Delhi District Court
Rspl Health Pvt Ltd vs Jaspreet Singh Kalra on 17 February, 2026
Digitally signed
by
DHARMENDER
DHARMENDER RANA
RANA Date:
2026.02.17
15:23:42
+0530
DLND010008182018
IN THE COURT OF DISTRICT JUDGE- 01,
NEW DELHI DISTRICT, PATIALA HOUSE COURTS,
NEW DELHI
Presided over by :- SH. DHARMENDER RANA (DHJS)
TM No. 109/2021
M/s RSPL Health Private Limited,
119-121 (Part) Block P & T,
Fazalganj, Kalpi Road,
Kanpur- 208012,
Uttar Pradesh.
Corporate Office at:
Netaji Subhash Place,
Wazirpur District Center,
Pitampura, New Delhi- 110034. ... Plaintiff
Versus
Mr. Jaspreet Singh Kalra,
Trading as JSK Herbal International,
BL-77, Ground Floor, L-Block,
Hari Nagar, near Jail Road,
Nehru Vihar, New Mukherjee Nagar,
New Delhi- 110064.
TM NO. 109/21
M/s RSPL Health Pvt. Ltd. Vs. Jaspreet Singh Kalra Page 1 of 22
Digitally signed
by
DHARMENDER
DHARMENDER RANA
RANA
Date:
2026.02.17
15:23:48 +0530
Also at:
Sadar Bazar, Rui Mandi,
near 12 Tuti Chowk,
Chole Bhature Wali gali,
Delhi. ..... Defendant
Suit presented on : 02.02.2018
Arguments concluded on : 03.02.2026
Judgment pronounced on : 17.02.2026
EX-PARTE JUDGMENT
1.The present suit for permanent injunction, restraining infringement of copyright, passing off, rendition of accounts and delivery up etc has been filed by M/s RSPL Health Private Limited against the defendants seeking following reliefs :
'(a) For a decree of permanent injunction restraining the defendant by itself as also through its individual partners/ proprietors, directors, agents, representatives, distributors, assigns, stockists, dealers, retailers etc. and all others acting for and on behalf of the defendant from manufacturing, selling, using, displaying, advertising, importing/exporting or by any other mode or manner dealing with the impugned trade mark/ label Sloreance XPERT Absorb or any other trade mark/ label(s) identical with or deceptively similar to the plaintiff's said XPERT trademark, colour scheme, artistic features, copyrights etc. in relation to the impugned goods viz. Sanitary napkins and sanitary pads and other allied and cognate goods or from doing any other acts or deeds amounting to:
i) Infringement of Plaintiff's trademark XPERT and/or XPERT Label under no. 1077473 in class 03, 1270731 in class 03 and under no. 1390217 in class 03.
ii) Passing off or otherwise violation by way of passing off of TM NO. 109/21 M/s RSPL Health Pvt. Ltd. Vs. Jaspreet Singh Kalra Page 2 of 22 Digitally signed by DHARMENDER DHARMENDER RANA RANA Date:
2026.02.17 15:23:52 +0530 the plaintiff's said trade mark / label XPERT and/or XPERT Label.
Iii) Infringement of Plaintiff's copyrights in the said XPERT trademark/ label.
(b) Restraining the defendant from disposing off or dealing with their assets including their premises at the addresses mentioned in the Memo of Parties and their stocks-in-trade or any other assets as may be brought to the notice of the Hon'ble Court during the course of the proceedings and on the Defendant's disclosure and/or on its ascertainment by the Plaintiff as the Plaintiff is not aware of the same as per Section 135 (2) (c) of the Trade Marks Act, 1999 as it could adversely affect the Plaintiff's ability to recover the costs and pecuniary reliefs thereon.
(c) For an order for deliver up of all the impugned finished and unfinished material of the Defendant bearing the impugned trade mark/ labels including any other trade mark/ label identical with and deceptively similar to it including blocks and labels, display boards, sign boards, trade literature, advertisement material etc. to the Plaintiff for purpose of destruction/ erasure.
(d). For an order for rendition of accounts of profits earned by the Defendant by their impugned illegal activities and a decree for the amount so found in favour of the plaintiff on such rendition of accounts.
(e) For an order for cost of proceedings; and
(f) For such other and further relief(s) as this Hon'ble Court may deem fit and proper in the facts and circumstances of this case.' PLEADINGS
2. Briefly stated: Plaintiff has averred that its predecessor originally conceived, coined and adopted trademark/ label XPERT in the year 1993 for class 3 category of goods namely TM NO. 109/21 M/s RSPL Health Pvt. Ltd. Vs. Jaspreet Singh Kalra Page 3 of 22 Digitally signed by DHARMENDER DHARMENDER RANA RANA Date:
2026.02.17 15:23:56 +0530 washing soaps, washing powder, detergent cakes, toiletries, bleaching preparations and substances for laundry use, cleaning, polishing, scouring abrasive preparations, perfumery, essential oils, hair lotions, dentifrices. It is averred that the plaintiff has been using the said trademark/ label since the year of adoption continuously and uninterruptedly as an exclusive owner of it. It is averred that plaintiff is the senior adopter of the trademark/ label. It is further averred that the plaintiff has adopted punchline -
"पहले इस्तेमाल करें, फिर विश्वास करें" for promotion of its goods/ business. It is stated that to acquire statutory rights, the plaintiff has also filed numerous applications under TM Act for various goods and services.
