Delhi High Court
M/S Kiran Shoes Manufacturers vs Narinder Kohli & Anr. on 28 August, 2017
$~50
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 28.08.2017
+ CS(COMM) 1453/2016
M/S KIRAN SHOES MANUFACTURERS ..... Plaintiff
versus
NARINDER KOHLI & ANR ..... Defendants
Advocates who appeared in this case:
For the Petitioner : Mr. Pranay Sarkar with Mr. Jeetu Sharma, Advocates.
For the Respondents : Mr. Ishwinder Walia, power of attorney holder on behalf
of defendant Nos.2 and 3.
CORAM:-
HON'BLE MR JUSTICE SANJEEV SACHDEVA
JUDGMENT
28.08.2017
SANJEEV SACHDEVA, J. (ORAL)
IA No.9619/2017 (under Order XXIII rule 3 CPC)
1. By this application, under Order XXIII Rule 3 CPC, jointly
filed by the plaintiff and the defendants, it is prayed that the suit be
decreed in terms of the application.
2. The application is supported by an affidavit of the authorised
signatory of the plaintiff as well as Mr. Ishvinder Walia, the power of
attorney holder of the defendant Nos.1 and 2. Along with the
application, the original Power of Attorney, issued by the defendant
Nos.1 and 2 has also been annexed.
3. In view of the averments in the application, the application is
allowed. The suit is taken up for disposal today.
CS(COMM) 1453/2016
4. The parties have settled their disputes and, accordingly, have
jointly filed the application under Order XXIII Rule 3 CPC.
5. The terms of settlement agreed to between the parties and, as
recorded in the said application, are as under:-
"2. The Plaintiffs and the Defendant, hereby also binding all
the entities in which, the Defendant are
directors/owners/partner have arrived at an
understanding on terms and conditions as set out
hereinafter:
a) The Defendant, agrees and acknowledges that the
Plaintiff is the absolute owner of the trademarks
GOLDSTAR, the GOLDSTAR (Side Trim Device) and all
other trademarks claimed by the Plaintiff in the plaint.
b) The Defendant acknowledges and agrees that no
rights exist with them in the getup of the Plaintiffs
Product, "GOLDSTAR" and all the Trade Marks as
above in Para (a). Thus, any assignment made or
intended to be made in future by Defendant to any entity
to manufacture footwear, soles or related articles is null
and void.
c) The Defendant admits that the use and adoption of
the marks "GOODSTAR / GQLDSTAR/ GOLBSTAR/
GLOBSTAR/ GALDSTOR/ GOALSTAR/ GOLSTAR/
GLADSTAR" or any other deceptively similar trademark
(visually/phonetically/otherwise) and/or the Getup/shape
of the Plaintiff's shoe is malafide and amounts to
infringement of Plaintiffs Intellectual property.
d) The Defendant undertakes to this Hon'ble Court:
1. That it shall never file and shall withdraw if any
already filed any identical or deceptively similar
trade marks for registration belonging to the
Plaintiff as mentioned in paragraph (a) of, the
present application/disclosed in the Plaint.
2. That it shall pay damages of total INR 1,90,000.00
(Rupees One Lakh Ninety Thousand Rupees Only)
for loss caused to the Plaintiff vide cheque:-
SI. BANK NAME CHEQUE AMOUNT
No. NO.
1. Punjab National Bank 163986 75000
2. Punjab National Bank 099327 75000
3. Punjab National Bank 163990 20000
4. Punjab National Bank 099331 20000
Total - 1,90,000/-
That the understanding is subject to clearance
of the above instruments.
3. The Defendants hereby agree to:
I. never to initiate any fresh and
II. agrees to withdraw all pending if any:
objections, oppositions, cancellations and
rectifications, petitions, challenging the
registration of the Plaintiffs' trademark copyright
and/or design. The Defendant shall also withdraw
any application for copyright, design and
trademark that has been applied in respect of any
mark identical or deceptively similar to Plaintiff s
mark "GOLDSTAR" and/or any other intellectual
property of the Plaintiff.
