Dole Food Company & Ors. vs Dole Foods Private Ltd. & Ors.
2016 Latest Caselaw 6398 Del

$~02.
*     IN THE HIGH COURT OF DELHI AT NEW DELHI
+        CS(COMM) 79/2015
         DOLE FOOD COMPANY & ORS.               ..... Plaintiffs
                      Through : Ms.Kripa Pandit and Mr.C.M. Lall,
                                Advs.

                            versus

         DOLE FOODS PRIVATE LTD. & ORS.         ..... Defendants
                      Through : Mr.Yatin    Khochare,     Adv.                    for
                                defendants.

CORAM:
    HON'BLE MR. JUSTICE G.S.SISTANI

                      ORDER

%                     05.10.2016

I.A. 10154/2016

1. This is an application filed by plaintiffs under Order XXXIX Rule 2A read with Section 151 CPC. The plaintiffs allege wilful disobedience of the order dated 23.12.2015 passed by this Court.

2. Learned counsel for the plaintiffs submits that despite the order of injunction dated 23.12.2015, the defendants continue to flout the same with impunity. Counsel further submits that the defendants should be directed to remain present in Court.

3. Although the defendants are unserved by Speed Post and an affidavit of service has been filed, however, counsel for the defendant enters appearance. He submits that he would file his Vakalatnama within one week from today.

4. Let reply be filed within three weeks from today. Rejoinder, if any, be

filed within one week thereafter.

5. List on 9.12.2016, when defendant no.3, Mr.Sukant Murlidhar Dole, is directed to remain present in Court.

CS(COMM) 79/2015

6. Plaintiffs have filed the present suit for permanent injunction against the infringement of trademarks, passing off, trademark dilution, rendition of accounts, damages, etc.

7. At the oral request of the counsel for the plaintiffs, defendant no.4 is deleted from the array of parties as defendant no.4 is only a Director in defendant company. Let an amended memo of parties be filed by the plaintiffs.

8. Learned counsel for the plaintiffs submits that despite service the defendants have failed to enter appearance and also failed to file their written statement within the prescribed period of 120 days. Counsel, thus, prays that the defendants may be proceeded ex parte and suit be decreed under the provisions of Order VIII Rule 10 CPC.

9. It may be noticed that the summons/notice in the suit/application for stay were issued on 23.12.2015, when defendants were restrained from using the trademark DOLE as their trade name and also on their websites in any manner. It was also directed that the defendants would remove their advertisements from the third party websites. Since despite service and despite time being allowed to file the written statement, no written statement has been filed, I proceed to decide the matter under Order VIII Rule 10 of the Code of Civil Procedure.

10. As per the plaint, plaintiff no.1 which was founded more than 100 years ago, is renowned and global merchant of, inter alia, fresh fruits & vegetables. Plaintiff no.2 is the proprietor and owns rights into the brand name DOLE in India for the goods "fresh and processed foods

and juices". Details of registration with respect to trademark DOLE have been extracted in para 8 of the plaint. The said trademark registrations stand renewed and valid from time to time.

11. According to the plaintiff, in the year 1901, Mr.James Drummond Dole founded the company called Hawaiian Pineapple Company. On account of the popularity and quality associated with Jame Dole‟s name, the company first stamped DOLE on can of pineapples and pineapple juice in the year 1933 and continues to use the well-known brand DOLE on its products and services. The plaintiffs and their affiliates collectively have sold DOLE products in more than 90 countries worldwide. The plaintiffs have extracted worldwide Sales Figures including the revenue from logistics business in para 18 of the plaint. The plaintiffs are stated to have spent a large amount on advertisement and promotion of their well known trademarks DOLE and DOLE & Sun design. The plaintiffs have registered and operate various websites and maintain pages on third party sites and social media websites, some of which have been extracted in para 19 of the plaint. In order to show prominent recognition and association of the word „DOLE‟ with the plaintiffs, the plaintiffs have even extracted screenshots of Coogle search engine page to show that a search of DOLE results in websites about the plaintiff on the top.

12. According to the plaintiffs, their registered trademark DOLE is highly recognized and popular brand worldwide and has attained enviable goodwill and reputation across the globe. Owing to its extensive and continuous use for over eighty years, the well-known trademarks „DOLE‟, DOLE & Sun Design and Dole formative marks are closely and solely associated with the plaintiffs.