2.1. It is further averred that the artwork involved in the aforementioned trademark/ label is original and the plaintiff is also the owner and proprietor of the copyright duly registered in favour of the plaintiff under Certificate A - 67662/2004 under The Copyright Act, 1957. The plaintiff also claims to have copyright over the aforesaid punch line. It is stated that the plaintiff maintains highest standard of manufacture and sale of its goods bearing the aforementioned trademark/ label and are in high demand in the markets. It is stated that the goods of the plaintiff are distributed and sold across the country and as such the plaintiff has already built up a handsome and valuable trade under it. It is stated that plaintiff has invested extensively on its advertisement for promotion of the business and even engaged TM NO. 109/21 M/s RSPL Health Pvt. Ltd. Vs. Jaspreet Singh Kalra Page 4 of 22 Digitally signed by DHARMENDER DHARMENDER RANA RANA Date:
2026.02.17 15:24:00 +0530 reputed bollywood star for promotion of the trademark/ label. By the concerted effort of the plaintiff, its punch ne has also become 'well known' within the meaning of Section 2 (1) (zg) and Section 11 of the Trade Mark Act. It is stated that the public at large in India associates, identifies and distinguishes the said trademark/ label, goods and business thereunder with the plaintiff's source and origin alone and the trademark/ label of the plaintiff has acquired distinctiveness.
2.2. It is further stated that the defendant is engaged in the business of manufacturing and marketing sanitary napkins and allied and cognate goods under trademark / label Sloreance XPERT Absorb which is identical and deceptively similar to the plaintiff's trademark/ label phonetically, visually and structurally in its basic ideas and essential features. The plaintiff is aggrieved that the defendant has given false description to its goods by using the impugned trademark XPERT alongwith goods by using the impugned trademark XPERT alongwith word/ mark "Sloreance Absorb" to wrongly link its goods with that of the plaintiff's. Considering that impugned goods and business of the defendant is identical to that of the plaintiff and are sold at the same counter to same class of customers through same trade channels, the defendant has caused confusion and deception in the market and trade. Thus, it is stated that the defendant has infringed the registered trademark and copyright of the plaintiff and has even passed off its goods and business as that of the TM NO. 109/21 M/s RSPL Health Pvt. Ltd. Vs. Jaspreet Singh Kalra Page 5 of 22 Digitally signed by DHARMENDER DHARMENDER RANA RANA Date:
2026.02.17 15:24:04 +0530 plaintiff causing huge loss of business and reputation of the plaintiff.
3. It is averred that by its impugned adoption and use of the impugned XPERT trademark/labels of plaintiff, the defendant is:
(a) Infringing the registered trademarks of the plaintiff under no.
1077473 in class 03, 1205486 in class 3, 127073 in class 03 and under no. 1390217 in class 03. The impugned trademark of the defendant is identical with/ deceptively similar to said trade mark of the plaintiff. The registered trade mark of the plaintiff is a well known trade mark and has strong goodwill and reputation in India. By impugned user of the impugned trademark in relation to impugned goods and business, the defendant is taking unfair advantage of the plaintiff's registered trade mark. The impugned user of the defendants of the impugned trade mark in relation to impugned goods and business is detrimental to the distinctive character and repute of the plaintiff's registered trademark. The impugned user of the impugned trade mark by the defendants in relation to impugned goods and business is also hit by provisions of Section 29 (4) of the Trade Marks Act 1999.
(b) Passing off and enabling others to pass off their goods and business as that of the plaintiff. The defendant is thereby violating the plaintiff's common law rights in the plaintiff's said Trade Mark/ label.
TM NO. 109/21 M/s RSPL Health Pvt. Ltd. Vs. Jaspreet Singh Kalra Page 6 of 22 Digitally signed by DHARMENDER DHARMENDER RANA RANA Date: 2026.02.17 15:24:08 +0530
(c) Infringing the plaintiff's Copyright in the said Trade Mark/ label by inter-alia using, publishing, reproducing and otherwise commercially and for the purposes of trade using the impugned identical and deceptively similar impugned trade mark/ label for the purposes of its impugned goods and business as also passing off the plaintiff's common law rights therein.
(d) The defendant is further guilty of falsification and unfair and unethical trade practices..
