Delhi District Court
Vijayant Soni Prop Of Shri Banke Bihari ... vs Sanjay Soni on 16 January, 2026
IN THE COURT OF SANJEEV KUMAR MALHOTRA
DISTRICT JUDGE (COMMERCIAL COURT)-08
CENTRAL: TIS HAZARI COURTS: DELHI
CS (Comm.) 856/2024
CNR No.DLCT01-012054-2024
Sh. Vijayant Soni
Prop. Shri Banke Bihari Samose Wale
S/o Late Sh. Balraj Soni
3178, Mushtaq Rai Khanna Marg,
Ratan Lal Market, Chuna Mandi,
Paharganj, Delhi-110055. ....Plaintiff
Vs
Sanjay Soni
S/o Sh. Ashok Kumar Soni
3179, Mushtaq Rai Khanna Marg,
Ratan Lal Market, Chuna Mandi,
Paharganj, Delhi-110055.
Also at:-
3176-77, Mushtaq Rai Khanna Marg,
Ratan Lal Market, Chuna Mandi,
Paharganj, Delhi-110055. ....Defendant
Date of Institution : 05.08.2024
Date of Arguments : 16.01.2026
Date of Judgment : 16.01.2026
JUDGMENT
1. This is a commercial suit under Section 134 & 135 of Trademarks Act, 1999 for permanent injunction, restraining passing off, delivery up, damages, rendition of accounts etc.
2. In brief, facts of the case as made out in the amended plaint are that the plaintiff is the proprietor of SHRI BANKE BIHARI SAMOSE WALE and running his business from the abovesaid address. It is stated that Late Shri Balraj Soni, father of plaintiff was the registered CS (Comm) 856/24 Vijayant Soni vs. Sanjay Soni Page 1 of 21 proprietor and owner of trademark 'SHRI BANKE BIHARI SAMOSE WALE' bearing the trademark no.3985089 under Class 43,dated 27.10.2018, which was being actively used for selling of food and drinks. The plaintiff Vijayant Soni became the registered proprietor and owner of said trademark on 10.02.2024 by virtue of assignment being the legal heir and legal representative of late Sh. Balraj Soni and necessary changes were also duly made with the Trademark Registry in relation to use the said trademark by the plaintiff.
3. It is case of the plaintiff that the defendant is engaged in the same goods and business of selling food items as that of the plaintiff and adopted and started using the marks which are identical/deceptively similar to the plaintiff's trademark. It is averred that the defendant is not the proprietor of the impugned mark and also not having the registration with regard to the impugned mark. It is stated that the defendant is selling, displaying, advertising, promoting, offering for sale, soliciting, enquiring, distributing and trading the goods under the impugned trademark in an area which is in close vicinity of the business premises of plaintiff, which creates confusion amongst the customers believing them that all the business premises are one.
4. It is further case of the plaintiff that the defendant is using the impugned mark to increase its sales via online delivery platforms namely Zomato and Swiggy and also promoted it online on social media platforms namely CS (Comm) 856/24 Vijayant Soni vs. Sanjay Soni Page 2 of 21 Facebook and Instagram. It is stated that plaintiff made verbal requests to the defendant to cease and desist from using the impugned mark as well as also sent a legal notice on 28.02.2024 but inspite of same, the defendant continued their act of adoption and use of impugned trademark.
5. It is averred that the act of defendant is causing huge losses to the plaintiff both in the business and in reputation, which is incapable of being assessed in monetary terms. It is stated that the defendant is liable to pay damages to the plaintiff to the tune of Rs.3,00,000/-, even though the plaintiff is entitled to much more. Hence, the present suit.
6. Defendant contested the present suit by filing detailed written statement while taking preliminary objections that the defendant has not committed any acts of infringement of plaintiff's trademark; that the plaintiff does have any proprietary right over the mark 'SHRI BANKE BIHARI SAMOSE WALE' and he never used the said mark independently as it belongs to a family business of late Sh. Nihal Chand Soni and hence, it is a hereditary mark.
