Delhi District Court
Hi Tech Products Private Limited vs Gopal Radios on 30 July, 2025
IN THE COURT OF MS. ANU GROVER BALIGA,
DISTRICT JUDGE (COMMERCIAL COURT-04),
SOUTH-EAST DISTRICT, SAKET COURTS,
NEW DELHI
CS (COMM) No. 159/2023
HI TECH PRODUCTS PVT. LTD. VS. GOPAL RADIOS & ANR.
In the matter of:
HI-TECH PRODUCTS PRIVATE LIMITED
Through its Authorised Representative
having its Registered Office at :
A-13, B-1 Extension,
Mohan Cooperative Industrial Estate,
Badarpur, New Delhi-110044. ....Plaintiff
Versus
GOPAL RADIOS
Through Its Proprietor
118, Surya Chamber, Radio Market,
Nehru Bazaar, Jaipur, Rajasthan, 302001. ....Defendant No. 1
Mr. RAJESH SHARMA
(Proprietor of Gopal Radios)
118, Surya Chamber, Radio Market,
Nehru Bazaar, Jaipur, Rajasthan, 302001. ....Defendant No. 2
Date of institution : 16.02.2023
Date of reserving judgment : 14.07.2025
Date of pronouncement of Judgment : 30.07.2025
JUDGMENT
1. The present suit has been filed seeking a decree of permanent
injunction to restrain the Defendant, his agents, etc. from using the word/mark
FALCON and/or FALCON as a trade mark or part of its trade name or any other
mark deceptively similar to the Plaintiff’s trade mark FALCON in relation to
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Digitally signed
ANU by ANU GROVER
GROVER BALIGA
Date: 2025.07.31
BALIGA 12:11:37 +0530
electrical wires, cables, cords, electrical accessories, electrical pipes and fittings,
etc. (though in the memo of parties the Plaintiff has separately arrayed M/s
Gopal Radios as Defendant No. 1 and its Proprietor Sh. Rajesh Sharma as
Defendant No. 2, it is well settled law that a Proprietorship Firm has no identity
separate from its Proprietor and therefore this Court will only be referring to the
Defendant as Rajesh Sharma, Proprietor of Gopal Radios)
2. Pleadings
(a) The case of the Plaintiff in a nutshell is that the Plaintiff is engaged
in the business of manufacturing and trading of wide range of electrical goods,
apparatus, instruments, electrical wires and cables, cords accessories and other
allied products and since the year 1977 has been using the trademark FALCON
with respect to its goods. According to the Plaintiff the trademark FALCON and
the artistic device of FALCON both stand registered in its favour and it
therefore has the exclusive rights to use the same within the meaning of Section
28 and 29 of Trademark Act.
(b) It is also the assertion of the Plaintiff Company that the products
and services offered by the Plaintiff under the brand name FALCON are well
recognized by the public and highly preferred by its customers.
(c) Through sales of its products bearing the trademark FALCON
Plaintiff claims to have earned huge profits and the year wise sales figures of the
same have been given in para 10 of the plaint. Documents pertaining to the
advertisement and promotion undertaken by the Plaintiff to promote its
trademark have also been placed alongwith the plaint.
(d) It is the allegation of the plaintiff that recently the market survey
conducted by it revealed that the Defendant, Rajesh Sharma being the Proprietor
of Gopal Radios, engaged in the business of wholesale of audio mike, audio
speakers and media player alongwith other allied, cognate and ancillary
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ANU Digitally signed
by ANU GROVER
GROVER BALIGA
Date: 2025.07.31
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products, has adopted and started using the trademark FALCON word,
FALCON formative labels and FALCON trade name. It has also been alleged
that the Defendant is selling counterfeit electric wires and cables by using the
trademark of the Plaintiff and thereby deceiving the public at large. According
to the Plaintiff, the malafide intention of the Defendant to misuse the goodwill
enjoyed by the Plaintiff in the market to deceive the public at large is evident
from the fact that the label bearing the trademark FALCON has been affixed to
goods which bear the name FELCAN and which is also deceptively similar to
the trademark of the Plaintiff.
3. It is a matter of record that on an applications filed on behalf of the
Plaintiff seeking interim injunction and the appointment of a Local
Commissioner vide order dated 17.02.2023, this Court had granted ex-parte ad-
interim injunction in favour of the Plaintiff and had also appointed a Local
Commissioner to visit the premises of the Defendant.
4. In compliance of the aforementioned order, the Local
Commissioner appointed by this Court had visited the premises of the
Defendant and thereafter had filed a detailed report dated 06.03.2023. In the said
report, Ld. Local Commissioner had reported that he had visited the Defendant
premises at118, Surya Chamber, Radio Market, Nehru Bazaar, Jaipur, Rajasthan
and had informed the Defendant about the interim order passed by this Court
and had also supplied him a copy of the order dated 17.02.2023 alongwith copy
of the entire plaint / paper book. It is further mentioned in the said report that on
the identification of the AR of the Plaintiff, the Local Commissioner had also
searched godown no. 301, 302, 304, 306, 307 and 408 located on the second
floor and third floor of the building in which the shop of the Defendant was
situated and that 12 bundles of counterfeit micro phone cables bearing the
trademark of the Plaintiff were found in the aforementioned godowns.
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Digitally signed
ANU by ANU
GROVER
GROVER BALIGA
BALIGA Date: 2025.07.31
12:11:49 +0530
5. As per record, after being served in the aforementioned manner, the
Defendant appeared before this Court alongwith Counsel Sh. Vikram Singh and
Deepak Sharma and sought 04 weeks time to file objections to the Ld. Local
Commissioner’s report. It was also submitted on behalf of the Defendant that
without admitting that he has been manufacturing or otherwise dealing with
goods infringing trademark of the Plaintiff, in terms of Section 35 (3)(d) of Civil
Procedure Court as amended by the Schedule to the Commercial Courts Act, the
Defendant, Sh. Rajesh Sarma, Proprietor of the Defendant firm is willing to pay
Rs. 1 Lakh to the Plaintiff towards the costs of the suit and is also willing to
give an undertaking that he will not in future sell or in any manner deal with any
goods infringing the trademark of the Plaintiff. The said offer was however
rejected by Authorized Representative of the Plaintiff, Sh. Veshal Gupta.