4. It is averred that defendant is not the proprietor of impugned trademark/ label and have adopted and using the same without the leave and license of plaintiff. It is averred that the defendant is using the impugned trademark/ label with sinister motives with a view to take advantage and to trade upon the reputation of the plaintiff. It is stated that the impugned trademark/ label is bound to cause confusion and deception in the normal course of business activities of the goodwill and reputation of plaintiff. It is averred that due to the defendant's impugned activities, plaintiff is suffering huge losses in business and reputation and as such losses are incapable of being assessed in terms of money nor can it be so compensated.
5. It is averred that in the last week of December 2017, plaintiff became aware of the impugned adoption and user of the defendant when it came across the impugned goods of defendant in New Delhi market under the impugned trademark/ label TM NO. 109/21 M/s RSPL Health Pvt. Ltd. Vs. Jaspreet Singh Kalra Page 7 of 22 Digitally signed by DHARMENDER DHARMENDER RANA RANA Date:
2026.02.17 15:24:13 +0530 Sloreance XPERT Absorb. Upon inquiry, it was revealed that defendant has just launched its product in December, 2017. It was also revealsed that defendant has also filed a trademark application under no. 3509203 for the word mark Solreance XPERT Absorb on 17.03.2017 as user - "proposed to be used"
and the said mark is yet to be examined and published. It is averred that defendants are carrying out the impugned activities under the impugned trademark in New Delhi market.
6. Ld. Predecessor of this Court vide order dated 24.02.2018, granted an ex-parte ad interim injunction and appointed the following Local Commissioner to seize all impugned products and prepare an inventory of the same belonging to the defendants which are as follows:
Sr No. Name of the Local Premises to be inspected Commissioner 1 Sh. Vaibhav To visit the premises of defendant Vashishth, and in their godowns and to visit Advocate other premises at the identification of the plaintiff.
Report has been tendered on behalf of Local Commissioner Sh. Vaibhav Vashishth.
7. As per the report of Sh. Vaibhav Vashishth, Ld. Local Commissioner an inspection was conducted on 14.03.2018 at premises of defendant where he met Sh. Jaspal Singh Kalra, who TM NO. 109/21 M/s RSPL Health Pvt. Ltd. Vs. Jaspreet Singh Kalra Page 8 of 22 Digitally signed by DHARMENDER DHARMENDER RANA RANA Date:
2026.02.17 15:24:17 +0530 stated to be the owner of shop. During the search, they found 85 sanitary pads labeled as "Solreance XPERT Absorb" which were seized in a gunny bag. Thereafter, all the impugned articles seized by the Ld. Local Commissioner were released on Superdginama to the defendant Sh. Jaspreet Singh Kalra.
8. Defendant entered appearance on 27.03.2018 and written statement was filed on behalf of the defendant on 24.07.2018. At joint request, the matter was sent for mediation proceedings however, the matter could not be settled. Eventually, the defendant stopped appearing in the instant matter and on 29.07.2024 Court proceeded ex-parte against the defendant.
9. Plaintiff examined one witness namely Sh. Manoj Singh, who tendered his evidence by way of affidavit Ex.PW1/A and placed reliance on following documents:-
Sr. No. Document Exhibited as 1 True representation of said Trade Mark/ Ex. PW-1/1
Label of the plaintiff (photograph and extract from www.ipindia.nic.in 2 True representation of impugned Trade Ex. PW-1/2 Mark/ Label of the defendant (as available on www.ipindia.nic.in) 3 Print out of plaintiff's registration Ex. PW-1/3 certificate, status reports and pending applications in different classes 31.12.2017 4 Copy of plaintiff's copyright registration Ex. PW-1/4 TM NO. 109/21 M/s RSPL Health Pvt. Ltd. Vs. Jaspreet Singh Kalra Page 9 of 22 Digitally signed by DHARMENDER DHARMENDER RANA RANA Date:
2026.02.17 15:24:24 +0530 certificate under nos. A-677662/2004, A-108898/2014, A-108871/2014
5 Copies of request on form TM-72 & the Ex. PW-1/5 recordial request on form TM-23 (from pages 49 to 54) 6 Copy of deed of assignment dated Ex. PW-1/6 15.07.2013 7 Copy of certificate of incorporation of the Ex. PW-1/7 plaintiff company and the copies of the documents pertaining to chain of the plaintiff and its predecessor 8 Copies of auditor report of the plaintiff Mark A. company 9 Copies of the bill/s documents of the Ex. PW-1/9 plaintiff (except for page no. 92 to 100, 103, 107, 108, 119, 122, 138 remaining are exhibited) 10 Copies of the bills pertaining to Ex. PW-1/10 advertisement of the plaintiff Except page no.164, 177, 194 & 198 remaining are exhibited 11 Copies of advertisement materials of the Ex. PW-1/11 plaintiff 12 Copies of the judicial orders passed in Mark B favour of the plaintiff (colly) 13 Print out of status report of impugned Ex. PW-1/13 Trade mark application of the defendant TM NO. 109/21 M/s RSPL Health Pvt. Ltd. Vs. Jaspreet Singh Kalra Page 10 of 22 Digitally signed by DHARMENDER DHARMENDER RANA RANA Date:
2026.02.17 15:24:29 +0530
14 Copy of Resolution Ex. PW-1/14 15 Certificate under Section 65B of India Ex. PW-1/B Evidence Act Thereafter, ex-parte PE was closed.
