IVES LABORATORIES INC Vs. SUNNY BAKSHI

JUDGEMENT

(1.) THE plaintiff a company incorporated under the laws of USA instituted the present suit with respect to its trademark/labels SWISS FORMULA, ST. IVES, device of VILLAGE, its trade dress, colour scheme, artistic features, copyrights, trade name etc. and claimed the decree of permanent injunction against the defendant No. 1 carrying on business in the name and style of defendant No. 2 from infringing the aforesaid trade mark, trade dress, copyright of the plaintiff and or from passing off their goods as that of the plaintiff. The ancillary reliefs of delivery, rendition of accounts, damages, costs etc. are also claimed. Vide ex-parte order dated 27th February, 2007 this court finding a prima-facie case in favour of the plaintiff, restrained the defendants, their agents and representatives from manufacturing, selling, using, displaying, advertising, exporting, importing or otherwise dealing with the trade make ST. IVES, device of VILLAGE and trade dress or any other trademark/label identical with or deceptively similar to the plaintiff"s trademark/labels on any product. On an application of the plaintiff a commissioner was also appointed to visit the premises of the defendants and to take into custody the infringing goods and to sign the account books etc.

(2.) THE commission issued as aforesaid by the court was executed and the commissioner has filed a report dated 12th March, 2007. The commissioner has reported having found in the shop of the defendants at Gaffar Market substantial volumes of products bearing the trademark ST. IVES with the device of VILLAGE and which were found by the representatives of the plaintiff accompanying the commissioner to be counterfeit of the original products of the plaintiff.

(3.) THE defendants on being served with the summons of the suit/notice of the application for interim relief appeared on 11th May, 2007 through advocate who informed that the defendants did not want to file a written statement and only wanted to make a statement to the court. On 28th May, 2007 the counsel for the defendants informed that the defendants wanted to make a statement before the court that the defendants were not using the trademark of the plaintiff nor intend to do so. The said statement of the defendants was controverted by the counsel for the plaintiff who also pressed for a decree for damages besides that of permanent injunction which was being conceded by the defendants. In the circumstances, the defendants were directed to file written statement. However, the defendants did not file the written statement and also stopped appearing before the court and were vide order dated 14th January, 2008 proceeded against ex-parte and remain ex-parte. The interim order aforesaid was made absolute during the pendency of the suit and the plaintiff directed to lead ex-parte evidence. The plaintiffs have filed affidavit by way of examination in chief of Mr. Gary P. Schmidt its Secretary, affirmed and verified at Illinois, USA. Exhibit marks were put on the documents referred to in the affidavit. Considering that the case of the plaintiff is not being controverted by the defendants and the defendants had in fact conceded to the relief of permanent injunction, the personal appearance of the aforesaid witness of the plaintiff is exempted.