Havells India Limited vs Puri Electrical And Ltd.
2018 Latest Caselaw 4409 Del

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*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+     CS(COMM) 1213/2016

      HAVELLS INDIA LIMITED            ..... Plaintiff
                   Through: Mr. Sudeep Chatterjee, Adv
                            Ms. Nupur Lamba Adv. and
                            Ms. SonalChhablani Adv.


                                   Versus

      PURI ELECTRICAL AND LTD.                      ..... Defendants
                    Through                   Ex parte


%                                    Date of Decision:   31st July, 2018

CORAM:
HON'BLE MR. JUSTICE MANMOHAN

                           JUDGMENT

MANMOHAN, J: (Oral)

1. Present suit has been filed for injunction restraining passing off, dilution, rendition of accounts, damages etc. The prayer clause in the suit is reproduced hereinbelow:-

A. Pass a decree of permanent injunction restraining the Defendants, their C&F Agents, dealers, distributors, retailers, representatives agents and assignees form in any manner selling the impugned MARIGOLD and POPPY series of ceiling fans or any other fans which is either identical or deceptively similar to the Plaintiffs‟ FUSION series or which are a colourable imitation or a substantial reproduction of the plaintiff‟s design, get-up, layout, trade

dress, pattern, shape, configuration and packaging in their FUSION series so as to result in passing off, acts of unfair competition, dilution of the rights of the plaintiffs.

B. Pass a Decree of delivery up of all the impugned products, including ceiling fans and parts thereof, packaging of MARIGOLD and POPPY series ceiling fans, brochures, pamphlets, price list and any other material bearing infringing design, get-up and layout, trade dress, pattern, shape and configuration for the purpose of destruction and erasure;

C. Pass a decree of permanent injunction restraining the Defendants, their C&F Agents, dealers, distributors, retailers, representatives, agents and assignees from in any manner selling the impugned series of electrical products, especially sockets, switches and fan regulators & dimmers or any other electrical products which is either identical or deceptively similar to the Plaintiffs‟ REO series or which are a colourable imitation or a substantial reproduction of the plaintiff‟s design, get-up, layout, trade dress, pattern, shape, configuration and packaging in their REO series so as to result in passing off, acts of unfair competition, dilution of the rights of the plaintiffs.

D. Pass a Decree of delivery up of all the impugned electrical products, including sockets, switches and fan regulators & dimmers and parts thereof, packaging of such electrical products, brochures, pamphlets, price list and any other material bearing infringing design, get-up and layout, trade dress, pattern, shape and configuration for the purpose of destruction and erasure;

E. Pass a decree of rendition of accounts in favour of the Plaintiff on the profits that Defendants have earned and as may be disclosed by the Defendants. The Plaintiff undertakes to file additional court fee if on appropriate

rendition of accounts by the Defendants a higher amount is found to be due and is directed by this Hon‟ble Court;

F. Cost of the suit be awarded;

() Any such further order as this Court may deem fit and appropriate in the present facts and circumstances of the present case be passed in favour of the Plaintiff and against the Defendants.

2. At the outset, learned counsel for plaintiff gives up prayers (b),

(d) and (e) of the prayer clause to the suit. The statement made by learned counsel for plaintiff is accepted by this Court and plaintiff is held bound by the same.

3. The present case was listed for the first time before the Court on 19th October, 2015. On the said date, the learned predecessor of this Court was pleased to issue notice in the injunction application and summons in the suit only.

4. Aggrieved by the same, the plaintiff filed an appeal being FAO(OS) No.597/2015. In the aforementioned appeal, the Division Bench vide order dated 29th October 2015, granted ex-parte ad interim injunction in favour of the plaintiff. The relevant portion of the ex-parte injunction order is reproduced hereinbelow:-

"......the FUSION series of fans manufactured and sold by the appellant have been virtually copied by the respondent in respect of its series of fans sold under the names MARIGOLD and POPPY. ...........series of switches which are sold and manufactured by the appellant under the mark „REO‟ have also been virtually copied in its entirety by the respondent .........The design, getup, lay out,shape and configuration of the said products of the respondent is virtually identical to that of the appellant‟s said products.

xxxx xxxx xxxx xxxx

Consequently, the respondents, their agents, dealers, distributors, retailers, etc. are restrained from manufacturing/selling ceiling fans (under the marks MARIGOLD and POPPY or any other mark) which are either identical or deceptively similar to the appellant‟s FUSION series of ceiling fans insofar as the design, getup, pattern, shape and configuration are concerned. Similarly, the respondents, their agents, etc. are restrained from, in any manner, selling the series of electrical switches/sockets/fans/regulators and dimmers which are identical or deceptively similar in design, getup, layout, pattern, shape or configuration to that of the appellant‟s REO series of similar products......"

(emphasis supplied)

5. The appeal being FAO(OS) No.597/2015 was disposed of by the Division Bench vide order dated 12th January, 2016 and the order of the injunction was transposed to be the order in the suit.

6. The defendants filed a Special Leave Petition bearing SLP No. 33203/2015 against order dated 29th October, 2015 and Special Leave Petition bearing SLP No.5420/2016 against the order dated12th January, 2016. The Supreme Court disposed of the SLPs vide common order dated 12th July, 2016 with the direction to the Single Judge to expedite the disposal of the interim application.

