Delhi District Court
Sugandhi Snuffking And Ors vs Triveni Zarda Bhandar And Others on 18 January, 2024
IN THE COURT OF MS. RAVINDER BEDI
DISTRICT JUDGE (COMMERCIAL COURT)-12
CENTRAL DISTRICT, TIS HAZARI COURTS, DELHI.
In the matter of:-
CS (COMM) NO. 2006/2019
1. Sugandhi Snuffking
SA 15/147, Mavaiya, Ashapur, Varanasi
Uttar Pradesh-221001
(Through its Authorised Representative)
2. Sugandhi Snuffking Private Limited,
A-15, B-1 Extension, Mohan
Co-operative Industrial Estate,
Mathura Road, Badarpur, New Delhi-110044
..........Plaintiffs
Versus
1. Triveni Zarda Bhandar
E-114/8, Kareli, GTB Nagar,
Allahabad, Uttar Pradesh-211016.
2. Deepak Traders
4/6, Tripholiya
Batasha Mandi, Banshidhar Market Ke Samne,
Allahabad, Uttar Prakesh
3. Shubham Traders
230/268T, Unchamandi,
Allahabad, Uttar Pradesh
..... Defendants
Date of Institution of Suit : 10.10.2018
Date of Final Arguments : 03.01.2024
Date of Judgment : 18.01.2024
Appearance:
Mr. Prakhar Sharma, Ld. Counsel for Plaintiffs.
None for Defendants.
CS COMM No. 2006/2019 Sugandhi Snuffking Vs. Triveni Zarda Bhandar & Ors.
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JUDGMENT
1. Plaintiffs have instituted the present suit, inter alia, alleging infringement of their trademarks JAGAT, SAGAR, DHADKAN, SACHI, SAGAR SHAKTI by defendant and seeking decree of injunction restraining the Defendant/associates from using the trademarks, infringing copyrights of plaintiffs and passing off.
2(a). It is necessary to take note, albeit briefly, of the facts as mentioned in the suit. Plaintiff no.1 is a partnership firm. It was initially started in the year 1981 as a sole proprietorship firm by Mr. Jagat Kishore Chaurasia. The same was converted into partnership firm consisting of three partners namely Sh. Jagat Kishore Chaurasia, Sh. Sandeep Kishore Chaurasia and Sh. Vickey kishore Chaurasia. Plaintiff no.2 is a private joint stock company with its directors Sh. Jagat Kishore Chaurasia, Sh. Sandeep Kishore Chaurasia and Sh. Vickey kishore Chaurasia. The plaint is signed and verified by Sh. Vickey kishore Chaurasia, partner of plaintiff no.1 and Director of plaintiff no.2 company.
(b) The plaintiffs are carrying on their old and established business of manufacturing, marketing and selling of its various products like chewing Tobacco, Pan Masala, Mouth Fresheners, Khaini, Zarda, Qiwam and allied products under its various trademarks and label marks having original artistic work on it. To expand the business activities and marketing, three partners of Plaintiff no.1 formed plaintiff no.2 company which is CS COMM No. 2006/2019 Sugandhi Snuffking Vs. Triveni Zarda Bhandar & Ors.
Page no. 2 of 15 now one of the leading manufacturers of chewing tobacco, Pan Masala and allied products in India. As per mutual agreement, the trade marketing and labels owned by plaintiff no.1 can be used by plaintiff no.2 company. Plaintiff no.2 has a manufacturing and trading unit in Delhi with plaintiff no.1 as one of its directors.
(c) Plaintiffs in the course of trade are using various trade marks such as JAGAT, SAGAR, DHADKAN, SACHI, SAGAR SHAKTI, etc. The trade mark JAGAT was adopted for the first time in the year 1992 by Sh.Jagat Kishore Chaurasia. The product of the plaintiffs i.e. Zarda/Chewing Tobacco under its trademark JAGAT is sold in a label/packaging on tin container having original artistic work, get-up, layout, pattern and colour combination, is vested in the plaintiffs as per the provisions of the Copyright Act, 1957. The plaintiffs have filed various trademark applications with Registrar under Trade Marks Act, 1999 in class 34. The details of filing the trademark applications are mentioned in para no.11 and 14 of the plaint.
(d) The trademark JAGAT is being used by plaintiffs since 2003 and has acquired its distinctive features with long continuous extension and exclusive use of the same since 1992. The product "chewing tobacco" manufactured and sold by the plaintiffs under their trademark JAGAT in unique writing script and distinctive labels with original artistic work of plaintiffs have a huge market. The sales figures of the goods sold by plaintiffs are detailed in para no.20 of the plaint with annual turnover of Rs.22,63,82,402/- for financial year 2017-18.
CS COMM No. 2006/2019 Sugandhi Snuffking Vs. Triveni Zarda Bhandar & Ors.