6. The record further reflects that the Defendant despite taking time to
file objections to the report of the Local Commissioner did not file any
objections thereto. In his written statement he however has sought to mainly
contend that he has never at any point of time infringed the Trademark of the
Plaintiff. It has also been interalia contended therein that the plaint should be
rejected u/s 12-A of the Commercial Courts Act for the Plaintiff did not resort to
pre-institution mediation. It has also been pleaded in the written statement that
the Plaintiff has not placed any invoice / bill or other credible evidence on
judicial record to prove and establish that the Plaintiff is running its regular
business within the territorial jurisdiction of State of Uttar Pradesh and that
therefore this Court does not have the jurisdiction to try the present suit as per
provisions of Section 134 of the Trademark Acts. The assertion of the Plaintiff
that it has a registered trademark has also been denied by the Defendant.
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ANU Digitally signed
by ANU GROVER
GROVER BALIGA
Date: 2025.07.31
BALIGA 12:11:54 +0530
Issues:-
7. On the basis of the pleadings of the parties vide order dated
05.03.2024 the following issues were framed by this Court:-
1. Whether the Plaintiff is entitled to the permanent
injunction, as sought for ? OPP.
2. Whether the Plaintiff is entitled to the damages of
Rs. 3 Lakhs, as prayed for ? OPP.
8. It is relevant to mention herein that no issues regarding the
territorial jurisdiction and the rejection of the plaint for non-compliance of
Section 12-A of the Commercial Courts Act were pressed by the Ld. Counsel for
the Defendant on the aforementioned date when the issues were framed. This
was for the reason that when Ld. Counsel for Plaintiff had pointed out that the
registered office of the Plaintiff is situated within the territorial jurisdiction of
this Court and that therefore in view of the provisions of Section 134 (2) of the
Trademark Act, 1999, this Court does have the territorial jurisdiction to try the
present suit, Ld. Counsel for Defendant had also fairly conceded to the said
proposition. Even otherwise in the considered opinion of this Court keeping in
view Section 134 (2) of the Trademarks Act, this Court does have the territorial
jurisdiction to try the present suit. The said Section lays down that a suit
claiming infringement of a registered trademark may be filed within the
jurisdiction of the District Court in which the Plaintiff actually and voluntarily
resides or carries on its business. It is matter of record that the Plaintiff carries
on its business within the territorial jurisdiction of this Court. Further taking into
consideration that the Plaintiff had filed an application seeking an urgent relief
of interim injunction which was also infact granted by this Court vide its order
dated 17.02.2023, this Court had also not found it necessary to frame an issue
regarding the plea taken by the Defendant namely that the plaint is liable to be
rejected under Section 12-A of the Commercial Courts Act.
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Digitally signed
ANU by ANU GROVER
GROVER BALIGA
Date: 2025.07.31
BALIGA 12:12:01 +0530
Evidence
Plaintiff's Evidence
9. The Plaintiff in order to prove its case has examined its Authorized
Representative one Sh. Veshal Gupta. The said witness has tendered his affidavit
for the purposes of evidence. In the said affidavit, the contents of the Plaint have
more or less been reiterated. In particular, this witness has interalia deposed on
oath that the Plaintiff has been using the trademark ‘FALCON’ since the year
2007 and that the said formative trademark is original artistic work and the
Plaintiff is owner and proprietor of the copyright therein. He has further
interalia deposed that the Plaintiff has built up substantial goodwill and has
developed enormous sales through the continuous use of the trademark / label
‘FALCON’. As per the deposition of this witness, the sales figures of the
aforementioned trademark since the year 1998-2022 were given Ex. PW1/18
(colly). The invoices pertaining to the sales of cables and allied products of the
Plaintiff have been given Ex. PW1/19 and brochure pertaining to the Plaintiff
Company showcasing the goods bearing the trademark FALCON has been given
Ex. PW1/11. The modes of the advertisement and promotion undertaken by the
Plaintiff to promote its trademark has been given as Ex. PW1/15 (colly). The
print outs of the various certificates issued by the concerned authority
registering the trademark FALCON in favour of the Plaintiff have been given
Ex. PW1/6/A, Ex. PW1/6/B and Ex. PW1/6/C respectively and the copy of
Plaintiff’s Form TM 60 for issuance of certificate u/s 45 of the Copyright Act,
1957 has been given given Ex. PW1/17. According to the deposition of this
witness, the Defendant was engaged in the business of wholesale of audio mike,
audio speakers & media player and that in relation to his goods and business has
started using the trademark of the Plaintiff. The invoice pertaining to the test
purchase conducted by the Plaintiff from Defendant No. 1 as per the deposition
of this witness has been given Ex. PW1/20.
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ANU Digitally signed
by ANU GROVER
GROVER BALIGA
Date: 2025.07.31
BALIGA 12:12:07 +0530
10. The witness of the Plaintiff was cross-examined at length by Ld.
Counsel for Defendant.
Defendant’s Evidence
11. Sh. Rajesh Sharma, the Proprietor of Gopal Radios i.e. the
Defendant himself has stepped into the witness box and has interalia deposed
that he has never sold any counterfeit products of the Plaintiff Company.
According to his deposition he had purchased the Plaintiff’s goods through its
distributors against valid invoices. In his cross-examination he admitted that the
goods mentioned in Ex. PW1/20 are products sold by him. He has further
deposed that he had purchased the said products from a dealer in Indore namely
M/s Venus Computers. He has also sought to state in his cross-examination that
the bundles of counterfeit goods seized by the Local Commissioner were not
seized from his shop or godown.
