Delhi District Court
M/S S K Educations Pvt Ltd vs M/S Kinder School Uniform on 23 December, 2025
CNR No. DLCT010077622022
IN THE COURT OF SHRI DEVENDRA KUMAR SHARMA:
DISTRICT JUDGE (COMMERCIAL COURT)- 03: CENTRAL
TIS HAZARI COURT (EXTENSION BLOCK) : DELHI.
CS (COMM) No. 1249/2022
In the matter of :-
M/s S.K. Educations Pvt. Ltd.
Through its Authorized Representative,
Mr. Dinesh Kumar,
At: 9988 B-1, Sarai Rohilla,
New Rohtak Road, New Delhi-110005 ......Plaintiff
Versus
M/s Kinder School Uniform
Through Mr. Vinay Kapoor & Dr. Monika Kapoor
At: 156, Sector-09, Awas Vikas Colony,
Sikander, Agra, Uttar Pradesh-282007
Email: [email protected],
[email protected]
Mob.: +91 9027211666, +91 9027711666
Also at:
S.No.-649 (M.L.G) Sector-7,
Near Shivalic Cambrige College,
Sikandra, Agra, Uttar Pradesh-282007
Mob.+91 8630310213 ......Defendant
Date of Institution : 13.05.2022
Date on which Judgment reserved : 20.12.2025
Date on which judgment pronounced : 23.12.2025
CS (COMM) No.1249/2022 Pg. 1 / 43
Devendra Digitally signed
by Devendra
Kumar Kumar Sharma
Date: 2025.12.23
Sharma 15:25:59 +0530
SUIT FOR PERMANENT INJUNCTION AND
MANDATORY INJUNCTION, INFRINGEMENT AND
PASSING OFF OF TRADEMARKS AND COPYRIGHT,
RECOVERY AND DAMAGES.
JUDGMENT
1. Vide this judgment I shall dispose of the suit for Permanent Injunction and Mandatory Injunction, Infringement and Passing Off of Trademarks and Copyright, Recovery and Damages filed by plaintiff against the defendant.
2. Initially the plaintiff had also impleaded 'Panchsheel Eyelet Kaaj Botten Centre, Through Mr. Vinay Kapoor, Sector-03, Avas Vikas, Bodla, Agra, Uttar Pradesh-282007" as defendant no.2 in the present suit. However, vide order dated 17.04.2023, the plaintiff has dropped the said defendant from the array of parties.
(A) Facts of the Parties:-
3. Succinctly stated facts of the case as set out in the plaint are that the Plaintiff, M/s S.K. Educations Pvt. Ltd., is a Company incorporated under the provisions of the Companies Act, 1956, having its registered office at 9988/B-1, Sarai Rohilla, New Rohtak Road, New Delhi-110005 and is engaged in the field of providing education-related services through the establishment, operation, management and franchising of schools and playschools under the names, styles and device of inter alia "BACHPAN" and "BACHPAN PLAY SCHOOL" and "ACADEMIC HEIGHTS", "ACADEMIC HEIGHTS PUBLIC SCHOOL". The present suit has been filed through Mr. Dinesh CS (COMM) No.1249/2022 Pg. 2 / 43 Digitally signed Devendra by Devendra Kumar Sharma Kumar Date:
Sharma 2025.12.23 15:26:08 +0530 Kumar, who has been duly authorized to file, sign, verify, and institute the present suit and take all legal steps on behalf of Plaintiff vide Board Resolution dated 22.05.2012.
4. It has been further averred that the plaintiff is sole and registered proprietor and owner of marks under various classes of Trademarks Act, 1999 and Copyright Act, 1957 and that the plaintiff has been using its marks and brands continuously and bonafidely since last about 20 years to provide educational services throughout India. It has been further averred that over the years, plaintiff has amassed and built valuable goodwill, name, reputation and services in relation to said marks and is operating more than 883 schools and franchise schools throughout India under its marks. It has been further averred that the unique concept, brand and models of schools and franchise schools, operating under the aegis and brand of plaintiff, are stated to have adopted unique methodology and curriculum developed and created by plaintiff for imparting education to children of all ages so that they may develop and fulfill their educational and all around creative growth.
5. The plaintiff has given details of its marks as registered/applied for by it, with Registrar of Trademarks, in various class in para 9 of the plaint. Further the details of plaintiff's marks registered/applied for, with Registrar of Copyright, are given in para 10 of the plaint.
6. It has been further averred that plaintiff has aggressively protected and enforced its right in its marks and has protected them by filing oppositions, civil suits and issuance of CS (COMM) No.1249/2022 Pg. 3 / 43 Digitally signed Devendra by Devendra Kumar Sharma Kumar Date:
Sharma 2025.12.23 15:26:16 +0530 legal notices/cease and desist notices against misuse of its marks by third parties. It has been further averred that since the year 2003, the plaintiff has made tremendous effort and spent considerable time and money promoting its marks and creating goodwill and reputation in said marks and that the information regarding plaintiff's marks has been regularly and extensively published through advertisements in national and regional newspapers, other print media, electronic and digital media including television and radio. It has been claimed that the goodwill, name and reputation of the plaintiff's school is apparent from the overwhelming reach and the volume of the plaintiff's marks and trade names available on internet. It has been further averred that the plaintiff also has registered domain name in relation to its marks including "bachpanglobal.com"
which is held by plaintiff till date and that the plaintiff has a huge following and has accounts of social media platforms such as Linkedin, Twitter, Facebook, Instagram and YouTube which extensively promote the use of plaintiff's marks.
7. It has been further averred that plaintiff has spent large amounts towards publishing and advertising its marks. The year wise tabulated details of money spent by plaintiff in advertising its brands from the year 2014-15 to 2020-21 has been given in para 15 of the plaint. It has been further averred that in light of substantial time, resources and money spent by plaintiff in publishing and advertising its marks and other trademarks and promoting its products and services, plaintiff has generated significant goodwill and reputation for its trademarks and consequently its services. It has been claimed that plaintiff's CS (COMM) No.1249/2022 Pg. 4 / 43 Digitally signed Devendra by Devendra Kumar Sharma Kumar Date:
Sharma 2025.12.23 15:26:25 +0530 marks are inherently distinctive, widely popular and have acquired substantial goodwill and reputation. It has been further averred that the use of words 'BACHPAN' or 'ACADEMIC HEIGHTS' attracts the immediate attention of viewers, customers and the public and the services rendered by it are related to public at large.
8. It has been further averred that the defendant no.1 is a business entity operating under the name and style of M/s Kinder School Uniform, jointly and severally managed/owned/operated by Dr. Monika Kapoor and Mr. Vinay Kapoor, to carry out business as supplier/seller/wholesaler of school uniforms and merchandise and is stated to be supplying uniform and other school related merchandise to schools and private individuals in and around the city of Agra. It has been further averred that it has come to plaintiff's knowledge that defendant no.1 has been providing services by impersonating and posing as plaintiff. It has been alleged that the defendant no.1 has been passing off the plaintiff's brand and infringing plaintiff's intellectual property with an intention to cheat and deceive consumers and to deprive the plaintiff of its rights and profits. It has been further averred that the defendant no.1 is also manufacturing, distributing and selling school uniforms and other school related merchandise by using the registered marks "BACHPAN", "BACHPAN PLAY SCHOOL" and "ACADEMIC HEIGHTS", "ACADEMIC HEIGHTS PUBLIC SCHOOL" of the plaintiff.
9. It is further alleged that defendant no.1 has been approaching the franchise(s) of plaintiff in the city of Agra, U.P. CS (COMM) No.1249/2022 Pg. 5 / 43 Digitally signed Devendra by Devendra Kumar Sharma Kumar Date:
Sharma 2025.12.23 15:26:34 +0530 and Delhi and many other cities in an attempt to sell school uniforms and merchandise using the marks of plaintiff despite the plaintiff being the sole proprietor of said marks and having the sole right to supply the same and in this manner, the defendant no.1 is infringing plaintiff's intellectual property and are engaging in fraudulent illegal malpractice design to scam people of their hard earned money. It has been further stated that the plaintiff has no relationship whatsoever with defendant no.1 and has not authorized, appointed or otherwise permitted defendant no.1 to use any intellectual property or brand of plaintiff. Apprehending that some of the items/dresses missing or stolen from plaintiff's warehouse were at the instance of defendant no.1, the plaintiff, through its AR, filed a complaint at concerned Police Station. It has been further averred that the uniform and the material being used by defendant are so homogeneous and indistinguishable that it is clear that defendant no.1 has committed theft at corporate office where the material was lying.
