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IN THE HIGH COURT OF DELHI AT NEW DELHI
DEEPA SHARMA, J.
JANUKI KUMARI J.B. RANA & OTHERS – Plaintiffs
Versus
ASHOK KUMAR & OTHERS – Defendants
CS (COMM) No. 77 of 2017, I.A. Nos. 1216, 1217, 1218 of 2017
Decided On : 28-02-2017
Trademark Infringement - Jurisdiction - Order VII Rule 1(c), Order 26 Rule 9 of CPC - John Doe Orders - Inherent Powers under Section 151 of CPC
Fact of the Case:
The plaintiffs, a Nepalese firm, filed a suit against the defendants for manufacturing and selling counterfeit products bearing trademarks deceptively similar to the plaintiffs' trademarks. The plaintiffs sought injunction, delivery up of goods, and damages for illegal profits and loss of goodwill.
Finding of the Court:
The court considered the maintainability of the suit and the grant of ex-parte injunction against unknown persons and defendant no. 2. It found issues related to territorial jurisdiction and the exercise of discretion in granting ex-parte injunction against unknown defendants.
Issues: The issues involved the maintainability of the suit, territorial jurisdiction, and the grant of ex-parte injunction against unknown defendants.
Ratio Decidendi: The court analyzed the provisions of Order VII Rule 1(c) and Order 26 Rule 9 of CPC to determine the maintainability of the suit. It also considered the exercise of inherent powers under Section 151 of CPC for granting ex-parte injunction against unknown defendants.
Final Decision: The court found that the suit raised issues of territorial jurisdiction and the exercise of discretion in granting ex-parte injunction against unknown defendants. It concluded that it was not a fit case for the grant of ex-parte ad interim injunction in favor of the plaintiffs.
DEEPA SHARMA, J.
I.A. No. 1215/2017 (O 39 R 1 & 2)
1. The present suit has been filed by the plaintiffs claiming the following reliefs:-
(a) A decree of permanent injunction be passed thereby directing that the Defendants, its proprietor, partners, employees, agents, distributors, franchisees, representatives and assigns be restrained from manufacturing or authorizing the manufacture, selling or offering for sale, marketing, advertising, promoting, displaying or in any other manner whatsoever any sports shoe or footwear and/or any other allied and cognate goods with embossing on the heel of the sole of the shoe "MODEL IN NEPAL", "MADE IN NEPAL", "Design In Nepal", "Design In Nepal", "MADE AS NEPAL", "DESIGN AS NEPAL", "DESIGN FROM NEPAL" or any other line which are deceptively similar to the aforementioned to pass off the goods of the Defendant as that of the Plaintiff and/or using the Plaintiffs Registered Trade mark registered at 1369593, 1668434, 1673434 and 816260 or other deceptively similar trademarks like "GOLDSTAR"/"GOODSTAR'7 "GQLDSTAR" "GOLBSTAR"/"GLOBSTAR"/"GALDSTOR'V "GOALSTOR"/ "GOLSTAR"/ "GLADSTAR" and getup and/or any other trade mark which is identical or deceptively or confusingly similar to any of the above listed trade/label mark and/or any other trade mark which are deceptively similar with the Plaintiffs trademarks and facilitate passing off the Defendant's product as that of the Plaintiff thereto.
(b) An order for delivery up of all the goods, dyes, moulds, blocks, tags, labels, other printed matter and any other material whatsoever bearing the, trade mark/label mark and/or any other mark confusingly and deceptively similar to the trade mark/label mark, or bearing any mark "GOLDSTAR"/"GOODSTAR"/"GQLDSTAR" "GOLBSTAR"/ "GLOBSTAR"/"GALDSTOR"/"GOALSTOR"/"GOLSTAR"/"GLADSTAR" and/or the Getup/shape of the Plaintiffs shoe and/or with embossing MODEL IN NEPAL", "MADE IN NEPAL", "Design In Nepal", "Design In Nepal", "MADE AS NEPAL", "DESIGN AS NEPAL", "DESIGN FROM NEPAL" or any similar connotation directed to pass off its products as that of the plaintiff, to the authorized representatives of the plaintiff for the purpose of destruction.
(c) A decree of damages of Rs. 1,00,00,000/- for illegal profits earned by the Defendant on account of their illegal activities and for the loss caused to the goodwill and reputation of the Plaintiff.”
2. Vide this application plaintiffs have claimed ex-parte injunction against Ashok Kumar/John Doe and defendant no. 2 allegedly doing its business of manufacturing counterfeit products in Hapur Meerut at the address “Guru Kripa, Dheer Khera, Industrial Area, Merrut Road, Hapur 245101.”
3. The brief facts of the case as set out in the plaint are that the plaintiff firm M/s Kiran Shoes Manufacturers is the registered partnership firm registered with the Department of Industries, Nepal and other plaintiffs are the partners and Sh. Ghanshyam Bahety is the authorized representative of all the plaintiffs. It is submitted that the plaintiff firm is engaged in the business of manufacturing and marketing sports shoes and foot-wears under its registered trademark GOLDSTAR vide trademark bearing nos. 1668484, 1669858, 1673434 and 816260 and the manufacturing takes place in Nepal and they are exporting it to India since 1977/1998. The plaintiffs have various distributors in India including M/s Katyal Metal Agencies at New Delhi. It is submitted that plaintiffs have also opened a Liaison office at 181-B, 2nd floor near Sai Mandir, Khirki Village, Malviya Nagar, New Delhi-1100017 through which the Plaintiffs carrying on its business.
4. It is submitted that defendants are manufacturing and selling counterfeit products embossing "GOLDSTAR"/"GOODSTAR"/"GQLDSTAR"/"GOLBSTAR"/"GLOBSTAR "GALDSTOR"/"GOALSTOR"/"GOLSTAR"/"GLADSTAR" and/or MODEL IN NEPAL", "MADE IN NEPAL", "DESIGN IN NEPAL", "DEGN
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