7. This Court confirmed the interim order of injunction in favour of the plaintiff by order dated 4th November, 2016.

8. Subsequently, the defendants were proceeded ex-parte on account of their continuous non-appearance on 10thMarch, 2017.

9. In the plaint, it has been averred that the plaintiff is engaged in the electrical and power distribution equipment business. The plaintiff is a $1.3 billion fast moving electrical goods(FMEG) company. It is averred that the plaintiff is the market leader in the manufacturing and trading of various types of fans.

10. It is further averred that the plaintiff has created a new and original range of fans under the series FUSION bearing original design, trade dress, get-up, lay-out, pattern, shape, configuration, colour scheme giving it a unique and aesthetic appearance for its ceiling fans. The unique features of the series as mentioned in the plaint are:-

 Contemporary elegant design  Metallic paint finish  Decorative trims on motor cover, canopy & blades  Double ball bearings  Contrasting Coloured Blades  Cylindrical Wedges upon blades  Unique cylindrical design inside the wedges  Unique trade dress, get-up, lay-out and pattern  Unique overall appearance and shape  Optimum performance even at low voltage  The unique colour scheme.

 The completely unique and distinctive overall shape, configuration and look.

11. It is averred that the plaintiff's fans have acquired enormous amount of goodwill due to their aesthetic and rich appearance and are

in extensive use amongst all classes of purchasers including domestic purchasers, shops, showrooms, malls, hotels, restaurants, etc. It is further stated that the plaintiff's fans sold under the FUSION series due to their get up and have acquired distinctiveness as well as secondary meaning as to their source.

12. It is contended that the trade dress including the aforesaid unique features itself acts as a trade mark, as a brand identity of the plaintiff and customers who are familiar with the plaintiff and its products are immediately able to identify the Plaintiff's fans even without the name being depicted on it.

13. It is stated that the total sales of the goods fans under the mark FUSION was Rs.43.34 crores in the year 2014-15 and the money spent on advertisement was Rs.25.14 crore in the year 2014-2015.

14. It is stated that the plaintiff also created a new and original range of sockets, switches, fan regulators and dimmers under the series REO in the year 2011-2012 bearing original design, trade dress, get-up, lay- out, pattern, shape, configuration, colour scheme giving it a unique and aesthetic appearance.

15. It is stated that the total sales of the goods under the mark REO was Rs.90.05 crores in the year 2014-15 and the money spent on advertisement was Rs.96 lakhs in the year 2014-2015.

16. Learned counsel for the plaintiff states that the plaintiff's market representatives in October, 2015, stumbled upon some electrical products of the defendant no.3 under MARIGOLD and POPPY series identical to ceiling fans as that of the FUSION series and sockets, switches, fan regulators and dimmers identical to REO series of the

plaintiff's.

17. Learned counsel for the plaintiff states that the defendant no.1 was the largest distributor of the impugned product that were being manufactured by the defendant no.3 company. He states the plaintiff visited the website of defendant no.3 www.oreva.com. and was shocked to learn that the defendants had copied the entire series of products under the FUSION and REO marks of the plaintiff's.

18. He states that the essential/unique features had been imitated/dishonestly adopted by defendant no.3 with regards to plaintiff's fans under the FUSION series of fans and REO series of electrical products. The aforesaid essential features pointed out by learned counsel for plaintiff are reproduced hereinbelow:-

19. Learned counsel for plaintiff further states that the adoption of the plaintiff's FUSION and REO series by the defendants was with intent to dilute the distinctive character of the plaintiff's brand.

20. The plaintiff has filed its ex parte evidence by way of affidavit of Mr. Sewak Ram (PW-1) authorized representative of the plaintiff and Mr. Rakesh Thukra (PW-2), general manager of the plaintiff

21. The plaintiff's witness (PW1) has proved certified copies of certificates of charted accountants showing sales and advertisement expenses as exhibit PW1/6. The plaintiff's witness has also proved comparison report by third party of plaintiff's and the defendant's products as Exhibit-PW2/7.

22. Having heard learned counsel for plaintiff as well as having perused the papers, this Court is of the view that due to extensive use over substantial period of time, the plaintiff has acquired distinctiveness in the unique designs of the ceiling fans under the

FUSION series and switches and sockets under the REO series

23. Further, as the plaintiff's evidence has gone unrebutted, said evidence is accepted as true and correct. The Supreme Court in Ramesh Chand Ardawatiya Vs. Anil Panjwani, AIR 2003 SC 2508 has held as under:-

"33. .........In the absence of denial of plaint averments the burden of proof on the plaintiff is not very heavy. A prima facie proof of the relevant facts constituting the cause of action would suffice and the court would grant the plaintiff such relief as to which he may in law be found entitled. In a case which has proceeded ex parte the court is not bound to frame issues under Order 14 and deliver the judgment on every issue as required by Order 20 Rule 5...."

24. Accordingly, present suit is decreed in accordance with the paragraph 59 (a) and (c) of the plaint along with the actual costs incurred by the plaintiff. The cost shall amongst others include the lawyers' fees, local commissioner's fee as well as the amounts spent on purchasing the court fees. Registry is directed to prepare a decree sheet accordingly.

MANMOHAN, J JULY 31, 2018 sp/js/rn