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Alberto Culver Company v/s VOI Fashion Stores & Another

    IA 11/2005 In C.S. (Os) No. 706 of 2004

    Decided On, 20 January 2005

    At, High Court of Delhi


    For the Appearing Parties: S.K Bansal, S Rajan, Amarjit Singh, V Mohini, Advocates.

Judgment Text

In this suit, the plaintiff prays for a decree of permanent injunction restraining the defendants, their proprietors, partners, directors etc. from manufacturing, using, selling, soliciting, exporting, displaying and advertising the goods manufactured by them including fashion apparels, accessories and allied cognate goods under the trade mark Voi or any other trade name or trade mark identical with or deceptively similar to the plaintiff's trade mark and label VO5 and VO5 along with the letters ALBERTO, VO or from doing any other acts amounting to or likely to infringe plaintiffs registered Trade Mark ALBERTO VO5 or passing off and violating the plaintiffs rights in the plaintiffs trade mark and label.

2. The plaintiff has now filed the present application under Order VI Rule 17 of the CPC for amendment of plaint. The proposed amendment is limited to the deletion of 11 lines of para 3 of the plaint which read as under:-

"In the year 1955 the plaintiff company honestly, coined, conceived, adopted and started using the Trade Marks VO5 and VO5 along with the word ALBERTO (being the plaintiff company's first name) which is written in small letters above the letter V and both respectively bearing artistic features [hereinafter referred to as the said Trade Mark/Label and a term that includes the Trade Mark VO5 individually as well as along with the word ALBERTO and their respective artistic features]. True representations of the said Trade Mark Label are annexed herewith as ANNEXURE P-l."

The above are then sought to be substituted by the following:-

"In the year 1955, the plaintiff company honestly, coined, conceived, adopted and started using the Trade Mark VO5 and VO5 along with letters ALBERTO (being the plaintiff company's first name) [referred to as the said Trade Marks]. With the passage of time the plaintiff has been making changes in the artistic features in the said Trade Marks (collectively referred to as the said Trade Mark/label and a term that includes the Trade Mark VO5 individually as well as along with the word ALBERTO and the respective artistic features]. However, the said words marks VO5 and VO5 along with the letter ALBERTO have remained and only difference being in the artistic features). A representation of the said Trade Mark/label is annexed as ANNEXURE P-l."

3. It was argued by learned counsel for the plaintiff that the proposed amendment simply explains and clarifies the position regarding the conception, adoption and use of trade mark VO5 and VO5 along with the letter ALBERTO. In particular, the proposed amendment clarifies that the plaintiff had, with passage of time, made changes in the artistic features in the said trade marks individually as also along with word ALBERTO. The amendment is, in that view, simply clarifying the true position without introducing any fresh cause of action or changing in the nature of the suit. Reliance in support was placed by learned counsel upon the judgment of the Supreme Court in Punjab National Bank v. Indian Bank and another, 2003 (6) SCC 79 and that of this Court in Chitralekha Bukshi v. Abhay Sapru and another, 2003 II AD (Delhi) 501 and Saif-ul-Islam Company, L.P. v. Roshan Lai Arora and another 2003 II AD (Delhi) 426.

4. On behalf of the defendants, it was, on the other hand, argued that the proposed amendment is intended to meet a substantive defence which the defendants had raised in the written statement on the basis whereof the plaintiffs suit could be dismissed at the threshold for non-disclosure and suppression of the true facts. No such amendment would, according to the learned counsel, be allowed by the court. It was submitted that the assertion made in the plaint originally was misleading and the proposed amendment seeks only to remedy that defect by introducing what the plaintiff ought to have stated in the first place.

5. The suit is at its threshold. Issues have not yet been framed, though written statement has already been filed by the defendants. The proposed amendment sought to be introduced does not, on the face of it, change the nature of the suit leave alone introduce a fresh cause of action. There is no bar of limitation either. The law favours permission to amend the pleadings within the parameters mentioned above. The present, in my opinion, is a case where the proposed amendment simply clarifies a factual position which could but was not for any reason stated initially. Simply because the defendants can, after the amendment, no longer pray for dismissal of the suit for the alleged suppression of facts is no reason to deny the amendment prayed for.

6. In the result this application is allowed and the proposed amendment permitted with the direction that the plaintiff may file an amended plaint, if not already filed. The plaintiff is free to correct the valuation of the suit for purposes of court fee and jurisdiction also in which event the plaintiff shall be free to pay the deficit court fee. This order is, however, subject to p

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ayment a sum of Rs.5,000 as costs to be deposited in the Delhi High Court Advocates' Welfare Fund within two weeks. The defendants shall file an amended written statement within four weeks from the date a copy of the amended plaint is served upon the counsel appearing for the defendants. 7. Preliminaries like filing of documents, admission and denial shall also be completed before the Joint Registrar where the parties will appear on 25th April, 2005 and the suit posted for framing of issues and hearing on the interim applications on 25th May, 2005.