Delhi High Court
Quikr India Private Limited vs Nike Innovate C.V & Anr. on 13 January, 2021
$~23
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 13th January, 2021
+ FAO 16/2021
QUIKR INDIA PRIVATE LIMITED ..... Appellant
versus
NIKE INNOVATE C.V & ANR. ..... Respondents
Advocates who appeared in this case:
For the Petitioner: Mr. Jayant Mehta, Mr. Rishabh Bansal, Mr. Arjun Rao and
Mr. Maitryi Bhat, Advocates
For the Respondents: Mr. S.K. Bansal, Advocate
CORAM:-
HON'BLE MR JUSTICESANJEEV SACHDEVA
JUDGMENT
SANJEEV SACHDEVA, J.
CM APPLN. 1030/2021 (Exemption)
Allowed, subject to all just exceptions.
FAO 16/2021& CM APPLN. 1028-29/2021
1. The hearing was conducted through video conferencing.
2. Appellant impugns order dated 19.12.2020 whereby the trial
court has, on the very first date, disposed of the application filed by
the respondent under Order 39 Rules 1 and 2 CPC and granted an ex-
parte injunction, inter-alia, restraining the appellant from using,
manufacturing, selling, soliciting, displaying, advertising by visual,
Signature Not Verified
MAGGU
Signing Date:14.01.2021 20:35:39
This file is digitally signed by PS
to HMJ Sanjeev Sachdeva.
audio, print mode or by any other mode or by any other mode or
manner dealing in or selling/soliciting, intending to sell or solicit
through www.quikr.com and their mobile application under the name
of Quikr or through any other online websites and/or online platforms
or through social medias or in any manner using the impugned
counterfeit goods under impugned trademarks/logos Nike, Swoosh
Device, Nike Pro, Nike+, Nike Air Jordan, Jordan, Jump man (device)
in relation to their impugned goods and business and from doing any
other acts pre-deeds amounting to or likely to infringement of
respondent's registered trademarks/logos; infringement of respondent's
copyrights in the said trademarks/Logos; passing off of the
respondent's rights in respondent's said trademarks/Logos; violation of
respondent's rights in its trade name/Logos. Appellants have further
been restrained till further orders from disposing off or dealing with
their assets including their premises at the addresses mentioned in the
Memos of Parties of the plaint and their stocks-in-trade.
3. Learned counsel for the appellant contends that appellant is a
mere intermediary and is not a seller and does not stock any articles
and provides only a consumer-to-consumer based selling platform.
4. Learned counsel further contends that the trial court has
disposed of the application under Order 39 Rules 1 and 2 CPC without
even issuing notice to the appellant. He further submits that the relief
granted of restraining the appellant from disposing of and dealing with
their assets including their premises at the addresses as mentioned in
Signature Not Verified
MAGGU
Signing Date:14.01.2021 20:35:39
This file is digitally signed by PS
to HMJ Sanjeev Sachdeva.
the Memo of Parties is beyond the pleadings in the suit. He further
submits that since the appellant is an intermediary there is no stock-in
trade of the subject footwear under the brand name in issue of the
respondent.
5. Learned counsel for the appellant contends that no complaint
was ever received from the respondent prior to filing of the suit.
6. Issue notice. Notice is accepted by learned counsel for
respondent no. 1.
7. Learned counsel for respondent no. 1 submits that the direction
in the impugned order that the application stands disposed of is
apparently erroneous. He further concedes that the subject matter of
the Suit is not the assets or the premises of the appellant.
8. Learned counsel for respondent no. 1 contends that there was
no mention of a Grievance Officer on the website and as such no
complaint has been lodged.
9. In view of the above the appeal is disposed of with a direction
that the application under Order 39 Rules 1 and 2 CPC is restored to
the file of the trial court and be decided afresh.
10. Appellant shall file the Written Statement and its reply to the
application in accordance with law.
11. Pending consideration of the application under Order 39 rule 1
Signature Not Verified
MAGGU
Signing Date:14.01.2021 20:35:39
This file is digitally signed by PS
to HMJ Sanjeev Sachdeva.
& 2 by the trial court, the restraint placed on the appellant from using,
manufacturing, selling, soliciting, displaying, advertising by visual,
audio, print mode or by any other mode or by any other mode or
manner dealing in or selling/soliciting, intending to sell or solicit
through www.quikr.com and their mobile application under the name
of Quikr or through any other online websites and/or online platforms
or through social medias or in any manner using the impugned
counterfeit goods under impugned trademarks/logos Nike, Swoosh
Device, Nike Pro, Nike+, Nike Air Jordan, Jordan, Jump man (device)
in relation to their impugned goods and business and from doing any
other acts pre-deeds amounting to or likely to infringement of
respondent's registered trademarks/logos; infringement of
respondent's copyrights in the said trademarks/Logos; passing off of
the respondent's rights in respondent's said trademarks/Logos;
violation of respondent's rights in its trade name/Logos shall continue
till the disposal of the application under order 39 rule 1 and 2 CPC.
12. Further, in view of the statement of learned counsel for the
appellant that they are mere intermediaries and only provide an online
trading platform and do not have any stock-in-trade of footwear of the
subject mark, the impugned order to the said extent also does not
warrant any interference at this stage, as no prejudice that would be
caused to the appellant pending the disposal of the application under
order 39 rule 1 & 2 CPC.
13. However, with regard to the restraint on the appellant from
Signature Not Verified
MAGGU
Signing Date:14.01.2021 20:35:39
This file is digitally signed by PS
to HMJ Sanjeev Sachdeva.
disposing of or dealing with their assets, including their premises at
the addresses mentioned in the Memo of Parties is concerned, since
there is no rationale or justification qua the same and admittedly are
not subject matter of the Suit, the same cannot be sustained and
accordingly, the order to the said extent is set aside.
14. This would be without prejudice to the rights and contentions of
the parties and that would not, in any manner, amount to waiver of the
rights of the plaintiff.
15. Trial Court shall decide the application under order 39 rule 1
and 2 CPC afresh, without being influenced by anything stated in this
order.
16. The appeal is disposed of in the above terms.
17. Copy of the order be uploaded on the High Court website and
be also forwarded to learned counsels through email by the Court
Master.
SANJEEV SACHDEVA, J
JANUARY 13, 2021
'rs'
Signature Not Verified
MAGGU
Signing Date:14.01.2021 20:35:39
This file is digitally signed by PS
to HMJ Sanjeev Sachdeva.