10. It has been further averred that adoption of plaintiff's mark by defendant no.1 is dishonest and the defendant no.1 was aware that plaintiff was prior user of marks and had been using them since 2002 yet adopted the same recently to take advantage of goodwill and reputation generated by plaintiff for its marks through its products and services. It has been further averred that the defendant no.1's adoption and use of impugned mark is highly likely to cause confusion amongst the members of trade, consumers and the public at large who would be deceived by the products of defendant no.1 as original goods offered under these marks by the plaintiff for same business. It has been further CS (COMM) No.1249/2022 Pg. 6 / 43 Digitally signed Devendra by Devendra Kumar Sharma Kumar Date:
2025.12.23 Sharma 15:26:43 +0530 averred that the defendant no.1, in its effort, came as close as to the plaintiff's mark so that public at large will assume that (a) that there is connection, affiliation/association between the defendant's marks and marks of the plaintiff; (b) that defendant no.1 has been granted permission/license from plaintiff to carry out the same business under the impugned marks; and (c) the plaintiff has started additional services under a separate company.
11. It has been further averred that by its act, the defendant no.1 is not only causing grave and irreparable harm to plaintiff's brand but is also diluting the exclusivity of plaintiff's marks. It has been further averred that since plaintiff's marks have become well known within meaning of Section 2(1)(zg), 11(6) and 11(7) of the Trade Marks Act, 1999 (hereinafter to be referred as Act), they deserve highest degree of protection under the Act and being the prior user and being in use for more than two decades, plaintiff's mark has acquired distinctive features in respect of services of plaintiff by continued and extensive use of marks. It has been further averred that the defendant no.1 has been using plaintiff's brand and marks to provide services with malafide intention to piggyback on the plaintiff's hard earned goodwill and reputation and that by infringing marks of plaintiff, defendant no.1 has not only caused monetary loss to plaintiff but has also diluted, exploited and tarnished the hard earned reputation and goodwill built by plaintiff over the course of two decades. It has been further averred that the defendant no.1 has thus, made illicit illegal gains by manufacture, sale, distribution and otherwise user of school uniforms and other merchandise by putting plaintiff's marks. Thus, aggrieved by the act of the CS (COMM) No.1249/2022 Pg. 7 / 43 Digitally signed Devendra by Devendra Kumar Sharma Kumar Date:
Sharma 2025.12.23 15:26:49 +0530 defendant, the plaintiff has filed the instant suit seeking reliefs of permanent and mandatory injunction restraining the defendant from infringement of plaintiff's registered trade mark, passing off, delivery up, damages to the tune of Rs.8 lakhs, rendition of accounts and costs.
12. The defendant has contested the suit by filing a detailed written statement. By way of preliminary objections, the defendant has challenged the maintainability of the suit filed by plaintiff on the ground that no date, day, time, month or year of alleged infringement has been given by the plaintiff in the plaint and that there is only a vague statement regarding "selling of impugned marks, uniform and other related material" without any documentary proof thereof. The fact that plaintiff has invoked jurisdiction of Court at Delhi to file its suit has also been challenged on the ground that no cause of action and/or part of cause of action has arisen in Delhi. It has been further alleged that plaintiff had filed an application U/o XXXIX Rule 1&2 CPC merely to bypass the mandatory provision of Section 12A of Commercial Courts Act and later plaintiff withdrew the said application and hence, the suit is liable to be rejected. It has been further alleged that the suit is liable to dismissed for misjoinder of parties since the defendant no.1 is neither a necessary nor a proper party to the present dispute in any manner and that there has been no infringement by the defendant no.1 and the defendant no.1 has acted solely on the instructions received by them.
13. It has been further averred that defendant no.1 carries on service based business and is not in a goods related CS (COMM) No.1249/2022 Pg. 8 / 43 Digitally signed Devendra by Devendra Kumar Sharma Kumar Date:
Sharma 2025.12.23 15:26:55 +0530 business and that it is engaged in business of tailoring school uniforms and other textiles/garments wherein order are placed by sellers, companies, corporates and organizations for tailoring and supply of garments and on work order basis. It has been further averred that the defendant no.1 is neither seller nor manufacture of school uniform for customers and there is no direct customer sales or sale to any school administration, of any kind of school uniform, by the defendant no.1. It has been further averred that it is the authorized representatives of concerned organization who place work orders and generalize the transactions and that the defendant no.1 has not indulged in infringing copyright or trademark or any other intellectual property of plaintiff since the orders were placed by individuals who claimed to be associated with plaintiff/their authorized agents and provided samples of uniform for designing to defendant no.1. It has been further averred that the defendant no.1 even received remuneration from official bank account of Bachpan Playschool and other organizations of plaintiff and that the defendant no.1, who acted as per directions of the plaintiff/their authorized agents cannot be said to be indulging in any infringing act.
14. On merits, each and every averments made in the plaint has been controverted. It is reiterated that defendant no.1 only carries out tailoring orders received from various sellers as defendant no.1 is famous in city for tailoring the uniforms with good finishing and in cost effective manner. Small schools from distant places and the uniform sellers contact defendant no.1 to make the uniforms. It has been denied that defendant no.1 approached franchise of plaintiff in city of Agra, U.P., Delhi and CS (COMM) No.1249/2022 Pg. 9 / 43 Digitally signed Devendra by Devendra Kumar Sharma Kumar Date:
Sharma 2025.12.23 15:27:03 +0530 other cities in an attempt to sell and distributes school uniforms and merchandise using the marks of the plaintiff. It has been further averred that the orders were placed with defendant by individuals who claimed to belong to the plaintiff/their authorized agents. It has been further averred that the firm majorly carries out the tailoring orders of uniform given by various sellers and after completion of the orders, the Defendant No.1 delivers it to the concerned sellers who have given them the money to carry out the job of tailoring the school uniforms. It has been further averred that the dealings between the Plaintiff and its franchises are inter se between the two and the answering Defendant No. 1 has no role or relation thereto. It has been further averred that the Plaintiff has failed to demonstrate any misrepresentation by the Defendant no. 1 to the public leading or likely to lead the public to believe that goods offered by the Defendant No.1 are goods of the Plaintiff. It has been further averred that Defendant No.1 have no clue about the warehouse address of the Plaintiff as the Defendant No.1 have neither visited the office nor the Plaintiff's warehouse ever, hence the question of stealing the dress/items doesn't even arise. It has been further averred that although the Plaintiff had made a complaint to the concerned police station, they have failed to place any such document on record. It has been further averred that defendant no.1 is not using the marks of the plaintiff in any manner whatsoever hence, the question of prior user or infringement does not even arise. It has been denied that the Defendant No. 1 has caused monetary loss or diluted, exploited and tarnished the hard earned reputation of the Plaintiff in any manner. It is reiterated that Plaintiff is not entitled for any relief as prayed for against the CS (COMM) No.1249/2022 Pg. 10 / 43 Digitally signed Devendra by Devendra Kumar Sharma Kumar Date:
Sharma 2025.12.23 15:27:11 +0530 answering Defendant No. 1 in any manner and thus, it is prayed that suit is liable to be dismissed.
15. The plaintiff filed the replication reiterating the averments made in the plaint and denying the contrary averments made in the written statement. It has been alleged that the Defendant No.1 (Vinay Kapoor) has cleverly opted to not file a separate reply or put his signatures on the written statement and/or the affidavit in order to attempt to evade the legal proceedings. It has been further denied that plaintiff does not have any cause of action against the defendant. It has been stated that the cause of action firstly arose in 2022 when the plaintiff received the information regarding manufacturing/selling the school uniform using plaintiff's registered mark and thereafter the plaintiff through its AR/complainant visited the premises of the defendant and found that his trademark was being infringed. It has been further averred that the cause of action continued as the defendant kept on infringing plaintiff's registered trademark and thereafter, an FIR bearing no.519/2022 was also registered against the defendant which clearly points out the fact that the defendants were still infringing the plaintiff's mark even after filing of the suit. It has been further averred that the audio recording annexed as Annexure A3 verifies that the defendant no.1 continued the process of infringement even after being arrested for around 14 days. It has been further averred that the defendant no.1 has admitted at the 01:48th minute wherein he states as under:-
"mere aise taise kyun hogi. Mera kaam to chal rha tha mai jail me tha use kya matlab hai...kaam koi bund nahi tha par mai thoda sa CS (COMM) No.1249/2022 Pg. 11 / 43 Digitally signed Devendra by Devendra Kumar Sharma Kumar Date:
Sharma 2025.12.23 15:27:18 +0530 update kar dunga kaam me"
16. It has been further averred that Defendant No. 1 having no fear of law states at 26:13 in the Annexure 29, Last time tak yehe kaam karunge (bachpan) ka jab tak mai zinda hun".
