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2023 SCC OnLine Del 4273
In the High Court of Delhi at New Delhi
(Before C. Hari Shankar, J.)
Coty Germany GMBH … Plaintiff;
Versus
Xeryus Retail Private Limited and Another … Defendants.
CS(COMM) 1298/2018 and I.A. 8603/2023
Decided on July 21, 2023
Advocates who appeared in this case:
Mr. Rishi Bansal and Mr. Rishabh Gupta, Advs.
Nemo
The Order of the Court was delivered by
C. HARI SHANKAR, J.:—
I.A. 8603/2023 (under Order XIII A Rule 3 and 4 of CPC)
1. Summons were issued in the suit on 19 December 2018.
2. The written statements, filed by the defendants, were struck off the
record on 8 November 2019.
3. On account of repeated non-appearance, the defendants have also
been proceeded ex-parte by order dated 13 February 2023.
4. There has been no appearance on behalf of the defendants even
thereafter and there is no appearance on behalf of the defendants
today either.
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5. In the circumstances, the plaintiff has moved IA 8603/2023, under
Order XIIIA of the Code of Civil Procedure 1908 (CPC) as amended by
the Commercial Courts Act, 2015, for passing a judgment and decree
in terms of prayers in the suit.
6. The suit alleges infringement as well as passing off, by the
defendants, of its products as the products of the plaintiff. It is alleged
that the plaintiff is a reputed name in the field of, inter alia, perfumes,
and is the holder of the following registrations in India:
Sl. No. Trade Mark Registration Class Registration/Application
No. Date
1. CALVIN 566080 03 23.01.1992
KLEIN
(word)
2. CK (Device 610793 03 1.11.1993
3. CALVIN 1586015 03 31.07.2007
KLEIN MAN
(word
mark)
4. CALVIN 835952 03 11.01.1999
(word
mark)
5. Eternity 573011 03 12.05.1992
(Device)
6. OBSESSION 468859 03 09.03.1987
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(DEVICE)
7. OBSESSION 851117 03 13.04.1999
(word
mark)
8. EUPHORIA 1363871 03 14.06.2005
(word
mark)
9. CK ONE 619415 03 14.02.1994
(Device)
10. CK ONE 851272 03 13.04.1999
(word
mark)
11. CK ONE 1352503 03 21.04.2005
(Device)
12. CK ONE 2732972 03 07.05.2014
SHOCK
(word
mark)
7. The plaint asserts that the plaintiff's trade mark “Calvin Klein” was
founded and adopted on the basis of the name of its founder in 1967
since which time the plaintiff has been using the said mark, as well as
both in a whole, in its own as well as abbreviated “CK” form. The
plaintiff has also been representing its mark in a particular fashion
which has been indelibly associated with the identity of the plaintiff.
The plaintiff's marks are represented thus:
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DEL_144308_1.png
8. The plaintiff claims that, under the afore-said marks, it sells a wide
variety of fragrances which have become extremely popular, including
“CK one” “CK one SHOCK”, “ETERNITY” and “Euphoria”.
9. It is also claimed that the special stylised manner in which the word
“CK” and “Calvin Klein” are used constitute original artistic works
within the meaning of the Indian Copyright Act, 1957 and are entitled
to protection.
10. The plaintiff also claims to be operating the website
www.calvinklein.com, through which it disseminates information
regarding its activities and its products.
11. The grievance of the plaintiff is that the defendants are, through
the website www.perfumery.co.in and www.unboxed.in using the
plaintiff's mark for their products and are also selling, for commercial
value, testers of the plaintiff's products which are only intended to
enable a prospective customer to be able to sample the fragrance
before deciding to purchase it. Such testers are never meant to be sold
for commercial value and, by doing so, the defendants are indulging in
an unfair trade practice. Besides, such testers are being sold by the
defendants, masquerading them as perfumes of the plaintiff for sale,
thereby, luring customers into paying money for such testers which
are otherwise not to be commercially dispensed.
12. It is also alleged, in para 23 of the plaint, that the defendants
have dishonestly and with malafide intent started adopting and using
DEL_144308_2.png DEL_144308_3.png
the plaintiff's marks and .
13. The defendants are stated to be marketing and selling their
products using the said marks and specimen photographs of the said
products have been filed along with the plaint.
