IN THE HIGH COURT OF DELHI AT NEW DELHI

CS(COMM) 35/2017

AHUJA RADIOS                                                                   ….. Plaintiff

Through Mr. Raunaq Kamath, Advocate

versus

Through None

 Headnote:

CPC- Order 13 A – seeking Summary Judgment against defendant on the basis of admission- Plaintiffs trademark AHUJA Radios trademark used in public address and sound equipment’s – it was commercially used by defendant – Court commission was appointed to inspect – found counterfeited goods – Defendant argues that the counterfeited goods were deliberately placed by plaintiff- Plaintiffs undisputedly is a registered proprietor of the mark- defendant admits unauthorized use- Grant of summary disposal has been met in the fact- court granted a permanent Injunction and ordered for delivery up of infringed materials.

 CORAM:

 HON’BLE MR. JUSTICE VIBHU BAKHRU

O R D E R 01.05.2017

 IA No. 5202/2017 in CS(COMM) 35/2017

 his is an application filed by the plaintiff under Order XIII-A of the Code of Civil Procedure, 1908 (hereafter ‘CPC’) inter alia seeking a summary judgment against the defendant on the basis of admissions made by the defendant.

  1. Briefly stated, the necessary facts relevant to the present suit are as follows:

2.1 The plaintiff has filed the present suit for permanent injunction restraining infringement of trademark, passing off, delivery up, etc.

2.2 The plaintiff, a partnership firm registered under the Indian Partnership Act, 1932 and established in the year 1940 by its founder Shri Amar Nath Ahuja, is engaged in developing, manufacturing, marketing and exporting a variety of Public Address Systems and Audio Equipment including Ampifiers, Mixers, Microphones and Speakers under the mark ‘AHUJA’. It is stated in the plaint that the mark AHUJA has been used by the plaintiff since the year 1940. It is further stated that the plaintiff is the registered proprietor of the mark AHUJA and the device mark AHUJA under registration numbers 136189 and 313757 respectively under Class 09. It is stated that plaintiff is also the registered proprietor of the model number

‘SSA-250’ under registration number 1495010 under Class 09. The plaintiff further states that the mark AHUJA has also been registered in more than 26 countries such as the United Kingdom, China, Singapore, etc.

2.3 It is stated in the plaint that sometime in January of 2013, it came to know that the defendant was dealing in counterfeit products (public address systems and sound equipments) bearing the plaintiff’s mark ‘AHUJA’.

  1. Summons in the present suit and notice in application for interim injunction were issued by this court on 06.03.2013 and the defendant was “restrained from dealing in Public Address System and Sound Equipment including amplifiers bearing model number SSA 250 M under the Trademark ‘AHUJA’ with or without AHUJA device or any other Trademark device and/or model number deceptively similar to the plaintiff’s Trademark, device and/or model numbers”. By the same order, a local commissioner was appointed to inspect the premises of the defendant and take into custody the products bearing the trademark ‘AHUJA’. The local commission was executed on 03.04.2013. The report of the local commissioner indicates that the 4 amplifiers of 250Weach [Model No. SSA 250 M] were recovered from the premises of the defendant and further that that the defendant himself admitted that the said amplifiers were not original.
  1. The case set up by the defendant is that it is not engaged in selling counterfeit products bearing the mark ‘AHUJA’ and that the plaintiff, before the execution of the local commission, planted the counterfeit goods at the premises of the defendant. The relevant extracts of the written statement filed by the defendant are as follows:

“The truth of the matter is that the plaintiffs fraudulently and deliberately left a bag containing 4 amplifiers at the shop of the defendant, through their representative a few minutes before the local commissioner conducted his commission at the defendants premises/shop……….

The plaintiffs in order to meet their own marketing purpose have used illegal and fraudulent methods to entrap an innocent retailer such as the defendant. Further they are agonizing the plaintiff by filing a false and baseless case before the Hon’ble Delhi High Court which is an added burden on the defendant being an outstation destination for the defendant……..

The Defendant is a small time/retailer and trader in Mumbai, who carries out the business of selling and repairing various brands of genuine amplifiers, speakers and audio equipments etc. First the defendant categorically states that he does not sell or deal in any spurious, counterfeit or infringing goods as alleged by the plaintiffs’ leave alone those of the plaintiff. Second, the plaintiff is a small-time innocent trader/ retailer who is not aware of any such registration of Trademarks or that the plaintiff has a registered trade mark, hence is protected under Sec 135 (3) ( a) of the Trade marks ACT, 1999. The plaintiff cleverly has filed this case without giving any legal notice, against an innocent person just because the defendant carries out repairs of plaintiffs’ products.

Further, it is humbly submitted that the plaintiff’s representative very cleverly and craftily implanted counterfeit products in the Defendants a few minutes before the local commission to somehow apprehend an innocent person such as Defendants with counterfeit goods.”

  1. In view of the above, it is apparent that the defendant has no real prospect of resisting the decree of injunction sought by the plaintiff. The fact that the plaintiff is the registered proprietor of the trade mark in question is not disputed and there is no assertion that the defendant is entitled to use the same. The defendant also has little prospect of succeeding in its defence that he was not dealing in the counterfeit products bearing the marks of the plaintiff. Thus, on the basis of admissions of fact made by the defendant in his written statement, a decree for permanent injunction needs to be passed. Accordingly, the suit is decreed in terms of paragraph 26(a), (b) and (d) of the plaint, which is as under:-

“(a) An order of permanent injunction restraining the Defendant, its principal officers, partners, servants, representatives, agents, distributors and any other persons acting for and on behalf of the Defendant from dealing in Public Address Systems and Sound Equipment including amplifiers bearing model No. SSA 250 M under the trade mark AHUJA with or without the AHUJA DEVICE or any other trade mark, device and/or model number deceptively similar to the Plaintiff’s trade mark, device and/or model numbers or doing any other act as is likely to lead to infringement of trade mark Nos. 136189, 313757 and 1495010 in class 9, as set out in the plaint.

(b) An order of permanent injunction restraining the Defendant, its principal officers, partners, servants, representatives, agents, distributors and any other persons acting for and on behalf of the Defendant from dealing in Public Address Systems and Sound Equipment including amplifiers bearing model No. SSA 250 M under the trade mark AHUJA with or without the AHUJA DEVICE or any other trade mark, device and/or model number deceptively similar to the Plaintiff’s trade mark, device and/or model numbers or doing any other act amounting to passing off their products as those of the Plaintiff.

 

(d) An order for delivery-up of all the impugned materials of the Defendant including the infringing products, signage, goods, stickers, cartons, packing, dies, articles, papers or any other material bearing the impugned trade marks, device or model numbers for the purpose of their destruction/ erasure.”

  1. The learned counsel for the plaintiff did not press for damages and consequently the same is not being granted.
  1. The plaintiff shall also be entitled to costs.
  1. Decree sheet be drawn accordingly. All pending applications stand disposed of.

 

VIBHU BAKHRU, J

MAY 01, 2017