Contentions of Ld. Counsels:-
12. Ld. Counsel Sh. Arpit Singh on behalf of the Plaintiff and Ld.
Counsel Sh. Vikram Singh, on behalf of the Defendant have advanced final
arguments and have also submitted written submissions alongwith judicial dicta.
Contentions of Ld. Counsel for Plaintiff:-
13. The material portions of the written submissions filed by Ld.
Counsel for Plaintiff are being reproduced hereinbelow:-
(a) That the labels which are attached with the impugned goods of the
Defendant’s bear the trademark FALCON and a bare perusal thereof makes it
evident that the Defendant’s intention was to misuse the goodwill and reputation
enjoyed by the Plaintiff in the market and to deceive the public at large
regarding the source of the goods.
(b) The Defendant has affixed its impugned goods with a deceptively similar
trademark i.e., FELCAN which infringes the Plaintiff said trademark/label.
Such an act of the Defendants is a deliberate attempt to counterfeit the goods of
the Plaintiff along with a dishonest adoption of the impugned marks FALCON
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ANU Digitally signed
by ANU GROVER
GROVER BALIGA
Date: 2025.07.31
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and FELCAN.
(c) The Defendant is not the authorized seller/licensee of the Plaintiff’s said
goods and hence his actions have deceived the consumers into buying unreliable
and counterfeit goods. The nature of the goods of the Plaintiff and the
Defendants are identical/similar and use of such pirated/low quality goods have
the chance to catch fire and cause huge damages to life and property. Hence, the
actions of the Defendant while dealing in such counterfeit goods is not only
detrimental to the reputation and goodwill of the Plaintiff but is also harmful for
the public at large who would purchase the impugned goods believing them to
be the goods of the Plaintiff.
(d) The Local Commissioner’s report makes it amply clear that 12 bundles of
counterfeit microphone cables were seized by the local commissioner from the
premises of the Defendant. The inventory sheet was signed by Defendant which
is annexed as ANNEXURE LC (R6). The seized impugned goods were left in
the custody of Defendant, Sh. Rajesh Sharma and the superdarinama was
willingly signed by Defendant. That Defendant was also asked to produce
account books, ledgers, cash register and stock register and it is he who
informed the Local Commissioner that the entire records are maintained on tally
and hence no physical record is available except purchase and sales invoices. It
is evident that the Defendant willingly signed the on-spot proceedings and the
superdarinama for the impugned goods and also provided invoices to the local
commissioner. Hence, no objection can now be raised against the authenticity of
the local commissioner’s report and the ownership of the impugned seized
goods. The photographs taken during the execution of the commission clearly
depict the shop of the Defendant alongwith the sign board Gopal Radios. The
Defendant at the time of the execution did not raise an objection that the
warehouses were not owned by him and the seized goods do not belong to him.
(e) The Plaintiff conducted a test purchase from the premises of the
Defendant, the invoice of which is exhibited as Ex. PW1/20. During the cross-
examination of DW-1, the witness although admitted the invoice shown to him
which is corroborated by the Admission/Denial affidavit filed by the Defendant
dated 18.07.2023, refused the said test purchase bought against the admitted
invoice. This shows that the Defendant has lied on oath and deceived this
Hon’ble Court from actual facts in the present case. The dishonest conduct of
the Defendant cannot be disregarded as it negatively affects the fair and just
adjudication of the present suit. The Defendant is trying to step on two boats,
where on one hand he accepts the test purchase invoice filed by the Plaintiff
while simultaneously chooses to state that the test purchase product was not
sold by him. The Defendant has deliberately constructed an imaginative story to
escape liability of the impugned goods as well as the test purchase.
(f) The Plaintiff has therefore been able to prove that the Defendant was
involved in the sale of infringing goods bearing the impugned trademark / labels
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ANU Digitally signed
by ANU GROVER
GROVER BALIGA
Date: 2025.07.31
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and is entitled to permanent injunctions sought and also to exemplary punitive
damages from the Defendant.
14. In support of the aforementioned contentions, Ld. Counsel for
relied upon the following judicial dicta :-
i. Laxmikant V. Patel v. Chetanbhat Shah & Ors. [(2002) 3
SCC 65];
ii. Century Traders v. Roshan Lal Duggar & Co. (AIR 1978
Delhi 250];
iii Midas Hygiene Industries Pvt Ltd. and Anr. v. Sudhir
Bhatia and Ors. [(2004) 3 SCC 90];
iv Judgment dated 09.01.2023 passed by the Hon ‘ble Delhi
High Court in suit titled Sandisk LLC & Anr. v. Laxmi
Mobiles & Ors. [CS(COMM) 598/2019] ;
v Whatman International Ltd. v. P. Mehta & Ors., (2019)
DHC 676;
vi Lekh Raj v. Muni Lal & ORs. (2001) 2 SCC 762;
vii Puma SE v. Ashok Kumar (2024) 306 DLT 279;
viii Lalli Enterprises v. Dharam Chand & Sons (2003) 26
PTC 239 (DB);
ix Louis Vuitton Malletier v. Iqbal Singh & Ors., (2019) 78
PTC 315 (Del.).
Contentions of Ld. Counsel for Defendant:-
15. The material portions of the written submissions filed by Ld.
Counsel for Defendant are being reproduced hereinbelow:-
(a) The Plaintiff’s case hinges on Exhibit PW1/20, an invoice
that mentions the genuine brand “FALCON”, not counterfeit product of the
Plaintiff. Defendant’s witness confirmed during cross-examination that these
products were purchased from an authorized dealer of the Plaintiff, M/s Venus
Computers Indore. The Plaintiff did not contest this during Cross-examination
in the form of any suggestion thus, acknowledging the genuineness of the
product. This absence of any mention of counterfeit goods in the invoice
destroys the foundation of the infringement claim.
