UMESH GUPTA VS BRIJ MOHAN GOEL

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*                    IN THE HIGH COURT OF DELHI AT NEW DELHI

+CM(M) 1002/2017 & CM No.33285/2017 (for stay)

UMESH GUPTA & ANR ..... Petitioners Through: Mr. Avneesh Garg & Mr. M.P. Singh,

Advs.

Versus

BRIJ MOHAM GOEL & ORS.                                              ..... Respondents

Through:        Mr. S.P. Singh Chaudhari, for R-1.

Mr. S.K. Bansal, Mr. Ajay Amitabh

Suman,  Mr.  Pankaj  Kumar  &    Mr.

Kapil Kumar Giri, Advs. for R-2&3.

CORAM:

HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW O R D E R

%                                         02.11.2017

1.                  This order is in continuation of the earlier order dated 12^th September, 2017.

2.                 All the three respondents have been served and the counsel for the respondent no.1 and the counsel for the respondents no.2&3 appear.

3.                 The counsel for the respondents no.2&3 states that respondents No.2&3 are not concerned with the present controversy.

4.                 The counsel for the petitioners / plaintiffs, with respect to the query made from him and as recorded in para no.8 of the earlier order dated 12^th

September, 2017, states that the respondent / defendant no.1, taking cue

therefrom has filed an application before the Suit Court for rejection of the

plaint and the said aspect be permitted to be decided in the first instance by

the Suit Court.

5.                 The aforesaid suggestion of the counsel for the petitioners / plaintiffs is accepted.

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6.                 As far as the challenge to the order impugned in this petition is concerned, a perusal of the copies of the order sheet annexed to the paper book show i) that the issues in the suit were framed on 3^rd August, 2010 and the petitioners / plaintiffs were ordered to lead evidence first; ii) neither the petitioners / plaintiffs nor the respondents / defendants led any evidence and

the evidence of the petitioners / plaintiffs was closed on 16^th December, 2011 and the evidence of the respondents / defendants was closed on 6^th

July, 2012; iii) that however vide order dated 28^th August, 2012 evidence was re-opened; iv) that PW1 of the petitioners / plaintiffs was examined on 13^th February, 2013 and the suit adjourned to 1^st August, 2013 for cross-examination of PW1; v) that on 1^st August, 2013 none appeared for the respondents / defendants no.1&2 despite repeated calls and the right of the respondents / defendants no.1&2 to cross-examine PW1 was closed and the matter adjourned for cross-examination of PW1 by respondent / defendant no.3; vi) that though the right of the respondents / defendants no.1&2 to cross-examine PW1 already so stood closed but again vide order dated 1^st August, 2013, the said right was closed; vii) that none was appearing for the respondents / defendants no.1&2 at that time though were not proceeded against ex parte; viii) that petitioners / plaintiffs closed their evidence in affirmative on 9^th September, 2014 and the suit was adjourned for evidence of the respondents / defendants; and, ix) that it is not as if the respondent / defendant no.1 was not appearing at all thereafter; the counsel for the respondent / defendant no.1 was appearing intermittently.

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7.                 On enquiry, it is informed that the respondent / defendant no.1 has filed an affidavit by way of examination-in-chief of one of the witnesses and whose cross-examination by the counsel for the petitioners / plaintiffs is yet to take place.

8.                 The respondent / defendant no.1 filed the application, against the order allowing which this petition has been preferred, in or about the month of July, 2016 for opportunity to cross-examine PW1 blaming the advocates then engaged by the respondent / defendant no.1 for neglect.

9.                 The contention of the counsel for the respondent / defendant no.1 before this Court also is the same i.e. that the advocates then engaged by the respondent / defendant no.1 being negligent.

10.            However, neither is there any whisper in the application nor has anything been argued today as to what diligence the respondent / defendant no.1 himself was observing in pursuing the suit. Today also the argument is that the then advocate for the respondent / defendant no.1 kept the respondent / defendant no.1 in the dark and did not inform.

11.            Recording of evidence in the suit invariably requires instructions to be given by the client to the advocate as to the deposition of the witnesses of the other side. It is thus not understandable as to on what premise the respondent / defendant no.1 chose not to pursue the suit by contacting the advocates.

12.            The counsel for the respondent / defendant no.1 has however raised the argument that the litigant should not suffer for the negligence of the advocate.

