 of the Trade Marks Act, 1999 and

CS(OS) No.550/2008 & conn. matters

Page 10 of 15

Section 62 of the Copyright Act, 1957 etc. These Sections are depicted in

the chart below:-

Statute

Patents

Act,

Trade

Marks

Designs

Copyright Act,

Geographical

1970

Act, 1999

Act, 2000

1957

Indications

of

Goods

(Registration

and

Protection)

Act, 1999

Relevant

Section

104

Section 134:

Proviso

to

Section 62

Section 66-Suit

Provisions

Jurisdiction-

Suit

for

Section

Jurisdiction of

for

No suit for a

Infringement,

22(2)

court

over

infringement,

declaration

etc.

to

Be

matters

etc.,

to

be

under section

Instituted

No suit

or

arising

under

institute

105

or

for

Before District

any

other

this Chapter-

before

district

any

relief

Court-

proceeding

court

under section

(1) No suit-

for

relief

(1)

Every

suit

106

or

for

under

this

or

other

civil

(1) No suit,-

infringement

(a)

for

the

subsection

proceeding

of

a

patent

infringement of

shall

be

arising

under

(a)

for

the

shall

be

a

registered

instituted in

this

Chapter in

infringement

of

instituted

in

trademark; or

any

court

respect

of

the

a

registered

any

court

below

the

infringement of

geographical

inferior

to a

(b)

relating

to

court

of

copyright

in

indication; or

district

court

any

right

in a

District

any work or the

having

registered

Judge.

infringement of

(b)

relating

to

jurisdiction

trademark; or

any

other

right

any

right

in a

to try the suit

conferred

by

registered

Provided that

(c)

for

passing

this

Act

shall

geographical

where

a

off

arising

out

be

instituted in

indication; or

counter-

of

the

use

by

the

district

claim

for

the

defendant

court

having

(c) for

passing

revocation

of

of

any

trade

jurisdiction.

of arising out of

the

patent

is

mark which

is

the

use

by

the

made

by

the

identical

with

(2)

For

the

defendant

of

defendant,

or

deceptively

purpose of sub-

any

the

suit,

similar

to

the

section (1), and

geographical

along

with

plaintiff’s

trade

“district

court

indication

the

counter-

mark,

whether

having

which

is

claim,

shall

registered

or

jurisdiction”

identical

with

be

unregistered,

shall,

or

deceptively

transferred to

shall

be

notwithstanding

similar

to

the

the

High

instituted in any

anything

geographical

Court

for

court inferior to

contained in the

indication

decision

a District Court

Code of

Civil

relating

to

the

having

Procedure,

plaintiff,

CS(OS) No.550/2008 & conn. matters

Page 11 of 15

jurisdiction

to

1908

or

any

whether

try the suit.

other

law

for

registered

or

the time

being

unregistered,

For the purpose

in

force,

shall

be

of

clauses

(a)

include

a

instituted in any

and (b) of sub-

district

court

court inferior to

section

(1), a

within the local

a district

court

“District

Court

limits of whose

having

having

jurisdiction,

at

jurisdiction

to

jurisdiction”

the time

of

the

try the suit.

shall,

institution

of

notwithstanding

the suit or other

(2)

For

the

anything

proceeding,

the

purpose

of

contained in the

person

clauses

(a) and

Code

of

Civil

instituting

the

(b)

of

sub-

Procedure,

suit

or

other

section

(1),

a

1908

or

any

proceeding

or,

“district

Court

other

law

for

where there are

having

the

time

being

more

than

one

jurisdiction”

in

force,

such

persons,

shall,

include

a

any

of

them

notwithstanding

District

Court

actually

and

anything

within the local

voluntarily

contained in the

limits of whose

resides

or

Code

of

Civil

jurisdiction,

at

carries

on

Procedure,

the time of the

business

or

1908

(5

of

institution

of

personally

1908)

or

any

the suit or other

works for gain.

other

law

for

proceeding,

the

the time

being

person

in

force,

instituting

the

include

a

suit

or

District

Court

proceeding,

or,

within the local

where there are

limits of whose

more

than

one

jurisdiction,

at

such

persons

the time of the

any

of

them,

institution

of

actually

and

the suit or other

voluntarily

proceeding,

the

resides

or

person

carries

on

instituting

the

business

or

suit proceeding,

personally

or, where there

works for gain.

are more

than

one

such

persons

any

of

them,

actually

and voluntarily

resides

or

CS(OS) No.550/2008 & conn. matters

Page 12 of 15

carries on business or personally works for gain.