(b) The Plaintiff failed to establish any connection photograph
(Exhibit PW1/4) and the invoice (Exhibit PW1/20). There was no suggestion
made during cross-examination that the photographed product (Exhibit PW1/4)
is related to the one sold through the invoice (Exhibit PW1/20). Without such a
link any legal presumption attributing the photograph to the invoice, the claimCS (Comm.) No. 159/23 Hi Tech Products Pvt. Ltd. Vs. Gopal Radios & Anr. Page 9 of 24
ANU Digitally signed
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GROVER BALIGA
Date: 2025.07.31
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of infringement lacks merit.
(c) The Local Commissioner, acting on the Plaintiff’s
identification (Para 7), visited shops unrelated to the Defendant’s (Shop No.118)
and seized goods from those locations (shops 301, 302, 304, 306, 307, and 408).
The Defendant has no affiliation with these shops. Attributing the seized goods
to the Defendant without any evidence of ownership or possession is procedural
irregularity.
(d) The Defendant did not request custody of the seized goods.
The Local Commissioner gave custody of them to the Defendant on his own
accord without any specific request from the Defendant. The Defendant’s
signing of the superdarinama served as an acknowledgment of this procedural
step, not an admission of ownership. Moreover, the Defendant explained under
what context he took the custody of the goods in his cross-examination. There
was no endeavour by the Learned Local Commissioner to help the Defendant
understand what documents he is signing. In fact, when the Plaintiff is being
represented by his lawyer during court commissioning, it was expected from the
LC to either explain the contents of documents to the Defendant in his language
or to advise him to take legal help. There was no level playing field during
commissioning.
(e) The Local Commissioner did not ensure that the Defendant,
who does not understand English, comprehended the content of the documents
he signed. As an officer of the Court, the Commissioner has a duty to ensure
that the Defendant understands the legal implications of signing such
documents. This failure to address the language barrier constitutes a procedural
irregularity.
(f) There is no issue framed specifically regarding the
Defendant infringing the Plaintiff’s goods. Moreover, the Plaintiff has presented
no substantial evidence to justify the claimed damages of Rs. 3 lakhs ti11 the
last penny. Damage claims require objective proof, not symbolic or speculative
calculations and in the absence of the same, awarding any damages in the
absence of infringement is uncalled for. Neither in the pleadings nor during
cross-examination, any damages been shown to this Hon’ble Court.
(g) Damages, either compensatory or punitive, without there
being any issue framed qua infringement of trademark is uncalled for.
Furthermore, since the Plaintiff has not proved any infringement whatsoever
from the premises of the Defendant, no damages could be awarded.
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ANU Digitally signed
by ANU GROVER
GROVER BALIGA
Date: 2025.07.31
BALIGA 12:12:32 +0530
Findings :-
Issue No. 1
16. As narrated herein above, the witness of the Plaintiff has
categorically deposed the manner in which the Plaintiff has built up substantial
goodwill by continuous use of the trademark / label FALCON. Further this
witness has also referred to the certificates of registration of the trademark
FALCON in favour of the Plaintiff and also the certificate issued in favour of
the Plaintiff u/s 45 of the Copyright Act. These certificates have been given Ex.
PW1/6/A, Ex. PW1/6/B and Ex. PW1/6/C respectively. Now, it is a matter of
record that not a single suggestion / question has been put to PW-1 regarding the
aforementioned evidence and assertions. Clearly therefore the Defendant is not
disputing the proprietary rights that the Plaintiff enjoys in the trademark
FALCON. The only defence that is being taken to negate the prayer of the
Plaintiff seeking a permanent injunction against the Defendant is that the
Plaintiff has failed to prove that the Defendant was found infringing the
aforementioned trademark FALCON. In this respect it was suggested to PW-1
that the Ld. Local Commissioner had not found the Defendant selling any
products infringing the trademark of the Plaintiff and that the godowns no. 301,
302, 304, 306, 307 and 408 are neither owned or occupied by the Defendant.
On the basis of the statements given by PW-1 in his cross-examination and the
contents of the Local Commissioner’s report, it is being argued that the Plaintiff
has failed to prove that the impugned goods were seized from the premises of
the Defendant.
17. Having considered the entire evidence led by both the parties and
the contention made by the Ld. Counsels, this Court is of the considered opinion
that the Plaintiff has been able to prove that the Defendant was willfully
infringing the trademark of the Plaintiff and was passing off his goods as that of
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ANU by ANU GROVER
GROVER BALIGA
Date: 2025.07.31
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the Plaintiff. There are two material pieces of evidence against the Defendant in
this respect. As per the assertions made in the plaint and the affidavit filed by
the witness of the Plaintiff a test purchase had been done from the shop of the
Defendant in December 2022 and the invoice issued by the Defendant in the
said respect has been proved on record as Ex. PW1/20. The said invoice records
that the Defendant sold the product of the Plaintiff namely FALCON micro
phone cables on 17.12.2022. The said cable was produced in Court during trial
and the photograph of the same was given Ex. PW1/4. The said photograph is
reproduced herein below :-
The same reflects that the wires bear the name FELCAN, though
the label attached on the said goods is that of a mark deceptively similar to that
of the Plaintiff FALCON. Now, the Defendant is not disputing that the invoice
Ex. PW1/20 has been issued by him. He has however chosen to take a stand that
Ex. PW1/4 the product produced in Court was not the product sold by him
through the said invoice Ex. PW1/20. According to the Defendant he had been
purchasing the genuine products of the Plaintiff from certain authorised /CS (Comm.) No. 159/23 Hi Tech Products Pvt. Ltd. Vs. Gopal Radios & Anr. Page 12 of 24
unauthorised dealers of the Plaintiff and selling the same only. It is however a
matter of record that not even a single invoice in this respect has been placed on
record by the Defendant. It is the Defendant alone who would have been in
possession of the invoices vide which he had assertedly purchased goods of the
Plaintiff from its authorised / unauthorised dealers and therefore the onus of
producing such invoices was clearly upon him. In view of the fact that he has
failed to place even a single invoice reflecting that he had purchased the goods
of the Plaintiff from one of its dealers leads to the only inference that he has
deposed falsely in this respect. It is well settled law that that a civil case is to be
decided on the pre-ponderence of probabilities. The fact that PW-1 the
authorized representative of the Plaintiff has stepped into the witness box and
has affirmed on oath that he had purchased the product Ex. PW1/4 from the
Defendant vide the Ex. PW1/20 and the fact that the Defendant has failed to
prove any documents in support of his assertion that Ex. PW1/4 was not sold by
him vide Ex. PW1/20 does make it probable that it is PW-1 who has deposed the
correct facts.
