Delhi High Court
Unistraw Holdings Pte Ltd. vs Nitin Agarwal & Anr on 23 April, 2014
Author: Rajiv Sahai Endlaw
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 23rd April, 2014.
+ CS(OS) 2293/2013
UNISTRAW HOLDINGS PTE LTD. ..... Plaintiff
Through: Ms. Nidhi Minocha, Adv.
Versus
NITIN AGARWAL & ANR ..... Defendants
Through: None.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. The plaintiff has instituted this suit for:
(i) permanent injunction restraining the defendant No.2 Universal
Corporation Limited of which the defendant No.1 is the Director from
making, selling, distributing, advertising, importing, exporting,
offering for sale or dealing in any product that infringes the subject
matter of the registered patent No.245614;
(ii) permanent injunction restraining the defendants from dealing in
any product that infringes the plaintiff‟s design Nos.205672 &
212155;
(iii) permanent injunction restraining the defendants from dealing in
any product insert/carton/label that infringes the trade dress of the
CS(OS) No.2293/2013 Page 1 of 6
plaintiff in such carton/label/product insert;
(iv) delivery of all infringing material, advertising and promotional
material etc. of the defendants in respect of the product „QUICK
MILK‟; and,
(v) rendition of accounts.
2. Summons of the suit were issued to the defendants and vide ex-parte
ad-interim order dated 22nd November, 2013, the defendants were restrained
from dealing in any product infringing the plaintiff‟s design Nos.205672 &
212155 and Court Commissioners were appointed to visit the premises of
the defendants and to seize all infringing products under the brand name
„QUICK MILK‟.
3. Though the Commissions were executed and the Court
Commissioners have filed a report of seizure of sixteen (10+6) bundles,
containing two packets each, bearing the name „QUICK MILK‟ and the
defendants were also served with the summons of the suit but neither any
written statement was filed nor anybody appeared on behalf of the
defendants and vide order dated 6th March, 2014, the defendants were
proceeded against ex-parte and the plaintiff permitted to place on record any
other material deemed necessary for disposal of the case.
CS(OS) No.2293/2013 Page 2 of 6
4. None has appeared for the defendants thereafter also. The plaintiff
has filed affidavits by way of evidence.
5. The counsel for the plaintiff has been heard.
6. The case of the plaintiff is:
(a) that the plaintiff is a company incorporated and registered in
Singapore;
(b) that the plaintiff is engaged in the business of manufacturing
and marketing of flavoured, functional and fortified drinking straws
based on a patented straw-delivery technology called the „Unistraw
Delivery System‟;
(c) that one Mr. Peter Baron was the original inventor of such
straws with internal filters and flavour beads patented vide patent
No.245614;
(d) that the said Mr. Peter Baron was associated with Unistraw
Group of Companies and who started manufacturing and selling
flavoured drinking straws under its portfolio of trademarks and brand
names, including the brand name „SIPAHH‟;
(e) that the drinking straw technology comprises of a straw
containing beads impregnated with flavours such as chocolate,
CS(OS) No.2293/2013 Page 3 of 6
cookies, cream and banana and can add flavour, energy, vitamins,
nutrition and even pharmaceuticals to liquid sipped through it;
(f) that the intellectual property rights in respect of the drinking
straw technology held by Mr. Peter Baron were assigned to one of the
companies of the Unistraw Group;
(g) that in the year 2012, the plaintiff acquired the assets of the
Group Company holding worldwide intellectual property rights in
drinking straw technology and the plaintiff currently is the holder
thereof which included Indian Patent No.245614 titled as "A
Receptacle For Use As A Drinking Straw";
(h) that the patent of the plaintiff comprises of an elongate tubular
body with filtration means located at each end and a plurality of beads
trapped inside the tubular body; the tubular body is sized so as to
allow carrier liquid to be drawn there through by oral suction such
that passage of the liquid through the tubular body causes the pellets
to progressively dissolve and release the active ingredient; the filter
has no function other than to retain the beads whilst allowing the
beverage to be consumed; the beads may of any flavour;
(i) that the plaintiff has also acquired design No.205672 & 212155
CS(OS) No.2293/2013 Page 4 of 6
for the said straw;
(j) that the defendant No.2 is offering for sale drinking straw
product embodying the technology patented by the plaintiff, under the
brand name „QUICK MILK‟;
(k) that the product „QUICK MILK‟ of the defendants is a
complete slavish copy of the product SIPAHH of the plaintiff.
7. The plaintiff in its ex-parte evidence has proved the aforesaid case.
8. The counsel for the plaintiff on enquiry states that the defendants
were earlier importing their product and after the ex-parte order are found to
be not doing so.
9. The defendants having chosen not to contest the suit and the plaintiff
as aforesaid having proved its case, has become entitled to the decree for
permanent injunction in terms of prayer sub-paragraphs (a), (b) & (c) of
paragraph 28 of the plaint.
10. The counsel for the plaintiff has further contended that the plaintiff on
the basis of only one import assignment of the defendants proved in ex-
parte evidence of the plaintiff, is entitled to damages in the sum of over
Rs.50 lakhs from the defendants.
11. The plaintiff in the plaint has however not sought the relief of
CS(OS) No.2293/2013 Page 5 of 6
damages; though the relief of rendition of accounts is claimed but not
followed by the relief for recovery of any amount so found due on the
accounts being taken. Even otherwise, the defendants having not contested
the suit, I am of the view that no case for recovery of any damages is made
out.
12. As far as the relief claimed by the plaintiff of delivery is concerned,
the purpose thereof would be served by directing the defendants to, within
one week of communication by the plaintiff to the defendants of this decree,
destroy all the infringing goods so seized by the Commissioners appointed
in this proceeding.
13. Accordingly, the suit is decreed in favour of the plaintiff and against
the defendants in terms of prayer sub-paragraphs (a), (b) & (c) of paragraph
28 of the plaint and by directing the defendants to, within one week of the
communication of this order, destroy the infringing products/goods seized
by the Commissioners.
14. The plaintiff shall also be entitled to costs of the suit. Counsel fee is
assessed at Rs.20,000/-.
Decree sheet be drawn up.
RAJIV SAHAI ENDLAW, J.
APRIL 23, 2014/bs..