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(e) that on 28.09.2018 the plaintiffs from its sales staff for the first time found that defendants taking the undue advantage of goodwill and reputation of plaintiffs goods under the mark JAGAT were manufacturing , marketing and selling the same goods i.e. Chewing Tobacco under the impugned mark SHREE JAGAT bearing impugned label mark / packaging, getup, colour combination, artistic work, pattern, writing script and layout, which is identical/ deceptively same to the label mark/ packaging of plaintiffs under the mark JAGAT.
(f) Plaint avers that defendants have malafidely adopted the impugned identical trademark, label / packaging etc in order to deceive the potential customers, public and trade with a malafide intention to cause confusion and deception in the markets by making them believe that the spurious product of defendants with impugned characteristics to be that of plaintiffs.
(g) Plaintiffs have not authorised or granted any permission to defendants to manufacture, market or sale of its product. It is pertinent to mention that the consumers of the product 'Chewing Tobacco' mainly belong to illiterate sections of the society, who mainly identify the products through the broad and essential features of mark and the appearance on the label / packaging of products. Plaint avers that the court has territorial jurisdiction to entertain and try the present suit as plaintiff no.2 is carrying on business within jurisdiction of this court and has the Copyright in the original artistic work of JAGAT (Labels) and defendants are supplying the impugned products within the market of Khari Baoli and Naya Bans which are within the CS COMM No. 2006/2019 Sugandhi Snuffking Vs. Triveni Zarda Bhandar & Ors.
Page no. 4 of 15 jurisdiction of this court. The present dispute is a commercial in nature in terms of Section 2 (1) (d) of the Commercial Courts Act 2018.
3. It is pertinent to mention that by an ex parte order dated 10.10.2018, Ld. Predecessor had appointed Local Commissioner to search and seize counterfeit products. The commission was executed and Local Commissioner searched and seized a huge quantity of infringed and counterfeited products from the premises of the Defendants. Ld. Local Commissioner filed his Report on 02.11.2018 alongwith Inventory.
4. Defendants appeared through their Advocate on 06.02.2019. Defendant no.1 filed its written statement on 08.03.2019. Joint written statement was also filed by defendant no.2 and 3. On 15.04.2019, defendants moved an application under Order VII rule 11 CPC for rejection of plaint. The said application was dismissed by ld. Predecessor by Order dated 03.03.2022. From pleading of parties, ld. Predecessor framed the following issues for adjudication:-
1. Whether this court has territorial jurisdiction to entertain or adjudicate upon the suit? OPP.
2. Whether the defendant has adopted deceptively trade dress as that of the plaintiff label mark, packaging / colour combination? OPP.
3. Whether the defendant has passed off its goods as if they originate from the plaintiff? OPP.
CS COMM No. 2006/2019 Sugandhi Snuffking Vs. Triveni Zarda Bhandar & Ors.
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4. Whether there is no visual or phonetic similarity between the rival trademarks of parties i.e. JAGAT (of Plaintiff) and SHREE JAGAT (of defendant) ? OPD.
5. Whether the plaintiffs are entitled to the delivery up or destruction of labels, dyes, block, infringing material etc? OPP.
6. Whether the plaintiff is entitled to the rendition of account of profit from the defendant? OPP
7. To what damages, the plaintiff is entitled to and if so, against which of the defendant and at what quantum?
8. Who is entitled to the costs, against whom and in what quantum? Onus on parties.
9. Relief.
5. The course of proceedings would reveal that the matter was listed for compromise between parties. During this period, Mr. Mohd. Kausar stating himself to be son of Mr. Mukhtyar Ahmad, Proprietor of defendant no.1 appeared on 26.11.2022 and stated that he also represented defendant no.2 and defendant no.3. He filed his power of attorney and refused to en- ter into any settlement with plaintiff. As such, the matter was posted for evidence of parties.
6. Sh. Ashite Kumar Singh, Authorised Representative of the plaintiff company as PW-1 has tendered his evidence by way of affidavit Ex. PW1/A, wherein he has re-affirmed and reit- erated the facts as averred in the plaint. He has proved documents viz. Resolution dated 08.10.2018 as Ex. PW-1/1; Special Power of Attorney by plaintiff no.1 in favour of AR as Ex.PW1/2; Spe-
CS COMM No. 2006/2019 Sugandhi Snuffking Vs. Triveni Zarda Bhandar & Ors.
