M/S PRAKASH PIPES LIMITED vs M/S JAISWAL TRADERS THROUGH ITS PROPRIETOR MR CHANDAN JAISAWAL & ANR.

* IN THE HIGH COURT OF DELHI AT NEW DELHI

Reserved on: August 05, 2024
% Pronounced on: August 29, 2024

+ CS(COMM) 540/2023

M/S PRAKASH PIPES LIMITED …..Plaintiff
Through: Mr. Rishabh Srivastava, Mr. Yasheswani Sharma and Mr. Sahil Gupta, Advocates.
Versus

M/S JAISWAL TRADERS THROUGH ITS PROPRIETOR
MR CHANDAN JAISAWAL & ANR. …..Defendants
Through: None.
CORAM:
HON’BLE MR. JUSTICE SAURABH BANERJEE

J U D G M E N T

I.A. 34177/2024 (Application under Order XXIII-A read with Order VIII Rule 10 and Section 151 of the Code of Civil Procedure, 1908 seeking summary judgment)

1. Vide the present application, the plaintiff seeks decreeing of the present suit by way of a summary judgement qua defendant no.2, since it has already settled the matter with the defendant no.1.
2. The plaintiff instituted the present suit seeking permanent injunction restraining infringement of registered trademark/ writing style/ colour combination/ copyright/ passing off goods, delivery upon, rendition of accounts of profits and other ancillary reliefs.
3. As per plaint, the plaintiff is extensively engaged and well renowned in the business of manufacturing and trading of goods mentioned hereinunder:-
“CPVC Pipe, CPVC pipes and fittings, PVC Water Storage Tanks and Containers PVC Pipes, Tubes And Fittings, Rubber and PVC House Pipe Hi – Density Poly Ethylene (HDPE) Pipes, Middle Density Poly Ethylene (HDPE) Pipes, Poly Ethylene (PE) Pipes Polyester Film For Packing Purposes, Insulating Tapes Polyester Film For Graphics Purposes, Polyester Film For Industrial Application HDPE Pipes and All Parts In Sprinkler System HDP IDPE and PVC Pipes, Rigid Pipes, Sprinkler Irrigation System, Breaded Hose Pipe, Plum Pipes, Agriculture Pipes, Suction Pipes Pre-Al-Pe (Polyethylene-Aluminum Polyethylene) Composite Pipe Pex-Al-Pex Composite Pipe, Pex-Al-Pex Composite Pipe, PEX Pipe (Cross Linked Polyethylene Pipe) PVC Casing and Capping P. V. C. Flexible Pipe, Acrylic Sheet, Agricultural Rigid P.V.C. Pipes, HDFC Pipes PVC. Pipes and Fittings, PVC. Casing And Capping P. V. C, Acrylic Sheet, And Agricultural Rigid P.V.C. Pipes, Sprinkler Pipe, Hose Pipe, Flexible Pipes, Conduit Pipes, PPR Pipes, PEX Pipes, PVC Pipes & Fittings, PVC Flexible Pipes, Acrylic Sheet, Agricultural Rigid PVC Pipes, HDPE Pipes & Coils, PVC& UPVC Rigid Pipes CQ Pipes Fittings, HDPESWR Pipes I& Fittings Polythene Pipes, Pre-Al-Pe (Poly Ethylene Aluminum-Poly Ethylene) Composite Pipes, Pex-Al-Pex Composite Pipes, Pex-Al-Pex Composite Pipes, PEX Pipes (Cross-Linked Polyethylene Pipes), Poly Propylene Random Pipes” falling in class- 17, 20 and its services in class 35.”

4. The predecessor of the plaintiff was a Company incorporated under the Companies Act, 1956 and the plaintiff is incorporated under the Companies Act, 2013. The plaintiff’s trademark is a well-established and renowned brand since the year 1980 in India as well as overseas in respect of goods/ services included in Class(s) 09, 17, 20 and 35 under the provisions of the Trade Marks Act, 1999.
5. The plaintiff started using the trademark/ copyright/ colour combination/ writing style/ overall get up “PRAKASH”, “PRAKASH GOLD” “”, “” and “” (Word as well as formative marks) since the year 1980. The trademark “PRAKASH” has been consistently utilized as the distinctive mark of the plaintiff. Further, the plaintiff has also been certified for ISO 9001: 2000 Quality management system and ISO-14001 Environment Management System.
6. The plaintiff has also clocked sales of more than Rs.600 crores consecutively for the past two financial years and has spent more than Rs.2 crores on advertisements and promotion in the previous five financial years.
7. During a regular market survey, the plaintiff came across the infringing products being sold by the defendant no.1, who rendered a written apology to the plaintiff on 24.05.2023, and disclosed that the infringing goods were procured from the manufacturer defendant no.2, which conducts its business from 176, 2nd Floor, Neb Sari IGNOU Road, South Delhi-110 068.
8. Below is a comparison of products of plaintiff and the defendants:-
Plaintiff’s Products
Defendants’ Products

