Deepak Wadhwa vs Flipkart Internet Pvt Ltd And Ors

Ashis Kumar Chakraborty, J

The Court : The petitioner is the plaintiff in a suit for infringement of its registered design and infringement of copyright and passing off in respect of the wrist watch mentioned hereinafter. In this application the petitioner has prayed for various interim reliefs against the defendants in the suit.

The petitioner, as the sole proprietor of the firm "Time Wear and Beyond", carries on the business of manufacturing and selling of different kinds of wrist watches. The wrist watches manufactured by the petitioner are also sold within the jurisdiction of this Court. The petitioner claims to be the registered proprietor of the design of the watches, described in paragraph 13 of the petition (hereinafter referred to as "the said watches"). The petitioner has disclosed the certificate of registration of the design of the said watches. According to the petitioner, in view of the registration of the design of the said watches no one else can import or sell any watches infringing the design of his said watches. The petitioner has also disclosed a copy of the agreement by virtue of which he has permitted the respondent no.1, Flipkart Internet Pvt. Ltd. to advertise and sell his products, including the said watches through its website portal/online. The petitioner, however, complains that in spite of his exclusive right to use the design of the said watches the respondent nos.1 to 10 are selling watches with design which are identical and/or deceptively similar to the registered design of his said watches, as well as getup, style, look, colour combination and configuration of the said watches. In paragraph 29 of the application the petitioner has also mentioned the particulars of the portals/websites through which the respondents are selling the infringed design and/or products by displaying the pictorial view of his said watches. Further, in paragraph 30 of the petition, the petition has disclosed the particulars of the watches sold by the respective respondent with deceptively similar shape, configuration, colour combination and surface design of his said watches. In spite of the petitioner lodging complaints of the respondent no.1 with regard to the display and sale of the infringed wrist watches, the latter has refused to take any corrective step. It is urged that the use of the infringed design of the said watches by the respondent nos.2 to 10 is a colourable imitation thereto, without permission and/or consent and/or license from the petitioner and the respondent no.1 is also selling such impugned products in a wrongful and illegal manner amounting to violation of the petitioner's statutory rights which he has over and in respect of the design of the said watches. On these grounds, the petitioner prays for an ad interim order to protect his right in respect of the registered design of the said watches.

Considering the materials on record, I find that the petitioner has made out a prima facie case of infringement of his registered design in respect of the said watches by the respondents. The balance of convenience also lies in favour of the petitioner for obtaining ex parte ad interim order.

Accordingly, there shall be an ad interim order in terms of prayer (a) of the Notice of Motion, read with paragraph 29 of the petition.

The application is made returnable on August 28, 2019. In the meantime, the petitioner shall serve copies of the application together with the copy of this order on the respondents by speed post with acknowledgement due card, as well as by electronic mail and file an affidavit of service on the next date.

Needless to mention that the respondents may approach this Court for vacating of this interim order upon notice to the petitioner.