4. That Defendant and/or all shareholders,
representatives, partners, employees, agents,
assigns, distributors, etc. of the Defendant and in
specific Defendant No. I's brother Mr. Vaishno
Kohli shall be bound by this understanding and
none shall challenge the same in any Court of law.
5. The Defendant shall not create any nuisance
and/or disturbances or cause any hindrance in the
peaceful enjoyment of any trademarks, copyright
and design of the Plaintiff.
6. All disputes and differences between the Defendant
and Plaintiff with regard to trademarks of the
Plaintiff stands settled.
7. The Defendant hereby covenants with the Plaintiff
that the Defendant will never use without
approval/license from the Plaintiff, sell and
advertise any mark which nearly resembles and/or
is identically similar and/or confusingly similar
and/or deceptively similar even phonetically,
visually and structurally similar to the said
Trademarks and/or Copyrights and/or Designs of,
the Plaintiff in relation to the said goods and
business of the allied / cognate description.
e. The Defendant and its affiliates, further undertake
in terms of the above para (c) to this Hon'ble Court not
to engage in any such activities as would lead to passing-
off/infringement/piracy of the Plaintiffs trade mark/
copyright/ design.
f. The Defendant undertakes to this Hon'ble Court
not to directly or indirectly manufacture, sell or offer for
sale, advertise or deal in goods or in services depicting
any of the Plaintiffs mark/copyright/design/getup and
other similar/identical artistic feature and not to use any
other label/mark/copyright/design as may be a
colourable or slavish imitation or substantial
reproduction of the Plaintiffs label packaging/
copyright/design..
g. The Defendant undertakes to this Hon'ble Court
that it shall destroy in presence of the Plaintiffs
representative and not keep, in its custody, or control
over, any goods, dyes, moulds, blocks, tags, labels, other
printed matter and any other material whatsoever used to
produce/bearing, the mark "GOLDSTAR
/"GOODSTAR"/ "GQLDSTAR"/
"GOLBSTAR"/"GLOBSTAR" /
"GALDSTOR"/"GGALSTAR" / "GOLSTAR" /
"GLADSTAR" or any other deceptively similar trade
mark (visually/phonetically/otherwise) and/or the
Getup/shape of the Plaintiff s shoe and/or with
embossing "MODEL IN NEPAL", "MADE IN NEPAL",
"DESIGN IN NEPAL", "DEGN IN NEPAL", "MADE AS
NEPAL", "DESIGN AS NEPAL" "DESIGN FROM
NEPAL" and/or any other mark confusingly and
deceptively similar to the trade mark/label mark within
15 days of the signing of the present application.
h. The present undertaking is given by Mr. Ishvinder
Wadia Power of Attorney Holder and duly competent to
enter into this understanding with the Plaintiff on behalf
of Defendant 1-2."
6. I have perused the terms of settlement and find them to be
lawful.
7. Mr. Ishwinder Walia, power of attorney holder of defendant
Nos.1 and 2 is present in Court and has produced his original Identity
card, copy of which is annexed to the application.
8. The defendants have paid the damages in the sum of
Rs.1,90,000/-. Learned counsel for the plaintiff acknowledges receipt
of the said amount.
9. The defendants have also given undertaking in terms of the
above referred Clauses.
10. The undertaking is accepted.
11. In view of the above, the suit is decreed in terms of application
under Order XXIII Rule 3 CPC. The said application shall form part
of the Decree.
12. Decree Sheet be drawn accordingly.
13. Since the suit has been settled and compromised leading to a
compromise decree prior to any evidence having been recorded on the
merits of the claim, the plaintiff is entitled to refund of half of the
amount of the Court fee paid in terms of Section 16A of the Court Fee
Act, 1870, as amended for the State of Delhi.
14. Accordingly, the Registry is directed to issue a certificate to the
plaintiff authorising the plaintiff to seek refund of appropriate court
fee from the concerned authorities.
15. The next date of 07.09.2017 is cancelled.
SANJEEV SACHDEVA, J
AUGUST 28, 2017
st