14. It is in these circumstances that the plaintiff has instituted the
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present plaint before this Court, with the following prayers:
“39. Under the facts and circumstances of the present case, the
Plaintiff most respectfully prays that this Hon'ble Court may kindly
be pleased to pass a decree in favour of Plaintiff and against the
Defendants detailed as hereunder:
a) For a decree of permanent injunction restraining the
Defendants by itself/themselves as also through his/their
individual proprietors/partners, agents, representatives,
distributors, assigns, heirs, successors, stockists and all others
acting for and on their behalf from marketing, using, selling,
soliciting, importing, exporting, displaying, advertising,
purveying, intending to sell impugned goods on
www.perfumery.co.in and www.unboxed.in or any other online
marketplaces or web entity or through any social media
channels or by any other mode or manner dealing in or using
DEL_144308_2.png
the impugned trade mark/logo/label and
DEL_144308_3.png
or any other trademark/logo/label which may
be identical with and/or deceptively similar to the Plaintiff's
said trademark/logo/label or any other trademark/logo/label
which may be Identical with and/or deceptively similar to the
Plaintiff's said trademark/logo/label in relation to their
impugned goods and business of Perfume Testers and other
allied/related products and from doing any other acts or deeds
amounting to or likely to:
i. Infringement of Plaintiff's aforesaid registered trademark
DEL_144308_2.png DEL_144308_3.png
and [as word mark or in
label form with or without the logo/device];
ii. Infringing the Copyright involved in the artwork of the
Plaintiff's trademark/logo/label;
iii. Passing off and enabling others to pass off their impugned
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goods and business as that of the Plaintiff, as well as
diluting the Plaintiff's proprietary rights therein;
iv. Violation of Plaintiff's proprietary rights in its trade name
i.e., CALVIN KLEIN or CK.
v. Falsification, unfair and unethical trade practices.
b) Restraining the Defendants from disposing off or dealing with
their assets including their premises at the addresses
mentioned in the Memo of Parties and their stocks-in trade or
any other assets as may be brought to the notice of the
Hon'ble Court during the course of the proceedings and on the
Defendants disclosure thereof and which the Defendants are
called upon to disclose and/or on its ascertainment by the
Plaintiff as the Plaintiff is not aware of the same as per Section
135(2)(c) of the Trade Marks Act, 1999 as it could adversely
affect the Plaintiff's ability to recover the costs and pecuniary
reliefs thereon;
c) For an order for delivering of all the impugned goods bearing
the above said impugned and violative trade mark/logo/label
or any other word/mark which may be identical with or
deceptively similar to the Plaintiff's said
trademark/logo/label/tradename including blocks, labels,
display boards, sign boards, trade literatures and goods etc. to
the Plaintiff;
d) For an order for rendition of accounts of profits earned by the
Defendant by their impugned illegal trade activities and a
decree for the amount so found in favour of the Plaintiff on
such rendition of accounts;
e) For the decree of grant of damages to the tune of Rs.
2,00,01,000/- (Rs. Two Crore and One thousand only) from all
the Defendants jointly and severally to the Plaintiff;
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f) For an order to the Defendants to disclose the supply and
procurement chain of the impugned goods bearing the
Plaintiff's said trademark/logo/label;
g) for an order for cost of proceedings; and
h) for such other and further order as this Hon'ble Court may
deem fit and proper in the facts and circumstances of the
present case.”
15. As the written statement filed by the defendants has been struck
off the record and the defendants have chosen, thereafter, not to
appear before this Court, all assertions and allegations in the plaint are
deemed to be admitted. The assertions in the plaint clearly make out a
case of infringement, by the defendants, of the plaintiff's registered
trade marks as well as of the defendants unlawfully passing off their
own goods as well as testers of the plaintiff as the plaintiff's goods for
commercial sale and thereby defrauding the purchasing public.
16. The assertions in the plaint, accompanied by the documents filed
therewith, entitles the plaintiff to a judgment and decree forthwith.
17. As such, there shall be a judgment and decree against the
defendants in terms of prayer (a) in para 39 of the plaint. Additionally,
in view of the fact that the assertions in the plaint have remained
unrebutted and that the defendants have also chosen not to cooperate
with the present proceedings and have abstained from participating in
these proceedings, thereby indicating that the they have no
substantial defence to offer, the defendants have necessarily to be
burdened with costs.
18. As such, the plaintiff would also be entitled to costs of Rs.
1,00,000/-, to be paid by the defendants within a period of four weeks
from today.
19. The suit stands decreed in the aforesaid terms.
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20. Let a decree sheet be drawn up by the Registry forthwith.
———
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