Read judgment: Dinesh Gupta & Ors. vs. VICTORINOX AG
New Delhi, August 11, 2021: The Delhi High Court has sternly taken a prima facie view against users of the mark ‘Victoria Cross’ and observed that they had tried to mislead the High Court with “half-truths”.
Hearing a case pertaining to an ongoing trademark dispute with Victorinox, the High Court was of the view that Section 340 of Cr.P.C is attracted to the present proceedings.
A Division Bench of Justice Manmohan and Justice Navin Chawla observed that Courts are not meant to be used as a “forum for arm twisting” and that too against the respondent who had adopted the alleged trademark and device mark in 1884 in the country of its origin and in India since 1984-85, and when the respondent has built a name and reputation for its trademark itself nationally and internationally over a considerable period of time.
The appellants stated that the respondent was well aware of registration of conflicting marks like VICTORY, VICTOR, VICTORIAN AND VICTORIA. It was also emphasized that the respondent never took any action against M/s Promoshirt SM S.A. in respect of the trade mark VICTORIA CROSS for which an application was filed in July, 2017 which clearly indicated that the respondent was well aware about distinctiveness of VICTORIA CROSS against the trade mark VICTORINOX of the appellant.
The respondent during his arguments had drawn the Court’s attention to the Assignment Deed executed between the Promoshirt SM S.A thorough its President Ashok Sawhney and the respondent, whereby Promoshirt assigned its trademark VICTORIA CROSS to the respondent.
The Respondent also argued that appellant no.1 had suppressed the fact that he was an employee of Ashok Sawhney for 19 years, who had resigned on 31 December, 2016 only and who had declared as late as on 27th January, 2017 that he had not carried on any business activity under the mark VICTORIA CROSS and would not use the said mark for any kind of business whatsoever.
The High Court opined that “the appellants in the present case, have tried to mislead this Court by telling half-truths i.e. by not disclosing in the appeal that the appellant no.1 was an employee for nineteen years with Mr. Ashok Sawhney”.
“Further, it was not mentioned in the lengthy list of dates and in the appeal upfront that Mr. Ashok Sawhney had assigned the trademark VICTORIA CROSS to the respondent,” added the Bench.
The Division Bench also noted that the Declaration Deed, wherein the appellant had declared as late as on 27th January, 2017 that he had not carried on any business activity under the mark VICTORIA CROSS and would not use the said mark for any kind of business whatsoever, had not been mentioned in the lengthy list of dates or in the prolix appeal.
The High Court also stated, “In a bid to be clever by half, the appellants had annexed the Declaration and the police complaint without referring to them in the Appeal”.
On a harmonious reading of the complaint and declaration filed by appellant no.1, the Division Bench prima facie noted that the appellant no.1 was admittedly in service of Ashok Sawhney till at least Dec 31, 2016 and it was virtually impossible that he would have built a name or reputation in the mark VICTORIA CROSS on the date the injunction was granted by the Trial Court on May 30, 2019.
Moreover, any private arrangement between Ashok Sawhney and the appellant no.1 to keep the Declaration confidential/private or to be destroyed/torn cannot prevent the Court from investigating the matter and finding the truth, said Justice Manmohan.
Emphasizing that a line must be drawn somewhere between honest and dishonest trading, between fair and unfair competition, Justice Manmohan reiterated that trading must not only be honest but must not even unintentionally be unfair.
Since the gravamen of the Appeal is prima facie falsified by the Declaration Deed without disclosing the same in the lengthy list of dates, prolix appeal and opening arguments, the High Court expressed that it was disinclined to entertain the appellants’ challenge to the trial court’s Injunction Order.
Therefore, prima facie observing that Section 340 of CrPC stood attracted to the present proceeding, the High Court directed both appellants, who are also husband and wife, to be personally present in the Court when the matter is heard next on August 23.