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2017 Supreme(Del) 2050
IN THE HIGH COURT OF DELHI AT NEW DELHI
SANJEEV SACHDEVA, J.
Monish Gujral and Others - Plaintiffs
Versus
G. Kiran Kumar and Others - Defendants
CS (COMM) No. 137 of 2017
Decided On : 05-07-2017
For the Plaintiff : Ms Nancy Roy.
The judgment establishes the legal principles related to trademark infringement, passing off, and the enforcement of intellectual property rights in commercial disputes.
Headnote:
TRADEMARK INFRINGEMENT - COMMERCIAL DISPUTE - Code Of Civil Procedure, 1908 (Order VIII Rule 10), Commercial Courts Act - Section 2(c) of the Copyright Act, 1957 - Section 2(1) (zg) of the Trade Marks Act, 1999 - Section 29 (6) of the Trademarks Act, 1999
Fact of the Case:
The plaintiffs filed a suit for permanent injunction against the defendants for trademark infringement. The defendants failed to file a written statement and were proceeded ex-parte. The plaintiffs relied on Order VIII Rule 10 of the CPC and previous judgments to support their claim.
Finding of the Court:
The court found that the defendants' unauthorized use of the plaintiffs' trademarks amounted to infringement and passing off. The plaintiffs were granted a permanent injunction and a mandatory injunction to recall and destroy infringing materials.
Issues: Trademark infringement, passing off, unauthorized use of trademarks, breach of franchise agreement, and violation of intellectual property rights.
Ratio Decidendi: The court relied on the Commercial Courts Act and relevant provisions of the CPC to pronounce judgment against the defendants for failing to file a written statement. It also considered the extensive use and distinctiveness of the plaintiffs' trademarks to establish infringement and passing off.
Final Decision: The suit was decreed in favor of the plaintiffs, granting a permanent injunction and a mandatory injunction against the defendants. The relief of damages was waived, and no order as to costs was made.
SANJEEV SACHDEVA, J.
CS (COMM) No. 137/2017
1. The plaintiffs have filed this Suit inter-alia for permanent injunction thereby restraining the defendant No. 1 to 6 from using the trademark/trade name MOTI MAHAL/MOTI MAHAL Delux Tandoori Trail or any other Mark/trading name identical or deceptively similar to the trademark MOTI MAHAL and the MOTI MAHAL formative trademark of the plaintiffs and using the oval devices Moti Mahal and Moti Mahal Deluxe Tandoori Trall Delhi’s Famous Restaurant Since 1920 or any other mark/ label/device which is identical/ deceptively similar to the Plaintiffs’ oval device which would result in infringement of Plaintiffs’ copyright.
2. Defendant No. 7 is a co-owner of the trademark alongwith the Plaintiffs.
3. Defendants have been served with the summons of the suit. None had appeared for the defendants on 27.03.2017. None appears even today. The Defendants have failed to file Written Statement. The defendants are proceeded ex-parte.
4. Learned counsel for the plaintiffs submits that the plaintiffs are willing to give up the reliefs of rendition of accounts and recovery of damages.
5. Learned counsel for the plaintiffs relies on Order VIII Rule 10 of the Code Of Civil Procedure, 1908 (hereinafter referred to as the CPC) as amended by The Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 (hereinafter referred to as the Commercial Courts Act) to contend that as the defendant 1 to 6 have failed to file Written Statement, they have made themselves liable for a Decree of permanent Injunction.
6. Learned counsel relies upon the Judgment of a Coordinate Bench dated 07.02.2013 in CS (OS) No. 1213/2011 titled Satya Infrastructure Limited and Others vs. Satya Infra & Estates Private Limited wherein even prior to the amendment of the CPC, in a Suit relating to infringement of Trade Mark this court had dispensed with the requirement of the plaintiff to lead ex-parte evidence and had pronounced judgment on the basis of the affidavit filed in support of the Plaint.
7. The present Suit for infringement has been filed by the Plaintiff after the amendment of the CPC by the Commercial Courts Act.
8. The Suit is a Commercial dispute as defined under the Commercial Courts Act. The provision of the CPC as amended by the Commercial Courts Act are applicable.
9. Order VIII rule 10 as amended and applicable to Commercial disputes reads as under:
“10. Procedure when party fails to present written statement called for by Court.— Where any party from whom a written statement is required under Rule 1 or Rule 9 fails to present the same within the time permitted or fixed by the Court, as the case may be, the Court shall pronounce judgment against him, or make such order in relation to the suit as it thinks fit and on the pronouncement of such judgment a decree shall be drawn up.
Provided further that no court shall make an order to extend the time provided under Rule 1 of this order for filing of the written statement.”
10. In view of the fact that the defendants 1 to 6 have failed to appear and file their written statement, they are liable to be proceeded with under order VIII rule 10 of CPC.
11. The Plaint is verified and supported by affidavits and statement of truth of the Plaintiffs affirming the contents of the plaint. The Plaintiffs have also filed an affidavit under order XI rule 6(3) of CPC with regard to electronic record.
12. In a Suit for infringement of the same trademarks filed by the Plaintiffs being CS (COMM) No. 67/2015 titled Monish Gujral and Others vs. Best Food and Another, coordinate Bench of this court by Judgment dated 09.08.2016 has decreed the suit.
13. In view of the above, I am of the opinion that, this is a fit case, where instead of requiring the plaintiffs to lead ex-parte evidence, judgment can be pronounced forthwith against defendants 1 to 6.
14. The
