K.R. Shriram, J.:— In the present Interim Application, applicant/Plaintiff seeks to move for ad-interim reliefs without notice for the reasons set out in paragraph 23 of the plaint. The action in the present suit is for infringement of plaintiff's registered trade mark, copyright combined with an action for passing off.
2. Plaintiff is engaged in manufacturing and marketing readymade garments using its trade mark NATION WIDE continuously since May 2006. Plaintiff's trade mark NATION WIDE is depicted under a stylized label bearing a distinctive artistic NW Logo and the words NATION WIDE, both of which form the essential elements in plaintiff's trade mark. Plaintiff has annexed, at Exhibit A to the plaint, colored labels and garments bearing plaintiff's trade mark NATION WIDE and the NW Logo.
3. According to plaintiff, he has been using the said trade mark NATION WIDE and artistic work of NW Logo since the year 2006. It is submitted that the said trade mark NATION WIDE and artistic work of the NW Logo are distinctive of and are both identified exclusively with plaintiff's goods. Plaintiff has acquired valuable common law rights therein. In para 6 of the plaint, plaintiff has relied upon his registration for the trade mark NATION WIDE and copy of the trade mark registration certificate has been appended at Exhibit B to the plaint. Plaintiff has also annexed a statement of his sales figures for goods sold under the trade mark NATION WIDE, at Exhibit C.
4. According to plaintiff, in the year 2011-2012, plaintiff duly authorized and licensed his brother's firm, Navkar Apparels, to use his trade mark and artwork of NATION WIDE. Plaintiff has annexed at Exhibit D, copy of the consent letter dated 01.04.2011 and copy of the Registered User's agreement dated 01.09.2020. The said licensee is using the trade mark and artwork of NATION WIDE since the year 2011. Plaintiff has annexed at Exhibit E, a statement of sales figures of his said licensee. Also, annexed at Exhibit F are copies of sales invoices, printing, packaging invoices evidencing use of the trade mark NATION WIDE and artwork of NW Logo.
5. According to plaintiff, defendant used to be a job worker for plaintiff until November 2019 and had thus complete knowledge of the plaintiff's trade mark and artwork as aforementioned. Plaintiff has annexed at Exhibit G, copies of invoices raised by defendant for the job work undertaken by him. In the first week of December 2019, during a visit to defendant's premises, plaintiff came across readymade garments under the mark NATION WORLD WIDE with the NW logo. Color representation of defendant's mark is annexed at Exhibit H. On being confronted, defendant apologised and gave a verbal assurance that he would not use the same, which plaintiff believed as no goods of defendant bearing the mark were seen in the markets.
6. In the second week of September 2020, plaintiff caused a search from the Trade Marks Registry records and learnt about defendant's application for registration of NATION WORLD WIDE. Print out of the status page of the impugned application is appended at Exhibit I. Around the same time, plaintiff's customer from Sudan shared on WhatsApp, pictures of readymade garments bearing the impugned mark NATION WORLD WIDE and the pirated NW Logo, which he believed were goods of plaintiff. Plaintiff has annexed at Exhibit H pictures shared by his customer from Sudan. Identifying the goods to belong to defendant, plaintiff procured successfully a sample from defendant's factory premises bearing the impugned mark and the pirated artwork. Color representation of defendant's product is annexed at Exhibit K to the plaint. Plaintiff has also annexed at Exhibit L the rival labels for the purpose of comparison.
7. According to Mr. Bhagat, counsel appearing for plaintiff, defendant has intentionally used the impugned mark NATION WORLD WIDE in a manner wherein the words NATION and WIDE are given greater prominence and the word WORLD is deliberately depicted in small miniscule font. Even the logo adopted by defendant is depicted in the same manner and style. He has submitted that as defendant was plaintiff's job worker he was aware of plaintiff's trade mark and artwork and consequently the adoption of a deceptively similar mark under an identical artwork is dishonest and appears to be undertaken with the motive of usurping upon plaintiff's rights thereby cheat the public through clever deception.
8. I have gone through the plaint and the documents filed in great detail. I find considerable force in the argument of Mr. Bhagat. Defendant's mark taken as a whole is deceptively similar to plaintiff's trade mark. Even the logo and artwork appears to have been copied by defendant. Both are used for identical description of goods. For the sake of convenience, the rival labels are depicted herein below:
9. Defendant is infringing upon plaintiff's trade mark and the copyright in the artistic work as aforementioned. A cursory look at defendant's infringing product would be mistaken with the products of plaintiff.
