AHUJA RADIOS Vs M/S. ROHINI ELECTRONICS & ORS. -Judgment by Delhi High Court
$~18
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 25th January, 2024
+ CS(COMM) 498/2019
AHUJA RADIOS ….. Plaintiff
Through: Mr. Saif Khan, Mr. Shobhit
Agrawal and Mr. Prajjwal Kushwaha, Advocates.
versus
M/S. ROHINI ELECTRONICS & ORS. ….. Defendants
Through: None.
CORAM:
HON’BLE MR. JUSTICE SANJEEV NARULA
JUDGMENT
SANJEEV NARULA, J. (Oral):
1. The Plaintiff, Ahuja Radios, has filed the present suit seeking a permanent injunction restraining the Defendants from dealing in any products bearing Plaintiff�s trademarks �AHUJA�, and AHUJA device- �� or any similar mark, amounting to infringement of its registered trademarks Nos. 136189, 313757; dilution or tarnishment, and passing off of Defendants� goods as those of the Plaintiff�s; damages, rendition of accounts, delivery-up and other ancillary reliefs.
ABOUT THE PLAINTIFF
2. The Plaintiff is the registered proprietor of the trademark �AHUJA� and AHUJA device- �� (collectively referred to as �Plaintiff�s marks�). The registration details of the said marks is set out hereinunder:
S.no
Trademark
Reg. No.
Date
Class of Goods
1.
AHUJA
(word per se)
136189
6.11.1948
[CLASS 9]:
Amplifiers, transformers
and parts thereof not
included in other classes
2.
(Device)
313757
6.4.1976
[CLASS 9]:
Amplifiers (sound),microphones, radio
receiving apparatus for
reproducing sounds, tape
recorders, electric battery
chargers, pick-ups and
electrograph, microphone
stands, loudspeakers and
horns all included in class 9
3. The plaintiff, Ahuja Radios, was established in the year 1940 by Mr. Amar Nath Ahuja and is engaged in developing, manufacturing, marketing and exporting of electronic products, particularly, Public Address Systems (�PAS�) and audio equipment, under the trademark �AHUJA�. Over the course of time, Plaintiff has achieved undisputed market leadership and is at present the number one provider of PAS and audio equipment in India with a dealer network comprising of over 400 authorised dealers/retailers selling the Plaintiff�s products. It is contended that the Plaintiff�s marks enjoy a reputation in India and aboard and their products are being sold in at least 50 countries. Plaintiff has also received several prestigious awards as specified in paragraph no. 4 of the plaint. Some places where the Plaintiff�s PAS is installed includes Lok Sabha, Indian Railways etc. Plaintiff also enjoys registration of trademark �AHUJA� in more than 26 countries, reflecting wide recognition of the exclusivity and proprietorship of Plaintiff�s right in their marks. Plaintiff submits that he has spent considerable amount of money on advertising and is regularly featured in magazines, journals, and newspapers with wide circulation. Plaintiff�s turnover for the year 2018-2019 in relation to goods sold under the Plaintiff�s marks is approximately INR. 750 Crores.
4. Plaintiff, therefore, contends that as a cumulative result of innate distinctiveness, far-reaching business activities, extensive sales network, widespread promotion and publicity given thereto, the Plaintiff�s mark has acquired the status of a well-known trademark and is instantly identified and recognized by both the members of trade and public as exclusively associated with the goods and business of the Plaintiff.
ABOUT THE DEFENDANTS
5. Plaintiff asserts that Defendant No.1, M/s. Rohini Electronics is the key supplier of the counterfeit products bearing Plaintiff�s marks. Defendant Nos. 2-6, M/s M L Electronics, M/s Shiv Shakti Electronics, M/s DJ Mona Electronics, M/s Ajanta Electronics, H.K. Sound Electronics, respectively, are engaged in the sale of counterfeit products bearing Plaintiff�s marks. The Plaintiff had on previous occasion filed a suit bearing no. CS(OS) No. 2425 of 2014 in which the final decree was passed against Defenant No.6- H.K. Sound Electronics and permanent injunction was granted. In addition to these Defendants, the Plaintiff has also impleaded unidentified or Ashok Kumar(s) engaged in the sale of counterfeit products bearing the Plaintiff�s marks.
