*

IN THE HIGH COURT OF DELHI AT NEW DELHI

%

Reserved on: 09.02.2017

Decided on: 28.02.2017

+

CS(COMM) 77/2017, I.A. 1216/2017 (O 26 R 9), I.A. 1217/2017

(exemption), I.A. 1218/2017 (under Section 151 CPC)

JANUKI KUMARI J.B.RANA & ORS

..... Plaintiffs

Through: Mr C.M. Lall, Mr Nancy Roy,

Mr Pranay Sarkar and Mr Jeetu Sharma,

Advs.

versus

ASHOK KUMAR AND ORS

..... Defendants

Through: None.

CORAM:

HON'BLE MS. JUSTICE DEEPA SHARMA

JUDGMENT

I.A. 1215/2017 (O 39 R 1 & 2)

1. The present suit has been filed by the plaintiffs claiming the following

reliefs:-

2017:DHC:1197

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

2017:DHC:1197

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 footwears 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"/"GOALSTO

2017:DHC:1197

R"/"GOLSTAR"/"GLADSTAR"and/or MODEL IN NEPAL", "MADE IN

NEPAL", "DESIGN IN NEPAL", "DEGN IN NEPAL", "MADE AS

NEPAL", DESIGN AS NEPAL" , "DESIGN FROM NEPAL" on the sole of

the shoes, like the embossing of "MADE IN NEPAL" on the heel of the sole

of Plaintiffs’ products, and these counterfeit shoes are manufactured at the

addresses of the Defendants as mentioned in the cause title of the Plaint

and that this action of the defendants amounts to infringement of registered

trademarks and passing off.

5. The Court heard the arguments on two count i.e. maintainability of

the suit in the present form and also grant of ex-parte ad interim injunction

against unknown persons who are named as John Doe/Ashok Kumar and

against defendant no. 2.

6. Learned counsel for the plaintiffs has submitted that the suit is

maintainable because there is no provision in Code of Civil Procedure, 1908

(hereinafter referred to as “CPC”) which bars the suit in the present form.

He has also relied on the provisions of order VII Rule 1(c) which required

that the plaintiff has to furnish the name, description and place of residence

of the defendant so far that can be ascertained and since the plaintiffs, at this

moment, are not able to ascertain the defendants shown as John Doe or

2017:DHC:1197

Ashok Kumar but as soon as they would be able to ascertain these names it

would be brought on record and that the defendant no. 2 is ascertainable and

therefore the suit cannot be said to be not maintainable. He has also relied on

Order 26 Rule 9 of CPC and argues that the Court is empowered to do the

local investigation where it is so needed for the purpose of elucidating the

matter in dispute and can issue commission for that purpose and argues that

once an injunction is iss