Montblane Simplo Gmbh vs Gaurav Bhatia & Ors.
2017 Latest Caselaw 48 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                                    Reserved on: 17.11.2016
                                                      Decided on: 04.01.2017
+      CS(OS) 2563/2013 & I.A.2360/2014

       MONTBLANE SIMPLO GMBH                                ..... Plaintiff

                           Through:     Mr.Pravin  Anand,    Mr.Raunaq
                                        Kamath and Ms.Anjana Ahluwalia,
                                        Advocates.
                           versus

       GAURAV BHATIA & ORS.                                 ..... Defendants

                           Through:     Ex parte vide order dated 19.11.2015.


CORAM:
HON'BLE MS. JUSTICE DEEPA SHARMA

                                    JUDGMENT

1. The Plaintiff, Montblanc Simplo GmbH is a company, incorporated

under the laws of Germany having its registered office at Hellgrundweg 100,

Postfach 540340, D-22525 Hamburg, Germany. Mr. Flavio Mascetti is the

authorized representative of the Plaintiff Company and is therefore

competent to file the present suit. It is submitted that the plaintiff is engaged

in the manufacture, distribution and sale of writing instruments and have

been producing high quality products having extensive sales and have

acquired a distinct and distinguished reputation and their name,

CS(OS) 2563/2013 Page 1 MONTBLANC is one of the most widely recognised luxury brands in the

world around and they were producing their writing instruments under this

brand name. They have also started production of the celebrated writing

under the brand name of MEISTERSTUCK since 1924 which had a wide

popularity. As a result of their consistent innovation in this field, plaintiff

had introduced MEISTERSTUCK CLASSIQUE; MEISTERSTUCK

CLASSIQUE SOLITAIRE; MEISTERSTUCK SOLITAIRE

COLLECTION, MEISTERSTUCK SPECIAL EDITION - UNICEF

MEISTERSTUCK TRAVELLER, MEISTERSTUCK AMADEUS

MOZART; MEISTERSTUCK LE GRANDE; and MEISTERSTUCK EE

GRANDE SOLITAIRE. The plaintiff's MEISTERSTUCK collection of

writing has a distinctive traders comprising of unique get up which includes

shape of goods, their packaging and combination of colours and incorporates

the symbol 'the Star Device' which is a white stylized six-pointed star with

rounded edges. This Star Device is found in entire range of products of the

plaintiff and is the world renowned 'Three Ring Device' comprising of three

metallic bands around the circumference of the pen which are located near

the middle of the body of the pen cap. The world recognized the products of

the plaintiff with this trade dress. Besides trademarks, MONTBLANC,

CS(OS) 2563/2013 Page 2 MEISTERSTUCK, the Three Ring Device and the Star Device, the Plaintiff

has also secured multiple registrations of these marks and devices in several

countries across the world and the trade mark MONTBLANC was first

registered in the year 1910. The plaintiff also applied for registration of the

mark MEISTERSTUCK as well as the Three Ring Device relating to goods

under Class 16 of the International Classification as per the Nice Agreement

in countries such as Albania, Algeria, Argentina, Australia, Bangladesh,

Benulux, Bosnia, Bulgaria, Chile, Central African Republic, Finland,

France, Hungary, India, Japan, Lebanon, Norway, Nigeria, South Africa,

Spain, Switzerland etc. These trademarks are also registered in India which

are valid and subsisting.

2. It is submitted that defendant no. 5 is a company trading under the

name of the Digaaz e-Commerce Pvt. Ltd. operating an e-commerce website

www.digaaz.com where it is offering lifestyle and fashion products for sale

and supplying counterfeit products bearing several registered trademarks of

the Plaintiff. Defendant Nos. 1, 2 and 3 are the Directors of Defendant No. 5

and actively running, operating, steering and managing the day to day

business of Defendant No. 5 and also operating the said website. Defendant

No. 4 is believed to be an employee of Defendant No. 5 and is

CS(OS) 2563/2013 Page 3 misrepresenting to the purchasing public that Defendant No. 5is an

authorized distributor of the Plaintiff. The domain name <digaaz.com> is

registered in the name of Defendant No. l. It is submitted that the plaintiff

came to know through its sales/service team in India in July 2013 that the

defendants were selling counterfeit product of MONTBLANC writing

instruments on their website www.digaaz.com at discounted rate of 75 %

representing the product as that of the original product of the plaintiffs. It is

submitted that the plaintiff had never sold its product on discounted rate.