18. The aforementioned conclusion of this Court is also supported by
the report of the Ld. Local Commissioner appointed by this Court. The said
report clearly mentions that 12 bundles of micro phone cables bearing exactly
the same labels as shown in Ex. PW1/4 and also bearing a mark FELCAN were
seized from the premises of the Defendant. The said fact mentioned by the Ld.
Local Commissioner also stood confirmed during Court proceedings when the
aforementioned 12 bundles of micro phone cables were produced in Court on
14.07.2025. The contention of Ld. Counsel for Defendant is however that the
report of the Ld. Local Commissioner cannot be read in evidence by this Court
for the Ld. Local Commissioner has not been examined as a Court witness. In
the considered opinion of this Court, the said submission of Ld. Counsel has no
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GROVER BALIGA
Date: 2025.07.31
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merit whatsoever. In the case titled and reported as Puma v. Ashok Kumar
(2024) 306 DLT 279, the Hon’ble Delhi High Court has categorically held that
the report of the Local Commissioner appointed by the Court can be read in
evidence in terms of Order XXVI Rule 19(2) CPC. The Hon’ble Court has
explained that the rationale behind Order XXVI Rule 10(2) CPC stipulating that
the report of the Commissioner is to be taken as evidence in a suit, is that the
Commissioner is appointed as a representative of the court and the evidence
collected by him alongwith his report is therefore evidence in the suit. The
Hon’ble Delhi High Court also made it clear that unless any party files an
objection to the LC’s report, there is no requirement of the Court to examine the
LC. It has been categorically observed by the Hon’ble Court that the report of
the Commissioner cannot be overlooked or rejected by the court on the spacious
plea of non-examination of the Commissioner.
19. It is a matter of record that despite taking adjournments on two
dates i.e. 16.09.2023 and 20.11.2023 for filing objections to the report of the Ld.
Local Commissioner, the Defendant did not file any such objections. It is also a
matter of record that though initially Ld. Counsel for Defendant had included
the name of the Ld. Local Commissioner in the list of witnesses that the
Defendant wished to examine, on 27.03.2024 Ld. Counsel for Defendant had
categorically stated before this Court that he does not wish to examine the Ld.
Local Commissioner.
20. It is next contended by Ld. Counsel for Defendant that even if the
report of Local Commissioner is read in evidence by this Court, the said report
itself makes it clear that the impugned goods were not seized from the premises
of the Defendant and that the Defendant himself had never asked for the
superdari of the seized goods. At this stage, it will be relevant herein to
reproduce the contents of the Local Commissioner’s report regarding the
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ANU Digitally signed
by ANU GROVER
GROVER BALIGA
Date: 2025.07.31
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aforementioned seizure of the impugned goods :-
7. That to execute the commission, Mr. Praveen Kumar
(Plaintiff’s Counsel) and Plaintiff Shri. Veshal Gupta started
search of the impugned goods in the Shop Bearing No.118
(at ground floor) and godowns as identified by the Plaintiff
bering Godown Nos. 301, 302, 304, 306, 307 and 408
located at second floor and third floor in the same building.
During the search, 12 Bundles of impugned goods i.e.
(Micro Phone Cable only) bearing trade mark “FALCON”
were found lying in the godown. Photographs of the said
impugned goods are annexed herewith as ANNEXURE LC
(R) 5.
8. That the counterfeited goods (12 bundles of micro phone
cable) were kept in two Gunny Bags, seized and sealed.
Inventory Sheet of the said counterfeited goods was prepared
by me. The inventory sheet in original bearing the Defendant
No.2 signatures at Point A is annexed herewith as
ANNEXURE LC (R) 6.
9. The seized impugned goods (12 Bundles of Micro Phone
Cable) kept in two gunny bags were left in the custody of
Defendant No.2 Shri. Rajesh Sharma for safe custody on
superdari with the direction and instruction to produce them
before the Ld. Court as and when directed by this Ld. Court.
The Superdarinama prepared on the spot duly signed by
Defendant No.2 at Point A is annexed herewith as
ANNEXURE LC (R) 7.
10. That the Defendant No.2 was asked to produce Accounts
Books such as Ledgers, Cash Register and Stock Register as
directed by this Ld. Court but I was apprised by Shri. Rajesh
Sharma (Defendant No.2) that entire records are maintained
on Tally hence no physical record is available except
purchase invoices and sale invoices. On inspection of the
invoices, it was transpired that all the seized counterfeited
bundles of microphone cable were purchased from M/s
Ashish Wire India (Delhi) situated at 2097/29, First Floor,
Balaji Marketchah Indira, Bhagirath Place, Delhi – 110006.
Copy of said Purchase Invoice No. 2022-23/GST/2492 dated
08.02.2023 is annexed herewith as ANNEXURE LC (R) 8.
