This is an ex parte summary judgment: the defendant filed no written statement and did not appear, so the findings rest on the unrebutted plaint, the registrations and the Local Commissioner's report. No trial evidence was recorded.
- Case
- Hero Investcorp Private Limited & Anr v. VM Lubricant
- Court
- High Court of Delhi
- Decision
- Citation
- 2026:DHC:10019
- Bench
- Tejas Karia
- Judgment by
- Tejas Karia
- Case numbers
- CS(COMM) 243/2023
- Outcome
- Summary judgment under Order XIII-A CPC; suit decreed in terms of prayers 59(a), (b) and (g). Defendant ex parte; no written statement on record.
Summary judgment; suit decreed; ₹3 lakh damages, ₹5 lakh costs
The Delhi High Court has decreed Hero Investcorp's trade mark suit against VM Lubricant by summary judgment, permanently restraining the defendant from using the marks 'HIRO' and 'HERO' on lubricants and allied goods.
Justice Tejas Karia allowed the plaintiffs' application under Order XIII-A of the Code of Civil Procedure, 1908, holding that the defendant had no real prospect of successfully defending the claim and that no triable issue arose. The defendant is to pay damages of ₹3,00,000 and legal costs of ₹5,00,000, and the decree sheet is to be drawn up accordingly.
The defendant had filed no written statement and was proceeded ex parte. The plaintiffs' evidence, including the registration particulars and the Local Commissioner's report, remained unrebutted.
HERO since 1985; 948 products seized in Surat
Hero MotoCorp Ltd., plaintiff no. 2, has manufactured and sold motorcycles, scooters and their parts and accessories under the mark 'HERO' since 9 April 1985, and also uses the mark for industrial oils and lubricants. Its advertisement expenditure on 'Hero Genuine Oil' in financial year 2021-22 was ₹9.21 crore, and sales of that product in the same year were ₹483.14 crore.
Plaintiff no. 1 is the registered proprietor of the 'HERO' mark and its variants in classes 4, 9, 12, 16, 25, 35, 36, 37, 41, 42 and 99, used continuously and uninterruptedly. Plaintiff no. 2 is an authorised user of the marks.
The defendant, VM Lubricant, is engaged in manufacturing and selling lubricants bearing the marks 'HIRO' and 'HERO', which the plaintiffs said were identical or deceptively, phonetically and visually similar to their marks. On 1 May 2023 the court granted an ex parte ad interim injunction and appointed a Local Commissioner, who visited the defendant's premises at Kamrej, Surat, on 8 May 2023 and seized and sealed 948 products bearing the impugned marks.
The defendant was served with the plaint and all documents, but its written statement was filed 153 days late. The Joint Registrar rejected condonation of delay on 3 July 2024, because the maximum permissible period of 120 days for a written statement in a commercial suit had expired. On 29 October 2026 the court recorded that no one had entered appearance for the defendant, and directed that it be proceeded ex parte.
Deemed admissions; no fair use; the Commissioner's report
The plaintiffs said that because no written statement had been taken on record, there was no specific denial of their allegations and no material to show that the defendant's use was fair use or otherwise lawful. Relying on Balraj Taneja v. Sunil Madan, they submitted that in the absence of specific denials, the allegations of infringement, read with the supporting evidence, constituted deemed admissions of the facts pleaded.
They said the defendant, by adopting identical or deceptively similar marks, was deceiving consumers into believing its products were associated with the plaintiffs, and earning unlawful profits from the goodwill in the 'HERO' marks while causing the plaintiffs wrongful loss.
The Local Commissioner's report dated 10 May 2023, with supporting photographs, established that the defendant manufactured and sold industrial oils and lubricants bearing the impugned marks. The plaintiffs relied on ML Brother LLP v. Mahesh Kumar Bhuralal Tanna for the proposition that an unchallenged Commissioner's report is cogent evidence of such use.
