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Judgment
,,,,
Manmohan, J",,,,
I.A.No.20699/2014,,,,
Present application has been filed by defendant no.8 under Order VII Rule 10 CPC along with I.A.No.21562/2014 under Order VII Rule 11 CPC.,,,,
Pursuant to defendant no.8’s statement before this Court as recorded vide order dated 18th January, 2018, the present suit stands decreed against",,,,
defendant no.8. Accordingly, the present application has become infructuous and it accordingly stands disposed of.",,,,
I.A.No.2178/2017,,,,
Present application has been filed by defendant no.1 under Order VII Rule 11 with Section 151 CPC.,,,,
Pursuant to the defendant no.1’s statement as recorded vide order dated 18th January, 2018, the present suit also stands decreed against",,,,
defendant no.1. Accordingly, the present application has become infructuous and it accordingly stands disposed of.",,,,
CS(COMM) 401/2016 & I.A. 16875/2013,,,,
Present suit has been filed for injunction, damages, trademark infringement and copyright infringement. The prayer clause in the present suit is",,,,
reproduced hereinbelow:-,,,,
A. A decree of permanent injunction be passed restraining the Defendants, their partners, agents, distributors, franchisees, representatives and assigns",,,,
from:,,,,
(i) Using the trade marks CORAGEN® and/or DuPont™ or any trade mark which is deceptively or confusingly similar to the Plaintiffs’,,,,
registered trade marks CORAGEN® and/or DuPont™ in respect of any goods whatsoever as a trade mark or part of a trade mark, trade name or",,,,
part of a trade name or in any other manner whatsoever;,,,,
(ii) manufacturing or authorizing the manufacture, selling or offering for sale, marketing, exporting, advertising, promoting, displaying or in any other",,,,
manner whatsoever using the Plaintiffs’ trade marks CORAGEN® and/or DUPONT™ or any trade mark which is deceptively or confusingly,,,,
similar to the Plaintiffs’ registered trade marks CORAGEN® and/or DUPONT™ in any other manner whatsoever;,,,,
(iii) Using the Plaintiffs’ CORAGEN® packaging/label, a representation of which can be found in paragraph No. 4 or any other packaging/label",,,,
which is substantial reproduction of the artistic work in and to the packaging/label of the Plaintiffs or any other manner infringing the copyright in the,,,,
artistic work which vests with the Plaintiffs;,,,,
B. A decree of a mandatory injunction be passed thereby directing that the Defendant, their partners, employees, agents, distributors, franchisees,",,,,
representatives and assigns to:,,,,
i) hand over to the Plaintiffs or their nominated representative all goods, packaging and promotional materials, catalogues, stationery and any other",,,,
material whatsoever bearing the Plaintiffs’ trade marks CORAGEN®, CORAGEÂN® Packaging and/or the trade mark DUPONTâ„¢",,,,
and/or any other trade marks deceptively or confusingly similar to the Plaintiffs’ trade marks CORAGEN®, CORAGEN® Packaging",,,,
and/or the trade mark DUPONTâ„¢;,,,,
ii) recall all the products, marketing, promotional and advertising materials bearing the Plaintiffs’ trade marks CORAGEN®,",,,,
CORAGEN® Packaging and/or the trade mark DUPONT™ and/or any other trade marks deceptively or confusingly similar to the,,,,
Plaintiffs’ trade marks CORAGEN®, CORAGEN® Packaging and/or the trade mark DUPONT™ which has been manufactured,",,,,
distributed, sold by him and hand over to the representatives of the Plaintiffs;",,,,
iii) deliver to the Plaintiffs’ attorneys or representatives for destruction all products, labels, signs, prints, packages, moulds, plates, dies,",,,,
wrappers, receptacles and advertisements in its possession or under his control bearing the Plaintiffs’ trade marks and/or copyrights",,,,
and/or any other packaging/label/ marks deceptively or confusingly similar to the Plaintiffs’ trade marks and copyrights;,,,,
iv) to disclose on oath the exact constitution and details of the manufacturer involved in the manufacturing of counterfeit products under,,,,
the name CORAGEN;,,,,
v) to disclose on oath the exact constitution and details of all such distributors/manufacturers/retailers involved in the,,,,
manufacturing/distribution/marketing etc. of counterfeit products manufactured or sold under the name CORAGEN, as the case may be;",,,,