6.1. It is submitted that the defendant is the cousin of plaintiff and their grandfather namely late Sh. Nihal Chand Soni had started a confectionery shop for selling food and drinks in the name of M/s Soni Sweets in the year 1960 at shop no.3179, Paharganj, New Delhi. It is further submitted that as the said shop was adjacent to Shri Bankey Bihari Vidya Mandir (School) and is nearby to Shri Bankey Bihari Temple, it become famous and renowned by the name of CS (Comm) 856/24 Vijayant Soni vs. Sanjay Soni Page 3 of 21 Shri Bankey Bihari Samose Wale and thereafter, late Sh. Nihal Chand Soni adopted the said name and changed his shop name from M/s Soni Sweets to Shri Bankey Bihari Samose Wale. Sh. Nihal Chand Soni died in the year 1972 and left behind four sons namely Late Sh. Ashok Soni, Late Sh. Balraj Soni, Shri Vishwa Mittar Soni and Late Sh. Raj Kumar Soni. It is stated that after the death of Nihal Chand Soni, his eldest son Late Sh. Ashok Soni stepped into the shoes of his father's business and started doing the same from the said shop and after some time, the other two sons namely Sh. Balraj Soni and Sh. Vishwa Mittar Soni also joined the said family business under the guidance of Mr. Ashok Soni.
6.2. It is submitted after the death of Ashok Soni in the year 2008, his two sons namely Sanjay Soni (defendant herein) and Sh. Vijay Soni stepped into the shoes of their father and joined the family business, whereas his third son namely Ajay Soni is doing some other business. Thereafter, in the year 2009, a dispute was raised by Late Sh. Balraj Soni and Sh. Vishwa Mittar Soni with the sons of Late Sh. Ashok Soni qua the said family business and it was amicably and orally settled between them that each party out of the three will run and manage the said family business at shop no. 3177, 3178 & 3179 for 10 days in every month under the same mark. It is stated that Mr. Balraj Soni died on 03.02.2020 and after his death, his both sons namely Sh. Jagat Soni and Sh. Vijayant Soni (plaintiff herein) had joined the said family business. It is further submitted that the said family business under the name CS (Comm) 856/24 Vijayant Soni vs. Sanjay Soni Page 4 of 21 "Shri Banke Bihari Samose Wale" kept flourishing and growing till 24.04.2023 and thereafter, a dispute arose and the said family business was separated in two parts under the said mark.
6.3. It is submitted that thereafter, Sh. Vijayant Soni (plaintiff herein), his brother Mr. Jagat Soni and his uncle Mr. Vishwa Mittar Soni in connivance with each other to capture the said business, illegally planned to eject the defendant and his younger brother out of the said family business and they started doing the said business from shop no.3178 whereas the defendant and his younger brother as well as his son namely Subhash Soni continued the said family business under the mark "Shri Banke Bihari Samose Wale" from shop no.3179 (old shop), 3177 and 3176 after finishing renovation work. It is stated that the shop bearing no.3179 was under 75%-25 % share of Late Sh. Ashok Soni and Sh. Vishwa Mittar Soni and after the dispute/separation, Vishwa Mittar Soni sold out his 25% share of the said shop no.3179.
6.4. It is submitted that the defendant being one of the partner in the said family business, got the food license in the name of his son Sh. Shubash Soni in the brand name "Shri Bankey Bihari Samose Wale". Further, the defendant also got the Health Trade License in his name. It is further submitted that since the trademark is a tool to prevent the business from its competitors, therefore when such situation arises where family members are separated and each member claims to be the lawful owner of the trademark, CS (Comm) 856/24 Vijayant Soni vs. Sanjay Soni Page 5 of 21 then all the family members of the owner of trademark possess lawful right to use the inherited trademark; the plaintiff has not approached the court with clean hands and deliberately misrepresented and manipulated the entire facts.
7. On merits, the contents of plaint have been denied as wrong. It is submitted that the trademark "Shri Banke Bihari Samose Wale" is a hereditary trademark and all the legal heirs of late Sh. Nihal Chand Soni are the owners and have parallel and equal right over the said family trademark and the defendant is the prior user and proprietor of "Shri Banke Bihari Samose Wale" and running his business at shop no.3179, 3177 & 3176,Sangtrashan, Paharganj, New Delhi. It is further submitted that neither the plaintiff nor his father is the registered owner of the said trademark. Further, the defendant had applied for the registration of said trade mark vide trademark application no.6287623 for registration of trademark "Shri Banke Bihari Samose Wale". It is submitted that with the passage of time, grandfather of the defendant namely Late Sh. Nihal Chand Soni had expanded the said business in shop no.3177 and 3178 as well, which were used as subsidiary shop to the main shop bearing no.3179. It is thus submitted that the suit of plaintiff is liable to be dismissed with exemplary costs.
