Bhavik S. Popat v. Bright Sales Corporation & Ors.

1. Plaintiff has approached this Court for passing an order for permanent injunction restraining all the defendants, their successors, franchisees, licensees, distributors, representatives, assignees, agents and any one acting for and/or on their behalf from using the PRIMA or mark and any other trade name/trademark/trading style/domain name 2021:DHC:2125 identical/deceptively similar to the plaintiff’s trademark as a trademark or part of trademark, trade name or part of trade name, corporate name or part of corporate name, domain name or part of domain name or in any manner whatsoever in relation to their goods/services or in any manner whatsoever, which would cause confusion or deception amounting to infringement of the registered trademarks of the petitioner. He also seeks direction for passing an order to take any and/or all steps necessary to block the online websites that solicit the business of the defendants and features which bear or incorporate; the PRIMA or trademark or anything deceptively or confusingly similar thereto; and any other indicia whatsoever that shows any association of the defendants’ products and/or services PRIMA or trademark with the plaintiff’s products and/or services. He further seeks direction to deliver to the plaintiff's attorneys or representatives for destruction all products, labels, signs, stationary, business cards, prints, packages, plates, dies, wrappers, receptacles, materials and advertisements in their possession or under their control, bearing the PRIMA or mark, or any simulation, reproduction, copy or colorable imitation of the Plaintiff's mark. Further directing the defendants to immediately withdraw application in class 21 and/or any other application(s) filed by the defendants for registration of the PRIMA or mark, whether in word or stylized form, or any other application filed for registration of a mark deceptively similar to the mark; an order directing the defendants to allow inspection of their accounts to assist in ascertaining the amount of profits made by them and/or damages suffered by the plaintiff as a result of the defendants' use of the offending mark and a decree be passed in favour of the plaintiff and against the defendants for the amount found due. The plaintiff be additionally granted exemplary and punitive damages at least to the tune of Rs.2,00,00,050/-. Also seeks directions for declaration that the trademark is a well-known mark belonging to the Plaintiff and cost of the suit be awarded to the plaintiff.

2. The case of the plaintiff is that plaintiff is running a business of manufacturing, importing and trading various kinds of personal protection wearables for industrial, commercial and non-commercial uses and specialises in rubber gloves since 2010 either made in Malaysia or from pure Malaysian latex with the house name of M/s Krishna International and has more than 5 brands. On the other hand, defendant nos.[1] to 11 are engaged in the business of manufacturing and selling, distributing to the wholesale and retail markets various kinds of rubber gloves. The word was adopted and first used and registered as a trademark by the plaintiff in respect of gloves for household purposes. Plaintiff has the exclusive right to use the above trademark in relation to the goods for which they are registered and take action for infringement thereof in accordance with the provisions of law. The plaintiff has incurred expenditures on the promotion and advertisement of his products under trademark in India as well as all over the world. The plaintiff has also maintained the website http://www.krishnainternat.co.in since 2015 and https://www.indiamart.com/krishnainternational-mumbai/profile.html since 2017 and the product of the plaintiff is available on Amazon and Flipkart with the description ''Prima 100% Pure Latex Flock Lined Rubber Gloves I

3. It is also stated in the plaint that plaintiff’s counsel in Mumbai in January 2020 informed him about a trademark application being published wherein defendant no.9 wanted to get registered a trademark similar to that of the plaintiff. In the month of August 2020, it was found that defendant nos.[1] to 11 are selling products with packaging which are similarly deceptive to that of the plaintiff. Hence, the present petition.

4. On 16.02.2021, this Court had referred the matter to Delhi High Court Mediation and Conciliation Centre for plaintiff and defendants No.1,2,7,[9] and 11 to explore possibility of settlement.

5. Since none had appeared on behalf of, defendant nos.4, 5, 6, 7, 8 and 10 despite service, therefore, vide order dated 24.03.2021 they were proceeded ex parte.

6. During the course of hearing today, learned counsel for plaintiffs submits that plaintiff and defendants No.1, 2, 9 and 11 have amicably resolved their disputes before Delhi High Court Mediation and Conciliation Centre in terms of Settlement Agreement dated 05.07.2021 and suit can be decreed in terms thereof against these defendants.

7. The aforesaid submission of learned counsel for the plaintiffs is affirmed by the counsel appearing for respective defendants.

8. This Court has gone through the contents of Settlement Agreement dated 05.07.2021 and find it to be valid and lawful.

9. Accordingly, the suit is partly decreed in terms of Settlement Agreement dated 05.07.2021 qua defendant nos.1, 2, 9 & 11. Decree sheet be accordingly drawn. Settlement Agreement dated 05.07.2021 shall form part of the decree.

10. At this stage, learned counsel for the plaintiff submits that the suit against the remaining defendants still survives, who have been proceeded ex parte and plaintiffs be permitted to file schedule of recording evidence.

11. Let the needful be done by the plaintiff within four weeks.

12. Renotify on 02.09.2021 for further proceedings.

JUDGE JULY 20, 2021 ab/r