Full Judgment Text
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) 873/2015
SAMSUNG ELECTRONICS COMPANY
LIMITED & ANR. ..... Plaintiffs
Through Ms. Kripa Pandit, Advocate
versus
MOHAMMED ZAHEER TRADING AS
M/S. GUJARAT MOBILES & ORS. ..... Defendants
Through None
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Reserved on : 12 July, 2017
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% Date of Decision: 24 July, 2017
CORAM:
HON'BLE MR. JUSTICE MANMOHAN
J U D G M E N T
MANMOHAN, J: (Oral)
I.A. 7593/2017
1. Present application has been filed seeking pronouncement of
judgment and for passing of a decree against the defendants in
accordance with the provision of Order VIII Rule 10 CPC.
2. At the outset, learned counsel for the plaintiffs stated that she is
pressing only prayers A and D of the plaint. The said prayers are
reproduced hereinbelow:-
CS (OS) 873/2015 Page 1 of 9
“A. A decree of permanent injunction be passed
restraining the Defendants, their partners, agents,
distributors, suppliers, fanchisees, representatives,
affiliates and assigns from:
i Manufacturing, importing, marketing, offering for
sale, selling, exporting and/or using the Plaintiffs’ well-
known and registered trade marks “SAMSUNG”,
SAMSUNG device/ “, "SAMSUNG GALAXY
TAB”,“SAMSUNG GALAXY S” and/or any other trade
mark device, logo, name or any derivative which is
identical and/or deceptively and confusingly similar to
Plaintiffs’ registered trade marks either as a trade
mark, trading name, domain name etc. or a part
thereof, or as a part of the packaging, artwork, get-up,
layout, design or in any other manner whatsoever so as
to infringe the registered trade marks of the Plaintiffs.
ii. Manufacturing, importing, marketing, offering for
sale, selling, exporting and/or using the Plaintiffs’
well-known and trade marks "SAMSUNG",
“SAMSUNG oval device/ " , ” SAMSUNG
GALAXY / GALAXY”, “SAMSUNG GALAXY
TAB/GALAXY TAB”, “SAMSUNG GALAXY S series
namely SAMSUNG GALAXY S, SAMSUNG GALAXY S
II, SAMSUNG GALAXY S III, SAMSUNG GALAXY S4,
SAMSUNG GALAZXY S5”, SAMSUNG GALAXY
NOTE series namely SAMSUNG GALAXY NOTE 1,
SAMSUNG GALAXY NOTE 2, SAMSUNG GALAXY
NOTE 3, SAMSUNG GALAXY NOTE 4”, and/or any
other trade mark, device, logo, name or any derivative
which is identical and/or deceptively and confusingly
similar to Plaintiffs’ registered trade marks either as a
trade mark, trading name, domain name etc. or a part
thereof, or as a part of the packaging, artwork, get-up,
layout, design or in any other manner whatsoever so as
to pass off their products as that of the Plaintiffs.
CS (OS) 873/2015 Page 2 of 9
iii Manufacturing, importing, marketing, offering for
sale, selling, exporting and/or using the impugned
products bearing the marks SAMTEL and SMTEL
CALAYX, or any other trade mark, device, logo, name
or any derivative which is identical and/or deceptively
and confusingly similar to Plaintiffs’ trade marks
“SAMSUNG”, “SAMSUNG oval device/
" “, ” SAMSUNG GALAXY / GALAXY",
“SAMSUNG GALAXY TAB/GALAXY TAB”,
“SAMSUNG GALAXY S series namely SAMSUNG
GALAXY S, SAMSUNG GALAXY S II, SAMSUNG
GALAXY S III, SAMSUNG GALAXY S4, SAMSUNG
GALAZXY S5”, SAMSUNG GALAXY NOTE series
namely SAMSUNG GALAXY NOTE 1, SAMSUNG
GALAXY NOTE 2, SAMSUNG GALAXY NOTE 3,
SAMSUNG GALAXY NOTE 4”, either as a trade mark,
trading name, domain name etc. or a part thereof, or as
a part of the packaging, artwork, get-up, layout, design
or in any other manner whatsoever so as to infringe
the registered trade marks of the Plaintiffs or pass off
their products as that of the Plaintiffs.
iv. Copying, reproducing, adopting and/or using the
Plaintiffs’ artistic oval device/logo
and/or any
other artistic work, which slavishly imitates the
Plaintiffs’ said artistic device/logo, in entirety or part
thereof, as a part of the packaging, artwork, get-up,
layout, design or in any other manner whatsoever so as
to infringe upon the Plaintiffs’ copyright.
xxx xxx xxx
D. Costs of the suit be awarded to the Plaintiffs;”
3. The relevant facts of the present case are that the plaintiffs have
filed the present suit against the defendants seeking inter alia
CS (OS) 873/2015 Page 3 of 9
permanent injunction against the infringement of Trade Marks and
Copyrights, passing off, unfair competition, dilution and rendition of
accounts, delivery up and recovery of damages etc.