8. Replication to the written statements of defendant was filed on behalf of plaintiff, wherein plaintiff denied the facts as mentioned in written statement while re-affirming the averments as pleaded in the plaint.
CS (Comm) 856/24 Vijayant Soni vs. Sanjay Soni Page 6 of 219. From the pleadings of the parties, following issues were framed by Ld. Predecessor vide order dated 20.12.2024:-
1. Whether the plaintiff is entitled for decree of permanent injunction as prayed for? OPP
2. Whether the plaintiff is entitled to rendition of accounts? OPP
3. Whether the plaintiff is entitled to damages as prayed ? OPP
4. Relief
10. To expedite the disposal of case, Ld. Predecessor vide order dated 20.12.2024 appointed Ms. Punam Sharma, Advocate as Local Commissioner to record the evidence of parties.
11. In support of his case, plaintiff examined himself as PW-1, who tendered his examination in chief by way of affidavit i.e. Ex.PW-1/A. PW-1 has relied upon following documents:
1. Downloaded copy of GST Registration Certificate of Plaintiff i.e. Ex.PW 1/1.
2. Certificate of Registration of Trade Mark "Shri Bnake Bihari Samose Wale" bearing trade mark no.3985089 under class 43 in the name of Sh. Balraj Soni i.e. Ex.PW1/2.
3. Death certificate of Late Sh. Balraj Soni i.e. Ex.PW1/3.
4. Online copy of the application for Post Registration changes in the Trade Mark under the CS (Comm) 856/24 Vijayant Soni vs. Sanjay Soni Page 7 of 21 trade mark Act (Form TM-P) 1999 i.e. Ex.PW1/4.
5. Photographs of the plaintiff's place of business bearing its trade mark and the defendant's place of business bearing the infringed impugned mark i.e. Ex.PW1/5.
6. Photographs/Screenshots of defendant's social media platform & google review web pages showing illegal and malafide adoption of trademark along with certificate u/s 63 BSA i.e. Ex.PW1/6 (Colly).
7. Copy of legal notice dated 27.02.2024 along with Postal receipts i.e. Ex.PW1/7 (Colly).
8. Tracking Report of the above said legal notice i.e. Ex.PW1/8.
9. The Registration Certificate under FSS Act, 2006 issued by department of Food Safety, Govt. of NCT of Delhi vide registration no. 23320005001269 issued under FSS Act, 2006 i.e. Ex.PW1/9.
10. The Health Trade License issued by MCD of Sh.
Balraj Soni vide License no. HII.CMKB0370835 dated 31.01.2019 i.e. Ex.PW1/10.
11. Online Receipts of GST payments of "Soni Sweet" paid by late Sh. Balraj Soni dated 26.08.2017 i.e. Ex.PW1/11.
12. Online Receipts of GST payments of "Soni Sweet" paid by late Sh. Balraj Soni dated 30.09.2017 i.e. Ex.PW1/12.
13. Online Receipts of GST payments of "Soni Sweet" paid by late Sh. Balraj Soni dated CS (Comm) 856/24 Vijayant Soni vs. Sanjay Soni Page 8 of 21 17.10.2017 i.e. Ex.PW1/13.
14. Copy of Sales Tax deposit of "Soni Sweets" paid by late Sh. Balraj Soni dated 12.08.2002 i.e. MarkA.
15. Copy of receipt of Challan paid for DVAT of Soni Sweets by late Sh. Balraj Soni for the period of 01.10.2008 to 31.12.2008 i.e. Mark-B.
16. Copy of receipt of Challan paid for DVAT of Soni Sweets by late Sh. Balraj Soni for the period of 01.01.2009 to 31.03.2009 i.e. Mark-C.
17. Copy of receipt of Challan paid for DVAT of Soni Sweets by late Sh. Balraj Soni for the period of 01.04.2012 to 30.06.2012 i.e. Mark-D.
12. Plaintiff examined Mr. Paras Chaudhary, Inspector in CGST Department as PW-2, who proved the GST record pertaining to GST No.07BOZPS7315L1ZX of plaintiff firm as Ex.PW2/1 (colly 11 pages) and the GST record pertaining to GST No.07BMLPS0951C1Z2 as Ex.PW2/2 (colly 13 pages).