17. It has been further averred that the present suit falls within the jurisdiction of this Court u/s 134 of the Trademarks Act, 1999 as well as Section 62(2) of the Copyrights Act and that the Trademark and Copyright being special Acts, will have prevalence over Code of Civil Procedure, 1908 which is a general Act. It has been further averred that defendant no.1 is continuously engaged in violating the registered mark of the plaintiff even after being held in jail for 15 days as evident from Annexure 3A annexed along with additional documents. That due to excessive loss of goodwill, reputation as well as monetary and considering the urgency in the matter, the plaintiff directly approached this court to seek remedy in the interest of justice and that only after apprising the court with the progress & institution of criminal proceedings, FIR, raid, arrest of the Defendant No.1 (Vinay Kapoor), the plaintiff chose not to press upon the interim application under Order XXXIX Rule 1 & 2. It has been further averred that on recovery of additional evidence duly submitted and taken on record by this court vide order dated 14.02.2022, fresh application for Temporary Injunction had been filed by the plaintiff. It has been denied that Defendant No. 1 is neither a necessary or proper party and it has been averred that infringing materials were recovered from M/s Kinder School Uniform which is owned and managed by Defendant No.1; that the CS (COMM) No.1249/2022 Pg. 12 / 43 Digitally signed Devendra by Devendra Kumar Sharma Kumar Date:
Sharma 2025.12.23 15:27:24 +0530 Defendant No.1 has admitted in written statement that Monika Kapoor is the proprietor of M/s Kinder School Uniform which even otherwise makes her vicariously liable under Section 114 of the Trademarks Act, 1999 as well as Section 69 of the Copyright Act, 1957 for all the infringing activities being undertaken therein; that the Defendant No. 1 in their written statement has admitted that Vinay Kapoor is the husband of Monika Kapoor who assists her in the conduct and functioning of the business. It has been further averred that even the account statement annexed by the Defendant No. 1 along with the written statement proves that though the account is in the name of Monika Kapoor, all the transactions are being made by/in the name of Vinay Kapoor. It has been further averred that the video and audio proof annexed by the plaintiff as Annexure 29 & 3A respectively clearly shows the misconduct and ill-intention of Defendant No.1 meaning thereby that both Monika Kapoor and Vinay Kapoor have jointly colluded and engaged in violating plaintiff's registered mark; that since common question of law and fact arises between plaintiff and both Vinay and Monika Kapoor, they are necessary party to the present suit.
18. It is reiterated that the defendant no.1 malafidely manufactures (tailors), supplies (sells) & is wholeselling the plaintiff's mark (Bachpan) engrossed in the goods to schools and private individuals. It has been further submitted that the AR of the plaintiff was sent to conduct a sting operation after knowing about the infringement being carried out by the defendant no. 1 and that there the AR posed as owner of a school requiring school uniform and it was acknowledged by the Defendant No.1 CS (COMM) No.1249/2022 Pg. 13 / 43 Digitally signed Devendra by Devendra Kumar Sharma Kumar Date:
Sharma 2025.12.23 15:27:32 +0530 in the Annexure 29 at 15:24th minute that "banata to sab hun par bachpan ka 99% kaam hai". Further from the conversation at 30:47th minute in Annexure 29 it is clear that he had the uniforms available in different sizes and gave them on counter as sample. To quote, "haan nikal di, tum (Monika Kapoor) idhar aa rhi ho ya mai he aoun...ye do pieces to apne dekh liye, L both boy and girl ke. Iske alawa jo size honge le aounga"
19. It has been further averred that the AR of the plaintiff had posed as the owner of the school and the uniform was provided to him on counter by the defendant no.1 and therefore, the statement that defendant no. 1 never gets in direct contact with the school administrators but only through the authorised representatives is false and is made to mislead the Hon'ble Court. It has been further averred that defying all the conditions of his bail, the Defendant No. 1 continued to talk & crack deals relating to the material infringing the registered trademark and copyright of the plaintiff by contacting its franchisees, one of them namely Abhishek Rai, is placed on record.
20. It has been further averred that the defendant no. 1 had the knowledge of the fact that the task of manufacturing (tailoring) carried on by him is illegal but he still continued with the unauthorized task with an intent to ride upon the revenue/profits of the plaintiff's trademark and copyright and the video recording annexed at Annexure 29 at the 04:39th minute and the audio recorded by one of the franchisee of the plaintiff which is annexed as Annexure 3A at the 02:30th and 05.00 CS (COMM) No.1249/2022 Pg. 14 / 43 Digitally signed Devendra by Devendra Kumar Sharma Kumar Date:
Sharma 2025.12.23 15:27:39 +0530 minutes have been referred to.
21. It has been denied that the defendant no. 1 has received remuneration from the official bank account of Bachpan Play School or that from the series of transactions Defendant No.1 had no reasons of doubting the individuals claiming to belong to the plaintiff/their authorised agents. It has been submitted that in its reply the Defendant No. 1 has failed to provide any detailed evidence of the alleged "Bachpan Play School" that approached them. It has been further averred that the Defendant No. 1 has not provided any receipt of orders placed before them which is in violation of Order XI Rule 7 of the Commercial Courts Act, 2015; that the Defendant No. 1 has failed to provide any proof of verifying the genuineness of the organisation that approached them. It has been further submitted that the alleged "Bachpan Play School" transactions have been made from a school account in Chennai whereas the plaintiff does not have any franchisee school for past around 2 years in Chennai.
22. It has been further averred that the recording annexed as Annexure 29 & 3A clearly shows that the defendant had the knowledge of plaintiff's registered trademark and copyright and despite that they engaged in infringing acts and are still continuously infringing the plaintiff's registered trademark and copyright, making him liable for infringement.
23. It is denied that the defendant no. 1 has received remuneration for the work undertaken for Bachpan Play School or that a work contract cannot be termed as an infringement in CS (COMM) No.1249/2022 Pg. 15 / 43 Digitally signed Devendra by Devendra Kumar Sharma Kumar Date:
Sharma 2025.12.23 15:27:47 +0530 any manner. It has been further averred that for a person to be liable for infringement under trademarks and copyright Act, it is immaterial as to the method in which the unauthorized and illegal work was undertaken and that it is of no consequence whether the task was undertaken in pursuance of work contract or not. It has been further averred that the fact that the Defendant No.1 admittedly engaged in manufacturing(tailoring) the infringed articles is sufficient.
24. It has been further submitted that defendant no. 1 has neither provided any receipt nor any card to show that he ensured before proceeding further that the alleged "Bachpan Play School" is the franchisee of the plaintiff and has approached on behalf of the plaintiff. It has been reiterated that the Defendant No.1 knowingly and intentionally engaged in infringing the plaintiff's trademark and copyright and are liable under Sections 103 and 63 of the Trademarks and Copyright Act. The recording at 20:28th minute, at 25:07 minutes have been referred to.
