TMI Blog2019 (5) TMI 1919X X X X Extracts X X X X X X X X Extracts X X X X ..... e on 20th May, 2019 and 21st May, 2019. The costs shall be paid on the date when the Plaintiffs' representative visits the premises of Defendant Nos. 2 and 3. The Plaintiff has suffered heavy costs in the litigation including court fees, fees of the Local Commissioners, cost of investigation, etc. The suit is decreed against Defendant No. 1 with actual costs incurred. Let bill of costs incurred be placed on record by Ld. Counsel for the Plaintiff. The suit is decreed. - CS (COMM) 1269/2018 and I.A. 16629/2018 - - - Dated:- 14-5-2019 - Prathiba M. Singh, J. For Appellant: Hemant Singh, Waseem Shuaib Ahmed and Abhijeet Rastogi, Advocates For Respondents: Binod Kumar Jha and Navin Gupta, Advocates ORDER Prathiba M. Singh, J. 1. The Plaintiffs have filed the present suit for permanent injunction restraining infringement of trade mark, passing off, unfair competition, for rendition of accounts of profits/damages, delivery up etc. 2. The Plaintiff No. 1 - M/s. Adidas AG and its Indian subsidiary Adidas India Marketing Pvt. Ltd. - Plaintiff No. 2 (together referred to as 'Plaintiffs'), claim to be one of the world's leading manufacturer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; device mark on their footwear. Accordingly, the present suit was filed against Defendants 1-3. Defendant No. 1, M/s. Colo Footwear, was claimed to be the manufacturer and distributor of footwear. Defendant No. 2 and 3 are the dealers of Defendant No. 1. The images of the infringing shoes have been extracted in para 23 of the plaint which are as under: 7. On 5th September, 2018 this Court had granted an ad-interim injunction in the following terms: 10. The Court has perused the plaint and the documents placed on record. The Plaintiffs have made out a prima facie case and the balance of convenience is in favour of the Plaintiffs. The use of the three stripes mark is such an indiscriminate manner would completely dilute the brand equity of the mark. The mark is registered in India and enjoys goodwill and reputation. Thus, an interim order is passed restraining the Defendants from manufacturing, selling, offering for sale either through their outlets or through the internet/e-commerce websites, any footwear or accessories bearing the three stripes device mark or any other mark which is identical or deceptively similar to the three stripes mark of the Plaintiff. 8. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shoes worth thousands of rupees each, across the country. Thus, upon enquiring about how the large orders were fulfilled, initially the representative of the Defendant said that they had a godown in Bawana, but later retracted and stated that it sourced its products from random vendors who come from Bawana. He, however, refused to reveal the details of any of the said vendors to the Local Commissioner. 9. A perusal of the reports shows that each of the Defendants had stock of various footwear that bore the 'THREE STRIPES' mark of the Plaintiffs. All the three Defendants were found selling the said products and same were inventorised by the Local Commissioners. The Defendants, thereafter, had entered appearance before this Court and all the three Defendants sought time to file written statement on 5th February, 2019. However, Defendant No. 1 failed to file its written statement and accordingly the right of Defendant No. 1 to file the written statement was closed on 9th May, 2019. Defendant Nos. 2 and 3 have filed their written statements. A perusal of the written statement of Defendant No. 3 shows that Defendant No. 3 took the stand that he is only a seller/retailer of D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e shoes bearing the 'THREE STRIPES' device mark from her premises. Insofar as Defendant No. 1 is concerned, no written statement has been filed and the contents of the plaint have not been traversed. 12. The Ld. Counsels for Defendant Nos. 2 and 3 have no objection if a permanent injunction is granted restraining the said Defendants from selling shoes or footwear bearing the 'THREE STRIPES' device mark. 13. The Plaintiffs' ownership of the mark has been established on the basis of the pleadings and the documents filed on record. The Defendants No. 2 and 3 do not raise any challenge to the Plaintiffs' marks. The publicly available documents filed by the Plaintiff, cannot be disputed. The ADIDAS brand and the 'THREE STRIPES' device mark has been in use for several years in India. The trademark registrations of the Plaintiffs are also not disputed. The fact that the footwear of the Plaintiffs is promoted and endorsed by well-known personalities is clearly evident from the record. The pleadings and the documents clearly establish the Plaintiffs' right in the 'THREE STRIPES' device mark. 14. Similar orders have been passed protecting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te protection. 16. On the basis of pleadings and documents on record and due to the lack of any defence on behalf of Defendant No. 1, as also the fact that no valid defence has been raised disputing the Plaintiffs' rights in the mark by Defendant Nos. 2 and 3, the suit is liable to be decreed. Accordingly, a decree of permanent injunction is granted in favour of the Plaintiff and against the Defendants Nos. 1 to 3 in terms of para 34 (a), (b) and (c) of the plaint. 17. Insofar as the issue of costs and damages are concerned, it can be seen from the Local Commissioners' reports, which can be read in evidence, that Defendants No. 2 and 3 are shopkeepers who were selling the products manufactured by Defendant No. 1. The Local Commissioner who visited the Defendant No. 1's premises clearly records as under: 9. Further, it was observed that the manufacturing of the shoes took place at the premise of the Defendant, i.e., at 2nd and 3 Floor, Wz 265, Madipur, Delhi - 110063. 18. The main manufacturer of the infringing goods is Defendant No. 1, who entered appearance in the present suit but has, thereafter, neither filed the written statement nor raised any defen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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