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13.            The respondent / defendant no.1 is not an illiterate villager in whose context, it has been so held by the Courts a century ago and which logic applied today to litigations in the capital city of the country has led to litigants as well as the advocates taking it for granted that any amount of negligence on their part will be condoned, if not by the first Court, in appeals / revisions/ constitutional remedies provided under the law only for correction of genuine human/legal errors. However, the indulgence shown by the Courts in yesteryears and the origin whereof is to be found in the British era, the Judges of which era, thought that the Indian lawyers are not competent and the Indians are rustics not aware of their rights, has led to a state of affairs as prevalent today and which is affecting the administration of Justice, thereby endlessly delaying the disposal of the suit.

14.            The counsel for the respondent / defendant no.1 states that the son of the respondent / defendant no.1 was implicated in a murder case and the respondent / defendant no.1 was busy in the same.

15.            The aforesaid plea in the application as well as urged today is without any particulars of dates and the proceedings in the murder case. Moreover, the interaction of the respondent / defendant no.1 with advocates in the murder trial if any at the contemporaneous time should have made the respondent / defendant no.1 wiser and aware of the manner in which cases are to be followed and should have wizened instead of making the respondent / defendant no.1 negligent.

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16.            The learned ADJ is not found to have dealt with the application in the correct perspective and has also proceeded on the premise that opportunities to contest even if once given up are to be granted at the asking. It is for this reason only that the application has been decided vide the following order:

“Arguments heard on the application of defendant no.1 U/Sec.151 CPC for giving opportunity to him to cross-examine PW-1. The application has been filed after three years of the date on which his right to cross-examine PW-1 was closed. However, on perusal of statement of PW-1 recorded before Hon‟ble Court on 15.12.2008 as well as report of Local Commissioner dated 24.05.2008, the application is allowed to decide the case on merits subject to cost of Rs.15,000/- to be paid by defendant no.1 to plaintiffs and also with direction to cross-examine PW-1 on one and the only date i.e. on 07.09.2017 at 02:00 p.m. Cost be paid on the next date of hearing.”

which is without dealing with the facts or the principles of law applicable in this regard.

17.            Mere imposition of costs of Rs.15,000/- and which the counsel for the respondent / defendant no.1 today also states that the respondent / defendant no.1 is willing to pay, cannot allow a litigant to so wash away his past sins and to purchase opportunities from the Court.

18.            Merit is thus found in the contention of the counsel for the petitioners / plaintiffs that discretion has been wrongly exercised by the learned ADJ in favour of the respondent / defendant no.1.

19.            The discretion is indeed found to have been exercised by the learned ADJ, contrary to law and is thus found to be perverse.

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20.            The petition thus succeeds.

21.            The order dated 24^th  August, 2017 impugned in this petition is set

aside.

22.            Resultantly, the application of the respondent / defendant no.1 for cross-examination of PW1 of the petitioners / plaintiffs is dismissed.

23.            I refrain from imposing any costs on the respondent / defendant no.1.

24.            It is clarified that the learned ADJ, while deciding the application stated to have been filed by the respondent / defendant no.1 under Order VII Rule 11 of the CPC, shall decide the same without being influenced in any manner with the observations contained in the earlier order dated 12^th

September,

2017.

RAJIV SAHAI ENDLAW, J.

NOVEMBER 02, 2017

„gsr‟..

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LOREAL VS YOGESH JETHI

*                    IN THE HIGH COURT OF DELHI AT NEW DELHI

%			Decided on: 3rd November, 2017
+		CS(COMM) 567/2017
	M/S. L’OREAL			..... Plaintiff
		Represented by:	Mr.Ajay Amitabh Suman,
			Mr. Kapil Kumar Giri and
			Mr. Vinay Shukla, Advocates.
		versus
	SHRI YOGESH JETHI & ANOTHER.			.....Defendants
		Represented by:	None.

CORAM:

HON'BLE MS. JUSTICE MUKTA GUPTA

MUKTA GUPTA, J. (ORAL)

1.                 As per the plaint, the plaintiff prays for the following reliefs:

a)                For a decree of permanent injunction restraining all the defendants by themselves as also through their individual proprietors/partners, agents, representatives, distributors, assigns, heirs, successors, stockists 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 L’OREAL with or without the word PARIS or any other word/mark which may be identical with and/or deceptively similar word/mark to the plaintiff’s said trade mark/trade name L’OREAL in relation to their impugned goods and business of cosmetics and other related/allied products and from doing any other acts or deeds amounting to or likely to:-

i)   infringement of plaintiff’s aforesaid registered trademark

L’OREAL.