FINAL ARGUMENTS
10. Final Arguments have been heard, record has been perused and submissions considered.
REASONING AND APPRECIATION OF MATERIAL ON RECORD
11. Since defendant evaded the proceedings and is ex- parte, no challenge has been made to the contentions of the plaintiff and evidence led by it.
11.1. Section 29 of the Trade Mark Act 1999 accords special protection to the registered trademark and grants an injunction even if the goods of the defendant are similar or dissimilar. Section 29 of the Act is as under:-
29. Infringement of registered trade marks.--
(1) A registered trade mark is infringed by a person who, not being a registered proprietor or a person using by way of permitted use, uses in the course of trade, a mark which is identical with, or deceptively similar to, the trade mark in relation to goods or services in respect of which the trade mark is registered and in such manner as to render the use of the mark likely to be taken as being used as a trade mark.TM NO. 109/21 M/s RSPL Health Pvt. Ltd. Vs. Jaspreet Singh Kalra Page 11 of 22 Digitally signed by DHARMENDER
DHARMENDER RANA RANA Date:
2026.02.17 15:24:33 +0530 (2) A registered trade mark is infringed by a person who, not being a registered proprietor or a person using by way of permitted use, uses in the course of trade, a mark which because of--
(a) its identity with the registered trade mark and the similarity of the goods or services covered by such registered trade mark; or
(b) its similarity to the registered trade mark and the identity or similarity of the goods or services covered by such registered trade mark; or
(c) its identity with the registered trade mark and the identity of the goods or services covered by such registered trade mark, is likely to cause confusion on the part of the public, or which is likely to have an association with the registered trade mark. (3) In any case falling under clause (c) of sub-section (2), the court shall presume that it is likely to cause confusion on the part of the public.
(4) A registered trade mark is infringed by a person who, not being a registered proprietor or a person using by way of permitted use, uses in the course of trade, a mark which--
(a) is identical with or similar to the registered trade mark; and
(b) is used in relation to goods or services which are not similar to those for which the trade mark is registered; and
(c) the registered trade mark has a reputation in India and the use of the mark without due cause takes unfair advantage of or is detrimental to, the distinctive character or repute of the registered trade mark.
(5) A registered trade mark is infringed by a person if he uses such registered trade mark, as his trade name or part of his trade name, or name of his business concern or part of the name, of his business concern dealing in goods or services in respect of which the trade mark is registered.
(6) For the purposes of this section, a person uses a registered mark, if, in particular, he--
(a) affixes it to goods or the packaging thereof;
(b) offers or exposes goods for sale, puts them on the market, or stocks them for those purposes under the registered trade mark, or offers or supplies services under the registered trade mark;
(c) imports or exports goods under the mark; or
(d) uses the registered trade mark on business papers or in advertising.
(7) A registered trade mark is infringed by a person who applies such registered trade mark to a material intended to be used for labelling or packaging goods, as a business paper, or for advertising goods or services, provided such person, when he applied the mark, knew or had reason to believe that the application of the mark was not duly authorised by the proprietor TM NO. 109/21 M/s RSPL Health Pvt. Ltd. Vs. Jaspreet Singh Kalra Page 12 of 22 Digitally signed by DHARMENDER DHARMENDER RANA RANA Date:
2026.02.17 15:24:38 +0530 or a licensee.
(8) A registered trade mark is infringed by any advertising of that trade mark if such advertising--
(a) takes unfair advantage of and is contrary to honest practices in industrial or commercial matters; or
(b) is detrimental to its distinctive character; or
(c) is against the reputation of the trade mark. (9) Where the distinctive elements of a registered trade mark consist of or include words, the trade mark may be infringed by the spoken use of those words as well as by their visual representation and reference in this section to the use of a mark shall be construed accordingly.
11.2. In Renaissance Hotel Holdings Inc. Vs. B. Vijaya Sai Civil Appeal no. 404 of 2022 decided on 19.01.2022 , the Apex Court has once again, clarified the law u/s 29 to 31 of TM Act, and observed as under :
"43. The legislative scheme is clear that when the mark of the defendant is identical with the registered trade mark of the plaintiff and the goods or services covered are similar to the ones covered by such registered trade mark, it may be necessary to prove that it is likely to cause confusion on the part of the public, or which is likely to have an association with the registered trade mark. Similarly, when the trade mark of the plaintiff is similar to the registered trade mark of the defendant and the goods or services covered by such registered trade mark are identical or similar to the goods or services covered by such registered trade mark, it may again be necessary to establish that it is likely to cause confusion on the part of the public. However, when the trade mark of the defendant is identical with the registered trade mark of the plaintiff and that the goods or services of the defendant are identical with the goods or services covered by registered trade mark, the Court shall presume that it is likely to cause confusion on the part of the public."