Order XIII-A: judgment without evidence where no real defence exists
Order XIII-A of the Code of Civil Procedure empowers the court to pass a summary judgment without recording evidence if it appears that the defendant has no real prospect of defending the claim.
On damages, Rule 20 of the Delhi High Court Intellectual Property Rights Division Rules, 2022 requires the court to consider the lost profits suffered by the injured party, the profits earned by the infringer, the income the injured party could have earned by way of royalties or licence fees, the duration of the infringement, the degree of intention or neglect behind it, and the infringer's conduct in mitigating the damage.
Triple identity; an unwary consumer would be confused
The court held that, since the defendant had not entered appearance and no written statement had been filed, all averments in the plaint had to be taken as admitted. No affidavit of admission or denial had been filed for the documents with the plaint either, so under Rule 3 of the Delhi High Court (Original Side) Rules, 2018, those documents were deemed admitted.
On the merits, the plaintiffs had established their rights: plaintiff no. 1 is the registered proprietor of the marks across various classes and plaintiff no. 2 is an authorised user. Comparison of the marks showed the defendant had adopted the identical mark 'HERO' and the deceptively similar mark 'HIRO' for synthetic engine oil for motorcycles, namely 'Hero Genuine Oil', a use likely to confuse consumers and members of the trade.
The court described the case as one of triple identity: the impugned marks were identical, the product category was identical, and the trade channel and consumer base were identical to the plaintiffs'. The marks were visually, phonetically, structurally and deceptively similar, and to an unwary consumer of average intelligence and imperfect recollection they were likely to appear identical, creating confusion about the source of the goods.
Because no material had been placed before the court to explain or justify the adoption of the marks, and the plaintiffs' evidence had remained unrebutted, the court found that no triable issue arose and the defendant had no real prospect of successfully defending the infringement claim. The suit was fit to proceed under Order XIII-A.
Permanent restraint; ₹3 lakh and ₹5 lakh; decree to be drawn up
The application was allowed and the suit decreed in terms of prayers 59(a), (b) and (g) of the plaint. The defendant, its directors, proprietors, partners, assignees, associates, affiliates, franchisees, licensees, distributors, dealers, stockists, retailers, agents and all others acting for it are restrained from manufacturing, selling, offering for sale or advertising, including on the internet, e-commerce platforms and social media, industrial oils, lubricants and accessories bearing 'HIRO' or 'HERO', or any mark identical or deceptively similar to the plaintiffs' marks, so as to cause infringement or passing off.
On money relief, the plaintiffs had claimed damages of ₹3,31,800 on the basis of the price of the seized products, costs of ₹7,69,873 and punitive damages of ₹10,00,000. The court noted that the exact profits earned by the defendant, or the loss suffered by the plaintiffs, could not be ascertained from the material on record. Having regard to the quantum of seized goods and the degree of intention underlying the infringement, it awarded damages of ₹3,00,000 and reasonable legal costs of ₹5,00,000. The suit and the pending application stand disposed of.
BANTHRY ANALYSISFor law students: what happens when no written statement is filed
This judgment shows the price of default in a commercial suit. A defendant has 120 days at most to file a written statement; here the defendant was 153 days late, condonation was refused, and the statement never came on record. From that point the defendant had no pleaded case, and the court treated the plaint's averments as admitted.
That is what makes summary judgment possible. Order XIII-A does not ask the court to decide a contested dispute on affidavits; it asks whether there is anything to contest at all. With no defence pleaded, no documents denied and no appearance entered, there was nothing for a trial to resolve.
The 'triple identity' finding is also worth noting. Where the mark, the goods and the trade channel are all the same, the court does not need a detailed confusion analysis: the likelihood of deception follows from the identity itself, and the defendant's burden to explain the adoption becomes decisive.
READING PROMPTSQuestions for a closer reading
- Why was the defendant treated as having admitted the averments in the plaint?
- What is 'triple identity', and why did it matter to the court's finding of infringement?
- Why did the court award ₹3 lakh in damages rather than the ₹3,31,800 claimed?