25. On merits, it is stated that defendant no.1 has made evasive denial under para no.2 to 5 without stating any reason for such denial and therefore it shall be deemed to be admission. It has been further alleged that both Monika and Vinay Kapoor acted jointly and in connivance for taking undue advantage of the plaintiff's registered mark and copyright and the defendant no.1 have made undue monies while consistently riding upon the goodwill of the brand 'Bachpan/AHPS' and in turn collectively infringing material such as dresses etc.; that the defendant no.1 is attempting to mislead the Court by hiding the true nature of work being undertaken by Vinay Kapoor and that even otherwise U/s CS (COMM) No.1249/2022 Pg. 16 / 43 Digitally signed Devendra by Devendra Kumar Sharma Kumar Date:
Sharma 2025.12.23 15:27:54 +0530 114 and Section 69 of the Trademarks Act, 1999 and Copyright Act, 1957, Monika Kapoor is held vicariously liable for the acts of her husband/partner/co-worker. It has been further averred that the conversations at Annexure 29 and Annexure 3A clearly shows that the defendant no.1 (Vinay Kapoor) was constantly in touch with franchisees and the fact that the defendant no.1 approached the plaintiff's franchisees as well as others for sale of similar/identical goods bearing plaintiff's registered mark is further confirmed by the affidavit given by Mr. Abhishek Rai (annexed with the application for additional documents) who was approached by the defendant no.1 for sale of similar/identical goods bearing plaintiff's registered mark. It has been further averred that the organization dealt with by defendant no.1 is an unauthorized organization, the complete deails of which have knowingly not been provided by the defendant no.1 and no proof has been supplied by the defendant no.1 to verify the genuineness of the school stating itself to be authorized representative of the plaintiff. It has been further reiterated that the defendant no.1 has failed to bring on record the work receipts against which orders were placed and that the plaintiff does not have a running franchisee in Chennai for past around 2 years, therefore, the existence of this alleged school account becomes questionable.
Thus, it is prayed that suit of the plaintiff be decreed.
26. The Plaintiff as well as defendant filed their respective admission/denial on affidavits.
(B) Issues :-
27. From the pleadings of the parties, following issues were framed :-
CS (COMM) No.1249/2022 Pg. 17 / 43
Digitally signed
Devendra by Devendra
Kumar Sharma
Kumar Date:
Sharma 2025.12.23
15:28:03 +0530
1) Whether plaintiff is entitled to a decree of permanent
injunction against the defendant no.1 and its representatives etc. from selling/manufacturing school dress/uniform carrying the impugned marks of the plaintiff's brand directly or indirectly under the Trade Mark 'BACHPAN' , 'BACHPAN PLAY SCHOOL' and 'ACADEMIC HEIGHTS', 'ACADEMIC HEIGHTS PUBIC SCHOOL' or any other Trade Mark that may be deceptively similar to the above said Trade Marks and /or restraining the defendant no.1 from doing any other activities amounting to infringement to Trade Marks of the plaintiff and restraining defendant no.1 from passing off their services/ business as of the plaintiff as prayed in prayer clause (i)? (OPP)
2) Whether the plaintiff is entitled for a decree of mandatory injunction directing the defendants and its representatives etc. to deliver all the uniforms and other related materials etc. bearing the Trade Mark 'BACHPAN', 'BACHPAN PLAY SCHOOL' and 'ACADEMIC HEIGHTS', 'ACADEMIC HEIGHTS PUBIC SCHOOL' or any other deceptively similar mark to the plaintiff or its duly authorized representative for destruction/eraser? (OPP)
3) Whether the plaintiff is entitled to a decree of damages of Rs.8 lakhs against the defendant no.1 on account of infringement, passing off and wrongful use of above Trade Marks of the plaintiff and for causing losses to the business, goodwill, name and reputation CS (COMM) No.1249/2022 Pg. 18 / 43 Digitally signed Devendra by Devendra Kumar Sharma Kumar Date:
Sharma 2025.12.23 15:28:10 +0530 of the plaintiff ? (OPP)
4) Whether the suit of the plaintiff is not maintainable being without any cause of action? (OPD)
5) Whether this Court has no territorial jurisdiction to try the present matter as claimed in the written statement? (OPD)
6) Whether the suit is not maintainable for non-
compliance of provisions U/s 12A of the Commercial Courts Act, 2015? (OPD)
7) Whether the suit is not maintainable in its present form as claimed in written statement? (OPD)
8) Relief.
(C) Evidence :- (i) of Plaintiff
28. In order to prove its case, the plaintiff has examined Sh. Dinesh Kumar, its AR, as PW-1. He has reiterated the averments made in plaint in his affidavit Ex.PW-1/A and relied upon following documents:-
S.No. Details of documents Exhibit No.
1. Board Resolution dated 22.05.2012 Ex.PW1/1
2. Marks and Copyrights of the Plaintiff Ex.PW1/2
(Colly)
3. List of Schools of the Plaintiff as in 2022 Ex.PW1/3
4. Whatsapp text showing the proprietary product Ex.PW1/4
being sold by the defendant no.1
5. False replica of the uniform as produced by the Ex.PW1/5
defendant No.1
6. Original uniform as sold by the plaintiff and Ex.PW1/6
purchased and delivered through courier from the defendant
7. Copy of audio transcript of the telephonic call Ex.PW1/7 placed on record in pen drive vide application dated 13.12.2022 CS (COMM) No.1249/2022 Pg. 19 / 43 Digitally signed Devendra by Devendra Kumar Sharma Kumar Date:
Sharma 2025.12.23 15:28:16 +0530
29. The PW-1 was cross examined at length in respect to infringement of plaintiff's trademark i.e. as to when, how and through whom he came to know about said infringement of uniforms; procedure of manufacturing and sale of uniforms by plaintiff, franchisee schools of plaintiff; allegations against defendant; action taken against franchisee school; name of the school where the uniforms were supplied by defendant; money sent by franchise of the plaintiff in the account of defendant for job work; filing of FIR against the defendant; quantum of loss/ damages suffered by plaintiff.
30. No other witness was examined on behalf of plaintiff. Therefore, PE was closed.
(b) of Defendant
31. In order to prove his defence, Dr. Monika Kapoor, sole proprietor of the defendant firm has examined herself as DW1. She reiterated the facts averred in the written statement in her affidavit Ex.DW-1/A and relied upon following documents:-
S.No. Details of documents Exhibit No. 1. Copy of her Bank Account Statement Ex. DW-1/1
2. Copy of FIR No.519/2022, PS Jagdishpura, Agra, Ex DW-1/2 U.P.
3. Copy of bail order dated 16.09.2022 in case FIR Mark DW-1/3 No.519/2022, PS Jagdishpura, Agra passed by Agra Court, UP
32. The DW-1 was cross examined at length in respect to defendant firm; nature of her work as well as role of her husband in her business; business relations with plaintiff CS (COMM) No.1249/2022 Pg. 20 / 43 Digitally signed Devendra by Devendra Kumar Sharma Kumar Date:
Sharma 2025.12.23 15:28:23 +0530 company; plaintiff's trademark and copyright; franchisee schools; raid conducted on 03.09.2022; seized uniforms; mode/manner of placing orders for school uniforms by plaintiff or its franchisee.
33. No other witness was examined on behalf of defendant. Therefore, DE was closed and matter was fixed for final arguments.
(E) Final Arguments :-
34. Arguments were addressed by Ms. Alisha Roy and Sh. Sidhant Awasthy, counsels for the plaintiff and Dr. Shivam Bajaj and Dr. Akash Tandon, counsels for defendant. Written submissions have also been filed on behalf of parties.
35. During the course of arguments, counsels for plaintiff and defendant reiterated respective averments made in the plaint and written statement and also referred to documents filed on behalf of respective parties as well as evidence adduced on record by them.