Explanation-for the purposes ofsub-section

(2), “person” includes the registered proprietor and the authorised user.

12. Keeping in mind the original intendment of Section 7, and the words as now found in the first proviso to Section 7 of the Act of 2015, one is left in no manner of doubt that with respect to IPR matters, whose statutes and the provisions are reproduced in the above chart, such matters once they are pending in the High Court as on the date of introducing of the Act of 2015 published in the Gazette Notification dated 1.1.2016, such matters will be heard and disposed of by the Commercial Divisions of the High Court even if the pecuniary jurisdiction of these matters are below Rs.1 crore.

13. Accordingly, this Court’s conclusion with respect to the language contained in the first proviso to Section 7 of the Act of 2015 is that with respect to IPR matters covered under the different provisions of the Trade Marks Act, Copy Right Act, Designs Act, Patents Act and Geographical Indication of Goods (Registration And Protection) Act, 1999

CS(OS) No.550/2008 & conn. matters

Page 13 of 15

is that the pending suits and which are the subject matter of the words “filed or pending” contained in the first proviso to Section 7 of the Act of 2015, such suits or IPR matters, even if their valuation is below Rs.1 crore, the same will be dealt with and decided by the Commercial Division(s) of the High Court if their pecuniary jurisdiction valuation is above Rs. 20 lacs (for Delhi High Court) but below Rs.1 crore.

14. The issue with respect to first proviso to Section 7 of the Act of 2015 is answered accordingly.

15. This Court expresses its gratitude to Ms. Kripa Pandit, Advocate who has very ably argued on the issue which is decided in the present judgment by supporting the arguments with the requisite material.

16. Each of the suits which are therefore the subject matter of the present judgment will be listed for further proceedings before the Joint Registrar on 5th May, 2016.

TR. P.(C) No.1/2016

17. This transfer petition stands allowed in terms of the prayer made therein and the suit which has been transferred to the concerned

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Page 14 of 15

jurisdictional District Court will be re-transferred to this Court. All pending

applications also stand disposed of accordingly.

I.A. No.17748/2015 (u/O VI Rule 17 CPC) in CS(OS) No.1180/2011 I.A. No.24164/2015 (u/O VI Rule 17 CPC) in CS(OS) No.2599/2010

18. Disposed of as not pressed.

FEBRUARY 15, 2016

VALMIKI J. MEHTA, J

dkg/ib

CS(OS) No.550/2008 & conn. matters

Page 15 of 15

THE POLO/LAUREN COMPANY L P Vs M/S VARSHA & CO AND OTHERS

IN THE HIGH COURT OF DELHI

CS (Comm.) 673/2016

Decided On: 23.03.2018

Appellants: The Polo/Lauren Company L.P.

Vs.

Respondent: Varsha & Co. and Ors.

Judges/Coram:

Manmohan, J.

Counsels:

For Appellant/Petitioner/Plaintiff: Ajay Amitabh Suman, Pankaj Kumar, Kapil Kumar Giri and Vinay Kumar Shukla, Advocates

JUDGMENT

Manmohan, J.

1. Present suit has been filed for permanent injunction restraining infringement, passing off, damages, delivery up, rendition of accounts etc. against the defendants. The prayer clause in the present suit is reproduced hereinbelow:-

"43. That under the facts and circumstances of the present case the Plaintiff most respectfully prays that this Hon'ble Court may kindly be pleased to:

(a) Pass a decree of permanent injunction restraining the Defendant No. 1 and 2 by themselves as also through their individual proprietors/partners/principles, agents, representatives, distributors, assigns, heirs, successors, stockiest and all others acting for and on their behalf from using, selling, soliciting, exporting, displaying, advertising or by any other mode or manner dealing in or using the impugned Trade Mark/Label POLO with or without the device of POLO player and impugned domain name namely www.varshaa.com for that purpose or any other word/mark/trade Mark/Label/Domain Names which may be identical with and/or deceptively similar to the Plaintiff's said Trade Mark/Label/Domain Names in relation to their impugned goods and business of readymade garments and accessories and allied and cognate products and from doing any other acts or deeds amounting to or likely to:

(i) Infringement of Plaintiff's registered Trade Mark/Label [POLO WITH DEVICE OR POLO PLAYER and/or other POLO formative trademarks and/or DEVICE OF POLO PLAYER] as mentioned in Para No. 7 of the plaint.

