Order 7

Order Details: COPY OF ORDER
Pdf Text: IN THE COURT OF DISTRICT JUDGE
(COMMERCIAL COURT)-02, NEW DELHI DISTRICT,
PATIALA HOUSE COURTS, NEW DELHI
CS (COMM) No. 391/2025
IN THE MATTER OF :-
1. Sh. Bharat Singh Kushwah
S/o Shri Ramji Lal Kushwah
Cosmo Tower, Jank Ganj, Lashkar, Gwalior,
Madhya Pradesh 474001.
2. Ms. Seema Kushwah
W/o Shri Bharat Singh Kushwah
B S Ratnakar Bhavan, Chhatri Bazar, Fruit Market,
Gwalior, Madhya Pradesh 474001.
3. Sh. Manoj Kushwah
Savitri Complex, Maharaj Bada
Gwalior, Madhya Pradesh. 474001.
Also at:-
M/S Shiddhi Herbal Sheva,
Janakpuri Colony, A.B. Road,
Madhya Pradesh- 474001
.......... Plaintiffs
Versus
1. Sh. Manoj Sharma
Proprietor of M/s M Satyam Pharmacy,
14/15, Mayur Market, Thatipur, Gwalior,
Madhya Pradesh-474011.
CS (COMM) No. 391//2025
Bharat Singh Kushwah & Ors. vs. Manoj Sharma & Anr.
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Also at:-
Thatipur, Darpan Colony,
Near Infant School, Shakuntalapuri,
Gwalior. Madhya Pradesh -474011, India.
Also at:-
B-139, in front of Santosh Rathore Chakki Walan
Darpan Colony, Gwalior, Madhya Pradesh-474011.
2. Sh. Sanjay Purohit @ Sonu
Prop M/S SONU PLASTIC ..
Ganesh Bagh, A B Road
Gwalior, Madhya Pradesh.
.......... Defendants
O R D E R : -
1. Vide this common order I propose to decide the
prayer of
ex-parte ad-interim injunction as sought by the
plaintiffs in the application under Order XXXIX Rules 1 & 2
CPC against the defendants and another application moved by
the plaintiffs under Order XXVI Rule 9 CPC read with
Section 151 CPC seeking
ex parte order for appointment of a
Local Commissioner to visit and search premises of the
defendants.
2. Brief facts necessary for disposal of the applications
are that the plaintiffs have filed the present suit under Sections
134 & 135 read with Section 27 (2) of the Trade Marks Act,
1999 and under Sections 51 & 55 of the Indian Copyright Act,
1957 against the defendants for permanent injunction
restraining the defendants from passing off, infringement of
CS (COMM) No. 391//2025
Bharat Singh Kushwah & Ors. vs. Manoj Sharma & Anr.
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the trade mark of the plaintiffs, copyright unfair competition,
rendition of accounts of profits/damages and delivery up etc.
In nutshell, the case of the plaintiffs, as set out in the plaint, is
as under:-
2.1. The plaintiff no. 1 and 2 are husband and wife by
relation and the plaintiff no. 3 is brother of plaintiff no. 1.
All the plaintiffs are engaged in the Trade and business of
pharmaceutical, veterinary, homeopathic, ayurvedic, herbal
medicinal and preparations, medical preparations, dietetic
substances adapted for medical use, food for babies;
plasters; materials for dressings, preparation for destroying
vermin; fungicides, herbicides. Ayurvedic Dietary
supplements and dietetic preparations etc.
(hereinafter
referred to as “said goods and business”).
2.2. Since the year 2012, the plaintiff No. 1 honestly and
bonafidely adopted the trademark/copyright/artistic
work/label ADVANCE GROWTH/ HEALTH BOOTI and,
thereafter, these words commonly added with other
trademark/copyright HEALTH RAKASHAK / JIVANAM
RAKSHAAH/ STRONG HEALTH RAKASHAH BOOTI
HAJMA CHOORN /ACTIVE BODY GROWTH
PROTEIN POWDER / JIVAN HEALTH RAKSHAK
ADVANCE BODY GROWTH POWDER / HEALTHY
BODY GROWTH POWDER/ S.BAHOOVALI BODY/
SWASTH SHAKTI SMART BODYPLUS HAJMA
CHURN/ ADVANCE GROWTH/ HEALTH BOOTI
(hereinafter referred to as “the said trademark/label”).
