M/S Leayan Global Pvt Ltd vs M/S Bhavya
2015 Latest Caselaw 2821 Del

23
*     IN THE HIGH COURT OF DELHI AT NEW DELHI
+     CS(OS) 1483/2014 & IAs No.9744/2014 & 11587/2014


                                                    Decided on : 08.04.2015
IN THE MATTER OF:
M/S LEAYAN GLOBAL PVT LTD                       ..... Plaintiff
                    Through : Mr. D.K. Yadav, Advocate


                           versus

M/S BHAVYA                                          ..... Defendant
                           Through : Mr. Gurvindr Singh, Advocate


CORAM
HON'BLE MS.JUSTICE HIMA KOHLI

HIMA KOHLI, J.(Oral)


1.

The present suit has been instituted by the plaintiff against the

defendant praying inter alia that the defendant be restrained from

manufacturing, selling, using or dealing with the impugned

trademark/label "RED CHIEF LABEL" and "ROYAL CHIEF", which is

identical/deceptively similar to the plaintiff's trademark/label in

relation to the impugned goods and business of manufacturing and

marketing of shoes and footwear.

2. A perusal of the order sheets reveals that the suit was registered

on 20.5.2014 and on the said date, an ex parte ad interim order was

granted in favour of the plaintiff in I.A.No.9744/2014.

Simultaneously, a Local Commissioner was appointed to visit the suit

premises and inventorize and seize the goods bearing the plaintiff's

trademark/label "RED CHIEF LABEL" and "ROYAL CHIEF". After the

commission was executed, the Local Commissioner had submitted a

report. Thereafter, the defendant had filed an application under Order

XXXIX Rule 4 CPC, registered as IA No.11587/2014, on which notice

was issued on 25.6.2014.

3. Learned counsel for the defendant refers to the averments made

in IA No.11587/2014 and to the documents enclosed therewith to

contend that the products being sold by the defendant are genuine

products manufactured by the plaintiff and his client was only

procuring the said products from the plaintiff's authorized distributor.

4. In view of the submission made by the counsel for the

defendant, learned counsel for the plaintiff states that he would not

have any objection as long as the defendant deals with the genuine

products manufactured by the plaintiff through its authorized

distributor.

5. As long as the defendant is not manufacturing, distributing or

selling spurious or counterfeit products of the plaintiff, the same

cannot amount infringement of the plaintiff's trademark.

6. Subsequently, the defendant has filed a written statement

wherein it has been categorically stated that it is neither

manufacturing nor counterfeiting or displaying any of the impugned

products of the plaintiff company and that the products being sold by

it are original. It has been clarified that though the defendant is not a

distributor of the plaintiff company, it has been purchasing the

plaintiff's products from the authorized dealer and is selling the same

in the open market, which is legally permissible.

7. Counsel for the plaintiff states that in view of the averments

made by the defendant in the written statement and further, as the

defendant does not have any objection to the suit being decreed in

terms of prayer (a), his client does not wish to press the remaining

reliefs at prayers (b) to (f). The other side is agreeable to the same.

8. Accordingly, with the consent of the parties, the suit is decreed

in terms of prayer (a) alone, while leaving the parties to bear their

own costs.

9. At this stage, counsel for the defendant states that in terms of

interim order dated 20.5.2014, passed in IA No.9745/2014, the Local

Commissioner had taken into custody the impugned goods and after

sealing the same, had returned them to his client on superdari. He

submits that now that the suit has been disposed of, the defendant be

given liberty to break open the seal and access the said goods so that

they can be sold in the open market.

10. Counsel for the plaintiff states that he does not have any

objection to the aforesaid request.

11. The defendant shall be at liberty to de-seal the impugned

material sealed by the Local Commissioner and handed over to him on

superdari and dispose of the same in the open market.

12. The suit is disposed of, along with the pending applications.

13. File be consigned to the record room.

(HIMA KOHLI) JUDGE APRIL 08, 2015 sk