CS (Comm.) No. 159/23 Hi Tech Products Pvt. Ltd. Vs. Gopal Radios & Anr. Page 15 of 24
ANU Digitally signed
by ANU GROVER
GROVER BALIGA
Date: 2025.07.31
BALIGA 12:13:55 +0530
21. Now, the contention of Ld. Counsel for Defendant is that the
aforementioned contents of the report of the Ld. Local Commissioner make it
clear that the godowns from which the impugned goods were seized by the Ld.
Local Commissioner were identified by the Authorized Representative of the
Plaintiff and not by the Defendant. In this respect Ld. Counsel for Defendant has
pointed out to the contents of para no. 7. He has then pointed out that in para no.
9 of the LC’s report it has been mentioned by the Ld. LC that he himself left the
impugned goods in the custody of the Defendant with the direction and
instructions to produce them before the Court. It is being pointed that the LC
Report does not mention at all that it was the Defendant who had wanted the
custody of the impugned goods. This according to Ld. Counsel for Defendant is
sufficient for this Court to reach a conclusion that the Defendant was not found
in possession of the impugned goods and that he being illiterate had merely
signed on the documents prepared by the Ld. Local Commissioner, without
understanding the contents or consequences of the same and had retained the
goods on direction of the Ld. LC.
22. In the considered opinion of this Court the contentions of Ld.
Counsel for Defendant are absolutely misconceived. It is to be noted that Ld.
Counsel for Defendant has, very conveniently, not taken note of the contents of
para 10 of the report of the Local Commissioner. In the said paragraph the Ld.
Local Commissioner has categorically recorded that the Defendant was asked to
produce account books such as ledgers, cash register and stock register and that
the Defendant informed the Ld. Local Commissioner that the said physical
record is not available with him for all such records are maintained on Tally, but
that he can provide the Ld. Local Commissioner with purchase invoices and sale
invoices. The Ld. Local Commissioner has further observed that the one invoice
provided by the Defendant reflected that all the seized counterfeit bundles of
CS (Comm.) No. 159/23 Hi Tech Products Pvt. Ltd. Vs. Gopal Radios & Anr. Page 16 of 24
Digitally signed
ANU by ANU GROVER
GROVER BALIGA
Date: 2025.07.31
BALIGA 12:14:01 +0530
microphone cables were purchased by the Defendant from one M/s Ashish Wire
India (Delhi) situated at Bhagirath Palace. Copy of the said purchase invoice has
also been annexed by the LC alongwith his report. Now there is absolutely no
objection to the said observation of the said Local Commissioner. The
aforementioned invoice placed before this Court alongwith LC’s report reflects
that M/s Ashish Wire India (Delhi) sold 12 bundles of PVC wire to the
Defendant on 08.02.2023 for an amount of Rs. 8,142/-. On being cross
examined by the Ld. Counsel for Plaintiff in this respect, the Defendant has
chosen to state that the said invoice was raised by M/s Ashish Wire India against
the goods purchased by the Defendant from this firm but that the 12 bundles
mentioned in the said invoice were not the bundles of wire seized by the Ld.
Local Commissioner. The said explanation sought to be given by the Defendant
is completely unacceptable and it is apparent that the Defendant chose to give
this false explanation to wriggle out of the situation that arose when he was
confronted with this invoice during his cross-examination. It just does not
appeal to common sense that the Defendant would have furnished the said
invoice to the Ld. Local Commissioner just to show that he used to purchase
random unbranded wires from M/s Ashish Wire. It would have made some sense
had the Defendant shown an invoice to the Ld. LC reflecting the purchase of
FALCON wires from an authorized dealer of the Plaintiff, to support his claim
that he was not indulging in infringement of the trademark of the Plaintiff
Company. In such view this Court finds no reason to doubt the observation of
the Ld. LC that the aforementioned invoice was found to be tallying with the
seized goods. In the considered opinion of this Court the report of the Ld. Local
Commissioner, the seized goods produced in Court and the aforementioned
invoice (appearing at page no. 31 alongwith the LC’s report) clearly prove
beyond doubt that the impugned goods seized by the Ld. Local Commissioner
were belonging to the Defendant only and that he has taken a false plea before
CS (Comm.) No. 159/23 Hi Tech Products Pvt. Ltd. Vs. Gopal Radios & Anr. Page 17 of 24
ANU Digitally signed
by ANU GROVER
GROVER BALIGA
Date: 2025.07.31
BALIGA 12:14:10 +0530
this Court that the impugned goods were not seized from his possession.
23. At this stage, it will be relevant herein to reproduce photographs of
the labels affixed on the goods of the Plaintiff and that on the impugned goods
seized from the possession of the Defendant.
A perusal of the aforementioned makes it apparent to the naked eye
that the labels attached on the impugned goods are absolutely identical /
deceptively similar to the trademark / label used by the Plaintiff. The malafide
intention of the Defendant to misuse the goodwill enjoyed by the Plaintiff is also
apparent from the fact that the label of trademark ‘FALCON’ has been affixed to
the electrical wires bearing the name ‘FELCAN’ and which is also deceptively
similar to the trademark of the Plaintiff. The seized impugned goods produced
before this Court clearly reveal that Defendants’ product packaging is nothing
but a counterfeit packaging of Plaintiff’s ‘FALCON’ products. Defendant was
CS (Comm.) No. 159/23 Hi Tech Products Pvt. Ltd. Vs. Gopal Radios & Anr. Page 18 of 24
therefore clearly indulging in blatant violation of Plaintiffs’ statutory and
common law rights in the FALCON Trademarks and therefore has to be
restrained from continuing the said illegal act.
24. In view of the discussion herein above the Plaintiff is held entitled
to the permanent injunction sought. This issue is therefore decided in favour of
the Plaintiff.