CS (COMM) No. 391//2025
Bharat Singh Kushwah & Ors. vs. Manoj Sharma & Anr.
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2.3. Initially, in year 2012, the plaintiff No. 1 was
manufacturing and selling his products under the name and
style of M/s Om Sai Pooja Path Swami Ramdev Utpad
with the plaintiff no. 3. The Plaintiff No 3 was the
manufacturer of Ayurvedic products under the name and
style of M/s Sant Kripa General & Herbal Cosmetic Center
and the plaintiff No 1 was retailer /wholesaler for the
Ayurvedic products under said trade mark/copyright/trade
name. Thereafter, the plaintiff no. 1 changed his firm’s
name and started working as M/s Omshri Hari Vishnu
Ayurved Uptad and the plaintiff no. 3 also changed his
firm’s name to M/s Shiddhi Herbel Sheva and they
continued their business with the same trade name. In the
year 2023, the plaintiff no. 2 also entered into the business
of wholesaler and started running business of the said
goods under the name and style of M/s Shivam Pharmacy.
2.4. The plaintiffs represent their trademark/label in an
artistic manner including its get up, lettering style, colour
schemes and combinations, placement of words, healthy
family picture with shaped body or body of athlete and the
said art work is original and the plaintiff no. 2 holds
copyright therein. Some of the representations of the said
trademarks/labels of the plaintiffs are as under:-
CS (COMM) No. 391//2025
Bharat Singh Kushwah & Ors. vs. Manoj Sharma & Anr.
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2.5. The plaintiffs in order to acquire statutory rights
filed multiple applications for registration for the said
copyright/trademark/label under various provisions of the
Trade Marks Act, 1999 for the said goods, details of which
are mentioned in para no. 13 of the plaint.
2.6. Ever since its adoption in the year 2012 by the
plaintiff no. 1 and thereafter by the other plaintiffs, they
have been continuously, commercially, exclusively and
extensively using the said trademark/label in an
uninterrupted manner so as to cause a secondary
significance to be attributed to plaintiffs’ firms in
connection with the plaintiffs’ business. On account of
extensive, long and continuous use of the said
trademark/label by the plaintiffs, the said goods of the
plaintiffs bearing the said trademark/label have acquired
immense reputation and goodwill and are exclusively
associated by the consumers and traders in general with the
trade and business of the plaintiffs.
2.7. The plaintiffs maintain highest degree of quality and
provide excellent quality of goods and services and the
said goods of the plaintiffs bearing the said
trademark/label are highly in demand in the markets. The
plaintiffs have already build up a handsome sales under
CS (COMM) No. 391//2025
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their said trademark/label and achieved sales running into
decent figure of rupees.
2.8. The plaintiffs promotes and advertises its goods and
services under his copyright/trademark/label/trade
dress/packaging/combination of colours through its
domain name shivampharmacy.com and other various e-
commerce websites and platforms such as
https://shivampharmacy-com-3cve.onrender.com/ and
https://www.amazon.in/ , http://meesho.com/
https://www.meesho.com/SHIVAMPHARMACY?ms=2
etc. and the plaintiffs have been continuously advertising
and promoting the same through print and electronic
media.
2.9. In view of the plaintiffs’ proprietary rights both
under statutory and common law in their said trademark/
label/ trade dress and its goodwill & reputation, and its
copyrights, the plaintiff has the exclusive right to the use
thereof and nobody can be permitted to use the same or
any other deceptively similar trade mark/ copyrights
thereto in any manner whatsoever in relation to any
specification of goods without the leave and license of the
plaintiffs.
