Order 7

Order Details: COPY OF JUDGMENT
Pdf Text: IN THE COURT OF SH. MUKESH KUMAR GUPTA, DISTRICT
JUDGE (COMMERCIAL COURT)-07, CENTRAL DISTRICT.
TIS HAZARI COURTS, NEW DELHI.
CS (COMM) No. 1127/2024
DLCT010160772024
M/s Nonand Rai Bhola Nath …Plaintiff
Versus
M/s Shri Krishna Masala Co. ... Defendants.
Date on which order was reserved : 27.11.2024
Date on which order was passed : 09.12.2024
Present : Shri M.K. Miglani and Shri Akash Singh,Ld. Counsels for the
plaintiff.
Shri Atul Kumar Sharma, Ld. Counsel for the defendant.
SUIT FOR INFRINGEMENT, PASSING OFF, DAMAGES &
RENDITION OF ACCOUNTS
ORDER
1. By way of present order, I shall conscientiously decide an
application filed by the plaintiff, u/oXXXIX rule 1 and 2 CPC along with
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suits, for grant of ad-interim injunction against the defendant restraining
the defendant, their partners, officers, as the case may be, their servants,
agents, dealers, distributors, stockists, retailers and all others acting for
and on their behalf from manufacturing, selling, offering for sale,
exhibiting, advertising, directly or indirectly dealing with goods being
Chatni, spices, fruit flavourings, edible flavouring, essence & food
colors, sauces, condiments, Kirana products and other cognate and allied
products under the trade mark ‘NAV BAHAR’ and/or any other
identical/ deceptively similar mark to the Plaintiff’s registered trade mark
amounting to infringement of the "NAU BAHAR/ ” and
other formative trademarks mentioned in the plaint and from passing off
their goods as those of or connected with the plaintiff in one or the other
manner as the defendants have recently adopted identical trademark NAV
BAHAR for same/similar goods and considering that the customers are
liable to be confused and/or deceived by the defendant’s impugned
products and further considering that the goods are fast moving and
travel from one hand to the other very fast and plaintiff’s legal, vested
and statutory rights are being violated with impunity and plaintiff’s
goodwill and reputation is at stake;
2. Eschewing prolix reference to the pleadings, crystallizing the
same, the case of the plaintiff as averred in the plaint is that:
2.1) Plaintiff company is manufacturing, marketing and selling of
Chatni, spices, fruit flavouring, edible flavouring essence & food colors,
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sauces, condiments, dry fruits, thandai power, instant powder drinks,
preserved, dried cooked, tinned, canned fruits, foods and vegetables,
kirana products etc. for the past several years with trade mark and copy
right NAU BAHAR/ alongwith specified logo or as
shown in para no.6 of the plaint and hence the plaintiff is its true and
lawful proprietor. The said trademark NAU BAHAR/
has been in continuous and extensive use since the year 1929.
2.2) Plaintiff firm has over decades established a dynamic
reputation for itself, by virtue of high quality products which are sold in
unique and eye catching packagings which further enhance their appears
to the public. As per plaintiff, its products are not only popular in the
market but are of excellent international standard and safety and plaintiff
has earned good reputation in the market as plaintiff invested its time and
resources in undertaking extensive research and development and
creating innovative products. The plaintiff has also taken pains to
popularize the said trademark among the public by incurring and
investing sufficient amount of money, time, energy, skill, effort, labour
etc. for the same and thus, it has acquired distinctiveness and recognized
well known identity. The goods of Plaintiff under trademark NAU
BAHAR/ has been extensively advertised all over India
through various print media like news papers, magazines, hoardings,
promotional material etc, as well through electronic media, such as TV
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networks. As a result of such extensive use and promotional campaigns,
backed by aggressive marketing, the trade mark NAU BAHAR/
has acquired a high level of distinctiveness. The
Plaintiff’s holds various Registrations for their trademarks NAU
BAHAR/ ननन बहनर formative marks in various classes of Trademarks for
different goods including in Class-11. The mark NAU BAHAR/
is in use by the Plaintiff continuously since 1929.
