H-D U. S. A., LLC v. Vijaypal Dhayal Owner/ Proprietor of Red Rose Industries

1. I have heard Mr. Ranjan Narula and Mr. G.D. Bansal, learned Counsel for both sides on this application. Mr. Bansal submits that a response to this application was filed on 18 September 2023 which is still not on record. I have, however, queried of Mr. Bansal as to the stand that he has taken in response to IA 16673/2023. Mr. Bansal, very fairly, submitted that there is no clear opposition to the merits of the said application, as rival marks of the plaintiff and the defendant are indeed similar to each other.

2. However, Mr. Bansal raises a preliminary objection to the maintainability of the suit. He submits that the suit could not have been filed by Mr. Rakesh Chhabra as he was not duly authorised to do so. He has drawn my attention to the power of attorney filed with the suit, which reads thus: “Power of Attorney We, H-D U.S.A., LLC (the Company) having place of business at 3700 West Juneau Avenue, Milwaukee, Wisconsin 53208, United States of America, do hereby nominates, constitutes and appoints Mr. Rakesh Chabbra, Mr. Krishanpal Singh, Ms. Anita Rawat, Ms. Sonu Kapoor, Mr. B. Thiyagu and Ms. Suriya Lekha of Office NO. 401, 4th floor, Suncity Success Tower, Golf Course Extension Road, Section-65, Gurugram-122005, National Capital Region (Haryana), India, as our attorney with the powers herein mentioned and who are duly trained in identifying the trademarks and and other products comes under above said company and on their behalf to do the following acts, deeds, matters or things that is to say

1. To make, declare, swear, affirm, sign, seal, deliver, verify, pleadings, affidavits, caveats, declarations, applications, petitions, counter-claims, papers, deeds, assurances, instruments, agreements, documents, and writings usual, necessary or expedient for or in furtherance of one or more suits or criminal proceedings filed or proposed to be filed by the Company in an appropriate Court, before a police officer or any other law enforcement or judicial authority in India against any person violating the intellectual property rights of the Company and/or its representative, directors, officers, servants, or agents (hereinafter called the said proceedings).

2. To file, commence, prosecute, enforce, defend, answer, oppose, appear in or appeal against, institute and prosecute appeal, revision and review proceedings in respect of the said suits and all actions and legal proceedings and demands whether civil, criminal, political or administrative in which the Company is or may be concerned or interested in India and to file and or initiate appeal against any order passed by any court, tribunal or authority in India relating to any trade mark, copyright or any other intellectual property rights of the Company and to sign, execute, affirms, and verify petitions, memoranda of appeal, affidavits, applications or any pleadings and to depose on behalf of the Company. In any such action or proceedings, to retain employ and remunerate advocates, solicitors and other legal practitioners and advisors and to sign warrants, Vakalatnamas and other necessary authorities.

3. To appoint any substitute or substitutes and to delegate to such substitute or substitutes any one or more of the powers herein delegated by the Company to the said Attorney or Attorneys and to revoke the appointment of such substitute at their pleasure.

4. The Company hereby ratifies and confirms and agrees to ratify and confirm whatsoever the said Attorneys had lawfully done or caused to be done, shall lawfully do or cause to be done in or about the premises by virtue of these presents. The Power of Attorney shall be valid for a term of approximately three (3) years and may be revoked at any time during this period by the Company. AND, we hereby ratify and confirm all acts, if any, done by the said Attorney in respect of the matters aforesaid, we agree to ratify and confirm all acts done by the said Attorney pursuant to these persons.

IN WITNESS WHEREOF this POA has been duly issued on this June 17, 2022 and shall remain valid and into force for the period of three year from the date of signature i.e. until December 31,

2025. For and on behalf of H-D U.S.A., LLC ADRAEA M. BROWN, VICE PRESIDENT STATE OF WISCONSIN COUNTY OF MILWAUKEE Subscribed and sworn to before me this 17the day of June, 2022, by Andrea M Brown. James L. Sewrey, Notary Public”

3. Mr. Bansal’s contention is that the authority conferred on Mr. Rakesh Chhabra to institute the proceedings was restricted to the trademarks and. Inasmuch as the trademark which is being asserted in the present case is different from the aforenoted two trademarks, Mr. Bansal submits that the suit cannot be said to have been instituted by an authorised person.

4. The submission of Mr. Bansal proceeds on an erroneous appreciation of the opening paragraph of the power of attorney. The powers conferred by the power of attorney are contained in Clauses 1 to 3 of the power of attorney and not in the opening paragraph. The opening paragraph merely identifies the persons who have been granted the power of attorney. All that it states is that Mr. Rakesh Chhabra and the other persons named in the power of attorney were “duly trained in identifying the trademarks and and other products”. That is only a method of identifying the persons concerned and justifying grant of power of attorney to them. It cannot, in any manner, be read as restricting the power of attorney granted to the said persons to file legal proceedings relating only to the marks and.

5. Besides, even the opening paragraph notes that the persons concerned were duly trained not only in identifying the said trademarks and but also “other products”.

6. The third ground on which Mr. Bansal’s submission cannot sustain is that para 1 of the power of attorney confers omnibus attorney to the persons named in the power of attorney “to make, declare, swear, affirm, sign, seal, deliver, verify, pleadings, affidavits, caveats, declarations, applications, petitions, counter-claims, papers, deeds, assurances, instruments, agreements, documents, and writings usual, necessary or expedient for or in furtherance of one or more suits or criminal proceedings filed or proposed to be filed by the Company in an appropriate Court, before a police officer or any other law enforcement or judicial authority in India against any person violating the intellectual property rights of the Company and/or its representative, directors, officers, servants, or agents (hereinafter called the said proceedings”. This power of attorney, therefore, extends to prosecuting legal proceedings “against any person violating the intellectual property rights of the Company”. It is not restricted to any particular intellectual property right or rights.

7. In view of the aforesaid, I am not able to prima facie accept Mr. Bansal’s contention that Mr. Rakesh Chhabra was not competent to institute the present proceedings.

8. Insofar as merits are concerned, though Mr. Bansal fairly did not contest the issue, it may be noted that the mark used by the defendant replicated the “Eagle Logo/ Device mark” of the plaintiff which stands registered in the plaintiff’s favour.

9. As such, a prima facie case of infringement and passing off, by the defendant, of the plaintiff’s registered trademark is found to exist.