Ever Bake Vs Everbake Bakers Private Limited

$~2

* IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                                                          Judgment delivered on: 30.08.2019

+                   C.R.P. 163/2019 & CM APPL. 34784/2019, CM APPL. 34783/2019

M/S EVER BAKE				..... Petitioner
		versus
M/S EVERBAKE BAKERS PRIVATE LTD				..... Respondent
Advocates who appeared in this case:
For the Petitioner	:	Mr. Ajay Amitabh Suman, Adv.
For the Respondent	:	Mr. Anshul Goel, Advocate

CORAM:-

HON’BLE MR JUSTICE SANJEEV SACHDEVA

JUDGMENT

SANJEEV SACHDEVA, J. (ORAL)

1.                 Petitioner impugns order dated 25.04.2019 whereby the application of the petitioner under Order 7 Rule 10 and 11 CPC has been rejected. Petitioner had filed the application seeking rejection of the plaint on the ground of lack of territorial jurisdiction.

2.                 Respondent/plaintiff had filed the subject suit for permanent injunction restraining infringement of registered Trademark, delivery up and rendition of accounts against the petitioner/defendant.

3.                 Respondent  claims  to  be  the  registered  proprietor  of  the

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trademark “EVER BAKE”. Subject suit was filed contending that the petitioner was violating the statutory rights of the respondent and were running a restaurant. It is further contended that the petitioner had made an application seeking registration of an identical trademark and had adopted the registered trademark of the respondent for their goods and services which were identical to the goods and services of the respondent/plaintiff.

4.                 The only objection raised by the petitioner was lack of territorial jurisdiction. It is contended that the petitioner was carrying on its business at Assam and the suit has been filed in Delhi and no part of cause of action arose within the territorial jurisdiction of Courts at Delhi.

5.                 Trial  court  noticed  the  judgment  of  the  Supreme  Court  in

Indian Performing Rights Society Limited Vs. Sanjay Dalia & Anr. (2015) 10, SCC 161 and also the judgment of the Division Bench of this Court in Ultra Home Construction Pvt. Ltd. Vs. Purushottam Kumar Chaubey & Ors (2016) 227 DLT 320(DB), wherein relying on Section 134 of the Trademarks Act it has been held that Section 134 of the Trademarks Act confers jurisdiction in addition to the jurisdiction conferred on a Court under Section 20 CPC in the cases of registered trademarks and permits the plaintiff to institute a suit seeking enforcement of rights in registered trademarks before the Court of the District Judge having jurisdiction over the territory in

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which the plaintiff resides or carries on business or personally works for gain.

6.                 The respondent/plaintiff has registered office in Delhi situated within the territorial jurisdiction of the Trial Court. Noting is pointed out to the contrary.

7.                 Since Section 134 of the Trademarks Act confers additional jurisdiction and the Suit of the plaintiff on bare reading of the plaint has been correctly instituted within the territorial jurisdiction of the Courts where the registered office of the respondent/plaintiff is situated, there is no infirmity in the view taken by the trial court and in rejecting the application of the petitioner under Order 7 Rules 10 &

11  CPC.

8.                 In view of the above, I find no merits in the petition. The petition is accordingly dismissed.

AUGUST 30, 2019                                                   SANJEEV SACHDEVA, J

‘rs’

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RSPL Limited Vs Mukesh Kumar-28.08.2019-CS(COMM) 1488 OF 2016

$~1

*                    IN THE HIGH COURT OF DELHI AT NEW DELHI

+                   CS(COMM) 1488/2016 & I.A. 924/2015

M/S RSPL LTD

Through:

..... Plaintiff

Mr.S.K.Bansal & Mr.Ajay

Amitabh Suman, Advocates

versus

MUKESH SHARMA & ANR

Through:

..... Defendants

Mr.Prakhar Sharma &

Mr.N.K.Kantawala, Advocates

CORAM:

HON’BLE MR. JUSTICE PRATEEK JALAN

	ORDER
%	28.08.2019

1.                 The question pertaining to the jurisdiction of this Court to deal with the suit was decided by the learned Single Judge of this Court vide judgment dated 05.04.2016, against the plaintiff herein. An appeal against the said judgment was also allowed by the Division Bench of this Court vide judgment dated 03.08.2016 in FAO(OS) 145/2016. The defendants have filed SLP(C) 27458/2016 against that order. However, by the order of the Supreme Court dated 13.01.2017, it has been specifically directed that the proceedings before this Court are not stayed.

2.                 Mr.Prakhar Sharma, learned counsel for the defendants, states that he has instructions to undertake on behalf of the defendants that they,

their agents, employees, representatives, successors and all others acting on their behalf, will not use the trade name “Ghari Trade Mark Company” or any other trade mark or trade name identical or deceptively similar thereto.

3.                 Mr.S.K.Bansal, learned counsel appearing for the plaintiff, states that in view of the statement made on behalf of the defendants, the plaintiff does not wish to prosecute the present suit.

4.                 Learned counsel for the defendants also states that he will seek permission of the Supreme Court to withdraw the pending Special Leave Petition.

5.                 Recording the statement as above, the suit is dismissed as withdrawn.

PRATEEK JALAN, J

AUGUST 28, 2019

„hkaur‟/s

Aditya Birla Nuvo Limited Vs Sanwar Lal Ajmera

IN THE HIGH COURT OF DELHI AT NEW DELHI

%

Date of Decision: 09.01.2018

+

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

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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.

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