(ii) Passing off and violating of the plaintiff's rights in the Plaintiff's said Trade Mark/Label [POLO, POLO WITH DEVICE OF POLO PLAYER and/or other POLO formative trademarks and/or DEVICE OF POLO PLAYER].

(iii) Infringement of Plaintiff's copyrights in artwork of said Trade Mark/Label [POLO; POLO WITH DEVICE OF POLO PLAYER and/or other POLO formative trademarks and/or DEVICE OF POLO PLAYER].

(b) Restraining the Defendant No. 1 and 2 from disposing of or dealing with their asset including their premises at the address mentioned in the Memo of Parties and their stocks-in-trade or any other assets as may be brought to the notice of the Hon'ble court during the course of the proceedings and on the Defendant's disclosure thereof and which the Defendant is called upon to disclose and/or on its ascertainment by the Plaintiff as the Plaintiff is not aware of the same as per Section 135(2)(c) of the Trade Marks Act, 1999 as it could adversely affect the Plaintiffs ability to recover the costs and pecuniary reliefs thereon.

(c) For an order for deliver up of all the impugned finished and unfinished materials bearing the impugned and violative impugned Trade Mark/Label or any other word/mark which may be identical with or deceptively similar to the Plaintiff's said Trade Mark/Label including its blocks, labels, display boards, sign boards, trade literature and goods etc. to the plaintiff for the purposes of destruction and erasure.

(d) For an order for rendition of accounts of profits earned by the Defendant No. 1 and 2 by their impugned illegal trade activities and a decree for the amount so found in favour of the plaintiff on such rendition of accounts.

(e) Or, in the alternative to the rendition of accounts, for a decree of Rs. 20,01,000/- (Rupees Twenty Lakh and One Thousand Only) on account of damages sustained by the plaintiff due to the impugned acts of the Defendant No. 1 and 2.

(f) Pass an order directing Defendant No. 3 (Department of Telecommunications, Government of India) and Defendant No. 4 (Department of Electronics & Information Technology) to secure blocking of the Web Pages/URL(s)/Listings mentioned in Schedule 'A' filed along with the documents.

(g) Pass an order directing Defendant No. 3 (Department of Telecommunications, Government of India) and Defendant No. 4 (Department of Electronics & Information Technology) to secure blocking of any future Web Pages/URL(s)/Listings brought up by the defendant Nos. 1 & 2 on their impugned website which infringe the rights of the plaintiff as informed by the Plaintiff to the Defendants No. 3 & 4 through written communication.

(h) For an order for cost of proceedings, and

(i) For such other and further order as this Hon'ble Court may deem fit and proper in the facts and circumstances of the present case."

2. Vide order dated 28th September, 2015, an ad-interim injunction order was passed and defendant Nos. 3 and 4 were deleted from the array of parties. The relevant portion of the order dated 28th September, 2015 is reproduced hereinbelow:-

"...Accordingly, till further orders, defendant Nos. 1 & 2, their partners, proprietors, agents, representatives, distributors, assigns, heirs, successors and stockists are restrained from using, selling, soliciting, exporting, displaying, advertising or by any other mode or manner dealing in or using the impugned trade mark/label POLO with or without the device of POLO player or any other word/mark/trademark/label, which may be identical with and/or deceptively similar to the plaintiff's trade mark/label/domain names in relation to their impugned goods or readymade garments and accessories and allied and cognate products, through the website www.varshaa.com or otherwise."

3. The ad-interim order was confirmed on 21st March, 2018 till the disposal of the suit. The remaining defendants were also proceeded ex parte on 21st March, 2018.