3. The relevant portion is extracted in plaint as under:-

"At Digaaz.com, we strive to bring to you the latest in lifestyle and

consumer merchandise products through lively sales and aspiring

deals and discounts. We cover world's most coveted brands and

guarantee 100% authenticity to offer you safe and secure shopping".

4. The plaintiffs also purchased the writing instrument from the

defendant's websites and examined it and confirmed that it was a counterfeit

product: the reasons shown are (a) the price of original MEISTERSTUCK

CLASSIQUE is Rs. 30,000/-, the defendant has sold it for Rs. 6860/-,

(b) the colour combination and the writing instrument purchased from

defendants is different from that of plaintiff, (c) the tip of the refill of the

CS(OS) 2563/2013 Page 4 defendant's writing instrument has a small plastic ball which is different to

that of plaintiff's article and (d) the quality of writing instrument which the

defendant are selling as that of plaintiff's product is much inferior. The

serial numbers on the product is also fabricated by defendants. It is

submitted that defendant is infringing the registered trademarks under nos.

168115, 749405, 605697, 174504, 228166 of the plaintiffs.

5. That plaintiff due to sale of the counterfeit product has suffered loss in

business and also loosing of reputation and image and confidence and trust

of their client.

6. The plaintiff has sought the decree of permanent injunction permanent

injunction restraining the Defendants, their partners, if any, officers,

servants, agents, distributors, stockists and representatives from

manufacturing, selling and/or offering for sale, advertising, directly or

indirectly dealing in writing instruments, wallets, watches, leather goods,

jewellery or any other goods bearing the trademark MONTBLANC,

MEISTERSTUCK, the Three Ring Device and/or the Star Device or any

similar trademark and/or device or doing any other act amounting to passing

off of the Defendants' goods as those of the Plaintiff; and also claimed

damages of worth of Rs.20,05,000/- .

CS(OS) 2563/2013 Page 5

7. The notice of the suit was issued to the defendants and defendant nos.

1, 2, 4 and 5 field their written statement. However, subsequently, the

defendants stopped attending the Court and they were proceeded ex-parte.

The plaintiff has led its ex-parte evidence and they have proved on record its

documents. The plaintiff's witness has duly proved on record the Authority

letter in his favour as Ex. PW 1/1. He has also proved on record that the

plaint had been signed on behalf of the plaintiffs by Mr. Flavio Mascetti in

his capacity of the constituted attorney of the Plaintiff Companies. He has

also proved on record the document exhibited as Ex. PW 1/3 (Colly) which

proves that the brand MONTBLANC as the widely recognized luxury brand

and that the plaintiff has a good will and reputation in this brand. He has

also proved on record the internet extracts from the Plaintiffs website

www.montblanc.com as Ex. PW 1/4 showing that the public identifies

plaintiff's products from its trade dress which includes the Star Device

comprising a white stylized six-pointed star with rounded edges and the

Three Ring Device comprising of three metallic bands around the

circumference of the pen which are located near the middle of the body of

the pen cap. He has also proved the copy of the registration of the trademark

MONTBLANC as PW 1/5 and that of trademark MEISTERSTUCK as PW

CS(OS) 2563/2013 Page 6 1/6 and that of Three Ring Device as PW 1/7 and that of other trademarks as

PW 1/8 to PW 1/14. He has also proved on record a cautionary notice

published by the plaintiff In India as Ex. PW 1/16. He has also proved on

record that defendant no. 5 is a company trading under the name of Digaaz

e-Commerce Pvt. Ltd. and that Defendant Nos. 1, 2 and 3 are the directors

thereof. Defendant No. 4 is an employee of Defendant No. 5 and that

operating through their e-commerce website www.digaaz.com registered in

the name of defendant no. 2 and an extract from www.whois-search.com

providing the details of this domain name is exhibited as Ex. PW 1/17. The

articles of association of the defendant company are Ex. PW 1/18 and

internet extracts pertaining to the defendants are exhibited as Ex.PW 1/19.