11.3. Further, placing reliance upon Kaviraj Pandit Durga Dutt Sharma Vs. Navaratna Pharmaceuticals Laboratories 1965 TM NO. 109/21 M/s RSPL Health Pvt. Ltd. Vs. Jaspreet Singh Kalra Page 13 of 22 Digitally signed by DHARMENDER DHARMENDER RANA RANA Date:
2026.02.17 15:24:42 +0530 SCR (1) 737 the Court has also pointed out the distinction between the causes of action and rights of relief based upon passing off and infringement of registered trademark as it has been held as under :
"45. It could thus be seen that this Court has pointed out the distinction between the causes of action and right to relief in suits for passing off and for infringement of registered trade mark. It has been held that the essentials of a passing off action with those in respect of an action complaining of an infringement of a registered trade mark, cannot be equated. It has been held that though an action for passing off is a Common Law remedy being an action for deceit, that is, a passing off by a person of his own goods as those of another; the action for infringement is a statutory right conferred on the registered proprietor of a registered trade mark for the vindication of the exclusive rights to the use of the trade mark in relation to those goods. The use by the defendant of the trade mark of the plaintiff is a sine qua non in the case of an action for infringement. It has further been held that if the essential features of the trade mark of the plaintiff have been adopted by the defendant, the fact that the get−up, packing and other writing or marks on the goods or on the packets in which he offers his goods for sale show marked differences, or indicate clearly a trade origin different from that of the registered proprietor of the mark, would be immaterial in a case of infringement of the trade mark, whereas in the case of a passing off, the defendant may escape liability if he can show that the added matter is sufficient to distinguish his goods from those of the plaintiff.
46. Again, while considering the provisions of Section 21 of the 1940 Act, this Court in the case of Ruston & Hornsby Limited (supra), observed thus:
"4. It very often happens that although the defendant is not using the trade mark of the plaintiff, the get up of the defendant's goods may be so much like the plaintiff's that a clear case of passing off would be proved. It is on the contrary conceivable that although the defendant may be using the plaintiff's mark the get up of the defendant's goods may be so different from the get up of the plaintiff's goods and the prices also may by so different that there would be no TM NO. 109/21 M/s RSPL Health Pvt. Ltd. Vs. Jaspreet Singh Kalra Page 14 of 22 Digitally signed by DHARMENDER DHARMENDER RANA RANA Date:
2026.02.17 15:24:50 +0530 probability of deception of the public. Nevertheless, in an action on the trade mark, that is to say, in an infringement action, an injunction would issue as soon as it is proved that the defendant is improperly using the plaintiff's mark.
5. The action for infringement is a statutory right. It is dependent upon the validity of the registration and subject to other restrictions laid down in Sections 30, 34 and 35 of the Act. On the other hand the gist of a passing off action is that A is not entitled to represent his goods as the goods of B but it is not necessary for B to prove that A did this knowingly or with any intent to deceive. It is enough that the get−up of B's goods has become distinctive of them and that there is a probability of confusion between them and the goods of A. No case of actual deception nor any actual damage need be proved. At common law the action was not maintainable unless there had been fraud on A's part. In equity, however, Lord Cottenham, L.C., in Millington v. Fox [3 My & Cr 338] held that it was immaterial whether the defendant had been fraudulent or not in using the plaintiff's trade mark and granted an injunction accordingly. The common law courts, however, adhered to their view that fraud was necessary until the Judicature Acts, by fusing law and equity, gave the equitable rule the victory over the common law rule.
6. The two actions, however, are closely similar in some respects. As was observed by the Master of the Rolls in Saville Perfumery Ltd. v. June Perfect Ltd. [58 RPC 147 at 161] :
"The statute law relating to infringement of trade marks is based on the same fundamental idea as the law relating to passing−off. But it differs from that law in two particulars, namely (1) it is concerned only with one method of passing−off, namely, the use of a trade mark, and (2) the statutory protection is absolute in the sense that once a mark is shown to offend, the user of it cannot escape by showing that by something outside the actual mark itself he has distinguished his goods from those of the registered proprietor. Accordingly, in considering the question of infringement the Courts have held, and it is now expressly provided by the Trade Marks Act, 1938, Section 4, that infringement takes place not merely by exact imitation but by the use of a mark so nearly resembling the registered mark as to be likely to deceive."
47. It could thus be seen that this Court again reiterated that the question to be asked in an infringement action is as to whether the defendant is using a mark which is same as, or which is a colourable imitation of the plaintiff's registered trade mark. It has further been held that though the get up of the defendant's TM NO. 109/21 M/s RSPL Health Pvt. Ltd. Vs. Jaspreet Singh Kalra Page 15 of 22 Digitally signed by DHARMENDER DHARMENDER RANA RANA Date:
2026.02.17 15:24:54 +0530 goods may be so different from the plaintiff's goods and the prices may also be so different that there would be no probability of deception of the public, nevertheless even in such cases, i.e., in an infringement action, an injunction would be issued as soon as it is proved that the defendant is improperly using the plaintiff's mark. It has been reiterated that no case of actual deception nor any actual damage needs to be proved in such cases. This Court has further held that though two actions are closely similar in some respects, in an action for infringement, where the defendant's trade mark is identical with the plaintiff's trade mark, the Court will not enquire whether the infringement is such as is likely to deceive or cause confusion."