Issue No. 2 :-
25. Now as regards the damages being claimed by the Plaintiff, as
noted hereinabove, Ld. Counsel for Plaintiff has vehemently contended that
exemplary damages must be imposed upon the Defendant for having willfully
infringed the trademark of the Plaintiff and too with a view to deceive the
general public. He has sought to contend that the resemblance between the
trademark / label of the Plaintiff and that of the Defendant is so close that it can
hardly occur except by deliberate acts. He has also submitted that the goods in
dispute are electrical goods and the general public could be put to great harm if
the Defendant is allowed to carry on its illegal activities in a clandestine and
surreptitious manner by passing off its goods as that of the Plaintiff and that
therefore to deter him this Court must impose punitive damages upon the
Defendant.
26. On the other hand, it is the submission of Ld. Counsel for
Defendant that since the Plaintiff has not led any evidence to show the losses
suffered by him, no damages can be awarded by this Court. He has also sought
to refer to Section 35 (3)(d) of Civil Procedure Court as amended by the
schedule to the Commercial Courts Act and has pointed out that right on the first
date the Defendant had offered to pay Rs. 1 Lakh to the Plaintiff towards the
costs of the suit and that since the Plaintiff malafidely did not accept the said
CS (Comm.) No. 159/23 Hi Tech Products Pvt. Ltd. Vs. Gopal Radios & Anr. Page 19 of 24
ANU Digitally signed
by ANU GROVER
GROVER BALIGA
Date: 2025.07.31
BALIGA 12:14:21 +0530
settlement, no damages or costs must be awarded to it.
27. In rebuttal, Ld. Counsel Sh. Arpit Singh for the Plaintiff has
submitted that this Court must note that on the same date, Defendant had stated
that he is not at all admitting that he was dealing with counterfeit goods and
infringing the trademark of the Plaintiff. He submits that in view of the said
conduct of the Defendant, the Plaintiff was not at all inclined to accept the offer
of the Defendant and that no adverse inference can be drawn against the
Plaintiff in this respect. He has submitted that this Court must take note that
selling of counterfeit goods is a graver misconduct than merely infringing the
trademark of a Company. In particular, Ld. Counsel has relied upon the
judgment pronounced by the Hon’ble Delhi High Court in the case titled and
reported as Whatman International‘s Case (supra), to contend that as per the
actual calculation of costs submitted by him, this Court must award Rs. 3 Lakhs
as damages in favour of the Plaintiff, even if the Plaintiff has not led evidence to
the actual losses suffered by it. In particular he has referred to para 75 of the
Judgment of the Hon’ble Delhi High Court in Whatman International‘s Case
(supra). The said paragraph reads as under :-
75. The Plaintiff has incurred huge costs in the present litigation as
well, considering the repeated proceedings filed by it, the Court fee,
official fee of the Commissioners, expenses, legal costs etc. costs are
awarded on actual basis. The present suit is governed by the
Commercial Courts, Commercial Division and Commercial Appellate
Division of High Courts Act, 2015 as also the Delhi High Court
(Original Side) Rules, 2018. In cases of this nature, actual costs are
liable to be awarded. The Plaintiff has filed a cost statement showing
Rs. 14,55,946.00 as the costs actually incurred. Decree sheet be drawn
accordingly.
28. This Court has carefully considered the submissions made by both
the Ld. Counsels and has gone through the judicial dicta referred to by them.
The Hon’ble Delhi High Court in its judgment pronounced in the case title and
CS (Comm.) No. 159/23 Hi Tech Products Pvt. Ltd. Vs. Gopal Radios & Anr. Page 20 of 24
ANU Digitally signed
by ANU GROVER
GROVER BALIGA
Date: 2025.07.31
BALIGA 12:14:28 +0530
reported as Koninklijke Philips N.V. & Anr. v. Amazestore & Ors. (2019) 78
PTC 618 has held that while granting damages in a suit of the present nature, a
Court must award partial costs upon a first time knowing infringer of a
registered trademark. The Hon’ble Delhi High Court in the said judgment has
directed that the following chart should be followed by a Court while granting
damages :-
# Degree of malafide conduct Proportionate award
(i) First-time innocent infringer Injunction
(ii) First-time knowing infringer Injunction + Partial Costs
(iii) Repeated knowing infringer which causes minor Injunction + costs + Partial
impact to the Plaintiff damages
(iv) Repeated knowing infringer which causes major Injunction + costs +
impact to the Plaintiff compensatory damages.
(v) Infringement which was deliberate and calculated Injunction + costs + aggravated
(Gangster / scam /mafia) + wilful contempt of Court damages (compensatory +
additional damages)
29. Now in the present case, in view of the evidence including the
report of the Ld. Local Commissioner, as discussed hereinabove, this Court is of
the view that affixation of marks similar to Plaintiffs’ registered marks on
Defendants’ goods has been done with the intention to unlawfully profit from
the goodwill and reputation enjoyed by Plaintiff. The record before the Court
makes it clear that the Defendant was not only infringing the trademark of the
Plaintiff but was also deceiving public into purchasing his counterfeit products
and it is therefore to be held that the Defendant was a knowing infringer and
therefore is liable not only to be injuncted but is also liable to compensate the
Plaintiff with the partial costs incurred by the Plaintiff, in pursuing the present
case.
30. Now in the proceedings before the District Commercial Courts, the
awarding of costs is to be done in accordance with the provisions of Section 35
(3) of the Civil Procedure Court as amended by the schedule to the Commercial
Courts Act. The said provisions are as follows :-
CS (Comm.) No. 159/23 Hi Tech Products Pvt. Ltd. Vs. Gopal Radios & Anr. Page 21 of 24
ANU Digitally signed
by ANU GROVER
GROVER BALIGA
Date: 2025.07.31
BALIGA 12:14:35 +0530
….. (3) In making an order for the payment of costs, the Court shall
have regard to the following circumstances, including-
(a) the conduct of the parties;
(b) whether a party has succeeded on part of its case, even if that party
has not been wholly successful;
(c) whether the party had made a frivolous counter-claim leading to
delay in the disposal of the case;
(d) whether any reasonable offer to settle is made by a party and
unreasonably refused by the other party; and
(e) whether the party had made a frivolous claim and instituted a
vexatious proceeding wasting the time of the Court.