DEFENDANTS� INFRINGING ACTIVITIES
6. In August, 2019, the Plaintiff, through market sources, learned that counterfeit PAS and sound equipment bearing the Plaintiff�s marks were being sold in Mumbai�s wholesale markets. Upon conducting survey to ascertain availability of counterfeit products, it was found that several entities were engaged in the sale of counterfeit products and the Defendants in the present suit were specifically identified.
7. Plaintiff made some dummy purchases from Defendant No.1 and Defendant No. 6 and it was found that each of the Defendants were selling the impugned products at nearly 50% of the actual price of the corresponding genuine product sold by the Plaintiff. This indicates that the products were an imitation and counterfeit. Further, the arrangement, features and contents printed on the products sold by the Defendants were also inconsistent with those of the Plaintiff�s. The Plaintiff purchased a sample amplifier AHUJA SSA 250DP and a sample wireless microphone AHUJA AWM-490V2 from Defendant No.1 and Defendant No.6, respectively, to learn more about the counterfeiting.
8. Below is the pictorial chart comparing the Plaintiff�s products with the Defendants� products, depicting the inconsistencies between the two products:
9. Plaintiff has also submitted the following comparison chart to demonstrate that the Defendants� products were counterfeit:
INTERIM ORDER & LOCAL COMMISSIONER�S REPORT
10. The Court granted ex-parte, ad-interim injunction in favour of the Plaintiff on 12th August, 2019, in the following terms:
��Accordingly, the defendants, their principal officers, partners, servants, representatives, agents, distributors and any other persons acting for and on behalf of the defendants are restrained from dealing in any goods under the trade mark AHUJA and/or AHUJA DEVICE or any other trade mark/ device/ logo deceptively similar to the plaintiffs trademark, device or doing any other act as is likely to lead to infringement of registered trade mark nos. 136189 and 313757 in class 9 and passing off their goods as those of Plaintiff s till the next date of hearing.�
11. The same order also appointed 3 Local Commissioners to visit Defendants� premises, to inspect, seize and seal all goods bearing Plaintiff�s marks. The Local Commissioners� reported that the goods bearing the Plaintiff�s trademarks were found, which were then, sealed and returned to the Defendants on superdari. The details of the seized goods along with the rate at which the Plaintiff sells the authentic goods are as follows:
Defendants
Number of infringing products found
Value/Price of Authentic products as provided by Plaintiff�s counsel
Defendant No.1/M/s. Rohini Electronics
12 Units
i.) PA Amplifier SSA � 250 DP � 1 Unit
ii.) PA Amplifier SSA 160 DP � 1 Unit
iii.) Microphones � 5 Units
iv.) Driver Units AU-40XT � 5Units
i.) INR 15000/-
ii.) INR 15000/-
iii.) INR 4000/-
iv.) INR 2000/-
Defendant No.2/ M L Electronics
8 Units
i.) PA Amplifier SSA 5000 EM.- 1 Unit
ii.) Amplifier SSD- 120DP- 1 Unit
iii.) Amplifier SSA-120 DP- 1 Unit
iv.) Amplifier SSA-160DP 2 Unit
v.) Amplifier SSA-250M- 1 Unit
vi.) Amplifier AV-100- 1 Unit
vii.) Amplifier AV-60- 1 Unit
viii.) Professional amplifier 5C AMP40WUTX- 1 Unit.
i.) INR 32000/-
ii.) INR 13000/-
iii.) INR 13000/-
iv.) INR 15000/-
v.) INR 15000/-
vi.) INR 10,000/-
vii.) INR 8000/-
viii.) INR 7000/-
Defendant No.3/ Shiv shakti Electronics
3 Units
i.) PA Amplifier SSA � 250 DP � 2 Units
ii.) PA Amplifier DP SSA 160 EM � 1 Unit.