11.4. Further, the law of passing off provides a remedy against a false representation tending to deceive customers into believing that the goods which the defendant is selling are really the plaintiff's. The false representation may be by statement or by conduct i.e. by adopting the distinctive mark, name, design, get up or appearance of another goods. The basic question in this tort is that whether the defendant's conduct is such as to tend to mislead the public to believe that the defendant's business is the plaintiff's or to cause confusion between the activities of the two.
11.5. It has been held in Lt. Foods Limited vs. Saraswati Trading Company, CS(Comm) 413/2021, decided by Hon'ble High Court of Delhi on 11.11.2022 as under:
'...13. The settled legal position is that the Local Commissioner's report can be read in evidence in terms of Order XXVI Rule 10(2) CPC. In M L Brother LLP v. Mahesh Kumar Bhrualal Tanna [CS(COMM) 126/2022, date of decision 12th May, 2022] this Court held as under:
"10. Order 26 Rule 10(2) CPC stipulates that the report of the Commissioner and the evidence taken by the TM NO. 109/21 M/s RSPL Health Pvt. Ltd. Vs. Jaspreet Singh Kalra Page 16 of 22 Digitally signed by DHARMENDER DHARMENDER RANA RANA Date:
2026.02.17 15:24:59 +0530 Commissioner shall be evidence in the suit and shall form part of the record. The said provision reads as under:
10. Procedure of Commissioner.-- (1) The Commissioner, after such local inspection as he deems necessary and after reducing to writing the evidence taken by him, shall return such evidence, together with his report in writing signed by him, to the Court.
(2) Report and depositions to be evidence in suit. Commissioner may be examined in person.--The report of the Commissioner and the evidence taken by him (but not the evidence without the report) shall be evidence in the suit and shall form part of the record; but the Court or, with the permission of the Court, any of the parties to the suit may examine the Commissioner personally in open Court touching any of the matters referred to him or mentioned in his report, or as to his report, or as to the manner in which he has made the investigation."
11. In Levi Strauss & Co. v. Rajesh Agarwal 2018 IAD (Delhi) 622, this Court examined the said provision and held that once the Commissioner has filed the evidence along with his report, it becomes evidence in the suit itself. Under Order 26 Rule 10(2) CPC it is not mandatory to examine the Commissioner to admit the report of the Commissioner as evidence in the suit. The relevant observations are as under:
8. The Local Commissioner is in fact a representative of the Court itself and it is for this reason that Order 26 Rule 10 (2) of CPC clearly provides that once the Commissioner has filed the evidence along with his report the same shall be treated as evidence in the suit and shall form part of the record. XXX XXX XXX
10. The rationale behind Order 26 Rule 10 (2) of CPC is clear i.e., the Commissioner is appointed as a representative of the Court and evidence collected by the Commissioner along with the report of the Commissioner would be evidence in the suit, subject to any objection raised by any party. If any party has any objection to Commissioner's report or to the evidence, such party has an option to examine the Commissioner personally in open Court. Such examination is however, neither compulsory nor required especially in cases where the party does not challenge the report. In the present case, a perusal of the written statement filed by the Defendant clearly reveals that the Defendant TM NO. 109/21 M/s RSPL Health Pvt. Ltd. Vs. Jaspreet Singh Kalra Page 17 of 22 Digitally signed by DHARMENDER DHARMENDER RANA RANA Date:
2026.02.17 15:25:04 +0530 does not challenge the Commissioner's report. Para of the written statement is set out below..."
12. This position of law has been reiterated by this Court in Vinod Goel v. Mahesh Yadav [RFA 598/2016 decided on 23rd May, 2018] wherein the Court observed as under:
"7. It is the settled proposition in law that when a Commissioner is appointed, he acts as the officer of the Court and it is not necessary for the Commissioner to be examined. This is clearly laid down by the Supreme Court in Misrilal Ramratan & Ors. Mansukhlal & Ors. v. A. S. Shaik Fathimal & Ors., 1995 Supp (4) SCC 600, wherein the Court held as under:
"It is now settled law that the report of the Commissioner is part of the record and that therefore the report cannot be overlooked or rejected on specious plea of non-examination of the Commissioner as a witness since it is part of the record of the case." 8. Even this Court, recently in Levis Strauss v. Rajesh Agarwal [RFA 127/2007 decision dated 3rd January, 2018], held as under: "11. The rationale behind Order 26 Rule 10 (2) of CPC is clear i.e. the Commissioner is appointed as a representative of the Court and evidence collected by the Commissioner along with the report of the Commissioner would be evidence in the suit, subject to any objection raised by any party. If any party has any objection to Commissioner's report or to the evidence, such party has an option to examine the Commissioner personally in open Court. Such examination is however, neither compulsory nor required especially in cases where the party does not challenge the report."