2.3) The plaintiff in order to protect its common law rights in the
said trademark “NAU BAHAR/ ” got registered the same
before the Registrar of the Trade Marks and details of which are provided
in the table below.
Trademark/ Label App No. Class TMJ Status
288612 30 595 Registered
288614 30 595 Registered
2116871 30 1738 Registered
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2116874 30 1823 Registered
2258405 35 1835 Registered
2166521 29 1828 Registered
2116862 32 1608 Registered
The aforesaid registrations are valid, subsisting and effective till date
throughout India under the provisions of the Trade Marks Act, 1999.
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2.4) The plaintiff has carried out extensive sales of goods under
the said trademarks and packaging labels and established a good business
thereunder and the details of yearwise sales of the plaintiff are provided
in the below
Year Turnover for the Year
2010 – 2011
2011 – 2012
2012 – 2013
2013 – 2014
2014 – 2015
2015 – 2016
2016 – 2017
2017 – 2018
2018 – 2019
2019 – 2020
2020 – 2021
2021 – 2022
2022 – 2023
2023-2024
2024- 20/08/2024
1,32,00,000.00 (approx.)
1,54,00,000.00 (approx.)
1,89,00,000.00 (approx.)
2,34,00,000.00 (approx.)
3,08,00,000.00 (approx.)
3,27,00,000.00 (approx.)
4,77,00,000.00 (approx.)
8,71,58,808.14
11,59,52,549.11
13,39,15,389.24
11,68,97,319.42
15,67,15,130.89
18,15,58,786.00
19,90,99,872.90
7,77,39,583.76
2.5) The statutory rights to the exclusive use of the said
trademark NAU BAHAR/ ” on accounts of its
registration, the plaintiff has acquired legal, vested and common
law rights to the exclusive use of the said trademark on account of
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its continuous and extensive use and the plaintiff has right to
restrain the use and /or registration of a deceptively similar
trademark by another.
2.6) It is further the case of the plaintiff that the defendant is a
partnership firm which has adopted an almost identical and/or
deceptively similar trademark NAV BAHAR CHATNI for identical
goods and by adoption and use of the impugned trademark by the
defendants amounts to infrigement of registered trademarks “NAU
BAHAR/ of the plaintiff and it also results or is liable
to or is likely to result in passing off the defendant’s products as those of
the plaintiff or associated with the plaintiff in one or the other manner.
The adoption of the said trademark NAV BAHAR CHATNI by the
defendants is wilful, deliberate, dishonest and malafide and is with
complete knowlede of the plaintiff’s prior registered and well known
trademarks “NAU BAHAR/ ” and ought to be restrained
forthwith. The clear intention of he defendant is to somehow convey to
the customer that defendant’s product is same, identical, somehow
connected with the plaintiff. The use of the said trademark by the
defendant is illegal, unauthorized and unjustified.
2.7) It is further the case of the plaintiff that on 06.06.2024, on
coming across the product under the trademark NAV BAHAR CHATNI
of the defendant, plaintiff immediately caused a search into the records of
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Registrar of Trade Marks but no records was found and thereafter, the
plaintiff came to know about illegal dishonest and malicious adoption of
the said trademark “NAV BAHAR CHATNI” by the defendant.
Accordingly, plaintiff issued a cease and desist notice to the defendant
through its attorney dated 13.06.2024, thereby calling upon the siad
defendant to cease and desist from advertising the impugned trademark
and further desist from using the impugned trademark NAV BAHAR
CHATNI in future and the defendant replied the same vide reply dated
22.06.2024 by giving evasive replies stating that trademark used by the
defendant is the tagline associated with the defendant and there is no
likelihood of confusion by use of the said trademark NAV BAHAR
CHATNI and the defendant has refused to cease and desist from using
the impugned trademark ‘NAV BAHAR CHATNI’ for goods associated
with plaintiff like Chatni spices, fruit flavouring, edible flavouring,
essence & food colours, sauces codiments, kirana products and other
allied and cognate goods.
