Order 5

Order Details: COPY OF ORDER
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In the court of Sh. Umed Singh Grewal, District Judge-
Commercial Court-02, North District
Rohini Courts, Delhi.
CS (Comm) No.6687/2024
In the matter of:
Kamal Raheja
Trading as Amaira Herbals ….. Plaintiffs
Vs
Ashok Kumar Bhatia
Trading as Kanika Impetus …….. Defendant
Present : Rajesh Sharma, Counsel for plaintiff.
Sumit Kumar, Counsel for defendant.
ORDER:-
1. This order shall decide an application of the plaintiff U/O
39 Rules 1 & 2 CPC.
2. After granting ex-parte interim injunction to the plaintiff,
notice was issued to the defendant, pursuant to which he filed
reply.
3. Plaintiff is in the business of manufacturing, marketing and
selling cosmetic and face cream etc. under the trade mark
MARKS GO which was adopted on 30.09.2011 and since then
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he is using that trade mark openly, continuously and extensively
not only in this country but in Sri Lanka and Zimbabwe also. He
is the proprietor of that trade mark and hence he has exclusive
right to use the same on his products. Due to supreme quality of
goods, the mark has acquired tremendous goodwill and
reputation amongst traders and general public. The goods
bearing trade mark MARKS GO are always associated with him.
His turnover has grown exponentially during these years.
Counsel for plaintiff argued that his client came to know
first time on 09.08.2024 that the defendant was using the
identical trade mark on identical packaging containing same kind
of goods which are manufactured by plaintiff. By doing so, he is
trying to ride upon the popularity and goodwill of plaintiff’s
trade mark by making uneducated population to believe that his
goods have been manufactured and sold by plaintiff and in this
way, he is reaping unfair advantage and he should be stopped.
4. Ld. counsel for defendant argued that his client is in the
business of manufacturing and wholesale of skincare cream, hair
oil, shampoo and lip-guard etc. and got registered trade mark
POFIE PLANT in 2012 claiming user since 1987. He has been
using that trade mark extensively and uninterruptedly since 1987.
The word MARKS GO only denotes the result if defendant’s
cream was applied on the face. After its application, the mark on
the face are removed. Those words were neither invented nor
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coined by the plaintiff. It is a generic term having no distinction
and that’s why the application moved by plaintiff for registration
of the trade mark MARKS GO was not allowed by the Trade
Mark Registrar and at the end, the plaintiff had to abandon it.
It is next argued that there are various players who
manufacture, market and sell identical goods under the trade
mark MARKS GO. The plaintiff is not the original proprietor or
adopter of it. Rather, he himself has been restrained by the Ld.
Predecessor Judge of this Court in a case titled “Hahnemann Pure
Drug Co. Azamgarh Vs. Kamal Raheja, CS No.346/2023, vide
order dated 08.06.2023, from using the trade mark MARKS GO.
Moreover, the defendant’s mark significantly differs from
plaintiff’s mark in style and format.
5. Counsel for plaintiff relied upon M/s Anshul Industries
Vs. Shri Vineet & Ors., CS No.1166/2008, decided by Hon’ble
High Court on 16.12.2008 and admitted that restraint order has
been passed against the plaintiff in another case from using the
trade mark MARKS GO. But the said case has yet not been
finally decided and hence the finding of that Court is interim one
which is yet to be finalized.
6. In the cited case, the plaintiff’s trade mark was PANCHHI
and defendant’s trade mark was UDTA PANCHHI. The plaintiff
of that case was restrained on interim application from using the
trade mark PANCHHI which was of a third party. The Hon’ble
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Delhi High Court made the interim order absolute holding that
restraint order against the plaintiff in some other case was on
interim application and that case had yet not been decided. But
the facts of the present case are slightly different from that case.
In the case in hand, the third party Hahnemann Pure Drug Co.
Azamgarh is the registered proprietor of trade mark MARKS GO
since 14.09.2010. In the cited case, perhaps, the third party was
not registered proprietor of the trade mark. Neither plaintiff nor
defendant are the registered proprietor. They are merely users.
7. In written statement, it is mentioned at one place
that the defendant is the registered proprietor of trade mark
POFIE PLANT HERBALS MARK GO. But it is mentioned at
other place that he is the registered proprietor of only POFIE
PLANT. The defendant has claimed that he is using the
registered trade mark POFIE PLANT HERBALS MARK GO
since 1987. But when he filed application for registration he
mentioned that was using only POFIE PLANT. Had defendant
been using the words MARK GO in trade mark since 1987, he
would have mentioned so in the registration application moved
on 18.12.2012. Moreover, the defendant did not file any
document to show that he is using the words MARKS GO in his
trade mark since 18.12.2012. On the other hand, the claim of the
plaintiff is that he using the trade mark MARKS GO since 2011.
Even if it is presumed that defendant is using the words MARKS
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GO in his trade mark since 18.12.2012, it is the plaintiff who is
prior user.
8. In view of above discussion, the application is allowed and
the interim order dated 29.08.2024 is made absolute as it will be
in the benefit of not only plaintiff but also in the benefit of
registered proprietor i.e. third party.
Announced in the open
court on 17.01.2025
(UMED SINGH GREWAL)
District Judge- Commercial Court-02
North District, Rohini Courts, Delhi.
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