9. Since the defendant no.1 was one of the sub-dealer of the plaintiff, it was aware of the well-repute and goodwill of the plaintiff’s trademark PRAKASH and other PRAKASH formative mark and the manner of writing and font etc. are associated by the public/ consumers/ distributors with the plaintiff exclusively.
10. Since, despite a written apology on 08.07.2023, the defendant no.1 continued to sell the infringing goods, the plaintiff approached this Court by way of the present suit.
11. Learned counsel submits that this Court, vide its order dated 09.08.2023 restrained the defendant nos.1 and 2, till the next date of hearing, in the following terms:
“28. The Defendants and anyone acting for or on their behalf are restrained from manufacturing, selling, offering for sale, advertising and promoting any PVC pipes, fittings or cognate and allied products under the mark ‘PRAKASH GOLD’ or ‘PRAKASH’ or any other mark which is similar to the said marks.”

12. Learned counsel submits that since the said order dated 09.08.2023 has never been varied/ modified/ amended till date, it is valid and subsisting against the defendant no.2.
13. Learned counsel submits that before this Court, even though the defendant no.2 was duly served on 06.09.2023, it neither entered appearance nor filed its written statement. This led to the right of the said defendant no.2 being closed and proceeded ex-parte vide order dated 11.01.2024.
14. Thereafter, learned counsel submits that the plaintiff and defendant no.1, the sub-dealer of the impugned goods and through whom the defendant no.2 sold his goods, have already compromised the matter and a decree in terms of order dated 18.01.2024 qua defendant no.1 has already been passed by this Court.
15. Given the aforesaid situation, learned counsel for plaintiff now seeks passing of a summary judgment against the remaining sole defendant no.2.
16. This Court has heard the learned counsel for plaintiff and carefully gone through the averments made in the plaint as also the documents on record as well as the order sheets.
17. Based on the pleadings and the materials/ documents filed by the plaintiff before this Court as also the arguments addressed by learned counsel for plaintiff qua them, the plaintiff has been able to both show and prove that the plaintiff is a Company incorporated under the Companies Act, 2013 and also that it is the holder of the trademark/ copyright/ colour combination/ writing style/ overall get up “PRAKASH”, “PRAKASH GOLD” “”, “” and “” (Word as well as formative marks) in Class(s) 09, 17, 20 and 35 under the provisions of the Trade Marks Act, 1999 since the year 1980, when they were being used by the predecessor in title of the plaintiff.
18. The plaintiff has also been able to show and prove that it is a well-established Company with sufficient sale figures which have been increasing every year and that it has been expending sufficient sums of money on advertisements and promotion of its trademark/ copyright/ colour combination/ writing style/ overall get up “PRAKASH”, “PRAKASH GOLD” “”, “” and “” (Word as well as formative marks) in various forms.
19. The plaintiff has also been able to show and prove that as it has been using the trademark continuously and uninterruptedly since the year 1980, it has been able to build immense goodwill and sufficient reputation in and to its trademark/ copyright/ colour combination/ writing style/ overall get up “PRAKASH”, “PRAKASH GOLD” “”, “” and “” (Word as well as formative marks), albeit in various forms from time to time, since the year 1980.
20. The comparative table contained in paragraph 3 of the plaint, as reflected hereinabove as well, show and reflect that the defendant no.2 is guilty of having wrongly adopted and using the identically similar trademark as that of the plaintiff and that too for its identically similar infringing products with no authority/ permission/ sanction/ leave from the plaintiff. Doing so, the acts of the defendant no.2 are writ large with trickery and deceit, which cannot be doubted since being one of the sub-dealer of the plaintiff earlier, it was aware of the well-repute and goodwill of the plaintiff’s trademark PRAKASH and other PRAKASH formative mark.
21. Since the aforesaid activities of the defendant no.2 are without any authority/ permission/ sanction/ leave from the plaintiff, the defendant no.2 had no reason and/ or cause, sufficient or otherwise, to have adopted and/ or used the trademark/ copyright/ colour combination/ writing style/ overall get up “PRAKASH”, “PRAKASH GOLD” “”, “” and “” (Word as well as formative marks) at any point of time whatsoever and whenever. The defendant no.2 has merely tried to take benefit of the plaintiff, its well established goodwill and reputation in and to the trademark/ copyright/ colour combination/ writing style/ overall get up “PRAKASH”, “PRAKASH GOLD” “”, “” and “” (Word as well as formative marks) to piggybank ride upon simply to take an undue advantage thereof at the minimal, or in fact no, costs from its side.
22. Moreover, since the defendant no.2 is engaged in the identically similar line of business, it is bound to be using and operating the identically similar trade channel as also catering, offering and selling the identically similar products as that of the plaintiff to the identically similar set of customers.
23. All the aforesaid are going to cause a lot of deception and confusion amongst everybody, including the general public as it may be reflective that the defendant no.2 and its impugned products are coming from the house of plaintiff and/ or that they are acting for and on behalf of the plaintiff.
24. The defendant no.2 has chosen neither to appear nor file its written statement despite due service further reflects that it had no defence and/ or case to counter the case of the plaintiff.
25. Thus, the defendant no.2 is infringing the trademark/ copyright/ colour combination/ writing style/ overall get up “PRAKASH”, “PRAKASH GOLD” “”, “” and “” (Word as well as formative marks) as it adopts every single detail of the registered trademark/ copyright/ colour combination/ writing style/ overall get-up of the plaintiff’s mark including but not limited to an identical colour combination and writing style in goods similarly placed. A detailed comparison of the products of the plaintiff and the defendants as under reflects so:

26. Additionally, the defendant no.2 is also guilty of passing off the trademark/ copyright/ colour combination/ writing style/ overall get up “PRAKASH”, “PRAKASH GOLD” “”, “” and “” (Word as well as formative marks) as it is offering and selling its impugned products under them in the open market thereby misleading and confusing consumers into believing that the impugned products originate from the plaintiff’s company. The same is of a greater concern as defendant no.1, an erstwhile sub-dealer of the plaintiff, with whom the matter now stands settled, was also dealing in such infringing goods, was duly aware of the plaintiff’s well-repute and goodwill with PRAKASH and other PRAKASH formative mark and the manner of writing and font etc. are associated by the general public/ consumers/ distributors with the plaintiff exclusively.
27. Therefore, in light of the aforesaid, this Court is of the opinion that the defendant no.2 has no real prospect of successfully defending the claim as well as there is no other compelling reason why the present suit not be disposed of before recording of oral evidence. There is no reason and/ or occasion for this Court to do so. The same view has consistently been adopted by Co-ordinate Benches of this Court in Su-Kam Power Systems Ltd. v. Kunwer Sachdev, 2019 SCC OnLine Del 10764, Christian Louboutin Sas vs. Abubaker, 2018 SCC OnLine Del 9185 and Bright Enterprises (P) Ltd. v. MJ Bizcraft LLP, 2017 SCC OnLine Del 6394.
28. Accordingly, this is a fit case for this Court to pass a summary judgment in terms of Order XIII-A of the Code of Civil Procedure, 1908 as applicable to the commercial disputes of a specified value read with Rule 27 of the Delhi High Court Intellectual Property Rights Division Rules, 2022 against the remaining sole defendant no.2.
29. Accordingly, the present application is allowed and disposed of.
CS(COMM) 540/2023
30. In terms of the above, the plaintiff is entitled for grant of permanent injunction and decree against the defendant no.2.
31. Accordingly, the defendant no.2, their directors, successors, franchisees, licensees, distributors, representatives, assignees, agents and anyone acting for and/ or on their behalf is/ are permanently restrained from using the trademarks/ copyrights/ colour combination/ writing style/ packaging/ label “PRAKASH/ PRAKASH GOLD/ ” in any other manner, whereby directly or indirectly infringing the plaintiff’s registered trademark/ copyright/ writing style/ colour combination/ overall get up “PRAKASH”, “PRAKASH GOLD” “”, “” and “” (Word as well as formative marks) and/ or passing off its goods as that of the plaintiff for goods, PVC pipes, fittings etc. and allied and cognate goods and services related thereto.
32. However, since the defendant no.2 is not appearing any longer and has not rendered any accounts of profits, the relief as sought in prayer prayers 56 (ii) and (iii) of the plaint cannot be granted.
33. The aforesaid lead to the conclusion that the defendant no.2 is guilty of adopting and using the trade mark “PRAKASH”, “PRAKASH GOLD” “”, “” and “” (Word as well as formative marks) of the plaintiff without any authorisation, permission or assignment. Therefore, the plaintiff is awarded damages and costs under Section 35 and special costs under Section 35A of the CPC of Rs.5,00,000/- [Rupees Five Lakhs Only], payable by the defendant no.2 within a period of four weeks.
34. Decree sheet qua defendant no.2 be drawn up accordingly.

SAURABH BANERJEE, J.
AUGUST 29, 2024/rr

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