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ii)      Passing off and violation of the plaintiff’s rights in the plaintiff’s said trade mark L’OREAL.

iii)    violation of plaintiff’s proprietary rights in its trade name i.e., L’OREAL.

iv)   Infringement of plaintiff’s copyrights in its L’OREAL Label.

b)                for an order for delivery up of all the impugned finished and unfinished materials bearing the impugned and violative trade mark L’OREAL or any other word/mark which may be identical with or deceptively similar to the plaintiff’s said trade mark/trade name L’OREAL including its blocks, labels, display boards, sign boards, trade literatures and goods etc. to the plaintiff for the purposes of destruction and erasure.

c)     for a money decree for grant of damages of ₹40,00,000/-(Rupees Forty Lakh only) from and against the defendants, jointly and severally to the plaintiff.

d)  for an order for cost of proceedings.

2.                 Summons in the suit were issued to the defendants on 7^th  January,

2009 and an ex-parte interim order was passed in favour of the plaintiff and

against defendants from using trade mark ‘L’OREAL PARIS’. Defendant

No. 1 entered appearance on 13^th  February, 2009. Since Defendant No. 2

could not be served, he was directed to be served through publication vide order dated 5^th February, 2010. Defendant no. 2 entered appearance on 27^th

October, 2010. However, defendant no. 2 failed to file written statement, thus, he was proceeded ex-parte vide order dated 5^th September, 2011.

3.                 Vide order dated 5^th December, 2011, following issues were settled:

i.            Whether the suit has been filed by a competent person? OPP

ii.            Whether the plaintiff is the owner and proprietor of the trademark

‘L’OREAL’? OPP

iii.            Whether  the  defendants  are  guilty  of  infringing  the  registered

trademark ‘L’OREAL’ of the plaintiff? OPP

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iv.Whether the defendants are passing off their goods as that of plaintiff? OPP

v.Whether defendant no. 1 has never dealt with the goods of the plaintiff at any point of time? OPD-1

vi.            Whether the defendants are guilty of infringing the copyright of the

plaintiff in the trademark ‘L’Oreal’? OPP

vii.            Relief.

4.                   Defendant no.1 was also proceeded ex-parte vide order dated 18^th

December, 2014. Thus, the plaintiff led its ex-parte evidence.

5.                 As per the plaint, plaintiff is a company duly incorporated under the laws of France. Plaintiff is engaged in the business of manufacture, distribution and sale of a wide range of hair care, skin care, toiletries and beauty products including perfumery preparations, essential oils, cosmetics, preparations for colouring and bleaching the hair, hair dyes and tints, preparations for waving and setting the hair, shampoos, hair sprays, non-medicated preparations for the care and the beauty of the hair and skin, toilet soaps, dentifrices, sun-tan preparations, personal deodorants and other allied/related products.

6.                 Plaintiff  has  been  using  the  word/mark  ‘L’OREAL’  in  stylized,

formative and label as a trade mark since about 1910-1915 in relation to the aforesaid goods and business. Plaintiff’s goods under the trademark ‘L’OREAL’ have acquired goodwill and reputation globally and in India as well. Plaintiff’s goods under the aforementioned trademark are sold in about 130 countries across the world including India.

7.                 Plaintiff’s trademark ‘L’OREAL’ as a word mark was registered in

India in class 3 in the year 1954 and was renewed subsequently from time to

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time. Apart from the aforesaid registration, plaintiff had filed various other applications for registration of its said mark in India.

8. It is the case of the plaintiff that the art work involved in various ‘L’OREAL’ stylized, formative/bearing and labels are original artistic works and plaintiff holds copyright therein. The plaintiff had been continuously promoting its distinctive mark/ trade name and the goods and business through extensive advertisements, publicity, promotion and marketing research and the plaintiff has spent enormous amount of money, effort, skill and time thereon. It is the claim of the plaintiff that the plaintiff’s trademark has acquired enviable and enduring goodwill, reputation and users. Plaintiff also enjoys trans-border reputation.

9.                 Plaintiff’s trademark has become distinctive and has acquired secondary significance with the plaintiff’s goods and business. In view of

plaintiff’s proprietary rights both statutory and common law, it’s goodwill, reputation and it’s copyright, the plaintiff has the exclusive right to the use of the trademark.

10.                Defendants are engaged in trading of cosmetics, toiletries, hair care products and other allied/related goods. Defendants have adopted and started

using the trade mark L’OREAL in relation to its products. Defendants are also using the word ‘PARIS’ along with the impugned trademark in order to give a false description to its goods.