2.10. With regard to the defendants, it is stated that
defendant No 1 Mr. Manoj Sharma claimed himself to be
proprietor of M/s M Stayam Pharmacy and the defendant
No 2 is cousin of the defendant No 1 who is engaged in the
business of the manufacturing of the plastic jars/boxes and
CS (COMM) No. 391//2025
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its caps under the name & Style of M/s SONU PLASTIC
and is manufacturing similar plastic jars/ boxes and their
caps for the defendant No 1
(hereinafter referred to as
impugned goods) with all specification as mentioned in the
products of the plaintiffs and they are acting in active
connivance with each other in creating exact similar copies
of the products of the plaintiffs.
2.11. It came to the knowledge of the plaintiffs since the
year 2023 that the defendants have dishonestly adopted
and used Trade Name and Trade Mark “ (S.)m JIVANAM
RAKSHAAH/ F (S.)m JIVANAM RAKSHAAH
ADVANCE GROWTH POWDER ” and ADVANCE
GROWTH/ HEALTH BOOTI /JIVAN HEALTH
RAKASHAK / JIVANAM RAKSHAAH /STORNG
HEALTH RAKASHAH BOOTI HAJMA CHOORN /
ACTIVE BODY GROWTH PROTEIN POWDER /
JIVAN HEALTH RAKSHAK ADVANCE BODY
GROWTH POWDER / HEALTHY BODY GROWTH
POWDER/ S.BAHOOVALI BODY of the plaintiffs and
add a suffix MSATYAM instead of SHIVAM
(hereinafter
referred to as impugned trademark/label) and created a
clone name with same color combination with sole
intention to ride on the goodwill of the plaintiffs.
2.12. The impugned copyright/ trademark/label/trade
dress/packaging/combination of colours adopted and being
used by the defendants are identical/deceptively similar to
the said copyright/ trademark /label /trade
CS (COMM) No. 391//2025
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dress/packaging/combination of colours of the plaintiffs in
each and every aspect including visually, structurally, in its
basic idea and essential features.
2.13. It is alleged that the defendants are indulged in the
infringing activities by infringing plaintiff's trade name,
design, website, and domain by illegal continuous usage of
your impugned events, services, and advertisements by
altering or adding words to pass off the goods and services
in the name of Plaintiff's mark and the deception caused to
the end-users or consumers is visual and phonetically both
ways.
2.14. On these grounds, the plaintiffs by way of
application under Order XXXIX Rules 1 & 2 CPC,
thus, have sought an
ex parte ad interim injunction
thereby restraining the defendants and all others acting
on their behalf from using, selling, soliciting,
displaying, publishing, reproducing, exhibiting,
advertising or in any other manner or mode dealing in
or using the impugned trademark or any other trade
mark/trade name identical or deceptively similar to the
plaintiff s’ said trademarks.
3. By way of another application Order XXVI Rule
9 CPC, the defendants are seeking appointment of a Local
Commissioner to visit the premises of the defendants and to
seize the impugned products.
4. I have heard the Ld. Counsel for the plaintiff and
CS (COMM) No. 391//2025
Bharat Singh Kushwah & Ors. vs. Manoj Sharma & Anr.
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perused the record carefully.
5. Ld. Counsel for the plaintiff has placed reliance
upon
(1) Century Traders vs. Roshan Lal Duggar & Co.; (2)
M/s Hindutan Pencils Pvt. Ltd. vs. M/s India Stationary
Products Co. & Anr.; (3) Shree Nath Heritage Liquor Pt. Ltd.
vs. M/s Allied Blender & Distillers Pvt. Ltd., 2015 SCC
OnLine Del 10164; (4) Laxmikant V. Patel vs. Chetanbhai
Shah & Anr. (2002) 3 SCC 65; (5) Midas Hygiene Industries
(P) Ltd. & Anr. vs. Sudhir Bhatia & Ors., (2004) 3 SCC 90;
(6) Corn Products Refining Co. vs. Shangrila Food Products
Ltd.,1959 SCC OnLine SC 11 and (7) Vinita Gupta vs. Amit
Arora.