2.8) It is further the case of the plaintiff that the defendant has
recently adopted identical/deceptively similar trademark for the goods
namely the Chatni, spices, fruit flavourings, edible flavouring, essence &
food colors, sauces, condiments, Kirana products and other cognate and
allied products Thus, the defendant has adopted and used the impugned
trademark NAV BAHAR/ NAV BAHAR CHATNI are of the same
description as those of the goods of the plaintiff which is shown below.
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PLAINTIFF’S PACKAGING DEFENDANT’S PACKAGING
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It has been stated that the Defendant is neither the proprietor nor the
permitted user of the said Registered Trademark NAU BAHAR/
and the identical Trademark NAV BAHAR is being used
by the Defendant without the leave and license of the Plaintiff and the
Defendant has adopted and started using the Trademark NAV BAHAR
dishonestly, fraudulently and out of greed with a view to take advantage
and to trade upon the established goodwill, reputation and proprietary
rights of the Plaintiff.
2.9). It is further the case of the plaintiff that the cause of action
arose in favour of the plaintiff for the first time in the first week of June
2024 when paintiff came across the Defendant’s product under impugned
product ‘NAV BAHAR CHATNI’ available in the markets of
Delhi/NCR. The cause of action further arose on 13.06.2024, when the
Plaintiff issued a cease-and-desist notice and refused to desist from
infringing activities vide its reply dated 22.06.2024. The cause of action
is continuous one and will continue to accrue so long as the defendant is
not restrained from using the impugned trade mark/label/name ‘NAV
BAHAR CHATNI’ Hence the present suit.
3. Alongwith the suit, the plaintiff has filed the instant application
under Order XXXIX Rule 1 & 2 CPC for grant of restraint order as
mentioned above.
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4 On receipt of summons for settlement of issues, the defendant
contested the suit by filing a detailed Written Statement and reply to
the interim application thereby taking various preliminary objections as
averred and mentioned herein under:-
4.1.) Defendant firm is a partnership firm and is engaged in the
business of manufacturing and selling spices, sauces, Kirana products
under the brand name of “Shri Krishna”. Defendant firm established its
business many decades ago by continuous hard work, honestly and purity
and enjoying fruits thereof and it promoting its business by way of
advertising, contacting its dealers, retailers, sales promotion, research and
development by engaging distinct goodwill amongst his
customer/consumers and “Shri Krishna” is the original the creation of
defendant firm which is having all the trappings of an invented trademark
and the same is highly unlikely to portray any deceptive connotations to
any existing mark to the ordinary prudent purchaser.
4.2) It has been contended that neither the trade and whole
business nor the Trademark of plaintiff company and defendant Firm are
similar with each other and does not adversely affect the business of each
other and no confusion or deception would be caused to the customers of
both the parties in respect of their products so the notice under reply is
totally based upon false, fabricated and arm twisting and is also misuse of
the process of law. The defendant firm has not used as Nau Bahar, the
alleged trademark of the plaintiff and the defendant has never intended
to use another word “Nav Bahar Chatni” “नव बहनर चटनन" "NAU
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BAHAR/ and नननबहनर चटनन for description of the
character or quality of its goods or services that is why the defendant
firm till date has not applied for registration of the trademark “Nav
Bahar Chatni” “नव बहनर चटनन". He was using bonafide said name or
tagline of anyone.
4.3) On merits, the defendant has denied all the allegations of
the plaintiff and contended that as per the document filed by the plaintiff,
the trademark of the plaintiff is "NAU BAHAR/ and
नननबहनर चटनन, and Not “Nav Bahar Chatni” “नव बहनर चटनन" as has
been used by the defendant and thus the plaintiff is not entitled to any
relief. The defendant trademark “Nav Bahar Chatni” “नव बहनर चटनन"
is in a different colur scheme, letters and design from the plaitniff’s
alleged trademark.
