*IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 1st April, 2014.
+ CS(OS) No.1323/2010
THE POLO/LAUREN COMPANY, L.P. ..... Plaintiff
Through: Mr. Praveen Anand, Ms. Vaishali
Mittal and Ms. Nupur Kumar, Advs.
Versus
SIDDHARTH CHIBBA & ORS. ..... Defendants
Through: None.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.
The plaintiff instituted this suit for the reliefs of, a) permanent injunction restraining the five defendants from making representations in relation to the plaintiff‟s business or its trademarks or from creating a false impression of a relationship between the plaintiff and any of the defendants; and, b) from using the plaintiff‟s trademarks; and, c) for recovery of damages in the sum of Rs.20,05,000/-, pleading:
(i) that the plaintiff since the year 1968 is in the business of designing, manufacturing and marketing articles of contemporary, high quality men‟s clothing and from mid 1970‟s of designing and authorizing manufacturing and promoting the sale of articles of CS(OS) No.1323/2010 Page 1 of 8 contemporary, high quality women‟s and children‟s clothing and accessories;
(ii) that the plaintiff is the proprietor in India of several trademarks comprising or containing POLO and/or RALPH LAUREN as well as the POLO PLAYER DEVICE etc.;
(iii) that POLO trademarks and goodwill associated therewith cuts across barriers of geography, language, ideology and class;
(iv) that the defendant No.3 Financial Chronicle posted an article dated 21st April, 2010 on its website www.mydigitalfc.com titled "Ralph Lauren „Polo‟ to be in India by year end" reporting that the defendant No.1 Siddharth Chibba of Inter Ads Plans Exhibitions Pvt. Ltd. is to open five exclusive POLO RALPH LAUREN stores to cover all major cities by the middle of 2012;
(v) that another article dated 22nd December, 2010 was posted by defendant No.5 M/s Franchise India Holdings Limited on its website www.franchiseindia.com titled "Ralph Lauren to touch the Indian Shore" and also reporting that the defendant No.1 aimed to launch "the first Ralph Lauren store at a five star hotel and that the company CS(OS) No.1323/2010 Page 2 of 8 plans to open five exclusive Polo Ralph Lauren stores to cover all major cities by the middle of 2012";
(vi) that attempts with the defendant No.4 Manisha Yadava reporter with the defendant No.3 Financial Chronicle to know the basis of the said news being yielded no results;
(vii) that the defendant No.1 also expressed shock about the news and represented that his consultant defendant No.2 Mr. Divyendu Shekhar proprietor of Retail Analytics Pvt. Ltd. was looking into the matter and also making enquiries from the defendant No.5 of the basis of the article published by it;
(viii) that the defendant No.4 though admitted the mistake and promised to take corrective steps by issuing a corrigendum, but failed to do so;
(ix) that the defendants No.3 to 5 were thus guilty of publishing false information concerning the plaintiff.
Accordingly, the suit was filed for the reliefs aforesaid.
2. Summons of the suit were issued and vide ex-parte ad-interim injunction dated 6th July, 2010, the defendants were restrained from representing in any manner to the public including on their website that the CS(OS) No.1323/2010 Page 3 of 8 plaintiff had entered into or was proposing to enter into any franchise or agreement for selling plaintiff‟s products in India.
3. The order dated 21st July, 2010 in the suit records that the Court, on an application of the plaintiff for contempt, examined the website www.mydigitalfc.com did not find the impugned article, though the same was found on the website www.franchiseindia.com. Accordingly, notice of contempt was issued to the defendant No.5 only.
4. Written statements were filed by the defendant No.1 and defendants No.3&4 and to which replications were filed by the plaintiff. None appeared for the defendants No.2&5 who were on 12th January, 2011 proceeded against ex-parte.
5. On application of the plaintiff, vide order dated 2 nd December, 2011, Inter Ads Plans Exhibitions Pvt. Ltd. was impleaded as defendant No.6 and an application under Order XXIII Rule 3 of the Civil Procedure Code (CPC), 1908 filed by the plaintiff on the one hand and defendant No.1 and the defendant No.6 on the other hand was also allowed on 2 nd December, 2011 and the suit of the plaintiff insofar as against the defendants No.1&6 was decree for the relief of injunction.