36. Counsel for plaintiff has submitted that in early 2022, the plaintiff discovered that defendant no.1 - M/s Kinder School Uniform, operated by Dr. Monika Kapoor (DW1) and Mr. Vijay Kapoor at Agra, was manufacturing and selling counterfeit school uniforms bearing the Plaintiff's marks and monograms without authority; that the said information was corroborated through internal verification, whatsapp communications (Ex.PW1/4), a purchased sample (Ex.PW1/6) and an audio transcript (Ex.PW1/7); that a raid was conducted by police officials (PS Jagdishpura, Agra) led to seizure of 39 finished CS (COMM) No.1249/2022 Pg. 21 / 43 Digitally signed Devendra by Devendra Kumar Sharma Kumar Date:
Sharma 2025.12.23 15:28:34 +0530 uniforms carrying the infringing marks "Bachpan" and "Academic Heights"; an FIR No.519/2022 was registered U/s 420 IPC, 63 Copyright Act and 103/104 Trade Marks Act and the defendants were arrested and later granted bail. It has been further submitted that during the pendency of the suit, the plaintiff's application for temporary injunction was initially declined on the limited ground that there was an allegation that certain uniforms might have been stolen and that the ownership of the seized goods required trial, however, it is now significant that during evidence, the defendants themselves have admitted to tailoring and supply uniforms for the plaintiff's franchise schools thereby confirming use of the plaintiff's registered marks and proving infringement and violation of both the Trade Marks Act, 1999 and the Copyright Act, 1957. Thus, the very ground on which interim relief was denied stands obliterated by their own submissions at trial. It has been further submitted that defence witness has admitted that fully prepared uniforms were seized from their shop and no delivery challan or written order exists. It has been further submitted that the 'tailoring-only' claim is self-
contradictory; that the shop's name, Kinder School Uniforms and DW-1's own admission of retail sales to neighbourhood schools demonstrates commercial dealings, not mere job work and that no GST registration, purchase order or ledger was exhibited and thus, it stands established that defendant is infringing upon the rights of the plaintiff under their well known and registered marks. Reliance has been placed upon the judgment in case of Puma SE vs. Mahsh Kumar, 2025 SCC OnLine Del 1449; Louis Vuitton Mallertier vs. Capital General Store, 2023 SCC OnLine Del 613. It has been further submitted that defendant no.1 has CS (COMM) No.1249/2022 Pg. 22 / 43 Digitally signed Devendra by Devendra Kumar Sharma Kumar Date:
Sharma 2025.12.23 15:28:42 +0530 not challenged the ownership of the impugned mark which vests unequivocally with the plaintiff; that the defendant has also conceded that there is no direct contact between the school administration and the defendant enterprise. It has been further submitted that the case of the defendant is not that the impugned mark of the plaintiff has not been infringed upon but the defendant in para III of W.S. states that the impugned mark has been infringed upon on account of alleged 'orders' placed by authorized representatives of the plaintiff and that consequently the defendant no.1 has covertly attempted to pass off the infringement action in the garb of 'work order' received from alleged authorized representative of the plaintiff. It has been submitted that this submission of defendant is bereft of logic, assertive without substance and cannot be sustained. Reliance has been placed upon judgement in case of Laxmikant V. Patel vs. Chetanbhai Shah reported in (2002) 3 SCC 65. It has been further submitted that the FIR No.519/2022, seizure memo and bail order (Ex.DW1/2 & Mark DW1/3) provide independent corroboration and the concurrent finding by the investigating agency that 39 counterfeit uniforms were recovered demonstrates the authenticity of the Plaintiff's case. On the point of jurisdiction, it has been submitted that U/s 134(2) of TM Act and Section 62(2) of Copyright Act, a registered proprietor may sue where it carried on business and the plaintiff's principal office and corporate control are at Delhi and the franchise agreements stipulate Delhi jurisdiction and following Indian Performing Rights Society vs. Sanjay Dalia, (2015) 10 SCC 161, this Court has jurisdiction. On the quantum of damages, it has been submitted that plaintiff's evidence quantifies an approximate loss CS (COMM) No.1249/2022 Pg. 23 / 43 Digitally signed Devendra by Devendra Kumar Sharma Kumar Date:
Sharma 2025.12.23 15:28:48 +0530 of Rs.8 lakhs based on student strength and uniform value. However, even if price figures are absent, the Court is empowered to grant compensatory and punitive damages to uphold deterrence. In support of claim towards damages, reliance has been placed upon following judgments:-
(i) Time Inc. vs. Lokesh Srivastava, (2006) 131 Comp Cas 198;
(ii) Microsoft Corp. vs. Yogesh Papat, 2005 SCC OnLine Del 216;
(iii) Hero Honda Motors Ltd. vs. Shree Assam Auto, 2005 (29) PTC 361 (Del)
(iv) Rolex SA vs. Alex Jewellers, 2014 SCC OnLine Del 1619;
(v) Procter & Gamble vs. Joy Creatives, 2021 (86) PTC 312 (Del);
(vi) Midhas Hygiene Industries (P) Ltd. & Anr. Vs. Sudhir Bhatia & Ors.;
(vii) Century Traders vs. Roshan Lal Duggar & Co., ILR 1977 II Delhi.
37. Lastly, it has been submitted that the plaintiff has discharged its burden by documentary evidence, oral testimony and corroborative criminal proceedings and the defendant's own admissions confirm manufacture and possession of infringing goods. Thus, it is prayed that suit of plaintiff be decreed.
38. Per contra, counsel for defendant has submitted that the Defendant No. 1 is a tailoring and fabrication service provider and not a manufacturer or retailer of school uniforms CS (COMM) No.1249/2022 Pg. 24 / 43 Digitally signed Devendra by Devendra Kumar Sharma Kumar Date:
Sharma 2025.12.23 15:28:56 +0530 under any brand name; that orders are executed on a work-order basis, strictly as per designs and specifications provided by clients; that the defendant's bank statements (Ex.DW1/1-10 pages) clearly show that payments were received directly from the official account of "Bachpan Play School", which created a legitimate belief that the orders were placed by the Plaintiff or its authorized representatives; that the AR of the Plaintiff in its own cross examination has admitted that their franchisee used to take 50% of the uniform/from the other vendors. Thus, it is clearly evident that the order was placed by the Plaintiff's franchisee.
39. It has been further submitted that as per Section 30(1)(a) of the Trademarks Act, 1999, use of a registered mark in relation to goods or services to indicate the intended purpose, without misleading the public, does not constitute infringement. It has been further submitted that the defendant No.1 has never marketed, sold, or distributed uniforms under the Plaintiff's marks in the open market; hence, no element of passing off or likelihood of confusion arises.
40. It has been further submitted that there was no dishonest intent, commercial exploitation, or unauthorized use of any trademark; that the Defendant No.1 acted in good faith and in the ordinary course of business, relying upon instructions from persons claiming to represent the Plaintiff. Thus, the present suit has been wrongly instituted against Defendant No.1, who is neither a necessary nor a proper party. It has been further submitted that there is no privity of contract or franchise relationship between the Plaintiff and Defendant No.1 as the Defendant No.1 was simply carrying out the tailoring order CS (COMM) No.1249/2022 Pg. 25 / 43 Digitally signed Devendra by Devendra Kumar Sharma Kumar Date:
Sharma 2025.12.23 15:29:03 +0530 which was purporting to be issued by the Plaintiff and/or its agent(s) as per the work order and the remuneration paid by the "Bachpan Play School. (Ex. DW1/1 is self-explanatory).
41. Page 13-Para 6.1.4 and Page 16-Para 6.6.2 of the Franchisee Agreement has been referred to and it has been submitted that it is the Plaintiff's franchisee who is violating the Franchise Agreement and the Plaintiff is very well aware about it; that it is up to the Plaintiff to ascertain which of its franchisee had placed the order to the Defendant No.1 and the Defendant No.1 has no role in the inter-se dispute between Plaintiff and its Franchisee Schools; that the inclusion of Defendant No.1 is a clear case of harassment and abuse of legal process; that as per Order I Rule 9 CPC, a suit cannot proceed against a mis joined party where no relief is ought to be claimed against it.
42. It has been further submitted that PW-1 in his cross examination has admitted that Plaintiff issued a written/verbal warning to the franchise schools on their letterhead for copyright and trademark infringement; that money has been received in the bank account of the Defendant No.1 from 'Bachpan Play School'. It has been further submitted that plaintiff admits to the clear contradiction that it claims to not have any schools in Chennai whereas their website establishes the existence of two schools in Chennai as well, hence the version of witness himself is untenable and unreliable; that the witness admits that 'as per plaint, the infringement has taken place in Agra and there is no complaint of inferior uniform/infringement from any franchisee in Delhi' and further admits that case has been filed in Delhi as per the terms of the Franchisee Agreement. It has been further CS (COMM) No.1249/2022 Pg. 26 / 43 Digitally signed Devendra by Devendra Kumar Sharma Kumar Date:
Sharma 2025.12.23 15:29:11 +0530 averred that the Defendant No.1 is neither privy and nor a party to the Franchisee Agreement; that the witness has admitted that the quantification of loss is on estimation basis and could not disclose on oath the names and location of any school from where quantum of loss have been ascertained.