They have also proved on record the printout from the defendant website

www.digaaz.com displaying the counterfeit products of plaintiff's trademark

as PW 1/22. Ex. PW 1/24 is the invoice showing the purchase of counterfeit

MEISTERSTUCK CLASSIQUE. Ex. PW 1/25 are the Photographs of the

counterfeit MEISTERSTUCK CLASSIQUE purchased from the

Defendants' website and its packaging. Ex. PW 1/26 are the photographs of

the warranty card accompanying the defendant's product and PW 1/27 is the

invoice evidencing purchase of the defendant's product and its delivery in

CS(OS) 2563/2013 Page 7 New Delhi. The web printout of some of the consumer complaints against

defendant are exhibited as PW 1/13. The copy of the FIR registered against

the defendants is exhibited as Ex. PW 1/ 31. The seizure memo along with

the clear typed copy indicating the volume of counterfeit products recovered

from the defendants' premises is exhibited as PW 1/32. The witness has

also stated that there are numerous consumer complaints against the

defendants relating to the sale of the counterfeit products through their

website. One of the many customers who was cheated by the defendants and

had purchased counterfeit watches from the website www.digaaz.com

lodged a complaint before the Cyber Crime Cell of the Chandigarh Police

vide FIR No. 395 dated 24.09.2014 under Section 406,420 IPC & 66 AIT

Act of PS-39, Chandigarh. The police had also seized good number of

counterfeit products from defendants and defendant no. 1 and defendant no.

2 were also arrested by Cyber Cell.

8. I have heard the arguments of the learned counsel of the plaintiff and

perused the relevant record.

9. It is urged by learned counsel for the plaintiff that the documents on

the record duly proves that the plaintiff is the owner of MONTBLANC,

MEISTERSTUCK, the Three Ring Device and/or the Star Device

CS(OS) 2563/2013 Page 8 trademarks and that the defendant is selling the counterfeit products as that

of plaintiff's products and thereby infringing their trademark.

10. From the evidences and the documents produced on record, it stands

proved that the plaintiff is the owner of the MONTBLANC,

MEISTERSTUCK, the Three Ring Device and/or the Star Device. The

plaintiff has also duly proved that defendants are counterfeiting their

products by copying and marketing the same as that of plaintiff's products

through their website. The plaintiff has also explained in detail the manner

in which the plaintiff's registered trademark is violated by the defendants in

several products. They have also proved on record that the defendants were

also in the habit of selling the counterfeit products and that is why on the

complaint to the Cyber Cell, the FIR was registered against them.

11. In view of the above discussion, the plaintiff is entitled to the relief

claimed. Accordingly, by way of permanent injunction, the Defendants,

their partners, if any, officers, servants, agents, distributors, stockists and

representatives are restrained from manufacturing, selling and/or offering for

sale, advertising, directly or indirectly dealing in writing instruments,

wallets, watches, leather goods, jewellery or any other goods bearing the

trademark MONTBLANC, MEISTERSTUCK, the Three Ring Device

CS(OS) 2563/2013 Page 9 and/or the Star Device and are also restrained from passing off their

counterfeit products as that of plaintiffs.

12. The claim for damages is hereby rejected since the plaintiffs have not

produced sufficient evidences to show the extent of actual damages they had

suffered due to the act of defendants.

No order as to cost.

                                                   DEEPA SHARMA
                                                       (JUDGE)


JANUARY 04, 2017
sapna




CS(OS) 2563/2013                                                       Page 10