CS(OS) No.1323/2010 Page 4 of 8
6. Another application under Order XXIII Rule 3 CPC by the plaintiff on the one hand and the defendant No.5 on the other hand was also allowed on 2nd December, 2011 itself and the suit insofar as against the defendant No.5, was also decreed for the relief of injunction only.
7. The suit thereafter proceeded against the defendants No.2,3&4 only and of which, as aforesaid, the defendant No.2 has not even filed a written statement. The defendants No.3&4 though had filed the written statement but stopped appearing from 23rd April, 2013 and were proceeded against ex- parte vide order of the said date. The plaintiff has led its ex-parte evidence.
8. The defendants No.3&4 though are ex-parte, had contested the suit pleading, (a) that though the plaintiff in the plaint itself had admitted that the same news was also published in HELLO magazine but had not taken any action against the said magazine; (b) that the defendant No.3 Financial Chronicle is a well reputed media brand published in association with International Herald Tribune and is part of the 70 years old Deccan Chronicle Group of publications enjoying reputation, editorial integrity and journalistic ethics; (c) that if the article put up on the website www.mydigitalfc.com of the defendant No.3 was incorrect, the plaintiff should have approached the Editor and should have issued a denial but did CS(OS) No.1323/2010 Page 5 of 8 not do so; (d) that the defendant No.4 got the information on which the said article was based, from the defendant No.2 and the defendant No.2 also forwarded a study report titled "India Market Entry Report of Ralph Lauren" to the defendant No.4; (e) that the defendant No.4 before publishing the article, sought confirmation from the plaintiff but since no response was forthcoming from the plaintiff denying the information, the said article was published on 21st April, 2010; and, (f) that the publication by the defendants No.3&4 was thus bona fide and they cannot be saddled with any liability therefor.
9. In the circumstances aforesaid, there can be no doubt as to the entitlement of the plaintiff to the relief claimed of injunction against the defendants No.2 to 4 also. The only thing which remains for adjudication is, whether the plaintiff is also entitled to the relief of compensation from the said defendants.
10. I have perused the applications filed by the plaintiff compromising the disputes with the defendants No.1, 6 & 5 and do not find the plaintiff to have, as part of the said compromise, insisted upon recovery of any amount by way of compensation from the said defendants. It is also found that the plaintiff signed a confidential Agreement dated 28 th November, 2011 with CS(OS) No.1323/2010 Page 6 of 8 the defendants No.1&6, no copy whereof is filed in the Court or was shown to the Court. The witness of the plaintiff in its ex-parte evidence has also not deposed anything qua the said confidential Agreement.
11. The signing of the said confidential Agreement between the plaintiff on the one hand and the defendants No.1&6 on the other hand lends me to believe that the news published by the defendants No.3&4 on their website www.mydigitalfc.com of Polo Ralph Lauren coming to India may not be totally baseless. If it had been totally baseless, there would have been no occasion for the plaintiff to sign a confidential Agreement with the defendants No.1&6. Significantly, no such agreement was signed with the defendant No.5 who also as per the plaintiff had published the same news. Once, it is found that the news published by the defendants No.3&4 was not mala fide or designed in any manner whatsoever to harm the plaintiff and once the plaintiff has compromised with the defendants No.1&6 who were attributed with bringing the plaintiff‟s brand in India, no case entitling the plaintiff to any damages from defendants no.3&4 is made out. In fact, the plaintiff in its ex-parte evidence has not even proved any such loss/damage. All that has been claimed is the amount spent on this litigation. CS(OS) No.1323/2010 Page 7 of 8
12. However, I am not inclined to award to the plaintiff any costs of the litigation also against the defendants No.3&4 in view of what is recorded hereinabove.
13. The defendant No.2 having not contested the suit, the question of awarding any costs against him does not arise.
14. Resultantly, a decree is passed in favour of the plaintiff and against the defendants No.2 to 4 in terms of prayer paragraph 42 (i) & (ii) of the plaint, leaving the parties to bear their own costs.
Decree sheet be drawn up.
RAJIV SAHAI ENDLAW, J.
APRIL 01, 2014.
bs CS(OS) No.1323/2010 Page 8 of 8