A party can disown its advocate anytime and seek relief, but there is no absolute rule that a party can disown its advocate anytime and seek relief.

I.A. 3466/2020 & I.A.3467/2020 in CS(COMM) 628/2019 Page 1 of 17

*

IN THE HIGH COURT OF DELHI AT NEW DELHI

%

Reserved on:

10.12.2021

Pronounced on: 03.01.2022

+

CS(COMM) 628/2019

INTER IKEA SYSTEMS B V

.... Plaintiff

Through:

Ms.Tanya Varma & Ms.Archita

Nigam, Advocates

Versus

ITALICA FLOOR TILES PVT. LTD. & ANR.

..... Defendants

Through:

Mr. Gaurav Bahl, Advocate

CORAM:

HON'BLE MR. JUSTICE SURESH KUMAR KAIT

ORDER

I.A. 3466/2020 (u/O IX Rule 13 CPC) & I.A.3467/2020 (u/S 151 CPC)

in CS(COMM) 628/2019

1.

In the present suit for permanent injunction restraining infringement

of trademarks, passing off, rendition of accounts, damages and delivery

up, an ex parte decree was passed this Court vide judgment and order dated

31.01.2020 against the defendants i.e. the applicants herein, which is

subject matter of challenge of the above captioned first applicants.

2.

By the above captioned second application, applicants/defendants

are seeking stay of order dated 05.12.20219 vide which ex parte ad interim

2022:DHC:7

I.A. 3466/2020 & I.A.3467/2020 in CS(COMM) 628/2019 Page 2 of 17

injunction was granted in favour of plaintiffs and against the

applicants/defendants as well as order and judgment dated 31.01.2020,

vide which suit was ex parte decreed against the applicants/defendants.

3.

At the hearing, learned counsel appearing on behalf of the

applicants/defendants had submitted that defendants are in the business of

making Floor tiles and based out of Morbi, Gujrat under the name and style

of “Italica”. According to applicants/defendants “Italica” came into

existence in the year 2004 for manufacturing and distributing, supreme and

genuine top notch quality tiles in India and to the world and has established

a large distribution network which consists of more than 300+ dealers all

over the world. Learned counsel submitted that defendants strive for

creating new, original and distinguished designs for its tiles, with the sole

intention of giving its customers strikingly different and attractive upscale

decorative tiles, in order to maintain its reputation and goodwill.

4.

It is further claimed on behalf of applicants/defendants that the trade

mark “Italica” is registered under Clause-19 in favour of defendant

No.1/company under the name Italica Floor Tiles Private Limited since

the year 2005 and under Clause-11 since the year 2017. It is next submitted

that defendant No.2- Ikaa Granito Private Limited was incorporated in the

2022:DHC:7

I.A. 3466/2020 & I.A.3467/2020 in CS(COMM) 628/2019 Page 3 of 17

year 2016 and its first invoice was issued in July, 2017, which bore the

trade mark “Italica”, since permitted by defendant No.1 for promotion of

defendant No.2 company.

5.

During

the

course

of

hearing

learned

counsel

for

applicants/defendants emphasized that defendant No.2 is not using the

mark IKAA but it is a part of corporate name of the company, which had

been duly approved by the Registrar of Companies as the name of the

company and thereby, there is no deliberate attempt to pass of the

plaintiff’s trademark. It was empathically submitted that the Ikaa Granito

Private Limited is not the trademark of the defendant No.2 and is not used

as the trade mark of defendants. Attention of this Court was also drawn to

the spellings and pronouncement of plaintiff’s trade mark and defendants’

trade name and trade mark, which is as under:-

6.

It was also contended that there cannot be any confusion between

the two trade names i.e. “IKEA” and “Italica” and Ikaa Granito Private

2022:DHC:7

I.A. 3466/2020 & I.A.3467/2020 in CS(COMM) 628/2019 Page 4 of 17

Limited is only the corporate name of the defendant No.2 and is limited

only to the production and sale of tiles and so, it cannot be said that

defendants have deliberately attempted to infringe plaintiff’s trade mark

or