Exide Industries Limited v. Krishna International & Ors

Order XXXIX Rule 2A [I.A.4132/2020] was filed by the plaintiffs alleging violation of the interim directions issued on 28th April, 2020 and the reply was filed thereto by the defendants. It appears that the defendants stated before the court on 9th July, 2020 that the interim order must not be read to mean that the defendant is restrained from approaching the statutory authority for filing objections to the trademark. In fact, the defendants have already filed their objections before the Trademark Registry on 15th May 2020.

¶10It is thus, more than apparent that the conditions that prevailed due to the pandemic did not actually impact the defendants to prevent them from interacting with their counsel and filing appropriate applications and replies before this court. To that extent, the orders of the Supreme Court in Cognizance For Extension of Limitation (supra) would not be applicable to the facts of the present case. …

¶15There is no reason to take a different view in the present case. Here, the defendants were fully aware of the present case. They participated on various dates from 29th May, 2020, including in mediation, and chose not to file their written statement. Had they been not represented by a counsel, a probable view could have been taken that the procedure was unknown to the defendants. However, they have been assisted by counsel throughout and the very number of the case would have flagged to them that this was a commercial suit, which entailed strict timelines. The plea of the learned counsel for the defendants that since the summons had not been served to them, the time had not begun to run, cannot be accepted. Thus, on both grounds, there is no merit found in the present application. The same is dismissed.

¶16Since the delay has not been condoned, the delayed filing of the written statement cannot be accepted and the written statement cannot be taken on record. It is ordered accordingly."

¶14The order of the Supreme Court dated 14th March, 2022, in Brainlink (supra) reads as under: "In the facts and circumstances of the case and keeping in mind the conduct on the part of the petitioners and when even during the pandemic the petitioners participated in the proceedings, which has been reflected in para 3 of the impugned order, we are in complete agreement with the view taken by the High Court."

¶15Considering this legal position, whenever a Defendant is continuing to appear before the Court and has no impediment in filing the written statement, the delay beyond a period of 120 days, even in a commercial suit, would not be liable to be condoned.

¶16Even otherwise if the averments in the written statement are taken into consideration, the stand of Defendant Nos.1& 3 is that they do not claim rights insofar as their businesses under the mark/name 'EXIDE' have already been stopped. Ld. Counsel has also submitted that the Defendants do not wish to continue the said mark and name.

¶17On merits, this Court is convinced that this is an appropriate case for grant of permanent injunction and decree in terms of the plaint. The inventory seized by the Defendants, as extracted above, shows that the Defendants were manufacturing various products such as engine oil, power banks, chargers, ceiling fans, bulb shells, LED bulbs, etc, under the mark 'EXIDE'. The Plaintiff being the exclusive owner of the mark 'EXIDE' in India, the use of the mark 'EXIDE' by any third-party in respect of identical goods i.e., batteries would not only be violative of Plaintiff's statutory and common law rights, but also contrary to consumer interest inasmuch as batteries are used in various automobiles and thus, the safety of the passengers and owners who drive these vehicles would be of paramount importance.

¶18The Defendants having not contested the suit, the present suit is decreed in terms of paragraph 51 (a) and (b) of the plaint.

¶19Insofar as delivery up for the purpose of destruction, as sought in paragraph 51 (c) is concerned, since there is a large quantum of products which has been seized by the Local Commissioner, the representatives of the Plaintiff are permitted to visit the Defendants' premises where the inventory is lying, so as to ensure that the mark 'EXIDE' is effaced or removed completely or the products if not useable are destroyed.

¶20The value of the goods seized by the Local Commissioner is stated to

be more than Rs.10 lakhs. Accordingly, the court fee which has been deposited by the Plaintiff in this suit would be liable to be reimbursed by the Defendants to the Plaintiff. Accordingly, Defendant No.1 & 2 are directed to pay Rs.1 lakh each to the Plaintiff towards litigation costs.

¶21No further reliefs are being pressed for. Decree sheet be drawn in the above terms. All pending applications are also disposed of.