4.4) The defendant has reiterated that its tradmark Shri Krishna
adopted in 1965 has its own distinctive goodwill and reputation and the
defendant did not ride upon the alleged goodwill or reputation of the
plaintiff. It has been claimed that even otherwise a similar trademark can
be used by anyone for a substantial different product and no such
trademark co-exist in the field of trade.
4.5) The defendant has stated that it has never used nor intended
to use the plaintiff’s trademark dishonestly and with knowledge as
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claimed and it has been used only in a descriptive manner nor as a
trademark, which the defendant has even discontinued and restrained
itself from the use of the word Nav Bahar in their business after receipt
of the legal notice from the plaintiff’s firm. Finally, it has been
contended that there is absolutely no cause of action in favour of
plaintiff and against the defendant and the suit filed by the plaintiff is
nothing and an attempt to armstwist the defendant with an open threat
that the plaintiff may implicate the defendant into false cases. The
defendant has claimed dismissal of the suit as also the interim
application.
5. In reply to the application u/o XXXIX Rule 1 and 2 CPC, the
defendant has denied the contents of the application and reiterated the
contents of the Written Statement seeking a dismissal of the interim
application with exemplary costs.
6. This court has carefully considered the submissions advanced and
has perused the accompanying applications as well as the documents
filed alongwith the plaint and the Written Statement.
7. At the outset, in order to obtain an ad-interim injunction u/o
XXXIX Rule 1 and 2 CPC the plaintiff has to satisfy the court on the
trinity principle of strong prima facie case, balance of convenience and
irreparable loss and injury which cannot be monetarily compensated.
Further in case of grant of the relief at ad-interim stage, the court has
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also to be satisfied that non-grant of relief at this stage, would lead to an
imminent loss to the plaintiff’s besides frustrating the very purpose of
filing the suit.
8. The crux of the legal precedents can be seen from the celebrated
Gujrat Bottling Co. Ltd. Vs. Coca Cola Company & Ors. [(1996)
(16) PTC 89 (SC)], which is the landmark judgment and holds the legal
field till date. The Hon’ble Apex Court has observed:
“…..The object of the interlocutory injunction is to protect the
plaintiff against injury by violation of his right for which he could
not be adequately compensated in damages recoverable in the
action if the uncertainty were resolved in his favour at the trial.
The need for such protection has, however, to be weighed against
the corresponding need of the defendant to be protected against
injury resulting from his having been prevented from exercising
his own legal rights for which he could not be adequately
compensated. The court must weigh need against another and
determine where the “balance of convenience” lies’
“Prima facie case” means that the Court should be satisfied
that there is a serious question to be tried at the hearing, and there
is a probability of plaintiff obtaining the relief at the conclusion of
the trial on the basis of the material placed before the Court.
“Prima facie case” is a substantial question raised by both sides
which needs investigation and a decision on merits. The Court, at
the initial stage, cannot insist upon a full proof case warranting an
eventual decree. When fair question is raised for determination, it
should be taken that a prima facie case is established. The real
thing to been seen is that the Plaintiff’s claim is not frivolous or
vexatious. The purpose is to preserve status quo until the question
before the Court is finally disposed of…..”
9. In Trademark suits, injunction is held to be a rule while non-
grant thereof is considered to be an exception provided the plaintiff has
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satisfied the court on the yardstick discussed aforesaid. The very idea of
injunction in Intellectual Property Right’s suit is that nobody should be
allowed to deceive the actual consumers or try to tread upon the goodwill
and reputation created by its proprietor over a period of time to his
disadvantage.