4. Learned counsel for the plaintiff states that he has instructions to only press for prayer 43(a) and (h) of the plaint.

5. Learned counsel for the plaintiff states that in view of the judgment of this Court in Satya Infrastructure Ltd. &Ors. v. Satya Infra & Estates Pvt. Ltd., MANU/DE/0511/2013 the present suit be decreed qua the reliefs in paragraph 43(a) and (h) of the plaint. The relevant portion of the said judgment relied upon by learned counsel for the plaintiff is reproduced hereinbelow:-

"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."

6. The relevant facts of the present case as pointed out by the learned counsel of the plaintiffs are as under :-

A) The plaintiff is a limited partnership engaged in the business of manufacture, distribution and sale of a wide range of apparel and clothing for men, women and children, clothing accessories, etc.

B) The plaintiff adopted the trademark POLO in 1967, and has been using the word POLO per se and in conjunction with other marks/words and DEVICE OF POLO PLAYER, in various stylized and artistic formats with and/or without the DEVICE OF POLO PLAYER. The plaintiff is the registered owner of the aforesaid trademarks/labels under various Classes of the Trade Marks Act, 1999. In support of the aforesaid submission the plaintiff has filed legal proceeding certificates of the plaintiff's registered trademarks in India.

C) The art works involved in the plaintiff's trademark/label are original artistic works and the plaintiff is the registered owner and proprietor of the copyright therein.

D) The word/mark POLO and DEVICE OF POLO PLAYER are a material part of the plaintiff's trademark/label and are invented and arbitrary trademarks. The word/mark POLO is also the most essential feature of the plaintiff's trading style/trade name "The Polo/Lauren Company L.P." and by virtue of continuous and uninterrupted use, the plaintiff's trademark/label has become distinctive and is associated with and has acquired secondary significance with the plaintiff's goods and business.

E) The plaintiff also uses the domain names, www.polo.com, www.polo-ralph-lauren.in, www.pologolf.in, www.prl.in, www.global.polo.com for the sale of its goods.

F) The revenue generated by the plaintiff for sale of its products under the said trademark/label worldwide, for the year 2015 was USD 7,620 million. In support of the aforesaid statement the plaintiff has filed consolidated statements of income, cash flows, equity, selected/quarterly financial information.

G) The defendant No. 2 is the proprietor of defendant No. 1 and is engaged in the business of manufacturing, marketing, selling, supplying, soliciting and trade of readymade clothing and other allied/related products.

H) In July, 2015, while making a random search of web-sites selling readymade garments and accessories, the plaintiff came to know that the defendant's are selling readymade garments bearing the word/mark/label POLO with or without the DEVICE OF POLO PLAYER through their website www.varshaa.com. The plaintiff made an online purchase of goods bearing the plaintiff's trademark/label from the defendants' website which showed that the goods were counterfeit and the said fact was confirmed by the plaintiff's production department. In support of the aforesaid submissions the plaintiff has filed a copy of invoice raised by the defendants dated 16th July, 2015.

I) The trademark/label POLO and DEVICE OF POLO PLAYER adopted by the defendants in relation to their goods and services are identical with and deceptively similar to the plaintiff's trademark/label in each and every respect including phonetically, visually, structurally, in its basic idea and in its essential features. The defendants' use of the plaintiff's trademark/label wrongly conveys to the public that the defendants' goods originate from the plaintiff.

J) The defendants have dishonestly and fraudulently adopted the plaintiff's trademark/label with the intent to take advantage of and trade upon the goodwill and reputation of the plaintiff.

7. Having heard learned counsel for the plaintiff and having perused the documents placed on record, this Court is of the opinion that the plaintiff has proved the facts stated in the plaint.

8. In view of the above facts, the suit is decreed in favour of the plaintiff and against defendant in terms of prayer clause 43(a) of the plaint along with the actual costs. The costs shall amongst others include the lawyers' fees as well as the amounts spent on purchasing the court fees. The plaintiff is given liberty to file on record the exact cost incurred by it in adjudication of the present suit, if not already filed. Registry is directed to prepare a decree sheet accordingly. Consequently, the present suit stands disposed of.