Full Judgment Text
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(COMM) 79/2015
DOLE FOOD COMPANY & ORS. ..... Plaintiffs
Through : Ms.Kripa Pandit and Mr.C.M. Lall,
Advs.
versus
DOLE FOODS PRIVATE LTD. & ORS. ..... Defendants
Through : Mr.Yatin Khochare, Adv. for
defendants.
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
O R D E R
% 05.10.2016
I.A. 10154/2016
1. This is an application filed by plaintiffs under Order XXXIX Rule 2A
read with Section 151 CPC. The plaintiffs allege wilful disobedience of
the order dated 23.12.2015 passed by this Court.
2. Learned counsel for the plaintiffs submits that despite the order of
injunction dated 23.12.2015, the defendants continue to flout the same
with impunity. Counsel further submits that the defendants should be
directed to remain present in Court.
3. Although the defendants are unserved by Speed Post and an affidavit of
service has been filed, however, counsel for the defendant enters
appearance. He submits that he would file his Vakalatnama within one
week from today.
4. Let reply be filed within three weeks from today. Rejoinder, if any, be
CS(COMM) 79/2015 Page 1 of 6
filed within one week thereafter.
5. List on 9.12.2016, when defendant no.3, Mr.Sukant Murlidhar Dole, is
directed to remain present in Court.
CS(COMM) 79/2015
6. Plaintiffs have filed the present suit for permanent injunction against
the infringement of trademarks, passing off, trademark dilution,
rendition of accounts, damages, etc.
7. At the oral request of the counsel for the plaintiffs, defendant no.4 is
deleted from the array of parties as defendant no.4 is only a Director in
defendant company. Let an amended memo of parties be filed by the
plaintiffs.
8. Learned counsel for the plaintiffs submits that despite service the
defendants have failed to enter appearance and also failed to file their
written statement within the prescribed period of 120 days. Counsel,
thus, prays that the defendants may be proceeded ex parte and suit be
decreed under the provisions of Order VIII Rule 10 CPC.
9. It may be noticed that the summons/notice in the suit/application for
stay were issued on 23.12.2015, when defendants were restrained from
using the trademark DOLE as their trade name and also on their
websites in any manner. It was also directed that the defendants would
remove their advertisements from the third party websites. Since
despite service and despite time being allowed to file the written
statement, no written statement has been filed, I proceed to decide the
matter under Order VIII Rule 10 of the Code of Civil Procedure.
10. As per the plaint, plaintiff no.1 which was founded more than 100 years
ago, is renowned and global merchant of, inter alia, fresh fruits &
vegetables. Plaintiff no.2 is the proprietor and owns rights into the
brand name DOLE in India for the goods “fresh and processed foods
CS(COMM) 79/2015 Page 2 of 6
and juices”. Details of registration with respect to trademark DOLE
have been extracted in para 8 of the plaint. The said trademark
registrations stand renewed and valid from time to time.
11. According to the plaintiff, in the year 1901, Mr.James Drummond Dole
founded the company called Hawaiian Pineapple Company. On
account of the popularity and quality associated with Jame Dole‟s
name, the company first stamped DOLE on can of pineapples and
pineapple juice in the year 1933 and continues to use the well-known
brand DOLE on its products and services. The plaintiffs and their
affiliates collectively have sold DOLE products in more than 90
countries worldwide. The plaintiffs have extracted worldwide Sales
Figures including the revenue from logistics business in para 18 of the
plaint. The plaintiffs are stated to have spent a large amount on
advertisement and promotion of their well known trademarks DOLE
and DOLE & Sun design. The plaintiffs have registered and operate
various websites and maintain pages on third party sites and social
media websites, some of which have been extracted in para 19 of the
plaint. In order to show prominent recognition and association of the
word „DOLE‟ with the plaintiffs, the plaintiffs have even extracted
screenshots of Coogle search engine page to show that a search of
DOLE results in websites about the plaintiff on the top.
12. According to the plaintiffs, their registered trademark DOLE is highly
recognized and popular brand worldwide and has attained enviable
goodwill and reputation across the globe. Owing to its extensive and
continuous use for over eighty years, the well-known trademarks
„DOLE‟, DOLE & Sun Design and Dole formative marks are closely
and solely associated with the plaintiffs.