(4) The orders which the Court may make under this provision
include an order that a party must pay–
(a) a proportion of another party’s costs;
(b) a stated amount in respect of another party’s costs;
(c) costs from or until a certain date;
(d) costs incurred before proceedings have begun;
(e) costs relating to particular steps taken in the proceedings;
(f) costs relating to a distinct part of the proceedings; and
(g) interest on costs from or until a certain date.
31. Now in the present case Ld. Counsel for Plaintiff has filed a
certificate of costs according to which the Plaintiff has incurred Rs. 3 Lakhs
as costs including the fees paid to the Ld. Local Commissioner. The
contention of Ld. Counsel for Defendant that no costs should be awarded by
the Plaintiff because it unreasonably refused to accept the offer of settlement
given by the Defendant does not appeal to this Court at all. In the considered
opinion of this Court the mere fact that the Defendant offered to pay Rs. 1
Lakh towards the fees given by the Plaintiff to the Ld. LC, cannot be a
ground to refuse costs in favour of the Plaintiff. As pointed out by Ld.
Counsel for Plaintiff, the Defendant was never willing to admit that he had
infringed the trademark of the Plaintiff. In such view, it cannot be held that
the Plaintiff had unreasonably refused the offer of settlement given by the
Defendant and therefore the provisions of Section 35 (3)(d) of Civil
Procedure Court (as amended by the Schedule to the Commercial Courts
Act of the Commercial Courts Act) do not come to the aid of the Defendant.
CS (Comm.) No. 159/23 Hi Tech Products Pvt. Ltd. Vs. Gopal Radios & Anr. Page 22 of 24
ANU Digitally signed
by ANU GROVER
GROVER BALIGA
Date: 2025.07.31
BALIGA 12:13:30 +0530
Further the contention of Ld. Counsel for Defendant that since the Plaintiff
has not led evidence to prove the losses assertedly suffered by it, it should
be compensated only with Rs. 1 Lakh paid by it to the Ld. Local
Commissioner, also is without any merit. As pointed out by the Ld. Counsel
for Plaintiff in the case The Polo/Lauren Company L.P. v. Rohit S. Bajaj and
Ors. CS(OS) 1763/2005, the Hon’ble Delhi High Court has made the
following telling observation :-
“punitive damages are founded on the philosophy of corrective justice
and as such, in appropriate cases these must be awarded to give a
signal to the wrong doers that law does not take a breach merely as a
matter between rival parties but feels concerned about those also who
are not party to the lis but suffer on account of the breach. The time has
come when the Courts dealing actions for infringement of trademarks,
copyrights, patents, etc. should not only grant compensatory damages
but award punitive damages also with a view to discourage and
dishearten law breakers who indulge in violations with impunity out of
lust for money so that they realize that in case they are caught, they
would be liable not only to reimburse the aggrieved party but would be
liable to pay punitive damages also, which may spell financial disaster
for them.”
32. Taking into consideration the aforementioned judicial dicta, the
certificate of costs filed by Ld. Counsel for Plaintiff, the provisions of
Section 35 (3) of the Civil Procedure Act and the facts of the present case
discussed hereinabove, this Court thus deems it fit to award damages of Rs.
2 Lakhs in total in favour of the Plaintiff.
33. Relief
(i) The suit of the Plaintiff therefore stands decreed against the
Defendant Rajesh Sharma and this Defendant, his associates, agents, employees,
representatives and assignees are hereby restrained from using the trademark
FALCON or any other trademark, which may be deceptively similar to the
Plaintiff’s well-known trademark, in any manner whatsoever which results in
CS (Comm.) No. 159/23 Hi Tech Products Pvt. Ltd. Vs. Gopal Radios & Anr. Page 23 of 24
Digitally signed
ANU by ANU
GROVER
GROVER BALIGA
BALIGA Date: 2025.07.31
12:14:44 +0530
passing off the said trademark of the Plaintiff. The Defendant, his associates,
agents, employees, representatives and assignees are also restrained from using
the term “FALCON” displayed on its products’ packaging/label/or any other
descriptive features or any other product identical to and deceptively similar and
phonetically similar to that of the Plaintiff’s trademark “FALCON’, which results
in infringement of said trademark of Plaintiff. The Defendant, his associates,
agents, employees, representatives and assignees are also restrained from
infringing the original artistic work existing in the texts, font, images, tables,
label, layout and shape of the packaging and the product that forms an integral
part trade dress of the Plaintiff’s product “FALCON”.
(ii) The Plaintiff is also held entitled to destruct all the infringing goods
that were seized by the LC and handed over to the Plaintiff by this Court on
14.07.2025 (on this date the Defendant had produced the impugned goods in
pursuance of the directions of this Court and had thereafter refused to take
custody of the same).
(iii) As regards the damages, the Defendant will pay damages to the
extent of Rs. 2,00,000/- to the Plaintiff. No other orders as to costs of the suit.
Decree-sheet be prepared accordingly. This file be consigned to Record Room.
Digitally signed
ANU by ANU GROVER
GROVER BALIGA
Date: 2025.07.31
Announced in the open court BALIGA 12:13:21 +0530
on 30th July, 2025. (Anu Grover Baliga)
District Judge (Commercial Court-04)
South-East/Saket Court
New Delhi
CS (Comm.) No. 159/23 Hi Tech Products Pvt. Ltd. Vs. Gopal Radios & Anr. Page 24 of 24