11.              The impugned trade mark L’OREAL adopted and being used by the

defendants in relation to their impugned goods and business is identical with and deceptively similar to the plaintiff’s said trade mark/trade name L’OREAL in each and every respect including phonetically, visually, structurally, in its basic idea and in its essential features. Defendants have

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also copied the artistic features involved in the plaintiff’s trade mark and is thus infringing the plaintiff’s trade mark as also the copyright involved in its trade mark.

12.              Defendants are not the proprietor of the impugned trademark and

their adoption and use of the trademark violates the plaintiff’s trademark and thereby passing off and enabling others to pass off their goods and business as that of the plaintiff as well as diluting the plaintiff’s proprietary rights therein.

13.              In December, 2007 when the plaintiff came to know that some unknown persons and firms have illegally adopted and are using the impugned trade mark plaintiff filed a complaint under Sections 103/104 of the Trade Marks Act, 1999 before Additional Chief Metropolitan

Magistrate, Delhi complaining violation of plaintiff’s said trademark and copyrights. Ld. ACMM directed the police to investigate the matter. Consequently FIR No. 55 dated 24^th March, 2008 was registered at Police Station Economic Offences Wing under sections 103 and 104 of the Trade Marks Act, 1999 and Section 63 of the Copyright Act, 1957. During the investigation the police on 25^th March, 2008 conducted raids at the premises of defendant No. 1, where defendant No. 1 was found to be dealing in impugned goods bearing the impugned trade mark.

14.              In May 2008, plaintiff also came to know that defendant No. 2 is also dealing in impugned goods bearing impugned trade mark. Being aggrieved by the acts and conduct of defendant No. 2, plaintiff lodged FIR being FIR No. 125 dated 3^rd May, 2008 at Police Station Bhyculla, Mumbai. Consequent to this FIR raids were conducted at the premises of defendant No. 2 on 3^rd May, 2008 from where impugned goods bearing impugned

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trade mark were seized in large quantities. During investigations, defendant No. 2 disclosed that defendant No. 1 supplies impugned goods bearing impugned trade mark to defendant No. 2.

15.              The plaintiff led ex parte evidence and examined Mr. Nirmal Singh as PW-1. He tendered his evidence by way of an affidavit (Ex. PW-1/A) and additional affidavit (Ex. PW-1/A1). Copy of the power of attorney in his favour was exhibited as Ex. PW-1/1. Specimen of plaintiff’s

trademarks/labels were exhibited as Ex. PW-1/2 to Ex. PW-1/8. Statistics/reports showing plaintiff’s sales, growth and economic strength were exhibited as Ex. PW-1/9. Certified copy of the magazines like Cosmopolitan, Star Dust and Filmfare in which various advertisements and sales promotional literature of the plaintiff were published were exhibited as Ex. PW-1/10 (colly). Specimen of defendants trademark/label was exhibited as Ex. PW-1/12 and Ex. PW-1/13. Copy of the FIR No. 55/08 dated 24^th March, 2008 registered at Police Station Economic Offences Wing along with search and seizure memo was exhibited as Ex. PW-1/14 (colly). English Translation of FIR No. 125 dated 3^rd May, 2008 at Police Station Bhyculla, Mumbai was exhibited as Ex. PW-1/15. Legal Proceeding Certificates of registrations of trade mark L’OREAL were exhibited as Ex. PW-1/X (colly). Affidavit under Section 65B of the Evidence Act with respect to Ex. PW-1/9 was placed on record as Ex. PW-1/20.

16.            Specimen of plaintiff’s trademark/label is as under:

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17.            Specimen of defendant’s trademark/label is as under:

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18.            The evidence of the plaintiff has gone unrebutted. On the basis of the documents placed on record, this Court is of the view that the plaintiff has

established that plaintiff is the owner of the trademark ‘L’OREAL’ and is also the copyright owner in the artistic work of the stylized, formative/bearing and label ‘L’OREAL’. Plaintiff has also established that it enjoys reputation and goodwill with respect to the aforesaid trademark. Plaintiff has also been successful in demonstrating that the defendants by adopting plaintiff’s trademark ‘L’OREAL’ are infringing the trade mark of the plaintiff, copyright therein and passing off their goods as those of the plaintiff. Thus, plaintiff is entitled to a decree of permanent injunction against the defendants

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19.            Since the plaintiff has not led evidence with respect to the damages

caused to them except for a court fee of ₹21,000/-, prayer (c) of the plaint is allowed partially.

20.              Consequently, the suit is decreed in favour of the plaintiff and against the defendants in terms of prayer (a) with a cost of ₹21,000/-.

(MUKTA GUPTA)

JUDGE

NOVEMBER 03, 2017

‘yo’

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