6. The grant of interlocutory injunctions during
pendency of legal proceedings is the matter requiring
exercise of discretion of the Court. While applying the
discretion, the Court applies the following test. (i) Whether
the plaintiff has a prima facie case - The applicant must
demonstrate a strong initial case in favour of the rights
claimed. The evidence presented should clearly tilt in
favour of the applicant at this preliminary stage; (ii)
Whether the plaintiff has a balance of convenience in his
favour - The court considers whether the balance of
convenience is in favour of granting the injunction. This
involves assessing whether the harm to the applicant from
not granting the injunction outweighs the potential harm to
the respondent from granting it; (iii) Whether the plaintiff
would suffer irreparable loss or injury in case injunction is
CS (COMM) No. 391//2025
Bharat Singh Kushwah & Ors. vs. Manoj Sharma & Anr.
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refused - The injunction is typically granted to prevent a
significant and often irreparable injury that could not be
adequately remedied by damages alone. Apart from the
above three, the plaintiff must show that the situation
warrant immediate intervention by the court to prevent the
adverse consequences of delay.
7. As per averments made in the plaint, plaintiff
no. 3 Sh. Manoj Kushwah is registered owner of device
‘SM with Shiddhi Herbal Sheva (device)’ and
‘Health
Booty with HB (device)’ and except the said two
marks/device, no other trade marks are registered in favour
of the plaintiffs as the applications filed by the plaintiffs
for registration of trade marks are either pending for
hearing or objected or refused. The plaintiffs have placed
on record the Copyright Certificates showing that plaintiff
no. 2 Smt. Seema Kushwah has the copyright registered in
respect of work
‘OMSHREE HARI VISHNU STRONG
HEALTH RAKSHA BOOTI HAJMA CHOORN’ and
work
‘S SHIVAM PHARMACY JIVAN HEALTH
RAKSHAK ADVANCE BODY GROWTH POWDER’.
Essentially, the present case is a case of passing off. In
order to make out a case of passing off, the plaintiffs are
required to establish that - (1) they have substantial
reputation in the market in respect of the said trademark/label,
(2) the use of mark by the defendants causing
misrepresentation to general public and (3) consequently
damage to the plaintiffs caused by the use of alleged
CS (COMM) No. 391//2025
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impugned mark by the defendants.
8. The plaintiff no. 1 has claimed himself to be
proprietor of M/s Om Sai Pooja Path Swami Ramdev
Utpad initially in the year 2012 and to have been selling
the Ayurvedic products since the year 2012. He has placed
the copy of registration certificate dated 09.04.2012 under
Shop and Establishment Act in this regard. In column No.
4 of the said certificate, the nature of the business is
described as
“Pooja Path Samagri Ramdev ji ke utpad,
General Store, Vikray”. A bare perusal of the same would
show that the plaintiff no. 1 had obtained the said license
for sale of products of Swami Ramdev. The plaintiff no. 1
thereafter changed his firm name as M/s Om Shri Hari Vishnu
Ayurvedic Utpad and GST certificate dated 11.11.2021 is
placed in this regard.
9. The plaintiff no. 1 has also placed on record invoice
dated 13.09.2012 for Rs. 4400/-, invoice dated 03.02.2013 of
Rs. 11,000/- and invoice dated 22.05.2016 of Rs. 10,000/- in
the name of his erstwhile firm M/s Om Sai Pooja Path
Swami Ramdev Utpad in respect of goods Strong Health
Booty Hajma Choorn and Jivan Rakshak Advance Growth
Powder. Some invoices issued by M/s Shivam Pharmacy i.e.
the plaintiff no. 2 to plaintiff no. 1 firm Om Shri Hari Vishnu
Ayurvedic Utpad of the year 2025 for an amount of about
Rs. 20,000/- have also been filed. The plaintiffs have also
placed the invoices of plaintiff no 3 i.e. M/s Sant Kripa
General Herbal Cosmetic Centre for the year 2012 and 2013
CS (COMM) No. 391//2025
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for Rs. 1200/- and 1500/- respectively in respect of Strong
Health Booti Hajma Choorn and for the year 2015, 2016,
2017 for an amount of about Rs. 15,000/- in respect of
products Strong Health Booti Hajma Choorn and Jivan
Rakshak Advance Growth Powder. The plaintiff no. 1
M/s Om Shri Vishnu Arurvedic Utpad has filed some
invoices of the year 2018 to 2025 of Jivan Health Rakshak
Body Growth Powder for an amount of Rs.1,00,000/-.