10. In the aforesaid circumstances, I find that a strong prima facie case is made out by plaintiff for granting ad-interim reliefs. The balance of convenience is also in favour of plaintiff. In view of what is stated in paragraph 23 of the plaint and the foregoing discussion, I am satisfied that giving any notice to defendant before passing the present order would defeat the very purpose of granting of any ad-interim reliefs. In these circumstances, these shall be an ad-interim order in terms of prayer clauses - (a), (b), (c) and (d) of the Interim Application which read thus:
(a) pending the hearing and final disposal of the suit, defendant by himself, his proprietors/partners, servants, agents, distributors, stockists, dealers, assignees, transferees and all those connected with defendant in his business be restrained by an order and temporary injunction of this Hon'ble Court from manufacturing, marketing, distributing, selling, exporting and/or using in any manner whatsoever in relation to his readymade garments and other like goods, the impugned mark NATION WORLD WIDE or any mark identical with and/or deceptively similar to the Plaintiff's trade mark NATION WIDE, so as to infringe upon the Plaintiff's aforesaid trade mark NATION WIDE registered under No. 3463168 in class 25;
(b) pending the hearing and final disposal of the suit, defendant by himself, his proprietors/partners, servants, agents, distributors, stockists, dealers, assignees, transferees and all those connected with defendant in his business be restrained by an order and temporary injunction of this Hon'ble Court from manufacturing, marketing, distributing, selling, exporting and/or using in any manner whatsoever in relation to his readymade garments and other like goods, the pirated artwork of the NW logo (appended at Exhibit K to the plaint) or any other artwork which is identical with and/or is substantially/strikingly similar to the Plaintiff's original artistic work of the NW Logo (appended at Exhibit A to the plaint), so as to infringe upon the Plaintiff's subsisting copyright therein;
(c) pending the hearing and final disposal of the suit, defendant by himself, his proprietor/partners, servants, agents, distributors, stockists, dealers, assignees, transferees and all those connected with defendant in his business be restrained by an order and temporary injunction of this Hon'ble Court from manufacturing, marketing, distributing, selling, exporting and/or using in any manner whatsoever in relation to his readymade garments and other like goods, the impugned mark depicted under the impugned trade dress NATION WORLD WIDE or any mark/s or trade dress identical with and/or deceptively similar to the Plaintiff's distinctive and prior used trade mark NATION WIDE and its distinctive trade dress, so as to pass off his goods and business as and for those of plaintiff or in some way connected or associated therewith;
(d) pending the hearing and final disposal of the suit, the Court Receiver, High Court, Bombay, or such other fit and proper person/s as this Hon'ble Court thinks fit, be appointed Receiver/s with all powers under Order XL Rule 1 and Order XXXIX Rule 7 of the Code of Civil Procedure, 1908, to attend, enter upon with representative(s) of Plaintiff and search the premises, offices, manufacturing units, factories, shops, warehouses, godowns, houses of defendant without notice to the Defendant, or such other premises wherever the goods viz. readymade garments and other like goods, bearing the impugned mark NATION WORLD WIDE and pirated artwork of NW Logo as aforementioned, as may be found, stocked, sealed or are lying and to break open such locks with police assistance (if needed), make an inventory, seize and take custody/possession thereof by sealing the said goods at the Defendant's premises under lock and key and also of all related items such as stationery, production registers including invoices in soft and hard copy formats, printing and packaging materials, screens, cylinders, blocks, moulds, dyes, stencils, machinery and master plates used to print the infringing packaging materials, lying at the premises, offices or factories, manufacturing units, godowns, warehouses of defendant or its agent or at any other place/s and defendant by himself, his proprietor/partners, heirs, servants, employees, representatives be ordered and directed to deliver up all of the aforesaid to the Court Receiver or to such other fit and proper person as this Hon'ble Court thinks fit and the Court Receiver must carry out such search and seizure with local police assistance, if necessary, at no costs.
11. The Court Receiver, High Court, Bombay, shall keep the impugned goods under his seal in the safe custody of defendant. The Court Receiver is authorized to seek police assistance, if required, and the Police authorities of the concerned Police station shall render all possible assistance as requested by the Court Receiver including deployment of such number of Police personnel as required on production of a digitally signed copy of this order. The Court Receiver to submit report to this Court by 16 October 2020.
12. The order is not to be uploaded until execution of this order by the Court Receiver.
13. Time to comply with the provisions of Order XXXIX Rule 3 of the Code of Civil Procedure Code, 1908 is extended for a period of one week from such time as the Court Receiver implements this order.
14. Considering that the above matter has been heard via Video Conferencing due to the COVID-19 pandemic, it will not presently be possible to sign a copy of this order. In these circumstances, this order will be digitally signed by the Private Secretary of this Court and all concerned parties including the Court Receiver are directed to act on the digitally signed copy of this order. They will act on a production of a digitally signed copy sent by fax and/or email.
15. List this Interim Application for further ad-interim reliefs on 23 October 2020.
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