Phillip Morris Products S.A. vs Market Tobacco Stores & Ors.
2009 Latest Caselaw 791 Del

     *IN THE HIGH COURT OF DELHI AT NEW DELHI

+                   CS(OS) 1269/2004

%12.03.2009                         Date of decision:12.03.2009

PHILLIP MORRIS PRODUCTS S.A.                       .......        Plaintiff
                          Through: Mr Manav Kumar, Advocate

                                 Versus

MARKET TOBACCO STORES & ORS.                        ....... Defendants
                          Through: Ex-parte


CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1.    Whether reporters of Local papers may
      be allowed to see the judgment?

2.    To be referred to the reporter or not?

3.    Whether the judgment should be reported
      in the Digest?


RAJIV SAHAI ENDLAW, J.

1. The plaintiff being the registered proprietor of the trademark

MARLBORO in relation to cigarettes instituted the present suit

against the three defendants stated to be selling and retailing

counterfeit MARLBORO cigarettes in packaging identical to that of

the plaintiff, for permanent injunction to restrain them from doing so

and for the ancillary reliefs of damages, rendition of accounts,

delivery etc. Vide ex parte order dated 8th November, 2004, the

defendants were restrained from importing, offering for sale, selling,

distributing directly or indirectly dealing in cigarettes bearing the

trademark MARLBORO with or without impugned packaging filed by

the plaintiff. On the same date, on the application of the plaintiff

Court Commissioners were also appointed to visit the premises of

the three defendants and to prepare an inventory of the impugned

goods and to seize the same. The Commissions were executed and

the three Court Commissioners have filed their reports. Infringing

goods were found and seized from the premises of each of the three

defendants. The said goods were handed over on superdari to the

defendants/their representatives.

2. The counsel for the defendants appeared before this court on

31st July, 2006. However, neither any written statement was filed

nor did the counsel appear after another date and on 18th January,

2007 the defendants were proceeded against ex parte and the order

dated 8th November, 2004 confirmed during the pendency of the suit.

3. The plaintiff led ex parte evidence by filing the affidavit of its

constituted attorney. The witness of the plaintiff has, inter alia,

proved the registrations in the name of an affiliate company of the

plaintiff and the applications filed for recording the plaintiff as

subsequent proprietor as exhibit P1, the sample cartons of the

plaintiff's products as exhibits P2 and P3 and the carton of the

counterfeit products being sold/retailed by the defendants as exhibits

P4 and P5. The evidence of the plaintiff remains unrebutted.

4. I may notice that the counsel for the defendants again

appeared before the court and filed IA.No.6250/2007 for setting

aside of the order proceeding ex parte against the defendants. The

said application was listed before the court on 25th May, 2007 when

the counsel for the defendants stated that the defendants were ready

to give undertaking that they would not sell cigarettes of the brand

MARLBORO. In the circumstances it was directed that the

compromise application be filed by the parties and the judgment on

the ex parte evidence led by the plaintiff deferred. Thereafter, time

was sought from time to time for filing compromise application but

neither any compromise application was filed nor did the defendants

appear before the court today. In the circumstances, ex parte

arguments of the counsel for the plaintiff have been heard.

5. Not only is there ex parte evidence of the plaintiff as aforesaid

but the defendants also through their counsel as aforesaid had

agreed to give an undertaking not to sell the cigarettes of the brand

MARLBORO. In the circumstances, the plaintiff is found entitled to

the decree in terms of para 24 (I) (II) of the plaint. As far as the

other reliefs are concerned, since the counsel for the plaintiff on 25th

May, 2007 was satisfied with the defendants giving an undertaking, I

do not find the plaintiff entitled to the relief of damages or accounts.

The plaintiff shall, however, be entitled to costs of the suit from the

defendants jointly and severally. Counsel fee assessed at Rs 50,000/-

The decree sheet be prepared accordingly.

RAJIV SAHAI ENDLAW (JUDGE) March 12, 2009 M