10. In case tiled as Mumtaz Ahmed Vs Pakeeza Chemicals, AIR
2003 AII 114, where it has been held that, "in order to come to the
conclusion whether one mark is deceptively similar to another, the broad
and essential features of the two are to be considered. They should not be
placed side by side, to find out if there are any differences, in the design,
and if, so whether they are of such a character as to prevent one design
from being mistaken for the other. It would be enough, if the impugned
mark bears such an overall similarity to the registered mark, as would be
likely to misled a person, usually dealing with one, to accept the other, if
offered to him.
11. In case titled as BDH Industries Ltd Vs. Croydon Chemical
Works Pvt Ltd., AIR 2002 Bom. 361, where in it has been held that,
"apart from the structural, visual and phonetic similarity or dissimilarity,
the question has to be considered from the point of view of man of
average intelligence and imperfect collection. Further it is to be
considered as a whole and it is the question of impression of the common
man.
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12 Hon’ble Supreme Court while explaining the phrase likely to
deceive or cause confusion, relying upon the judgment of privy council
in Pianotist Co. Application (1906) 23 RPC 774 has held that:
“For deceptive resemblance two important questions are: (1) who
are the persons whom the resemblance must be likely to deceive
or confuse and (2) what rules of comparison are to be adopted in
judging whether such resemblance exists. As to confusion, it is
perhaps an appropriate description of the state of mind of a
customer who, on seeing a mark thinks that it differs from the
mark on goods which he has previously bought, but is doubtful
whether that impression is not due to imperfect recollection”.
12. Dealing with passing off, in the matter of Laxmikant Vs. Patel
AIR 2002 SC 295, the Hon'ble Supreme Court has observed that it is
common in the trade and business to adopt a name, and the courts should
protect the goodwill attached to the business name. An action of passing
off will lie wherever the intended name is calculated to deceive or to
divert the business from the plaintiff or to cause confusion between the
two business. For deceptive resemblance, the two important questions are
who are the persons whom the resemblance must be likely to deceive or
confuse, and what rules of comparison are to be adopted, in judging,
whether such resemblance exists.
13. The crux of the authorities and various case law cited as above, is
to the effect that, in trade, commerce and industries, in the modern era,
nobody should be allowed to enrich himself from the labour, goodwill or
reputation of the other party. Further, the interest of consumer is required
to be protected as the consumer must get the product what he is intended
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to get and not its spurious version. The law of injunction in Intellectual
property matter are also intended to remove confusion and deception in
the market besides protecting any dilution of the plaintiff’s trade
goodwill and reputation which has been earned by him legitimately and
after hard work and quality products being offered to the consumers. If
the plaintiff is able to show that his legal right is infringed by the
defendant or that the product of the defendant is being passed to the
consumer as product of the plaintiff, the temporary injunction can and
should be granted, in his favour. If the plaintiff is able to prima-facie
satisfy the court that its proprietary rights over its trademark/trade name
are being infringed by the defendant, to the determent of business
interests of the plaintiff, then a good case is made out for grant of ad-
interim injunction protection in its favour.
14. Applying the aforesaid preposition of law to the facts of the case,
the plaintiff is admittedly the proprietor of registered trademarks
bearing No. 595, 595, 1738, 1823, 1835, 1828 and 1608 in respect of the
word mark/trademark "NAU BAHAR/ and NAU
BAHAR CHATNI/नननबहनर चटनन in class 30, 32 and 35 for goods
associted with plaintiff i.e. Chatni spices, fruit flavouring, edible
flavouring, essence & food colours, sauces codiments, kirana products
and other allied and cognate goods . In terms of Section 28 (1) of
Trademarks Act, 1999, the plaintiff has a proprietory right to the
exclusive use of the same to the exclusion of others in respect of goods
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and services for which the Trademark is registered. The registered
proprietor also has a right to obtain relief including injunction in respect
of the trademark as provided under the Act. The trademarks of the
plaintiff are valid and subsisting as per the documents filed by the
plaintiff. The plaintiff has also filed its sales bills from the year 1999
showing that the product was sold under its trade mark "NAU BAHAR/
” . The sale figures as has been filed on record shows that
the same are in crores and has been on a continuous rise since the year
2010-11 uptil 2024, which reflects that the plaintiff is not only using the
aforesaid trademark continuously and consistently but the same is a well
accepted trademark in the market. The various advertisement including
that in print and social media shows that the trademark has been
continuously advertised since the year 1995, almost on the regular basis
and as such the plaintiff has invested sufficient money and resources for
making the aforesaid trademark well known in the market.