13. Plaintiff also examined Mr. Deepal Yadav, Junior Assistant in the Department of Trade and Taxes, Vyapar Bhawan, Delhi as PW-3, who proved Dealer Profile DP-1 as per the DVAT portal as Ex.PW3/1 and details of Delhi Value Added Tax as Ex.PW3/2.
14. Defendant did not lead any evidence in his defence.
15. Arguments have been advanced by Mr. Yogesh Latha, Ld. Counsel for the plaintiff and by Mr. Sajan Shankar Prasad, Ld. Counsel for the defendant. I have given CS (Comm) 856/24 Vijayant Soni vs. Sanjay Soni Page 9 of 21 my thoughtful consideration to the rival submissions made by the parties and also gone through the record as well as written submission, as filed on behalf of plaintiff. Ld. Counsel for plaintiff has relied upon following judgments :-
1. M/s Addison & Company Limited vs. M/s Addison Cable Pvt. Ltd., CS No.39/2021 decided Hon'ble High Court of Madras.
16. Ld. Counsel for defendant has relied upon following judgments:
1. S. Syed Mohideen vs. P. Sulochana Bai, (2016) 2 SCC 683;
2. Neon Laboratories Limited vs. Medical Technologies Limited and Ors., (2016) 2 SCC 672;
3. Goenka Institute of Education & Research vs. Anjani Kumar Goenka & Anr., 2009 SCC Online Del 1691;
4. Khoday Distilleries Limited vs. The Scotch Whisky Association and Ors., MANU/SC/2361/2008;
5. M/s Gupta Enterprises vs. M/s Gupta Enterprises and Anr., 1998 SCC Online Del48.
17. Ld. Counsel for defendant has filed a fresh list of judgments in support of their case:-
1. Mukesh vs. Maya, SA No.279/2013, decided by the Hon'ble High Court of Judicature at Bombay;CS (Comm) 856/24 Vijayant Soni vs. Sanjay Soni Page 10 of 21
2. Tarabhi Bhimgonda Patil and Ors. vs. Babgonda Bhau Patil and Ors., SA No.579/1971;
3. Bainsa Haridas vs. A. Baswaraj and Anr., SA No.1039/2005.
18. My issue wise findings are as under:-
Issue no.1:-
Whether the plaintiff is entitled for decree of permanent injunction as prayed for? OPP
19. Onus to prove this issue was upon the plaintiff.
PW-1 in his affidavit of evidence Ex.PW1/A deposed that his late father Sh. Balraj Soni was the registered proprietor and owner of the trademark "Shri Banke Bihari Samose Wale" under Class 43 and proved the certificate of registration of trade mark as Ex.PW1/2. PW-1 further deposed that after the death of his father, he became the registered proprietor and owner of the said trademark on 10.02.2024 by virtue of assignment being the legal representative and the necessary changes were duly made in the trademark registry and proved the copy of post registration changes as Ex.PW1/4. As per plaintiff, the defendant has dishonestly and in a malafide manner adopted the said trade mark of the plaintiff, which is causing confusion in the market and in the mind of customers. It is claimed that defendant is using the impugned mark to increase his sales via Online delivery platforms namely Zomato and Swiggy and even the google review page was altered by the defendant by adding his CS (Comm) 856/24 Vijayant Soni vs. Sanjay Soni Page 11 of 21 address and contact number in place of the plaintiff in order to mislead the customers that they are placing orders to the plaintiff while the defendant is getting the orders.
20. In his cross examination, PW-1 has admitted that his grandfather had started the business of food and drinks in the name of M/s Soni Sweets in the year 1960 from the shop bearing no. 3179, Sangtrasthan, Paharganj, New Delhi and that adjacent to the shop of plaintiff and defendant, a school in situated in the name of Banke Bihari Vidya Mandir. It is also admitted by PW-1 that Sh. Ashok Soni, Sh. Balraj Soni, Sh. Vishwa Mittar Soni had started the business from the said shop and that after the death of late Sh. Ashok Soni, his son Mr. Sanjay Soni (defendant herein) and Mr. Vijay Soni joined the family business of food and sweets and they had continued with the said business from the shop bearing no.3177, 3178 and 3179. PW-1 has admitted that as per family oral settlement, family business was distributed in manner between him, defendant and Sh. Vishwa Mittar Soni that every party will occupy the business for 10 days in a month and they will carry the profit/loss with them.
