26 May 2020


Judgments

High Court of Delhi

The Singer Company Limitd S.A.R.L. and Ors. Vs. Anshu Singh

MANU/DE/3175/2017

17.10.2017

Intellectual Property Rights

Court is empowered to pass summary judgment, without recording evidence, if it appears that, Defendant has no real prospect of defending the claim

In fact of present case, Plaintiff No. 1 is the registered proprietor of the trade mark SINGER in Class 7. The Plaintiff No. 1 is the leading manufacturer and merchant of household appliances including but not limited to sewing machines, vacuum cleaners, juicer mixer grinders, heaters etc. The Plaintiff No. 1 is having more than 1500 trade mark registrations for the mark SINGER in a number of jurisdictions all over the world. In India, the Plaintiffs' mark SINGER as a part of the trading style has been used since 1870 and the earliest registration for the said mark dates back to the year 1942 in Class 7. Plaintiff No. 2 is the licensed/permitted user of the mark SINGER in India and has been selling its goods under the said mark through a wide network of 40 showrooms and over 600 dealers pan-India. Present application has been filed under Order VIII Rule 10 read with Section 151 of Code of Civil Procedure, 1908 (CPC). The present suit has been filed for permanent injunction, infringement of trade mark, account of profits and declaration.

A Coordinate Bench of this Court in Nirog Pharma Pvt. Ltd. Vs. Umesh Gupta and Ors., has held that, Order VIII Rule 10 of CPC, 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.

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 pursue 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 of CPC to decree such cases.

Present Court is further of the view that, the Plaintiffs are entitled to a decree under Order XIII-A of the Commercial Courts, Commercial Division and Commercial Appellate Division of the High Courts Act, 2015 as the said provision empowers this Court to pass a summary judgment, without recording evidence, if it appears that the Defendant has no real prospect of defending the claim.

High Court is of opinion that, the act of Defendant in using the Plaintiff's registered trademark SINGER as a trade/business name in respect of her retail shop for sale of sewing machines clearly amounts to infringement under Section 29(1) of the Trade Marks Act, 1999 as the Defendant is not a permitted user of the Plaintiffs' registered mark SINGER.

This Court is of the view that, the use of the mark SINGER by the Defendant is also an infringement under Section 29(5) of the Trade Marks Act as the said mark is being used by the Defendant as its trade name i.e. SINGER AGENCIES in respect of sale of sewing machines, which are the relevant goods for which the mark SINGER registered in the name of the Plaintiffs. It is pertinent to mention that, the Defendant is the wife of an authorised dealer of the Plaintiff No. 2 from April, 2010 to September, 2016 and whose dealership was terminated on 30th September, 2016.

Considering the fact that, the Plaintiffs are the prior user and registered proprietor of the mark SINGER, this Court is of the opinion that, the Defendant being the wife of the former dealer of the Plaintiffs has no justification for the adoption and use of virtually identical trade mark as that of the Plaintiffs in relation to identical products.

This Court is further of the opinion that, there is no plausible explanation for the Defendant to have adopted it other than to ride upon the goodwill and reputation of the Plaintiffs' mark. In any event, as the averments in the plaint have not been rebutted by the Defendant nor did she bother to put forth her stand in spite of ample opportunities given by this Court, they are deemed to have been admitted. Accordingly, the present application is allowed and the suit is decreed against the Defendant.

Relevant

Nirog Pharma Pvt. Ltd. Vs. Umesh Gupta and Ors., MANU/DE/3015/2016
: 235 (2016) DLT 354

Tags : Infringement Injunction Grant

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