Phillip Morris Products S.A. vs Market Tobacco Stores and Others

Rajiv Sahai Endlaw, J.—The plaintiff being the registered proprietor of the trademark MARLBORO in relation to cigarettes instituted the present suit against the three Defendants stated to be selling and retailing counterfeit MARLBORO cigarettes in packaging identical to that of the plaintiff, for permanent injunction to restrain them from doing so and for the ancillary reliefs of damages, rendition of accounts, delivery etc. Vide ex parte order dated 8th November, 2004, the Defendants were restrained from importing, offering for sale, selling, distributing directly or indirectly dealing in cigarettes bearing the trademark MARLBORO with or without impugned packaging filed by the plaintiff. On the same date, on the application of the plaintiff Court Commissioners were also appointed to visit the premises of the three Defendants and to prepare an inventory of the impugned goods and to seize the same. The Commissions were executed and the three Court Commissioners have filed their reports. Infringing goods were found and seized from the premises of each of the three Defendants. The said goods were handed over on superdari to the Defendants/their representatives.

The counsel for the Defendants appeared before this Court on 31st July, 2006. However, neither any written statement was filed nor did the counsel appear after another date and on 18th January, 2007 the Defendants were proceeded against ex parte and the order dated 8th November, 2004 confirmed during the pendency of the suit.

The plaintiff led ex parte evidence by filing the affidavit of its constituted attorney. The witness of the plaintiff has, inter alia, proved the registrations in the name of an affiliate company of the plaintiff and the applications filed for recording the plaintiff as subsequent proprietor as exhibit P1, the sample cartons of the plaintiff''s products as exhibits P2 and P3 and the carton of the counterfeit products being sold/retailed by the Defendants as exhibits P4 and P5. The evidence of the plaintiff remains unrebutted.

I may notice that the counsel for the Defendants again appeared before the court and filed IA. No. 6250/2007 for setting aside of the order proceeding ex parte against the Defendants. The said application was listed before the court on 25th May, 2007 when the counsel for the Defendants stated that the Defendants were ready to give undertaking that they would not sell cigarettes of the brand MARLBORO. In the circumstances it was directed that the compromise application be filed by the parties and the judgment on the ex parte evidence led by the plaintiff deferred. Thereafter, time was sought from time to time for filing compromise application but neither any compromise application was filed nor did the Defendants appear before the court today. In the circumstances, ex parte arguments of the counsel for the plaintiff have been heard.

Not only is there ex parte evidence of the plaintiff as aforesaid but the Defendants also through their counsel as aforesaid had agreed to give an undertaking not to sell the cigarettes of the brand MARLBORO. In the circumstances, the plaintiff is found entitled to the decree in terms of para 24 (I) (II) of the plaint. As far as the other reliefs are concerned, since the counsel for the plaintiff on 25th May, 2007 was satisfied with the Defendants giving an undertaking, I do not find the plaintiff entitled to the relief of damages or accounts. The plaintiff shall, however, be entitled to costs of the suit from the Defendants jointly and severally. Counsel fee assessed at Rs. 50,000/- The decree sheet be prepared accordingly.