21. Sh. Paras Choudhary, Inspector, CGST Department ie. PW-2 produced the GST record pertaining to the firm of plaintiff and proved the same as Ex.PW2/1 and Ex.PW2/2.
22. Sh. Deepal Yadav, Jr. Assistant, from the office of Trade and Taxes ie.PW-3 produced the Dealer Profile DP-1 as of Soni Sweets and the details of D-VAT from CS (Comm) 856/24 Vijayant Soni vs. Sanjay Soni Page 12 of 21 01.07.2006 to 30.06.2017 and proved the same as Ex.PW3/1 & Ex.PW3/2.
Arguments:-
23. Ld. Counsel for plaintiff argued that plaintiff is the registered owner of mark "Shri Banke Bihari Samose Wale" which was got registered by the father of plaintiff in his individual capacity in the year 2018. It is submitted that the family owned/heredity mark of business is Soni Sweets which was divided between Balraj Soni, Ashok Soni and Vishwa Mittar Soni and that plaintiff has no objection if any of other family member uses the mark Soni Sweets in any manner or style.
24. Ld. Counsel for plaintiff vehemently contended that the claim of the defendant that registered mark of the plaintiff i.e. "Shri Banke Bihari Samose Wale" is a hereditary mark or acquired by the grandfather of the parties but neither the defendant has filed any document to that effect nor led any evidence. It is submitted that when it comes to the matter pertaining a trademark in dispute in family, it is important to see that a person claiming better right has actually perfected the same or not.
25. Per contra, Ld. Counsel for defendant argued that plaintiff has not disclosed in the plaint that the family business was started by late Sh. Nihal Chand Soni in the year 1960 for selling food and drinks in the name of M/s Soni Sweets and later on, late Sh. Nihal Chand Soni had adopted the said name and changed his shop name from CS (Comm) 856/24 Vijayant Soni vs. Sanjay Soni Page 13 of 21 M/s Soni Sweets to "Shri Banke Bihari Samose Wale". It is submitted that the trade name "Shri Banke Bihari Samose Wale" was adopted by Late Sh. Nihal Chand Soni as adjacent to the shop, there is a famous Banke Bihari Temple and also a Banke Bihari Vidya Mandir in the said vicinity and therefore, it was felt more convenient to adopt the name of the family business as "Shri Banke Bihari Samose Wale".
26. Ld. Counsel for defendant further argued that all the heirs of the person who first adopt a mark and put the same to use and earned goodwill and reputation shall have equal right to adopt and use the same and one member of the family cannot, without something more being shown to the contrary claim exclusive ownership of a mark. Ld. counsel for defendant argued that though the plaintiff has claimed that he is using the mark "Shri Banke Bihari Samose Wale"
since 2018 but in Ex.PW1/D-1 i.e. the board of the shop it is claimed since '1960'.
27. Ld. Counsel for defendant argued that the defendant is the restaurant partner of Zomato and Swiggy under the brand name "Shri Banke Bihari Samose Wale" since 10.01.2019 and the defendant also obtained the food license in the name of his son namely Subhash Soni for the said family business in the brand name "Shri Banke Bihari Samose Wale" and as such, defendant is entitled for defence of acquiescence. It is submitted that it is for the plaintiff to prove that he is continuous user of the registered trade mark and merely relying upon the registered trademark is not enough.CS (Comm) 856/24 Vijayant Soni vs. Sanjay Soni Page 14 of 21
Findings:-
28. It is not in dispute that both the parties are having common lineage and that grandfather of the parties namely late Sh. Nihal Chand Soni had started the business of food and drinks in the name of M/s Soni Sweets in the year 1960. The claim of the plaintiff is that though the family name of the business started by their grand father is M/s Soni Sweets but the father of the plaintiff Sh. Balraj Soni set up a separate and independent business and to carve out a separate identity, he adopted and got registered the trade name "Shri Banke Bihari Samose Wale" in the year 2018 under Class 43 of the Trademark Act.
