Louis Vuitton Malletier vs Abdul Salim & Ors.
2009 Latest Caselaw 1920 Del

     *IN THE HIGH COURT OF DELHI AT NEW DELHI

+                CS(OS) 90/2006

%                       Date of decision: 6th May, 2009

LOUIS VUITTON MALLETIER                             ....... Plaintiff

                       Through: Mr. Shravan Chopra, Advocate

                               Versus
ABDUL SALIM & 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?       No

2.    To be referred to the reporter or not?        No

3.    Whether the judgment should be reported             No
      in the Digest?

RAJIV SAHAI ENDLAW, J.

1. This suit has been filed for protection of rights in the

trademark "Louis Vuitton", trademark/logo "LV" and the "Toile

monogram" design.

2. The plaintiff as the registered proprietor of the aforesaid

marks/logo/monogram seeks order against the defendant No. 1

carrying on business as defendant No. 2 from selling, offering for

sale, advertising or dealing in hand bags, wallets luggage, footwear,

leather and imitation of leather and goods bearing the aforesaid

trademarks/logo/monogram. The cause of action for the suit was the

import by the said defendants of counterfeit goods of the plaintiff

bearing the aforesaid trademarks/logo/monogram. Injunction is also

claimed restraining the said defendants from importing the aforesaid

goods bearing the trademarks/logo/monogram of the plaintiff and

from passing off the same as plaintiff's goods. The relief of delivery

and of rendition of accounts and damages is also claimed. It is the

case of the plaintiff that the Deputy Commissioner of Customs,

Mumbai had seized the contents of a container which had arrived at

Mumbai on 7th October, 2005, for the reasons of containing

counterfeit goods of well known brands including of the plaintiff. The

plaintiff on investigation found amongst the seized goods its

counterfeit goods also. The Deputy Commissioner of Customs,

Mumbai has been impleaded as the defendant No. 3 in the suit. In

the application for interim relief direction was sought against the

defendant No. 3 for directing him to deliver the goods of the plaintiff.

3. The defendant No. 3 did not appear in spite of service. The

defendants No. 1 & 2 were reported to have left the address given in

the plaint. The plaintiff furnished their fresh address. They could not

be served there also. They were ultimately ordered to be served by

publication and were so served. Neither of the defendants appeared

and were proceeded against ex parte.

4. The plaintiff has led its ex parte evident.

5. The plaintiff has proved due institution of the suit and signing

and verification of the plaint; of the plaintiff being the originator of

the trademarks/logo/monogram with respect whereto the suit has

been filed, the use thereof as a trade mark since 1854, 1890, 1896

and 2003 respectively; of the plaintiff also being the owner of the

artistic work of the monogram/logo; of the presence of the plaintiff in

India, of the plaintiff carrying on business within the jurisdiction of

this Court so as to sue the defendants even though at Mumbai in

this Court; of the registration of its trademarks/logo/monogram; of

the defendants No. 1 & 2 illegally importing counterfeit goods of the

plaintiff and trading in the same and passing them off as goods of the

plaintiff and of the losses suffered by the plaintiff owing to such

action of the defendants No. 1 & 2. The evidence of the plaintiff

remains unrebutted.

6. The marks of the plaintiff are undoubtedly well known,

transcending borders and known/recognized by all who are

connoisseur of such goods. The defendants No. 1 & 2 are proved to

be illegally importing counterfeit goods of the plaintiff and infringing

the registered trademarks/logo/monogram of the plaintiff. The

defendants are not entitled to do so and the plaintiff is entitled to a

decree for permanent injunction in terms of para 28 (a) & (b) of the

plaint. Though the plaintiff had as aforesaid claimed interim order of

delivery against the defendant No. 3 but vide ex parte order dated

17th January, 2006 only the defendants No. 1 & 2 were restrained

from importing the counterfeit goods or from infringing the

registered trademarks/logo/monogram of the plaintiff and from

passing off their goods as that of the plaintiff. If the goods seized by

the defendant No. 3 and found to be counterfeit goods of the plaintiff

are still in existence, the defendant No. 3 is also directed to deliver

the same to the plaintiff who shall be entitled to destroy the same.

The actions of the defendants No. 1 & 2 are also found to have

caused damage to the plaintiff. The defendants by remaining ex

parte cannot avoid liability in damages. However the plaintiff having

not proved the length of time for which the defendants No. 1 & 2

have been carrying on the said business of selling counterfeit goods

of the plaintiff and the volume of the said trade of the defendants No.

1 & 2, nominal damages in the sum of Rs. 2 lacs are awarded to the

plaintiff. A decree for damages in the said amount is passed in favour

of the plaintiff and against the defendants No. 1 & 2 jointly and

severally. Decree sheet be drawn up.

7. The plaintiff shall also be entitled to costs of the suit from the

defendants. Counsel fee is assessed at Rs. 50,000/-.

RAJIV SAHAI ENDLAW (JUDGE) May 06, 2009 rb