43. With respect to quantification of damages, it has been submitted that by overall perusal of the entire pleadings, the Defendant No. 1 is not liable to pay damages in any manner since the case of the Plaintiff has failed to stand on its own legs and infringement has not been established in any manner. It has been further submitted that the Plaintiff has claimed damages of Rs.8 Lacs from the Defendant No.1 towards the 'purported' act of infringement whereas the sum of Rs.8 lacs has no legal or factual basis; that the Cross examination of PW-1 makes it abundantly clear that each uniform costs Rs.700/- and with the same logic, the Plaintiff indirectly claims that the Defendant has sold/manufactured 1,142 school uniforms, which is an imaginary theory and commercially unbelievable number; the present argument draws force from the factum that the Plaintiff has failed to place any document ascertaining even one school uniform which is allegedly infringing; that the Plaintiff in their plaint as well as in evidence has failed to provide any document or calculation that how the Plaintiff has incurred a loss or damage to the tune of Rs. 8 Lacs due to the supply of uniform to the 15/20 schools of the Plaintiff and that the Plaintiff has failed to discharge the onus of proof required under Sections 101-103 of the Indian Evidence Act, 1872. Lastly, it is submitted that no credible evidence of infringement has been produced on record CS (COMM) No.1249/2022 Pg. 27 / 43 Digitally signed Devendra by Devendra Kumar Sharma Kumar Date:
Sharma 2025.12.23 15:29:19 +0530 and thus, it is prayed that suit filed by the plaintiff be dismissed by holding that defendant no.1 has not infringed any trademark or copyright of the plaintiffs.
(E) Analysis of Evidence and Findings:-
44. I have heard the learned Counsels for the parties and have also perused the record as well as the written submissions and case laws filed on behalf of the parties. My issue-wise findings are as under:-
ISSUE NO.5:-
Whether this Court has no territorial jurisdiction to try the present matter as claimed in the written statement? (OPD) AND ISSUE NO.6:-
Whether the suit is not maintainable for non-compliance of provisions U/s 12A of the Commercial Courts Act, 2015? (OPD)
45. The aforesaid issues have already been taken up and have been decided vide order dated 12.12.2023 passed by Ld.Predecessor of this Court. The relevant paras no.16 and 17 of the said order are reproduced hereunder:-
"(ii) Attempt to bypass mandatory provisions of Section 12A of the Commercial Courts Act by the plaintiff:-
It is true that plaintiff had not invoked provisions of Section 12A by going in for pre-institution mediation proceedings, however, as has been averred in the application under consideration, plaintiff had filed three interlocutory applications with the plaint including that U/o XXXIX Rule 1&2 r/w Section 151 CPC. The application CS (COMM) No.1249/2022 Pg. 28 / 43 Digitally signed Devendra by Devendra Kumar Sharma Kumar Date:
Sharma 2025.12.23 15:29:26 +0530 U/o XXXIX Rule 1&2 r/w Section 151 CPC was not pressed for subsequently and was dismissed as withdrawn pursuant to statement made by counsel for plaintiff on 09.09.2022 wherein it was stated that a FIR had been registered against the defendants pursuant to criminal complaint filed by plaintiff against defendants at Agra and that police had conducted raid and seized incrimination material from the premises of defendants. It is not disputed that FIR was registered against the defendants. The date of registration of FIR, conduct of raid by the police and seizure of incrimination material from the premises of defendants was not specified during the course of arguments but presumably it was after registration of FIR.
In these circumstances, bonafide of plaintiff in withdrawing its application U/o XXXIX Rule 1&2 r/w Section 151 CPC cannot be doubted. Further, filing of fresh application U/o XXXIX Rule 1&2 CPC by plaintiff on 13.12.2023, to direct defendants to deposit part payment as security against losses of plaintiff and to pass injunction order against defendants to restrain them from transacting through their unit's account cannot be questioned at this stage. This ground for rejecting the suit of plaintiff is also not called for at this stage.
(iii) Invoking jurisdiction of the Court by misleading the Court:-
The counsel for defendant has contended that this Court lacks jurisdiction to entertain the suit of plaintiff since the defendant is having its business in Agra and is also residing and working for gain in Agra and hence the jurisdiction of the Court is barred U/s 20(a) of CPC. It is further contended that provisions of Section 134(2) of Trade Marks Act would not be applicable since the plaint does not disclose infringement of trade mark of plaintiff by CS (COMM) No.1249/2022 Pg. 29 / 43 Digitally signed Devendra by Devendra Kumar Sharma Kumar Date:
Sharma 2025.12.23 15:29:34 +0530 defendant no.1. It is noteworthy that while rejecting reliance by plaintiff's counsel on judgment in Midhas case (supra), counsel for defendant has relied upon judgment in case of Banyan Tree Holding (P) Ltd. (supra) which also is of year 2009 when CC Act was not in force. In Ambalal Sarabhai Enterprises vs. K.S. Infraspace LLP Ltd. & Anr.
[Civil Appeal No.9346 of 2019], the Supreme Court held that a review of the statement of objects and reasons of CC Act as well as various amendments to CPC and the addition of new rules to the Court (applicable to suits of commercial disputes) shows that they were introduced to facilitate expeditious and fair disposal of high-value commercial dispute at a reasonable cost. To accelerate the resolution of commercial disputes, the statutory requirements of the CC Act and phrases incorporated therein must be understood meaningfully. This will further contribute to nation's economic growth. Therefore the arguments put forth on behalf of defendant, to the effect that merely because a particular judgment dealing with similar propositions, as in the instant case, was passed before the coming into being of CC Act, by itself, would not render it non-applicable to a commercial suit. The observations made in judgment of Midhas Hygience Industries (P) Ltd. & Anr. (supra) relied upon by counsel for the plaintiff are applicable to the instant case for alleged delay in bringing action or specifying how, when and where the alleged infringement took place is not sufficient to deny plaintiff of relief sought by him. On the other hand, the observations made in judgments relied upon by counsel for defendant viz. Dahiben (supra) and Banyan Tree Holding (P) Limited (supra) are not applicable in the facts and circumstances of the present case as also in light of observations made in the foregoing paragraphs.
CS (COMM) No.1249/2022 Pg. 30 / 43 Digitally signed Devendra by Devendra Kumar Sharma Kumar Date: Sharma 2025.12.23 15:29:41 +0530
17. From perusal of plaint, it is seen that plaintiff has pleaded infringement of its registered trademark and prayers in this regard have also been made in the prayer clause of the plaint. The plea taken by counsel for defendant that the court lacks jurisdiction is not sustainable since prima facie in view of provisions of Section 134(2) of the TM Act, which is attracted in the facts and circumstances of the present case, since the plaintiff is working for gain and carrying on its business from its registered office at Delhi, jurisdiction to this Court to proceed to adjudicate upon the case is clearly made out."
46. The order dated 12.12.2023 has never been challenged and therefore, has attained finality. Moreover, at the later stage of trial, another application filed on behalf of the plaintiff U/o XXXIX Rule 1&2 of CPC was disposed off which shows that there was urgency in filing the present suit. Law is settled that irrespective of the fate of the interim injunction application, if according to the party the matter is of urgent nature seeking relief of injunction, it is not necessary for the plaintiff to go through the process of pre-litigation mediation. Therefore, the issue no.5 and 6 are disposed off accordingly.
ISSUE No.1 :-
Whether plaintiff is entitled to a decree of permanent injunction against the defendant no.1 and its representatives etc. from selling/manufacturing school dress/uniform carrying the impugned marks of the plaintiff's brand directly or indirectly under the Trade Mark 'BACHPAN' , 'BACHPAN PLAY SCHOOL' and 'ACADEMIC HEIGHTS', 'ACADEMIC HEIGHTS PUBIC SCHOOL' or any other Trade Mark that may CS (COMM) No.1249/2022 Pg. 31 / 43 Digitally signed Devendra by Devendra Kumar Sharma Kumar Date:
Sharma 2025.12.23 15:29:49 +0530 be deceptively similar to the above said Trade Marks and /or restraining the defendant no.1 from doing any other activities amounting to infringement to Trade Marks of the plaintiff and restraining defendant no.1 from passing off their services/ business as of the plaintiff as prayed in prayer clause (i)? (OPP) AND ISSUE NO.4:-
Whether the suit of the plaintiff is not maintainable being without any cause of action? (OPD)
47. Onus to prove issue no.1 was upon plaintiff whereas onus to prove issue no.4 was upon defendant. Since both the issues are inter-connected and therefore, being discussed and decided jointly.