iii.) Empty boxes recovered:
i.) PA Amplifier DP SSB 80 M � 1 Unit
ii.) PA Amplifier DP SSB 120M � 1 Unit
i.) INR 15000/-
ii.) INR 14000/-
Defendant No.4/ DJ Mona Electronics
14 Units
i.) Amplifier SSB-120 DP- 5 units
ii.) Amplifier SSA-250 DP- 3 Units
iii.) Amplifier SSA-160 DP- 5 Units
iv.) Amplifier SSB-80 DP-1 unit
i.) INR 13000/-
ii.) INR 15000/-
iii.) INR 15000/-
iv.) INR 9000/-
Defendant No.5/ Ajanta Electronics
None
N/A
Defendant No.6/ H K Sound Electronics
None
N/A
12. Despite service, Defendants have chosen not to join the present proceedings and accordingly have been proceeded ex-parte, as noted in order dated 17th July, 2023. Defendant No. 1 and Defendants No. 3 to 6 did not file their written statements and their right to do so stood closed on 18th February, 2022. Although Defendant No. 2 has filed the written statement and the same is on record, they too have stopped appearing and have also been proceeded ex-parte.
13. In view of the above, Mr. Saif Khan, counsel for the Plaintiff, states that the suit be decreed under Order VIII Rule 10 of the Code of Civil Procedure, 1908 (�CPC�) and Order XIIIA read with Rule 27 of the Delhi High Court Intellectual Property Rights Division Rules, 2022 (�IPD Rules, 2022�).
DEFENDANT No.2�s CONTENTIONS:
14. Defendant No.2 denies their involvement in the sale of the infringing products and submits that false and fabricated evidence has been filed. They claim to be a victim of the circumstances cooked by Plaintiff. They claim that the goods seized by the Local Commissioner, do not belong to them and they have got nothing to do with them. It is asserted that the seized goods were with the mechanic who interacted with the Local Commissioner at the premises of Defendant No. 2 at the time of execution of commission. They also submit that the suit should be dismissed under Order 7 Rule 11 of the CPC, as the Plaintiff has no office in Mumbai where Defendant No. 2 is based.
ANALYSIS AND FINDINGS
15. Plaintiff is the registered proprietor of the trademarks noted-above, and its registrations are valid and subsisting. By virtue of provisions of Section 28 of the Trade Marks Act, 1999, (�the Act’) Plaintiff has the exclusive right to use the trademarks in relation to its goods in respect of which it is registered, as well as to obtain relief in respect of infringement.
16. The plaintiff had initiated a survey in or around August 2019, which revealed that the Defendants were selling products bearing the Plaintiff�s marks. Plaintiff also made dummy purchases from Defendant No.1 and Defendant No.6. Furthermore, photographs of goods seized by the Local Commissioners, annexed in the Local Commissioners� reports also show that Defendant Nos. 1-4 are indulging in sale and distribution of products which display deceptively similar/ identical mark as that of the Plaintiff�s.
17. The products sold by the Defendants bearing Plaintiff�s marks is with the intention to profit off the significant goodwill and reputation of the Plaintiff. It is apparent that Defendants were deceiving public into purchasing their counterfeit goods. The likelihood of confusion and deception is clearly made out from the identical nature of two marks and comparison of the Plaintiff�s products and packaging with the Defendants� products and packaging found in paragraph 8 of this order. Defendants have made use of identical trademarks in relation to identical goods. It is obvious that there is a dishonest adoption by the Defendants, and a clear case for trademark infringement and passing off is made out.
18. In view of the foregoing, this Court is satisfied that the Defendants have indulged in infringement of Plaintiff�s trademark. Since the goods have been recovered from the Defendant Nos. 1-4 as per details delineated above, it is also proven that the said these Defendants were indulging in the sale of counterfeit products. The survey conducted by the Plaintiff also revealed that all the Defendants were involved in the sale of infringing products.