29. It is well settled that initial burden to prove it's case is upon the plaintiff. In order to prove that the family business was being run in the name of Soni Sweets till 2018, plaintiff examined PW-3 Sh. Deepal Yadav from the office of Trade and Taxes and proved the details of VAT paid by the firm M/s Soni Sweets from 01.07.2006 till 30.06.2017 as Ex.PW3/1.There is no explanation that if grandfather of the parties adopted the name of family firm as Shri Bankey Bihari Samose Wale from Soni Sweets prior to his death in the year 1972, why the VAT was being deposited in the name of Soni Sweets till 2017. PW-1 has also proved the registration certificate issued by the Department of Food Safety in the name of "Shri Banke Bihari Samose Wale" on 13.11.2020 i.e. Ex.PW1/9 for a separate address i.e. E-166, Kamla Nagar, New Delhi, which as per plaintiff was closed from Kamla Nagar on CS (Comm) 856/24 Vijayant Soni vs. Sanjay Soni Page 15 of 21 account of Covid-19 and the said mark was used by the plaintiff from their shop situated at Paharganj, Delhi.
30. The defendant has not led any evidence to prove his defence that the grandfather of the parties Late Sh. Nihal Chand Soni, who started the business for selling food and drinks in the name of M/s Soni Sweets in the year 1960, later on adopted the name of his shop from M/s Soni Sweets to Shri Banke Bihari Samose Wale or that both the parties have common rights for the mark "Shri Banke Bihari Samose Wale" and cannot exclude each other. It is a settled law that when a material fact is within the knowledge of a party and he does not go in to the witness box without any plausible reason, an adverse inference can be drawn against him.
31. Hon'ble Supreme Court in a case titled as Vidhyadhar vs. Manikrao and Anr., (1999) 3 SCC 573 held as under :
"17. Where a party to the suit does not appear in the witness-box and states his own case on oath and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set up by him is not correct as has been held in a series of decisions passed by various High Courts and the Privy Council beginning from the decision in Sardar Gurbaksh Singh v. Gurdial Singh. This was followed by the Lahore High Court in Kirpa Singh v. Ajaipal Singh and the Bombay High Court in Martand Pandharinath Chaudhari v. Radhabai Krishnarao Deshmukh. The Madhya Pradesh High Court in Gulla Kharagjit Carpenter v. Narsing Nandkishore Rawat also followed the Privy Council decision in Sardar Gurbaksh Singh Case. The Allahabad High Court in Arjun Singh v. Virendra Nath held that if CS (Comm) 856/24 Vijayant Soni vs. Sanjay Soni Page 16 of 21 a party abstains from entering the witness-box, it would give rise to an adverse inference against him. Similarly, a Division Bench of the Punjab and Haryana High Court in Bhagwan Dass v. Bhishan Chand drew a presumption under Section 114 of the Evidence Act, 1872 against a party who did not enter the witness-box."
32. There is no dispute that prior use of a trademark constitutes a valid defense against claim based on a subsequent registered trademark but it was for the defendant to prove the prior use of trademark in question in the family business by leading evidence. Coming to the plea of acquiescence as claimed by the defendant, I do not find any delay on the part of the plaintiff in filing the suit. The legal notice dated 27.02.2024 Ex.PW1/7 to cease and desist was delivered to the defendant on 28.02.2024 as per tracking report Ex.PW1/8. There is no acquiescence in the present case as argued by Ld. Counsel for defendant.