48. In the written statement, the defendant has alleged that no date, day, time, month or year has been mentioned regarding the initiation of cause of action against any of the defendants and nor any specific event has been mentioned by the plaintiff. It has been further alleged that a vague statement regarding 'selling of impugned mark's uniform and other related material' has been made whereas no documentary proof thereof has been attached with the plaint to substantiate the fact that there has been infringement of any kind. Hence, it has been claimed that there clearly exists no cause of action for filing the present suit.
49. The cause of action has been pleaded in para 38 of the plaint, relevant portion of which is reproduced as under :-
CS (COMM) No.1249/2022 Pg. 32 / 43 Digitally signed Devendra by Devendra Kumar Sharma Kumar Date: Sharma 2025.12.23 15:29:58 +0530
38. That the cause of action has arisen in favour of plaintiff and against the Defendants, when the Defendants on each occasion caused financial and business losses to the Plaintiff by the continous use and selling of the impugned mark's, uniform and other related materials and made themselves liable to pay damages to the Plaintiff in that behalf.................."
50. A perusal of the paragraph 38 of the plaint on cause of action clearly demonstrates that the cause of action for filing the present suit was the act of the defendant in selling the products/uniforms bearing the plaintiff's marks.
51. It is not disputed that a raid was conducted by police officials of PS Jagdishpura, Agra at the premises of defendant which led to seizure of 39 finished uniforms carrying the plaintiff's marks "Bachpan" and "Academic Heights" and an FIR No.519/2022 was registered U/s 420 IPC, 63 Copyright Act and 103/104 Trade Marks Act and the defendants were arrested and later granted bail. Further, the defendant in the W.S. has stated that the orders were placed by individuals who claimed to be associated with plaintiff/their authorized agents and provided samples of uniform for designing to defendant no.1.
52. Hence, it stands established that there was cause of action averred in the plaint and it is now to be decided that whether it entitles the plaintiff for its relief sought in the plaint.
53. In order to prove its case, plaintiff examined Mr. Dinesh Kumar as PW1 who in his affidavit in examination-in- chief has deposed the facts on the line of the plaint. In his cross- examination, he himself admitted that the franchise of the plaintiff company used to send the money in the account of the CS (COMM) No.1249/2022 Pg. 33 / 43 Digitally signed Devendra by Devendra Kumar Sharma Kumar Date:
Sharma 2025.12.23 15:30:05 +0530 defendant for job work from the account in the name of Bachpan Playschool. This fact itself raises a question as to whether the defendant can be said to be at fault for selling the alleged uniforms which is claimed to be under the trademark/copyright of the plaintiff company.
54. In his further cross-examination, PW1 has again testified that the franchise of the plaintiff used to procure around 50% of the school uniforms from the plaintiff and around 50% of the uniforms from the other vendors. Thus, in his testimony itself, the answer of the abovesaid question lies that there was no bar upon the franchisees to purchase the uniforms from the other vendors. The necessarily corrolary of the said evidence is that the plaintiff was not having exclusive dealing in supply of the uniforms with its franchisees but the franchisees were also at liberty to procure the uniforms directly from other vendors. The only allegation as per PW1 against the defendant is that the defendant used to supply the uniforms to the franchisee schools directly. Thus, it is clear that if the order is placed by any of the franchisee to the defendant, the supply of uniform could have been done by the defendant. Therefore, when the franchisees were authorized to purchase the uniforms directly and when they were authorized to send money in the account of the defendant for job work from the account in the name of Bachpan Playschool, then the question arises as to whether the defendant was preparing uniforms without any order from the said franchisees.
55. In the entire evidence led on behalf of the plaintiff, CS (COMM) No.1249/2022 Pg. 34 / 43 Digitally signed Devendra by Devendra Kumar Sharma Kumar Date:
Sharma 2025.12.23 15:30:15 +0530 there has been no evidence on record which could establish that no order was ever placed by any of the franchisee of the plaintiff company in and around Agra or from any other place, nor any witness has been summoned from any of the franchisee school to prove this fact. Though it has been claimed by PW1 that in his visit to the franchisee school, he came to know from the school management that someone is supplying low cost uniforms to the franchisee school of the plaintiff. In view of the said claim, it was for the plaintiff at least to produce any of the person from the said school who could prove that the defendant was supplying the school uniform with the logo of the plaintiff company without any order.
56. It has also come in the testimony of PW1 that the plaintiff itself never prepared the uniforms but it is get prepared through vendors. Thus, it was for the plaintiff to explain as to how the account payment from the account of Bachpan Play School was done and since no evidence has been led on behalf of the plaintiff to controvert the said payment, the entry made in bank account statement Ex.DW1/1 regarding the payment on receiving the order stands proved as per law. Thus, the claim of DW1 that she used to receive the order from the owner of the franchiee school of the plaintiff company, used to receive the payment in the name of Bachpan Play School and used to supply the school uniforms on the said order appears to be probable. Further, the DW1 has claimed that all the transactions for preparing the uniforms was telephoically and she was not aware about the any copyright/trademark of the plaintiff company. This claim of the DW1 was never challenged in her cross-
CS (COMM) No.1249/2022 Pg. 35 / 43
Digitally signed
Devendra by Devendra
Kumar Sharma
Kumar Date:
Sharma 2025.12.23
15:30:23 +0530
examination.
57. Even in the cross-examination of DW1, it has come on record that all the school uniforms were prepared against the order. Though she has been cross-examined regarding the written order in order to disprove her version but since there is no challenge to the payment made in the name of Bachpan Play School, it was for the plaintiff to prove that the said payment was not made against any order. In a normal course of business, the payment is always made either in advance or after the supply of the good/job work against the order. Therefore, it was for the plaintiff to prove that no such order as claimed by DW1 has been placed either by the plaintiff or by any of its franchisee schools. However, in view of the admission of PW1 in his cross- examination regarding the payment in the name of Bachpan Play School, it can be safely concluded that the defendant was not involved in any kind of unauthorized preparation of school uniforms having logo of the plaintiff company.
58. Though it has been claimed on behalf of the plaintiff/PW1 that all the uniforms prepared by the plaintiff was of sub-standard quality, but no evidence has been led in this regard except vouching for sub-standard quality either in the form of any expert opinion or detailing in his evidence.
59. In support of its case, plaintiff has also placed reliance upon the documents in the form of electronic/ documentary evidence i.e. Whatsapp conversion Ex.PW1/4 and copy of audio-transcript alongwith pendrive Ex.PW1/7. Both the CS (COMM) No.1249/2022 Pg. 36 / 43 Digitally signed Devendra by Devendra Kumar Sharma Kumar Date:
Sharma 2025.12.23 15:30:31 +0530 documents are stated to be elecronic documents extracted from the electronic device. However, no certificate U/s 65B of IE Act has been placed on record in order to prove the correctness of the contents of the documents. Law on this point is clear. The Hon'ble Supreme Court in case of "Anwar P.V. Vs. P. K. Bhasheer, Air 2015 SC 180 has delved upon admissibility of printouts of the documents by observing as under:-
"13. Any documentary evidence by way of an electronic record under the Evidence Act, in view of Sections 59 and 65A, can be proved only in accordance with the procedure prescribed under Section 65B of the Evidence Act. Section 65B deals with the admissibility of the electronic record. The purpose of these provisions is to sanctify secondary evidence in electronic form, generated by a computer. It may be noted that Section starts with a non obstante clause. Thus, notwithstanding anything contained in the Evidence Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer shall be deemed to be a document only if the conditions mentioned under sub-Section (2) are satisfied, without further proof or production of the original. The very admissibility of such a document, i.e., electronic record which is called as computer output, depends on the satisfaction of the four conditions under Section 65B(2)."
"14. Under Section 65B(4) of the Evidence Act, if it is desired to give a statement in any proceedings pertaining to an electronic record, it is permissible provided the following conditions are satisfied:
(a) There must be a certificate which identifies the electronic record containing the statement;
(b) The certificate must describe the manner in which the electronic record was produced;
(c) The certificate must furnish the particulars of the device involved in the production of that record;
(d) The certificate must deal with the applicable conditions mentioned under Section 65B(2) of the Evidence Act; and
(e) The certificate must be signed by a person occupying a responsible official position in relation to the operation of the relevant device.