19. Further, this Court has also considered the written statement of Defendant No. 2, but finds no cogent defence therein, except for a bare denial that Defendant No. 2 does not indulge in sale of counterfeit products. Although, Defendant No. 2 has tried to disassociate itself from recovery made by the Local Commissioner from their premises, however, such a defence is not demonstrated by any proof. It remains an undisputed fact that Local Commissioner recovered the counterfeit goods from the premises of Defendant No. 2. Moreover, Defendant No. 2�s stand is clearly contradicted by Local Commissioner�s report dated 01st October, 2019 which specifically mentions that the person from whom the recovery was made introduced himself as an employee/ worker of Defendant No. 2. Thus, the contention of Defendant No. 2 that recovery of counterfeit goods was from mechanic working at the premises is of no avail and such a recovery, is deemed to be from Defendant No. 2. Defendant No. 2 has only attempted to pass on the blame to the mechanic/ worker without proving the same. Therefore, in the opinion of the Court, no plausible defence has been raised. The challenge with regards to territorial jurisdiction is also without substance. Plaintiff regularly and ordinarily carry on their business in New Delhi through their registered and principal office situated at 215, Okhla Industrial Estate, New Delhi-110020 which is within the territorial jurisdiction of this Court. Plaintiff has submitted that the wrongful acts of the Defendants has caused loss of sales, reputation and goodwill to the Plaintiff, the effects of which are accrued in Delhi, it being their principal place of business. Hence, part of the cause of action has arisen within the territorial jurisdiction of this court and the Court has the jurisdiction to entertain the said suit under section 19 and section 20(c) of the CPC. That apart, section 134(2) of the Act allows the Plaintiff to file suit in the place where they are carrying on their business. Since Plaintiff�s place of carrying on their business is New Delhi, this Court has the jurisdiction to entertain the present suit.
20. As already mentioned, Defendant Nos. 1 and Defendant Nos. 3-6 have not filed any defence to contest the suit. Therefore, the Court in exercise of its powers under Order VIII Rule 10 of CPC is inclined to issue a decree in favour of the Plaintiff and against the said Defendants. As regards Defendant No. 2, in the opinion of this Court no purpose would be served by directing Plaintiff to lead ex-parte evidence as pleadings and accompanying documents prove that the said Defendants are misusing the Plaintiff�s marks,1 entitling the Plaintiff to protection.
RELIEFS
21. Suit is decreed in favour of Plaintiff and against Defendants in terms of prayers at paragraph no. 31 (a)(b)(c) of the plaint.
22. Further, in terms of the Local Commissioners� reports dated 24th August 2019, 1st October, 2019 and 28th August, 2019, Defendant No. 1-4 are directed to deliver the goods which were seized by the Local Commissioner to the representatives of the Plaintiff within four weeks from today.
23. Damages are assessed by considering the value of authentic products mentioned in paragraph 11 of this order. Recognizing that counterfeit products are typically not sold at the full price of genuine product and the profit margin in sale of such products, the court finds it appropriate to grant damages equivalent to 50% of the genuine product’s actual cost. Accordingly, damages are awarded in favour of Plaintiff, which shall be payable by the Defendants No. 1-4 in the following manner/ breakup: Defendant No. 1 shall pay INR 30,000/-; Defendant No. 2 is liable to pay INR 64,000/- and likewise, Defendant No. 3 shall pay INR 22000/- and Defendant No. 4 shall pay INR 97000/-.
24. Plaintiff is entitled to actual costs, in terms of the Commercial Courts Act, 2015 and Delhi High Court (Original Side) Rules, 2018 read with IPD Rules, 2022 recoverable jointly and severally from Defendant Nos. 1-4. Plaintiff shall file their bill of costs in terms of Rule 5 of Chapter XXIII of the Delhi High Court (Original Side) Rules, 2018 on or before 25th February, 2024. As and when the same is filed, the matter will be listed before the Taxing Officer for computation of costs.
25. Decree sheet be drawn up.
26. Accordingly, the suit is disposed of.
SANJEEV NARULA, J
JANUARY 25, 2024
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[corrected and released on 8th February, 2024]
1 See: Disney Enterprises Inc. and Anr. v. Balraj Muttneja and Ors., 2014 SCC OnLine Del 781, Cross Fit LCC v. RTR Gym and Fitness Centre, 2022 SCC OnLine Del 2788.
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