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2014 DIGILAW 1305 (DEL)

Unistraw Holdings v. Nitin Agarwal

2014-04-23

RAJIV SAHAI ENDLAW

body2014
Judgment 1. The plaintiff has instituted this suit for: (i) permanent injunction restraining the defendant No.2 Universal Corporation Limited of which the defendant No.1 is the Director from making, selling, distributing, advertising, importing, exporting, offering for sale or dealing in any product that infringes the subject matter of the registered patent No.245614; (ii) permanent injunction restraining the defendants from dealing in any product that infringes the plaintiff’s design Nos.205672 & 212155; (iii) permanent injunction restraining the defendants from dealing in any product insert/carton/label that infringes the trade dress of the plaintiff in such carton/label/product insert; (iv) delivery of all infringing material, advertising and promotional material etc. of the defendants in respect of the product ‘QUICK MILK’; and, (v) rendition of accounts. 2. Summons of the suit were issued to the defendants and vide ex-parte ad-interim order dated 22nd November, 2013, the defendants were restrained from dealing in any product infringing the plaintiff’s design Nos.205672 & 212155 and Court Commissioners were appointed to visit the premises of the defendants and to seize all infringing products under the brand name ‘QUICK MILK’. 3. Though the Commissions were executed and the Court Commissioners have filed a report of seizure of sixteen (10+6) bundles, containing two packets each, bearing the name ‘QUICK MILK’ and the defendants were also served with the summons of the suit but neither any written statement was filed nor anybody appeared on behalf of the defendants and vide order dated 6th March, 2014, the defendants were proceeded against ex-parte and the plaintiff permitted to place on record any other material deemed necessary for disposal of the case. 4. None has appeared for the defendants thereafter also. The plaintiff has filed affidavits by way of evidence. 5. The counsel for the plaintiff has been heard. 6. The case of the plaintiff is: (a) that the plaintiff is a company incorporated and registered in Singapore; (b) that the plaintiff is engaged in the business of manufacturing and marketing of flavoured, functional and fortified drinking straws based on a patented straw-delivery technology called the ‘Unistraw Delivery System’; (c) that one Mr. Peter Baron was the original inventor of such straws with internal filters and flavour beads patented vide patent No.245614; (d) that the said Mr. Peter Baron was the original inventor of such straws with internal filters and flavour beads patented vide patent No.245614; (d) that the said Mr. Peter Baron was associated with Unistraw Group of Companies and who started manufacturing and selling flavoured drinking straws under its portfolio of trademarks and brand names, including the brand name ‘SIPAHH’; (e) that the drinking straw technology comprises of a straw containing beads impregnated with flavours such as chocolate, cookies, cream and banana and can add flavour, energy, vitamins, nutrition and even pharmaceuticals to liquid sipped through it; (f) that the intellectual property rights in respect of the drinking straw technology held by Mr. Peter Baron were assigned to one of the companies of the Unistraw Group; (g) that in the year 2012, the plaintiff acquired the assets of the Group Company holding worldwide intellectual property rights in drinking straw technology and the plaintiff currently is the holder thereof which included Indian Patent No.245614 titled as “A Receptacle For Use As A Drinking Straw”; (h) that the patent of the plaintiff comprises of an elongate tubular body with filtration means located at each end and a plurality of beads trapped inside the tubular body; the tubular body is sized so as to allow carrier liquid to be drawn there through by oral suction such that passage of the liquid through the tubular body causes the pellets to progressively dissolve and release the active ingredient; the filter has no function other than to retain the beads whilst allowing the beverage to be consumed; the beads may of any flavour; (i) that the plaintiff has also acquired design No.205672 & 212155 for the said straw; (j) that the defendant No.2 is offering for sale drinking straw product embodying the technology patented by the plaintiff, under the brand name ‘QUICK MILK’; (k) that the product ‘QUICK MILK’ of the defendants is a complete slavish copy of the product SIPAHH of the plaintiff. 7. The plaintiff in its ex-parte evidence has proved the aforesaid case. 8. The counsel for the plaintiff on enquiry states that the defendants were earlier importing their product and after the ex-parte order are found to be not doing so. 9. 7. The plaintiff in its ex-parte evidence has proved the aforesaid case. 8. The counsel for the plaintiff on enquiry states that the defendants were earlier importing their product and after the ex-parte order are found to be not doing so. 9. The defendants having chosen not to contest the suit and the plaintiff as aforesaid having proved its case, has become entitled to the decree for permanent injunction in terms of prayer sub-paragraphs (a), (b) & (c) of paragraph 28 of the plaint. 10. The counsel for the plaintiff has further contended that the plaintiff on the basis of only one import assignment of the defendants proved in ex-parte evidence of the plaintiff, is entitled to damages in the sum of over Rs.50 lakhs from the defendants. 11. The plaintiff in the plaint has however not sought the relief of damages; though the relief of rendition of accounts is claimed but not followed by the relief for recovery of any amount so found due on the accounts being taken. Even otherwise, the defendants having not contested the suit, I am of the view that no case for recovery of any damages is made out. 12. As far as the relief claimed by the plaintiff of delivery is concerned, the purpose thereof would be served by directing the defendants to, within one week of communication by the plaintiff to the defendants of this decree, destroy all the infringing goods so seized by the Commissioners appointed in this proceeding. 13. Accordingly, the suit is decreed in favour of the plaintiff and against the defendants in terms of prayer subparagraphs (a), (b) & (c) of paragraph 28 of the plaint and by directing the defendants to, within one week of the communication of this order, destroy the infringing products/goods seized by the Commissioners. 14. The plaintiff shall also be entitled to costs of the suit. Counsel fee is assessed at Rs.20,000/-. Decree sheet be drawn up.