CS (COMM) No.1249/2022 Pg. 37 / 43 Digitally signed Devendra by Devendra Kumar Sharma Kumar Date: Sharma 2025.12.23 15:30:39 +0530
60. Therefore, in view of the settled law, these documents cannot be read in evidence and no reliance can be placed upon the whatsapp conversation and copy of audio transcript with pen drive in order to prove the infringement by or on behalf of the defendant.
61. Even in the affidavit of admission and denial filed on behalf of the plaintiff, plaintiff himself has partially admitted the statement of the bank account of the defendant leaving no doubt that the payment was made by and/or on behalf of the plaintiff against the order to the defendant.
62. Though the plaintiff has claimed that the payment made in the account of the defendant was from an organization of Bachpan Play School Chennai and plaintiff has no such franchisee in Chennai but in his cross-examination, PW1 after seeing the screenshot of the website has stated that the franchisee school might exists as per the website of the plaintiff company.
Thus, the plaintiff has left this case neither here nor there in the pleading as well as in the evidence regarding the payment to the defendant.
63. On the issue of coming to know about infringement, though PW1 has claimed in one breathe that it came to be known in the year 2022 through his visit to the school, and at the same breathe in his cross-examination he has further stated that it was came to be known through his internal research and phone call. However, upon the specific query regarding the date, he has CS (COMM) No.1249/2022 Pg. 38 / 43 Digitally signed Devendra by Devendra Kumar Sharma Kumar Date:
Sharma 2025.12.23 15:30:49 +0530 failed to disclose any date. Thus, there is nothing on record to prove that from which date there was alleged infringement of copyright/trademark of the logo of the plaintiff company.
64. Even PW1 has admitted that there is no direct sale of uniform by the plaintiff company to the students but the sale is through franchisee. This fact itself demonstrate that it is the franchisee who were responsible to procure the uniforms and therefore, the claim of the defendant that the order was placed upon her by the persons claiming to be the authorized persons of the Bachpan Play School cannot be doubted.
65. Even in the pleadings in para 25 of the plaint, there is allegation of missing/ stolen uniforms from the wharehouse of the plaintiff by the defendant and in this regard a complaint was also filed. Thus, if on one hand upon the said allegation of stolen articles, the alleged recovery is there from the shop of the defendant, it cannot be said that there would be infringment of the copyright/trademark of the plaintiff if the articles were stolen and recovered allegedly at the complaint of the plaintiff company. Therefore, the defendant cannot be held to be guilty for infringment of copyright/trademark as well as stealing the uniform having logo of the plaintiff company.
66. In his cross-examination, PW1 has testified the facts which are dehorse to the pleadings in as much as after admitting that there is no date mentioned of the infringment in the plaint, he has claimed that he is aware as to how the infringement was done and has further claimed that it is the CS (COMM) No.1249/2022 Pg. 39 / 43 Digitally signed Devendra by Devendra Kumar Sharma Kumar Date:
Sharma 2025.12.23 15:30:57 +0530 defendant who approached the franchisees by collecting information from the website of the plaintiff. If he was so aware, he should have produced the said franchisees to whom the defendant has approached. Even otherwise, from the above narrated and discussed facts and evidence, it cannot be said that approaching the franchisee by the defendant in any manner can be said to be the infringement of the copyright/trademark of the plaintiff company. When according to PW1 the franchisee were also there having right to procure the uniforms directly, the act of defendant to approach them cannot be faulted with.
67. Further, in this regard also the stand of the plaintiff is not consistent. It has been also claimed on behalf of the plaintiff that the franchisee were not directly authorized to purchase the uniforms. If that was so, the action should have been taken against them instead of defendant or alongwith defendant. But as per PW1 they were let off by giving written/verbal warning. Thus, as a matter of fact, it can be inferred that the plaintiff was having knowledge that taking action against them may benefit the defendant who according to defendant was only the manufacturer of the uniform upon the order placed by the franchisee schools.
68. From the above discussion, it is clear that the plaintiff has failed to prove on record that as to when for the first time, cause of action has arisen or in which manner there has been infringement on behalf of the defendant of its copyrights. Therefore, issues no.1 and 4 are decided against the plaintiff and in favour of the defendant.
CS (COMM) No.1249/2022 Pg. 40 / 43 Digitally signed Devendra by Devendra Kumar Sharma Kumar Date: Sharma 2025.12.23 15:31:04 +0530 ISSUE NO.2:-
Whether the plaintiff is entitled for a decree of mandatory injunction directing the defendants and its representatives etc. to deliver all the uniforms and other related materials etc. bearing the Trade Mark 'BACHPAN', 'BACHPAN PLAY SCHOOL' and 'ACADEMIC HEIGHTS', 'ACADEMIC HEIGHTS PUBIC SCHOOL' or any other deceptively similar mark to the plaintiff or its duly authorized representative for destruction/eraser? (OPP)
69. Onus to prove this issue was upon plaintiff.
As per own case of the plaintiff, all the goods were recovered in the raid by the police and nothing was left at the premises of the defendant. Thus, the issue of directing the defendant to deliver up the goods i.e. uniforms and other related materials etc. bearing the Trade Mark 'BACHPAN', 'BACHPAN PLAY SCHOOL' and 'ACADEMIC HEIGHTS', 'ACADEMIC HEIGHTS PUBIC SCHOOL' or any other deceptively similar mark to the plaintiff or its duly authorized representative for destruction/eraser has become infructuous. Otherwise also, plaintiff has failed to prove its entitlement and cause of action as discussed in detail hereinabove, therefore, this issue is decided against the plaintiff and in favour of the defendant.
ISSUE NO.3:-
Whether the plaintiff is entitled to a decree of damages of Rs.8 lakhs against the defendant no.1 on account of infringement, passing off and wrongful use of above Trade Marks of the CS (COMM) No.1249/2022 Pg. 41 / 43 Digitally signed Devendra by Devendra Kumar Sharma Kumar Date:
Sharma 2025.12.23 15:31:12 +0530 plaintiff and for causing losses to the business, goodwill, name and reputation of the plaintiff ? (OPP)
70. As discussed hereinabove, the plaintiff has failed to prove his entitlement for the relief of permanent injunction. Even in his cross-examination, PW1 himself has admitted that the entire damages has been demanded on estimation basis. Further, he has failed to specify the name of the school with their location where he searched regarding the loss because of the supply of uniform by the defendant. Further, it is the franchisees who if placed the order without the authorization, they should have been arrayed as a party but PW1 has testified that no loss to the plaintiff was caused due to the franchisees and therefore, as discussed hereinabove, the plaintiff has also failed to prove that it is entitled to a decree of damages of Rs.8 lakhs against the defendant no.1 on account of infringement, passing off and wrongful use of above Trade Marks of the plaintiff and for causing losses to the business, goodwill, name and reputation of the plaintiff. This issue is decided accordingly against the plaintiff and in favour of the defendant.
ISSUE NO.7:-
Whether the suit is not maintainable in its present form as claimed in written statement? (OPD)
71. Onus to prove this issue was upon defendant. Plaintiff has failed to prove its entitlement and cause of action as discussed in detail hereinabove, therefore, this issue is decided against the plaintiff and in favour of the defendant.
CS (COMM) No.1249/2022 Pg. 42 / 43
Digitally signed
Devendra by Devendra
Kumar Sharma
Kumar Date:
Sharma 2025.12.23
15:31:20 +0530
R E L I E F:-
72. In view of the findings on forgoing issues, it is held that plaintiff is not entitled to any relief in the present suit and the suit is dismissed.
73. Parties left to bear their respective costs.
74. Decree sheet be prepared accordingly.
75. File be consigned to record room after due compliance. Digitally signed Devendra by Devendra Dictated and announced Kumar Kumar Sharma Date:
in the open Court on Sharma 2025.12.23
23rd December, 2025. 15:31:27 +0530
(DEVENDRA KUMAR SHARMA)
District Judge (Commercial Court)-03
Central, Tis Hazari Courts, Delhi.
CS (COMM) No.1249/2022 Pg. 43 / 43