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4. On 27 March, 2015, this Court issued summons in the suit and
notice on the plaintiffs’ injunction application bearing I.A.
No.6487/2015. This Court also granted an ad interim ex parte
injunction in favour of the plaintiffs restraining the defendants and
their partners, agents, distributors, franchises, representatives and
assigns and all other acting for and on behalf of the defendants, from:
“i Manufacturing, importing, marketing, offering for
sale, selling, exporting and/or using the Plaintiffs’ well-
known and registered trade marks “SAMSUNG”,
SAMSUNG device/ “ " "SAMSUNG GALAXY TAB”,
“SAMSUNG GALAXY S” and/or any other trade mark
device, logo, name or any derivative which is identical
and/or deceptively and confusingly similar to Plaintiffs’
registered trade marks either as a trade mark, trading
name, domain name etc. or a part thereof, or as a part of
the packaging, artwork, get-up, layout, design or in any
other manner whatsoever so as to infringe the registered
trade marks of the Plaintiffs.
ii. Manufacturing, importing, marketing, offering for sale,
selling, exporting and/or using the Plaintiffs’ well-
known and trade marks "SAMSUNG", “SAMSUNG oval
device/ " , ” SAMSUNG GALAXY / GALAXY”,
“SAMSUNG GALAXY TAB/GALAXY TAB”, “SAMSUNG
GALAXY S series namely SAMSUNG GALAXY S,
SAMSUNG GALAXY S II, SAMSUNG GALAXY S III,
SAMSUNG GALAXY S4, SAMSUNG GALAZXY S5”,
SAMSUNG GALAXY NOTE series namely SAMSUNG
GALAXY NOTE 1, SAMSUNG GALAXY NOTE 2,
CS (OS) 873/2015 Page 4 of 9
SAMSUNG GALAXY NOTE 3, SAMSUNG GALAXY NOTE
4”, and/or any other trade mark, device, logo, name or any
derivative which is identical and/or deceptively and
confusingly similar to Plaintiffs’ registered trade marks
either as a trade mark, trading name, domain name etc. or
a part thereof, or as a part of the packaging, artwork, get-
up, layout, design or in any other manner whatsoever so as
to pass off their products as that of the Plaintiffs.
iii Manufacturing, importing, marketing, offering for sale,
selling, exporting and/or using the impugned products
bearing the marks SAMTEL and SMTEL CALAYX, or any
other trade mark, device, logo, name or any derivative
which is identical and/or deceptively and confusingly
similar to Plaintiffs’ trade marks “SAMSUNG”,
", ”
“SAMSUNG oval device/ SAMSUNG
GALAXY/GALAXY" “SAMSUNG GALAXY TAB/GALAXY
TAB”, “SAMSUNG GALAXY S series namely SAMSUNG
GALAXY S, SAMSUNG GALAXY S II, SAMSUNG
GALAXY S III, SAMSUNG GALAXY S4, SAMSUNG
GALAZXY S5”, SAMSUNG GALAXY NOTE series namely
SAMSUNG GALAXY NOTE 1, SAMSUNG GALAXY NOTE
2, SAMSUNG GALAXY NOTE 3, SAMSUNG GALAXY
NOTE 4”, either as a trade mark, trading name, domain
name etc. or a part thereof, or as a part of the packaging,
artwork, get-up, layout, design or in any other manner
whatsoever so as to infringe the registered trade marks of
the Plaintiffs or pass off their products as that of the
Plaintiffs.
iv. Copying, reproducing, adopting and/or using the
Plaintiffs’ artistic oval device/logo
and/or any
other artistic work, which slavishly imitates the Plaintiffs’
said artistic device/logo, in entirety or part thereof, as a
part of the packaging, artwork, get-up, layout, design or in
any other manner whatsoever so as to infringe upon the
Plaintiffs’ copyright.”'