9. Mr. Prag Chawla clearly concedes that there may be no requirement to examine the Local Commissioner once the Commissioner is appointed by a Court.
10. Under these circumstances, since the Commissioner had visited the suit property and had submitted the report, it is deemed appropriate that the matter is remanded back to the Trial Court to decide the matter afresh after taking into consideration the report of the Local Commissioner, Mr. Y.D. Nagar dated 5th January, 2000 in Suit No.2198/1999.
13. In view of Order 26 Rule 10(2) CPC and the judgments discussed above, the settled legal position that emerges is that the report of the Local Commissioner can be treated as evidence in the suit TM NO. 109/21 M/s RSPL Health Pvt. Ltd. Vs. Jaspreet Singh Kalra Page 18 of 22 Digitally signed by DHARMENDER DHARMENDER RANA RANA Date:
2026.02.17 15:25:08 +0530 where it is not challenged by any party. Accordingly, in the present case the report of the Local Commissioner and the contents therein can be relied upon by the Court as evidence as the same is unchallenged."
14. Considering the report of the Local Commissioner which has been prepared and the evidence which has been collected by the Local Commissioner as also the non-filing of the written statement, this Court is of the opinion that no ex parte evidence is required in this matter. This view is supported by the decisions of this Court in Disney Enterprises Inc. & Anr. v. Balraj Muttneja &Ors. [CS (OS) 3466/2012 decided on 20th February, 2014] and Cross Fit LLC v. RTB Gym and Fitness Centre [CS(COMM) 543/2021, date of decision 6th September, 2022]"
12. Thus, considering that, the defendants did not file any objections to the Ld. Local Commissioner's reports, the Court is proceeding to consider the same.
13. As already observed above, as no objections were filed to the Ld. Local Commissioner's report and as the said report can be relied upon as evidence, this Court is of the opinion that the defendant Jaspreet Singh Kalra had been clearly indulging in infringement of plaintiff's statutory as well as common law rights. The Court is convinced that the defendant has by his such acts with malafide intent passed off his goods as that of the plaintiff and tried to make benefit out of the goodwill and reputation enjoyed by the plaintiff. Further, by doing so, the defendant has been diluting the reputation and goodwill of the plaintiff''s trade mark/ trade name/ label and also been misleading the customers. Therefore, the plaintiff is entitled to reliefs in terms of paragraph no. 39(a), (b) & (c) of the plaint.
TM NO. 109/21 M/s RSPL Health Pvt. Ltd. Vs. Jaspreet Singh Kalra Page 19 of 22 Digitally signed by DHARMENDER DHARMENDER RANA RANA Date: 2026.02.17 15:25:12 +0530
14. Comparison of the plaintiff's trademark/ label with the impugned trademark used by the defendant reflects that the trademark/ label used by the defendant is deceptively similar with the registered trademark of the plaintiff, except for slight variation, which is virtually impossible for a commoner to discern and distinguish. Considering the deceptional similarity between the two trademarks, the possibility of a commoner being misled cannot be ruled out. The similarity between the two trademarks does not seem to be a case of mere coincidence but seems to be a product of calculated design and meticulous planning.
15. As regards the claim for a decree for rendition of accounts as sought by paragraph no.39(d), no evidence of profits illegally earned by the defendant by the use of trade mark / trade name / label of the plaintiff and from selling deceptively similar goods as well as by infringement of copyright is on record. However, it has been held in Disney Enterprises, INC (Supra):
'...15. Moreover, in India courts are sensitive to the growing menace of infringement and have started granting punitive damages even in cases where due to absence of the defendants exact figures of sales by the defendants under the infringing copyright and/or trademark exact damages are not available. This Court in The Heels Vs. V.K. Abrol & Anr., CS(OS) 1385/2005 decided on 29th March, 2006 while granting damages has held "This court has taken a view that where a defendant deliberately stays away from the proceedings with the result that an enquiry into the accounts of the defendant for determination of damages cannot take place, the plaintiff cannot be deprived of the claim for damages as that would amount to a premium on the TM NO. 109/21 M/s RSPL Health Pvt. Ltd. Vs. Jaspreet Singh Kalra Page 20 of 22 Digitally signed by DHARMENDER DHARMENDER RANA RANA Date:
2026.02.17 15:25:16 +0530 conduct of such defendant. The result would be that parties who appear before the court and contest the matter would be liable to damages while the parties who choose to stay away from the court after having infringed the right of the plaintiff, would go scotfree. This position cannot be acceptable."