13. It is the case of the plaintiffs that in and around 2011 the plaintiffs
CS(COMM) 79/2015 Page 3 of 6
learnt about defendant no.1 company “Dole Foods Private Limited”,
having its registered office at Mumbai. Thereafter notices were issued
to the defendants to refrain from, inter alia, using the plaintiffs‟ trade
mark “DOLE”, however, no response was received from the
defendants. Counsel for the plaintiff talked to defendant no. 3
personally, who informed that defendant no. 1 was not doing any
business under the company‟s name “Dole Foods Private Limited”. He
also assured that defendants will strike off this company from the
records of Registrar of Companies. Subsequently, in the year 2014, it
was revealed that defendants had commenced business by using the
trade name “DOLE” by operating a website/domain name, that is,
www.dolelogistics.com. It is alleged that use of registered trade mark
“DOLE” of the plaintiffs by the defendants as their trade name as also
on their website, i.e., www.dolelogistics.com, www.dolefoods.co.in &
www.dolegroup.com amounts to infringement of plaintiffs‟ trade mark
“DOLE”. The plaintiffs also learnt that defendant no.2 in addition to
the use of the plaintiffs‟ well-known mark DOLE as trading and
domain name, has also adopted identical colour scheme. Besides, the
defendants have also started physiotherapy under the name of DOLE
REHAB.
14. The plaintiffs allege that the adoption of an identical mark by the
defendants with respect to their companies name, such as DOLE
FOODS PRIVATE LIMITED, DOLE LOGISTICS, DOLE REHAB,
DOLE TRADERS, DOLE INFRA and DOLE FINSERVE, is nothing
but a deliberate attempt to free ride over the goodwill and reputation of
the plaintiffs. The defendants have adopted the identical mark of the
plaintiffs with the sole intent to reap undue benefit. The defendants
have not only adopted the colour scheme as that of the plaintiff but also
CS(COMM) 79/2015 Page 4 of 6
adopted the Sun design.
15. I have heard learned counsel for the plaintiff and also perused the
plaint, and the documents filed along with the plaint. It may be noticed
that while issuing summons/notice in the suit/application on 29.1.2015
an ex parte ad interim injunction was passed in favour of the plaintiff
and against the defendants. Despite service, the defendants failed to
enter appearance within the prescribed period and even did not file their
written statement within the prescribed period.
16. The Supreme Court in the case of C.N Ramappa Gowda v . C.C.
Chandregowda , (2012) 5 SCC 265 had held as under:
“25. We find sufficient assistance from the apt observations of
this Court extracted hereinabove which has held that the effect
[Ed.: It would seem that it is the purpose of the procedure
contemplated under Order 8 Rule 10 CPC upon non-filing of the
written statement to expedite the trial and not penalise the
defendant.] of non-filing of the written statement and proceeding
to try the suit is clearly to expedite the disposal of the suit and is
not penal in nature wherein the defendant has to be penalised for
non-filing of the written statement by trying the suit in a
mechanical manner by passing a decree. We wish to reiterate that
in a case where written statement has not been filed, the court
should be a little more cautious in proceeding under Order 8 Rule
10 CPC and before passing a judgment, it must ensure that even if
the facts set out in the plaint are treated to have been admitted, a
judgment and decree could not possibly be passed without
requiring him to prove the facts pleaded in the plaint.
26. It is only when the court for recorded reasons is fully satisfied
that there is no fact which needs to be proved at the instance of
the plaintiff in view of the deemed admission by the defendant, the
court can conveniently pass a judgment and decree against the
defendant who has not filed the written statement. But, if the
plaint itself indicates that there are disputed questions of fact
involved in the case arising from the plaint itself giving rise to two
versions, it would not be safe for the court to record an ex parte
judgment without directing the plaintiff to prove the facts so as to
CS(COMM) 79/2015 Page 5 of 6
settle the factual controversy. In that event, the ex parte judgment
although may appear to have decided the suit expeditiously, it
ultimately gives rise to several layers of appeal after appeal
which ultimately compounds the delay in finally disposing of the
suit giving rise to multiplicity of proceedings which hardly
promotes the cause of speedy trial.
27. However, if the court is clearly of the view that the plaintiff's
case even without any evidence is prima facie unimpeachable and
the defendant's approach is clearly a dilatory tactic to delay the
passing of a decree, it would be justified in appropriate cases to
pass even an uncontested decree. What would be the nature of
such a case ultimately will have to be left to the wisdom and just
exercise of discretion by the trial court who is seized of the trial of
the suit.”
(Emphasis Supplied)
17. Having regard to the submissions made and in the absence of any
written statement, the averments made in the plaint are taken to be
correct. In view of above, I am of the view that it is a fit case to pass a
decree under Order VIII Rule 10 CPC. Accordingly, interim order
dated 23.12.2015 stands confirmed and the suit is decreed in favour of
the plaintiffs and against the defendants in terms of prayers A(i) to (iv)
and B(i) to (v). Let a decree sheet be drawn up accordingly.
18. Registry is directed to make a separate file for I.A. 10154/2016 filed
under Order XXXIX Rule 2A CPC and register it as a Contempt Case.
G.S.SISTANI, J
OCTOBER 05, 2016
msr
CS(COMM) 79/2015 Page 6 of 6