33. Plaintiff vide application Ex.PW1/4 applied for change of his name in place of his father in the registration certificate by virtue of assignment deed dated 25.05.2022. It was argued by Ld. Counsel for defendant that though the plaintiff has claimed that they have adopted the mark since 2018 but on the picture of the board Ex.PW1/D-1, it is mentioned that since 1960. Plaintiff has also relied upon a photograph showing the place of business bearing its trademark and the defendant place of business bearing the same infringed trademark as Ex.PW1/5 which shows that both the parties have mentioned on their sign boards Est. since 1960, but it does not mean that the mark was established in 1960, rather it shows that they are in the CS (Comm) 856/24 Vijayant Soni vs. Sanjay Soni Page 17 of 21 business since 1960. A picture/image of Ex.PW1/5 is reproduced as under:-
34. Section 28 of the Trademark Act provides that subject to the other provisions of the Act, the registration of CS (Comm) 856/24 Vijayant Soni vs. Sanjay Soni Page 18 of 21 a trademark shall, if valid, give to the registered proprietor of a trademark the exclusive right to the use of the trademark in relation to the goods and services in respect of which the trademark is registered. Plaintiff has proved that he is the registered proprietor of trademark "Shri Banke Bihari Samose Wale" vide trademark certificate Ex.PW1/2. The defendant has failed to prove that the said trademark "Shri Banke Bihari Samose Wale" was a family or hereditary mark, which was in prior use by the members of the family before it was registered in the name of plaintiff. The authorities, as relied upon by Ld. Counsel for defendant are not helpful in the present facts and circumstances of the case. Ex.PW1/5 shows that both the parties are running their business in adjacent shops with the same mark and in case an injunction is not granted in favour of registered owner of mark, the plaintiff shall suffer irreparable loss and injury. Therefore, plaintiff is entitled to decree for injunction, as prayed. Accordingly, the defendant, his agent etc. are hereby restrained from using the trademark "Shri Banke Bihari Samose Wale" in any manner. This issue is decided in favour of the plaintiff and against the defendant.
Issue no.2 and 3:-
2. Whether the plaintiff is entitled to rendition of accounts? OPP
3. Whether the plaintiff is entitled to damages as prayed ? OPP
35. Issue no.2 and 3 are taken up together. Onus to prove CS (Comm) 856/24 Vijayant Soni vs. Sanjay Soni Page 19 of 21 these issues was upon the plaintiff. PW-1 in his affidavit of evidence has deposed that the losses are incapable of being assessed in monetary terms as the defendant's gains are plaintiff losses and claimed damages to the tune of Rs.3,00,000/-.
36. Hon'ble Delhi High Court in a case titled as Koninlijke Philips and Ors. v. Amazestore and Ors., 2019:DHC:2185, laid down certain standards for grant of damages in the following terms:
"39. Accordingly, the question which was left open in Rookes (supra) was closed in Cassell (supra) as regards the manner in which aggravated or punitive damages are to be awarded.
40. Consequently, though in assessing the aggravated damages which the Defendants should pay, the total figure awarded should be in substitution for and not in addition to the smaller figure, yet the rounded total sum shall have to be calculated by adding an additional amount to the compensatory damages.
41. Keeping in view the aforesaid, this Court is of the view that the rule of thumb that should be followed while granting damages can be summarised in a chart as under:-
# Degree of mala fide Conduct Proportionate award
(i) First-time innocent infringer Injunction
(ii) First-time knowing infringer Injunction +Partial costs
(iii) Repeated knowing infringer Injunction+Costs which causes minor impact +Partial damages to the plaintiff
(iv) Repeated knowing infringer Injunction+Costs+ which causes major impact Compensatory to the plaintiff damages.CS (Comm) 856/24 Vijayant Soni vs. Sanjay Soni Page 20 of 21
(v) Infringement which was Injunction+Costs+ deliberate and calculated Aggravated damages (Gangster/scam/mafia)+ (Compensatory wilful contempt of court. +additional damages)
42. It is clarified that the above chart is illustrative and is not to be read as a statutory provision. The Courts are free to deviate from the same for good reason."
37. There is no evidence that the defendant is a repeated knowing infringer. The defendant falls within the category of First-time knowing infringer and therefore, plaintiff is entitled for a decree of injunction and costs. Thus, it is held that plaintiff is entitled for costs of the suit from the defendant. Accordingly, these issues are decided in favour of the plaintiff and against the defendant. Relief:-
38. In view of my findings on aforementioned issues, a decree of injunction is passed in favour of the plaintiff and against the defendant thereby restraining the defendant, its agent etc. from using the trademark "Shri Banke Bihari Samose Wale" in any manner. Costs of the suit are also awarded in favour of the plaintiff and against the defendant. Decree sheet be prepared accordingly.
Digitally
File be consigned to Record Room. signed by
SANJEEV
SANJEEV KUMAR
KUMAR MALHOTRA
MALHOTRA Date:
2026.01.16
15:07:21
+0530
Announced in the open court
on 16th January, 2026 (Sanjeev Kumar Malhotra)
District Judge (Commercial Court)-08
Central District
Tis Hazari Courts, Delhi
CS (Comm) 856/24 Vijayant Soni vs. Sanjay Soni Page 21 of 21