C. The defendants be required to render an account of all transactions concerning the offending activities set out in the plaint and the,,,,
Plaintiffs be then given the option of choosing either award of damages (including penal damages) or accounts for profits for the amount,,,,
found due;,,,,
D. Costs of the suit be awarded to the Plaintiffs;,,,,
E. And other relief which the Hon’ble Court deems and proper in the facts and circumstances of the case be allowed in favour of the,,,,
Plaintiffs and against the Defendants.,,,,
The present suit was filed by the plaintiffs against a total of eight defendants. On 08th January, 2014, this Court was pleased to pass an ex parte",,,,
injunction thereby restraining the defendants from manufacturing, selling or offering for sale, marketing, exporting, advertising, promoting, displaying,",,,,
packaging or in any other manner whatsoever using the plaintiffs’ trademarks i.e. ‘CORAGEN’ and ‘DUPONT’ or any other trade,,,,
mark which may be deceptively similar to the plaintiffs’ trade mark.,,,,
The plaintiffs’ application seeking appointment of Local Commissioners bearing I.A.No.16876/2013 under Order XXVI Rule 9 CPC was also,,,,
allowed by this Court on 08th January, 2014, wherein four Local Commissioners were appointed to visit the premises of the defendant nos.1 to 8,",,,,
without any notice to them and to make inventory of the goods containing the trademarks and packaging of the plaintiffs. Vide order dated 21st,,,,
Trade Mark,Number,Date,Class,Goods
CORAGEN,1487406,14/09/2006,5,Insecticides
DUPONT,419014,12/03/1984,5,"Insecticides,
fungicides and
herbicides
Learned counsel for the plaintiffs states that the plaintiffs were shocked when it came to their attention that their brand CORAGEN® and,,,,
DUPONT™ and the distinctive CORAGEN® packaging were being misused in few districts of Andhra Pradesh and Maharashtra. She states that,,,,
not only was there large scale counterfeiting of the products sold under the brand CORAGEN in these areas/districts, but the said products were",,,,
being sold without a principal certificate issued by the plaintiffs, which tantamounts to the sale of insecticides without a license. She further states that",,,,
the plaintiffs’ records have disclosed that defendants are not the holders of the principal certificates which is a mandatory requirement for,,,,
distributing and selling insecticides, and in the present case, CORAGEN® branded products of the plaintiffs. Learned counsel for the plaintiffs states",,,,
that the survey revealed that there were several unauthorized distributors of CORAGEN® as well as counterfeiters in the said district as well as in,,,,
other districts of Andhra Pradesh and Maharashtra. She states that during the said survey, the plaintiffs were only able to identify some of these",,,,
distributors, being the defendant nos. 1 to 8 mentioned in the cause title of the plaint.",,,,
The photographs of the counterfeit CORAGEN sold by the defendant nos. 3 and 7 mentioned in the cause title along with the photographs of their,,,,
premises/bills are reproduced hereinbelow:-,,,,
Learned counsel for the plaintiffs states that in view of the judgment of this Court in Satya Infrastructure Ltd. & Ors. Vs. Satya Infra & Estates,,,,
Pvt. Ltd., 2013 SCC OnLine Del 508, the present suit be decreed qua the relief of injunction against the defendant nos. 3 and 7. The relevant portion",,,,
of the said judgment, relied upon by learned counsel for the plaintiffs, is reproduced hereinbelow:-",,,,
“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. I have therefore heard the counsel for the plaintiffs,,,,
on merits qua the relief of injunction.â€,,,,
Considering the aforesaid mandate of law and the fact that the plaintiffs are the prior and registered user, this Court is of the opinion that the",,,,
defendant nos. 3 and 7 have no justification for the adoption and use of virtually identical trade mark/dress and label as that of the plaintiff.,,,,
Accordingly, the present suit is decreed against the defendant nos. 3 and 7 in accordance with prayer clause A (i) to A (iii) of the plaint along with",,,,
the actual costs. The costs shall amongst others include the lawyer’s fees as well as the amount spent on Court-fees.,,,,
Registry is directed to prepare a decree sheet accordingly.,,,,