PRATHIBA M. SINGH, J. MARCH 29, 2022/aman/ad

* IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Decision: 29th March, 2022 + CS(COMM) 367/2020 & I.As. 7801/2020, 1017/2021, 2402/2021, 4794/2022 EXIDE INDUSTRIES LIMITED ..... Plaintiff Through: Ms. Suhrita Mazumdar, Mr. Afzal B. Khan, Mr. Vishal Nagpal, Advocates (M: 9903026134) versus KRISHNA INTERNATIONAL & ORS. ..... Defendants Through: Mr. Saurabh Kumar Tuteja, Advocate for D-1&3 (M:9711234754) CORAM: JUSTICE PRATHIBA M. SINGH Prathiba M. Singh, J.(Oral) 1. This hearing has been done through hybrid mode. 2. The present suit has been filed by the Plaintiff-Exide Industries Limited, seeking permanent injunction restraining the Defendants from infringement of the Plaintiff's registered trademark and trading name 'EXIDE', passing off, rendition of accounts, damages, delivery-up, etc. The Plaintiff is engaged in the business of manufacture and sale of automotive and industrial batteries and claims rights in the mark 'EXIDE' which is used in respect of lead acid storage batteries ranging from 2.5 Ah to 20,200 Ah capacity covering the broadest spectrum of applications. The Plaintiff is also stated to be manufacturing high-end batteries for submarines and for other security related machinery as well. It has various subsidiaries in India and abroad, including in the United Kingdom, Singapore and Sri Lanka. The Plaintiff s presence in the Indian market with the trademark 'EXIDE' is tangible, widespread, continuous and uninterrupted, especially in view of the fact that the Plaintiff has more than 1750+ Exide Care centres offering servicing of batteries, and 48,000+ direct and indirect outlets, for sale of products. 3. The Plaintiff is the proprietor of several registered trademarks comprising the expression 'EXIDE', including the first registration of the trademark 'EXIDE' in India bearing registration No.694 dated 8th June, 1942 in Class-9. The Plaintiff is also the registered proprietor of the mark 'EXIDE' in Class 25, 11, 99, amongst others. The sales of the Plaintiff were more than Rs.10,000/- crores in the year 2018-2019. The Plaintiffs corporate name is also 'Exide Industries Limited'. The Plaintiff avers that the mark 'EXIDE' has become a well-known mark under Section 2(1)(zg) of the Trademarks Act, 1999 Act. 4. The Plaintiff's case against the Defendants is that the Defendants are engaged in manufacture and sale of various products including the automotive products under the brand name 'EXIDE', which is also used as part of the trading style of the Defendants. The records from the Trademark Registry also reveal that the trademark was applied for by Mr. Rajesh Kumar Tuteja, trading as Defendant No.1-Krishna International. The records from the GST portal are also relied upon to argue that the Defendants are illegally using the mark 'EXIDE'. The Linkedin profile of Mr. Rajesh Kumar Tuteja also claims association with the Defendant No.2- M/s. Narula & Company, which is also using the mark 'EXIDE' for its batteries. Defendant No.3-Rajesh Led & Phone Network Booster Accessories, is also, admittedly, an entity of Mr. Rajesh Kumar Tuteja. 5. The Plaintiff submits that the listings for the Defendants' products were found on www.indiamart.com. Upon discovering the same, the Plaintiff conducted inquiries and it was revealed that Defendant No.1 was marketing the infringing products in packaging which are primarily available in two variants- 'Naveen Exide Power' and 'Made in Exide Power'. The 'X' in the 'EXIDE Power' logo was also similar to the trademark 'EXIDE' used by the Plaintiff. Further investigation also revealed that Defendants were manufacturing a large variety of products like Conceal lights, LED Panel Lights, LED COB Lights bearing the mark 'EXIDE'. All these products use the mark 'EXIDE' blatantly in a prominent form. The Defendants also have various promotional materials bearing the mark 'EXIDE', which has been circulated in the market. The Plaintiff, in fact, effected a purchase of the infringing products bearing the ma