13. It is the case of the plaintiffs that in and around 2011 the plaintiffs

learnt about defendant no.1 company "Dole Foods Private Limited", having its registered office at Mumbai. Thereafter notices were issued to the defendants to refrain from, inter alia, using the plaintiffs‟ trade mark "DOLE", however, no response was received from the defendants. Counsel for the plaintiff talked to defendant no. 3 personally, who informed that defendant no. 1 was not doing any business under the company‟s name "Dole Foods Private Limited". He also assured that defendants will strike off this company from the records of Registrar of Companies. Subsequently, in the year 2014, it was revealed that defendants had commenced business by using the trade name "DOLE" by operating a website/domain name, that is, www.dolelogistics.com. It is alleged that use of registered trade mark "DOLE" of the plaintiffs by the defendants as their trade name as also on their website, i.e., www.dolelogistics.com, www.dolefoods.co.in & www.dolegroup.com amounts to infringement of plaintiffs‟ trade mark "DOLE". The plaintiffs also learnt that defendant no.2 in addition to the use of the plaintiffs‟ well-known mark DOLE as trading and domain name, has also adopted identical colour scheme. Besides, the defendants have also started physiotherapy under the name of DOLE REHAB.

14. The plaintiffs allege that the adoption of an identical mark by the defendants with respect to their companies name, such as DOLE FOODS PRIVATE LIMITED, DOLE LOGISTICS, DOLE REHAB, DOLE TRADERS, DOLE INFRA and DOLE FINSERVE, is nothing but a deliberate attempt to free ride over the goodwill and reputation of the plaintiffs. The defendants have adopted the identical mark of the plaintiffs with the sole intent to reap undue benefit. The defendants have not only adopted the colour scheme as that of the plaintiff but also

adopted the Sun design.

15. I have heard learned counsel for the plaintiff and also perused the plaint, and the documents filed along with the plaint. It may be noticed that while issuing summons/notice in the suit/application on 29.1.2015 an ex parte ad interim injunction was passed in favour of the plaintiff and against the defendants. Despite service, the defendants failed to enter appearance within the prescribed period and even did not file their written statement within the prescribed period.

16. The Supreme Court in the case of C.N Ramappa Gowda v. C.C.

Chandregowda, (2012) 5 SCC 265 had held as under:

"25. We find sufficient assistance from the apt observations of this Court extracted hereinabove which has held that the effect [Ed.: It would seem that it is the purpose of the procedure contemplated under Order 8 Rule 10 CPC upon non-filing of the written statement to expedite the trial and not penalise the defendant.] of non-filing of the written statement and proceeding to try the suit is clearly to expedite the disposal of the suit and is not penal in nature wherein the defendant has to be penalised for non-filing of the written statement by trying the suit in a mechanical manner by passing a decree. We wish to reiterate that in a case where written statement has not been filed, the court should be a little more cautious in proceeding under Order 8 Rule 10 CPC and before passing a judgment, it must ensure that even if the facts set out in the plaint are treated to have been admitted, a judgment and decree could not possibly be passed without requiring him to prove the facts pleaded in the plaint.

26. It is only when the court for recorded reasons is fully satisfied that there is no fact which needs to be proved at the instance of the plaintiff in view of the deemed admission by the defendant, the court can conveniently pass a judgment and decree against the defendant who has not filed the written statement. But, if the plaint itself indicates that there are disputed questions of fact involved in the case arising from the plaint itself giving rise to two versions, it would not be safe for the court to record an ex parte judgment without directing the plaintiff to prove the facts so as to

settle the factual controversy. In that event, the ex parte judgment although may appear to have decided the suit expeditiously, it ultimately gives rise to several layers of appeal after appeal which ultimately compounds the delay in finally disposing of the suit giving rise to multiplicity of proceedings which hardly promotes the cause of speedy trial.

27. However, if the court is clearly of the view that the plaintiff's case even without any evidence is prima facie unimpeachable and the defendant's approach is clearly a dilatory tactic to delay the passing of a decree, it would be justified in appropriate cases to pass even an uncontested decree. What would be the nature of such a case ultimately will have to be left to the wisdom and just exercise of discretion by the trial court who is seized of the trial of the suit."

(Emphasis Supplied)

17. Having regard to the submissions made and in the absence of any written statement, the averments made in the plaint are taken to be correct. In view of above, I am of the view that it is a fit case to pass a decree under Order VIII Rule 10 CPC. Accordingly, interim order dated 23.12.2015 stands confirmed and the suit is decreed in favour of the plaintiffs and against the defendants in terms of prayers A(i) to (iv) and B(i) to (v). Let a decree sheet be drawn up accordingly.

18. Registry is directed to make a separate file for I.A. 10154/2016 filed under Order XXXIX Rule 2A CPC and register it as a Contempt Case.

G.S.SISTANI, J OCTOBER 05, 2016 msr