CS (OS) 873/2015 Page 5 of 9
5. The aforesaid order is still valid and subsisting.
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6. Vide order dated 27 March 2015, this Court also appointed
Local Commissioners to visit the premises of all the defendants i.e.
defendant Nos.1 to 37 located in Hyderabad to inter alia search, seize
and seal all such counterfeit and/or infringing goods materials,
products, prepare an inventory of the said products and take into
custody the said counterfeit and infringing materials. The Local
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Commissions were executed and completed on 21 May, 2015.
7. During the commission approximately 9381 counterfeit and
infringing goods, materials, products such as Ear Mic Phones, Car
Adapters, Protective case, Mobile Phones, Flip Covers, Batteries,
Printed on covers, Big Batteries, Tab Covers, Hard Covers, Tab Cases,
Bluetooth Headset, Power Bank, Travel Adapters, Chargers, hands
free, Tablets, Piece of Galaxy S-4, White Coloured mobile phone and
two pieces of Note-II, mobile phones etc. were found and seized by
the Local Commissioners.
8. Though the defendants were given several opportunities to file
their written statements, yet they chose not to file the same.
Ultimately, the defendants were proceeded ex parte and their rights to
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file written statements were closed on 10 July, 2017.
9. Order VIII Rule 10 CPC 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
CS (OS) 873/2015 Page 6 of 9
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.”
10. The Supreme Court in C.N. Ramappa Gowda Vs. C.C.
Chandregowda, (2012) 5 SCC 265 has interpreted the Order VIII
Rule 10 CPC 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
CS (OS) 873/2015 Page 7 of 9
parte judgment without directing the plaintiff to prove the
facts so as to 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."
11. A Coordinate Bench of this Court in Nirog Pharma Pvt. Ltd.
Vs. Umesh Gupta and Ors., 235 (2016) DLT 354 has held as under:-
| "11. Order VIII Rule 10 has been inserted by the | |
|---|---|
| legislature to expedite the process of justice. The courts | |
| can invoke its provisions to curb dilatory tactic, often | |
| resorted to by defendants, by not filing the written | |
| statement by pronouncing judgment against it. At the same | |
| time, the courts must be cautious and judge the contents of | |
| the plaint and documents on record as being of an | |
| unimpeachable character, not requiring any evidence to be | |
| led to prove its contents. |
xxxx xxxx xxxx xxxx
28. The present suit is also a commercial suit within the
definition of the Commercial Courts, Commercial Division
and Commercial Appellate Division of High Courts Act,
2015 and it was the clear intention of the legislature that
such cases should be decided expeditiously and should not
be allowed to linger on. Accordingly, if the defendant fails
to persue his case or does so in a lackadaisical manner by
not filing his written statement, the courts should invoke
the provisions of Order VIII Rule 10 to decree such cases."
12. Another Coordinate Bench of this Court in Satya Infrastructure
Ltd. and Ors. Vs. Satya Infra & Estates Pvt. Ltd., 2013 III AD
(Delhi) 176 has held as under:-
CS (OS) 873/2015 Page 8 of 9
| "4. I am of the opinion that no purpose will be served in | |
|---|---|
| such cases by directing the plaintiffs to lead ex | |
| parte evidence in the form of affidavit by way of | |
| examination-in chief and which invariably is a repetition of | |
| the contents of the plaint. The plaint otherwise, as per the | |
| amended CPC, besides being verified, is also supported by | |
| affidavits of the plaintiffs. I fail to fathom any reason for | |
| according any additional sanctity to the affidavit by way of | |
| examination-in-chief than to the affidavit in support of the | |
| plaint or to any exhibit marks being put on the documents | |
| which have been filed by the plaintiffs and are already on | |
| record........." |
13. Consequently, taking into account the aforesaid mandate of law
as well as reports of the Local Commissioners and the lackadaisical
attitude adopted by the defendants in not representing themselves and
in not filing the written statements, this Court is of the view that as the
present plaintiff's case even without any evidence is unimpeachable
and the defendants approach is to delay the passing of a decree, it
would be appropriate to pass an uncontested decree under Order VIII
Rule 10 CPC.
14. Accordingly, the present application is allowed and the suit is
decreed against the defendants in accordance with prayers A(i) to (iv)
of the plaint along with the actual costs. Registry is directed to
prepare a decree sheet accordingly.
MANMOHAN, J
JULY 24, 2017
js/rn
CS (OS) 873/2015 Page 9 of 9