Full Judgment Text
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(COMM) 87/2019, I.A. 2333/2019 & I.A. 3492/2019
ITC LIMITED ..... Plaintiff
Through: Mr. Rohan Swarup and Mr.
Sanyam Suri, Advs.
versus
AJIT TRADERS & ORS ..... Defendants
Through: None
CORAM:
HON'BLE MR. JUSTICE C.HARI SHANKAR
O R D E R (O R A L)
% 04.10.2023
1. The present suit stands decreed against all defendants except
Defendant 18(C).
2. Defendant 18(C) has repeatedly been defaulting in appearance.
On 28 March 2023, Defendant 18(C) was represented by one Mr.
Keshav Singhal, Counsel. Mr. Singhal sought discharge from the
proceedings, whereupon this Court directed him to file an appropriate
application to that effect. No such application has been filed.
Accordingly, by the order passed on 22 September 2023, this Court
has proceeded on the premise that Mr. Singhal continues to represent
Defendant 18(C).
3. As Defendant 18(C) was unrepresented either in person or
through Counsel on 22 September 2023, this Court proceeded against
Signature Not Verified
CS(COMM) 87/2019 Page 1 of 5
Digitally Signed
By:HARIOM
Signing Date:05.10.2023
16:44:57
Defendant 18(C) ex parte.
4. The suit already stands decreed qua all the remaining
defendants. Defendant 18(C) is stated to be a shopkeeper selling
counterfeit “atta”, using the trademarks/logos “AASHIRVAAD” and
“ITC” which stands registered as trademarks in favour of the plaintiff.
5. The prayer clause in the plaint reads thus:
“42. The Plaintiff above named therefore most
respectfully prays that this Hon'ble Court be pleased to:
a. Pass a decree of permanent injunction restraining
the Defendants, their proprietors, partners, directors,
manufacturers, licensees, servants, agents, franchisees,
dealers, retailers, distributors, or any one acting for and on
their behalf in any manner from manufacturing or getting
manufactured, selling, offering for sale, advertising "atta' or
any other product under the impugned packaging (as
depicted on Pg. No 10-13 of documents filed along with the
plaint vide index dated 12.2.2019) or any other deceptively
similar variant thereof, including by using the trademarks/
logos "AASHIRVAAD", "ITC" and/or their
derivatives/formatives, so as to result in violation of
Plaintiffs statutory and common law rights thereby
resulting in infringement, passing off, dilution etc.
b. Pass an order of seizure/ confiscation/ delivery up
of all the infringing/counterfeit material (as depicted on Pg.
No 10 - 13 of documents filed along with the plaint vide
index dated 12.02.2019) or any other deceptively similar
variant thereof, including by using the trademarks/logos
"AASHIRVAAD", "ITC" and/or their
derivatives/formatives and/or nearly identical/ deceptively
similar trade-dress/ get-up/ lay-out of the Plaintiffs
AASHIRVAAD Atta, including packaging material, bags,
stationery, brochures, pamphlets, signboards, moulds, dyes,
advertising materials, printing drums and any other
material or printed matter bearing the impugned mark, or
machinery used in manufacture of the counterfeit product
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CS(COMM) 87/2019 Page 2 of 5
Digitally Signed
By:HARIOM
Signing Date:05.10.2023
16:44:57
or the Impugned Packaging, for the purposes of destruction
and erasure;
c. Pass an order restraining the Defendants from
disposing of or dealing with their assets during the
pendency of the present proceedings, until the damages
claimed are recovered;
d. Pass a decree of damages at least to the tune of Rs.
5 crores payable by the Defendants;
e. An order for rendition of accounts of profits
directly or indirectly earned by the Defendants, their
partners, proprietors, servants, agents and all others in
active concert or participation with them, from their
infringing activities and wrongful conduct, in favour of the
Plaintiff. The Plaintiff undertake to file additional court fee
if any, on appropriate rendition of accounts by the
Defendants, a higher amount is found to be due;
f. In respect of Defendants Nos. 7 to 10, Local
Commissioners be appointed by this Hon'ble Court and be
empowered to identify with the assistance of the Plaintiff,
such manufacturers /wholesale traders /retailers who are
manufacturing and/or selling counterfeit products (as
depicted on Pg. No 10 - 13 of documents filed along with
the plaint vide index dated 12.02.2019) or any other
deceptively similar variant thereof, including by using the
trademarks /logos "AASHIRVAAD", "ITC". On the basis
of the report of the Local Commissioners, such Defendants,
as identified by the Local Commissioners, in respect of
whom the seizure has been effected, be served with the
complete set of documents and pleadings filed before this
Hon'ble Court along with the summons bearing only the
heading "M/s ______” Such defendants may be allowed to
defend the present suit just as any other named Defendants
in accordance with law
g. Costs of the suit and damages be awarded;
h. Any such further order as this Court may deem fit
and appropriate in the present facts and circumstances of
the present case be passed in favour of the Plaintiff and
against the Defendants.”
6. Mr. Rohan Swarup, learned Counsel for the plaintiff does not
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CS(COMM) 87/2019 Page 3 of 5
Digitally Signed
By:HARIOM
Signing Date:05.10.2023
16:44:57
press for damages, but pleads that the suit may be decreed qua the
prayer for injunction and that actual costs as incurred by the plaintiff
may be awarded.
7. In the circumstances, the suit shall stand decreed, qua
Defendant 18(C), in the following terms:
(i) There shall be a decree of permanent injunction
restraining Defendant 18(C) as well as all others acting on its
behalf from manufacturing, selling, offering for sale or
advertising “atta” or any other product bearing the following
packaging, or any other deceptively similar variant thereof, or
from using the trademarks/logos “AASHIRVAAD”, “ITC” or
any derivative thereof:
(ii) The plaintiff shall also be entitled to actual costs as
incurred vis-à-vis Defendant 18(C).
8. Mr. Rohan Swarup submits that he has prepared a statement of
costs which represents the costs incurred by his client to prosecute the
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CS(COMM) 87/2019 Page 4 of 5
Digitally Signed
By:HARIOM
Signing Date:05.10.2023
16:44:57
litigation against Defendant 18(C). I do not deem it necessary to enter
into the examination of the said statement. Let this matter be listed
before the Taxation Officer of this Court on 31 October 2023 in order
to enable the plaintiff to satisfy the Taxation Officer regarding the
actual costs incurred by the plaintiff vis-à-vis Defendant 18(C). If any
such amount is determined, the plaintiff shall be entitled to a decree
for payment of the said amount by Defendant 18(C) which shall be
paid within a period of four weeks from the determination of the
amount by the Taxation Officer.
9. No other relief is pressed by Mr. Rohan Swarup.
10. The suit stands decreed in the aforesaid terms qua Defendant
18(C).
11. Let a decree sheet be drawn up accordingly.
C.HARI SHANKAR, J
OCTOBER 4, 2023
ar
Signature Not Verified
CS(COMM) 87/2019 Page 5 of 5
Digitally Signed
By:HARIOM
Signing Date:05.10.2023
16:44:57