15. A bare comparison of the representations of registered
trademark/labels of the plaintiff as mentioned in para no.9 of the plaint
with that being used by the defendants as NAV BAHAR CHATNI
establish the likelihood of deceptive and confusing similarity of the
defendant label with that of the plaintiff and same can have the effect of
causing confusion in the minds of innocent purchasers. The user of the
plaintiff's trademark "NAU BAHAR/ by the defendant is
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sufficient to create a reasonable doubt in the minds of consumers
regarding the origin of the products and resultant loss of the business and
reputation of the plaintiff's company. As already discussed, while
confusion and deception the court has to ascertain the same from the
perspective of a reasonable prudent man who on seeing the mark is likely
to fall into deception that the goods purchased by him are that of the
plaintiff company on account of the surrounding circumstances and
impression of imperfect recollection. Reliance placed on Amritdhara
Pharmacy (supra). The font and style of writing of word "NAV
BAHAR/by the defendant on its packaging and labels is quite identical
to that of the plaintiff's registered trademark "NAU BAHAR/
. By virtue of section 29(4) of Trade Marks Act 1999, any
use of identical/similar trademarks/labels/logos/trade name by any other
party, without permission of registered proprietor, amounts to violation of
registered owner's valuable rights and same is not permissible in law.
Thus, the plaintiff has been able to make out a good prima facie case for
grant of ad-interim relief. The balance of convenience also tilts in favour
of the plaintiff and against the defendant as the plaintiff is a registered
Trademark holder and user of the Trademark "NAU BAHAR/
. Further, it is apparent that the plaintiff would suffer
irreparable loss and injury in case the defendant is not restrained from
using the trademarks/labels belonging to the plaintiffs. Besides, the
confusion in the market and the dishonest enrichment of the defendant at
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the cost of the plaintiff is required to be curtailed for purity of the
commercial process. Even otherwise, Ld. Counsel for defendant has
already given a statement that the defendant shall not use the trade mark
NAV BAHAR/ NAV BAHAR CHATNI or any other trademark
deceptively similar to the plaintiff ‘s registered trade mark "NAU
BAHAR/ ” in future for its spices and has not done so
after receipt of the legal notice dated 16.06.2024 of the plaintiff which
was even duly replied to by him vide reply dated 22.06.2024.
16. Having regard to totality of aforenoted reasons, this court is
satisfied that plaintiff has been able to satisfy the court on the trinity
principle for grant of immediate ad-interim relief to protect its
intellectual property rights. Consequently, the defendant, their partners,
officers, as the case may be, their servants, agents, dealers, distributors,
stockists, retailers and all others acting for and on their behalf from
manufacturing, selling, offering for sale, exhibiting, advertising, directly
or indirectly dealing with goods being the Chatni, spices, fruit
flavourings, edible flavouring, essence & food colors, sauces,
condiments, Kirana products and other cognate and allied products under
the trade mark NAV BAHAR/ NAV BAHAR CHATNI and/or any
other identical/ deceptively similar mark to the Plaintiff’s registered trade
mark amounting to infringement of the " NAU BAHAR/ ”
and other formative trademarks mentioned in the plaint and from passing
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off their goods as those of or connected with the plaintiff in one or the
other manner.
17. Needless to say that nothing expressed herein shall tantamount to
an expression of opinion on the merits of the case .
18. Ordered accordingly.
Announced in open court.
On 09.12.2024 (Mukesh Kumar Gupta )
District Judge (Comm. Court)-07
Central/Tis Hazari Courts
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