16. Further, this Court in Microsoft Corporation Vs. Rajendra Pawar & Anr., CS(OS) 530/2003 decided on 27th July, 2007 has held "Perhaps it has now become a trend of sorts, especially in matters pertaining to passing off, for the defending party to evade court proceedings in a systematic attempt to jettison the relief sought by the plaintiff. Such flagrancy of the defendant‟s conduct is strictly deprecatory, and those who recklessly indulge in such shenanigans must do so at their peril, for it is now an inherited wisdom that evasion of court proceedings does not de facto tantamount to escape from liability. Judicial process has its own way of bringing to tasks such erring parties whilst at the same time ensuring that the aggrieved party who has knocked the doors of the court in anticipation of justice is afforded with adequate relief, both in law and in equity. It is here that the concept of awarding punitive damages comes into perspective."
17. This Court is also of the view that before award of damages it is not necessary that the plaintiff must show some particular benefit has accrued to the defendant or that the plaintiff must satisfy the Court by leading evidence that it has suffered actual loss. In Microsoft Corporation Vs. Ms. K. Mayuri & Ors., 2007 (35) PTC 415 Del., this Court has held "The practice of grant of exemplary damages needs to be strengthened particularly in those cases where flagrant infringement is found. Such an exercise of power is not to be fettered by any requirement that the plaintiff must show some particular benefit which has accrued to the defendant or that the plaintiff must satisfy the court by leading evidence that he has suffered actual loss. In a case where the plaintiff proves such actual loss, he would be entitled to the same. However, even without such a proof, in case of flagrant infringement, the court has the complete discretion to make such award of damages as may seem appropriate to the circumstances, so that it acts as deterrent. In some cases, it is not possible to prove the actual damages, namely, that there is a normal rate of profit or that there is a normal or establish TM NO. 109/21 M/s RSPL Health Pvt. Ltd. Vs. Jaspreet Singh Kalra Page 21 of 22 Digitally signed by DHARMENDER DHARMENDER RANA RANA Date:
2026.02.17 15:25:20 +0530 licensed royalty. Yet, clearly, the damages have to be assessed."'
16. As it is apparent that the plaintiff's trade mark/ trade name/ label is well known and is therefore, required to be protected and hence, considering that the nature of counterfeit goods would have adversely impacted the business and reputation of the plaintiff, a nominal compensatory and punitive damage @Rs.25,000/- is fixed to be paid by defendant Jaspreet Singh Kalra to the plaintiff.
RELIEF
17. As a cumulative effect, the suit of the plaintiff is decreed and it is hereby directed that:
i) The defendant Jaspreet Singh Kalra and anybody claiming under him is permanently injuncted restraining the defendant, also through its individual proprietors, partners, directors, agents.
representatives, distributors, assigns, stockiest(s) and all others acting for and on behalf of the defendant from using, manufacturing, selling, soliciting, exporting, displaying, advertising or by any other mode or manner dealing with or carrying on its impugned goods and business of manufacturing, sale and marketing of garments and other life style products and allied and cognate goods thereto under the impugned XPERT trademark/labels viz. or any other trademark/label identical with TM NO. 109/21 M/s RSPL Health Pvt. Ltd. Vs. Jaspreet Singh Kalra Page 22 of 22 Digitally signed by DHARMENDER DHARMENDER RANA RANA Date:
2026.02.17 15:25:26 +0530 or deceptively similar to the plaintiff's said XPERT trademark/labels or from doing any other acts amounting to or likely to cause:
ii) Defendant is further directed not to infringe plaintiff's aforesaid registered trademark XPERT, passing off his goods & business as those of the plaintiff in violation of the common law rights of the Plaintiff in the said XPERT trademark/labels trade name, Domain name as well as artistic work thereof and not to infringe the plaintiff's Copyright involved in artistic work of the said XPERT trademark/labels of Plaintiff.
iii) Defendant is further directed not to dispose off or deal with his assets and its stocks-in-trade or any other assets, bearing the impugned trademark XPERT.
iv) Defendant is further directed for delivery up of all the impugned finished and unfinished goods and incriminating materials bearing the impugned and violative trademark/labels or any other deceptively similar trademark/labels to plaintiff's said trademark/labels including its blocks, labels, display boards, sign boards, trade literature etc to the plaintiff for the purposes of destruction and erasure.
v) Defendant Jaspreet Singh Kalra is further directed to pay a sum of Rs.25,000/- as damages to the plaintiff.TM NO. 109/21 M/s RSPL Health Pvt. Ltd. Vs. Jaspreet Singh Kalra Page 23 of 22
18. In view of the above discussions, the suit is decreed alongwith costs.
19. Decree sheet be prepared, accordingly.
20. File be consigned to record room after necessary compliance. Digitally signed by DHARMENDER DHARMENDER RANA RANA Date:
2026.02.17 15:25:31 +0530 Pronounced in open Court on 17.02.2025 (Dharmender Rana) District Judge-01, New Delhi District, Patiala House Courts, New Delhi TM NO. 109/21 M/s RSPL Health Pvt. Ltd. Vs. Jaspreet Singh Kalra Page 24 of 22