10. The plaintiffs have also placed the copy of the
trademark applications in which plaintiff no. 1 Bharat Singh
Kushwah has applied for registration of device ‘Om Shri Hari
Vishnu Ayurvedic Strong Health Raksha Booti Choorn’ in
which the user detail has been mentioned as 27.09.2018 and
in the other application moved by the plaintiff no. 2 and 3 in
respect of other ayurvedic products/devices, the dates have
been mentioned of the year 2018, 2023 or proposed to be
used.
11. The plaintiffs have claimed in para no. 30 of the
plaint that their joint sale revenue i.e. of all three plaintiffs for
the year 2024-25 is Rs. 18,49,206/- and the business
promotion expenses are Rs. 78,888//-. The plaintiffs have not
placed any single document to show that they have incurred
expenses of Rs. 78,888/- for promotion of their business as
claimed or that they have advertised their mark by
prominently displaying and running the same on TV
commercial, radio and circulating pamphlets as claimed in
para no. 35 of the plaint.
CS (COMM) No. 391//2025
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12. Although the plaintiff no. 2 is shown to be the
copyright owner of the label and the
plaintiffs claim that the defendants have copied the same label
and have also placed the wrapper of the label used by the
defendants which bears the name of the defendant firm M
Satyam Pharmacy and therefore the Ld. Counsel for the
plaintiff has vehemently prayed for grant of ex-parte
injunction and appointment of Local Commissioner to search
and seize the premises of the defendants. However, prima
facie, it does not appear that the plaintiffs have established the
substantial goodwill and reputation in respect of the
trademarks/device marks as averred in the plaint as noted
herein above.
13. Further, the plaintiffs have claimed in the plaint
itself that it came to their knowledge since the year 2023 that
the defendants have started to misuse their trademark and
dishonestly adopted and used plaintiffs trademark by adding a
suffix MSATYAM instead of Shivam. It is not understandable
that if that was so, then why the plaintiffs did not take the
action for infringement of their trademark/copyright for the
last 2 years. Rather the plaintiffs have placed the copy of FIR
bearing No. 0285/2023 got registered by the defendants
against them at District Gwalior, PS Thatipur under Section
63 of Copyright Act, 1957 and Section 33 of Drugs and
CS (COMM) No. 391//2025
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Cosmetic Act, 1948 for infringement of his copyright on the
ayurvedic products which are the subject matter of the present
suit. Even the police conducted the raid and the goods and
products of the plaintiffs were seized as averred in para 52 of
the plaint.
14. In view of the same, it is apparent that the plaintiffs
and the defendants are in litigation since the year 2023 and
even an FIR has been lodged against the plaintiffs for
infringement of provisions of Section 63 of Copyright Act.
1957 and Section 33 of Drugs and Cosmetics Act, 1948 and
the goods and products of the plaintiffs were seized.
15. There is no dispute to the proposition of law laid
down in the judgments relied upon by the Ld. Counsel for the
plaintiffs, but in the totality of the facts and circumstances of
the case and in view of foregoing discussions, no good prima
facie case for grant of
ex parte ad interim injunction and ex-
parte order for appointment of Local Commissioner to visit
the premises of the defendants for search and seizure is made
out. Hence, the said prayers are hereby declined.
16. Nothing stated hereinabove shall tantamount to an
expression of any opinion on merits of the case.
Announced in the open Court
on 24th July, 2025
(Balwant Rai Bansal)
District Judge (Commercial Court)-02
Patiala House Courts, New Delhi
CS (COMM) No. 391//2025
Bharat Singh Kushwah & Ors. vs. Manoj Sharma & Anr.
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