Page no. 6 of 15 cial Power of Attorney by plaintiff no.2 as Ex. PW1/3; Excise Registration Certificate as Ex. PW1/4(OSR); Sales Tax Registra- tion as Ex. PW1/5(OSR); Certificate of Incorporation of plaintiff as Ex. PW1/6 (OSR); Trade Mark Registration Certificates un - der No. 1361144 in Class 31, 1268629 in Class 34 and 2331001 in class 34 as Ex.PW1/7 (Colly)(OSR); Copy right Registration Certificate of plaintiff no.2 under No. A-102438/2013 as Ex.PW1/8(OSR); Sale Invoice issued by plaintiff no.1 as Ex. PW1/9 (colly 5 in number) ; Sales Invoices issued by plaintiff no.2 as Ex. PW1/10 (Colly page no.22-80 of paper book); Ad - vertisement pertaining to the products of plaintiff no.2 as Ex.PW1/11; Order dated 12.06.2015 in CS (OS) No. 1798 of 2015 passed by Hon'ble High Court of Delhi as Ex.PW1/12; Order dated 21.01.2016 passed by Ld. ADJ-1 (North), Delhi Ro - hini Courts, Delhi as Ex. PW1/13; Coloured photographs of plaintiff's label / Packaging under the trade mark JAGAT and de - fendant's label / Packaging under the trade mark SHRI JAGAT as Ex.PW1/14.
7. Pursuant to the case management hearing scheduled on 03.03.2022, I observe that defendants have neither brought their evidence nor filed list of witnesses. The order dated 24.11.2023 reveals that the defendant's son Md. Kausar sought yet another adjournment for adducing evidence. The matter was adjourned on such request. However, despite opportunity granted, no one appeared for defendants or on subsequent dates. Resultantly, the matter was posted for final arguments. No one appeared even for final submissions.
CS COMM No. 2006/2019 Sugandhi Snuffking Vs. Triveni Zarda Bhandar & Ors.
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8. I have heard Ld. Col. for plaintiff and have perused the entire record meticulously in the light of relevant statutory provisions of law. My issue wise findings are as under :-
Issue 1. Whether this Court has territorial jurisdiction to entertain or adjudicate upon the suit? OPP.
9. The onus of proving this issue was upon the plaintiffs. Ld. Counsel for plaintiffs has drawn my attention to the averments of plaint and para no.39 thereof to argue that this Court has jurisdiction to entertain the matter. Ld. Counsel has placed reliance upon the Judgments of Indian Performing Rights Society Ltd. v. Sanjay Dalia & Ors.(DOD as 01.07.2015) & Divi - sion Bench Judgment of RSPL Ltd. v. Mukesh Sharma & Anr. (DOD as 03.08.2016) to submit that defendants are carrying on their infringing activities from areas which come within jurisdic - tion of this Court.
10. In this regard, the order dated 03.03.2022 of Ld. Pre- decessor is worth mentioning, in which para no.39 of the plaint has been considered. In the Judgment of Division Bench of Hon'ble Delhi High Court in "Chandra kishore v. R.A. Per - fumery Works Private Ltd. (DOD as 27.10.2022) , it is observed as :
In Exphar Sa and Anr. v. Eupharma Laboratories Ltd. and Anr.: (2004) 3 SCC 688, the Supreme Court reiterated the above proposition in the following words:
"9. Besides, when an objection to jurisdiction is raised by way of demurrer and not at the trial, the objection must proceed on the basis CS COMM No. 2006/2019 Sugandhi Snuffking Vs. Triveni Zarda Bhandar & Ors.
Page no. 8 of 15 that the facts as pleaded by the initiator of the impugned proceedings are true. The submission in order to succeed must show that granted those facts the court does not have jurisdiction as a matter of law. In rejecting a plaint on the ground of jurisdiction, the Division Bench should have taken the allegations contained in the plaint to be correct."
The aforesaid view has been constantly followed by this Court as well. In M/s RSPL Limited (Supra), a Coordinate Bench of this Court held as under:
"11. It must be stated that it is a settled proposition of law that the objection to territorial jurisdiction in an application under Order 7 Rule 10 CPC is by way of a demurrer. This means that the objection to territorial jurisdiction has to be construed after taking all the averments in the plaint to be correct. In Exphar SA v. Eupharma Laboratories Limited: (2004) 3 SCC 688, the Supreme Court observed that when an objection to jurisdiction is raised by way of demurrer and not at the trial, the objection must proceed on the basis that the facts, as pleaded by the initiator of the impugned procedure, are true."
11. Even otherwise, both the Trademarks Act 1999 and Copyright Act 1957 contain provisions that provide for an 'addi- tional forum' of instituting suits for the infringement and related reliefs. Section 134 of The Trademarks Act, 1999, permits the registered proprietor/plaintiff to institute a suit in a District Court within whose limits the person instituting the suit or proceeding (or any one of them if there are various plaintiffs) voluntarily re - sides or carries on business or personally works for gain. Section 62 of The Copyrights Act, 1957, is pari materia to Section 134 and essentially states the same thing. Thus, under the Trademarks Act and Copyright Act, an additional forum is provided to the CS COMM No. 2006/2019 Sugandhi Snuffking Vs. Triveni Zarda Bhandar & Ors.
Page no. 9 of 15 right holders/aggrieved parties to institute a suit in a District Court within whose jurisdiction they reside.
12. Section 134 and Section 62 were further discussed and interpreted by Hon'ble Apex Court in decision of Indian Performing Rights Society Ltd. (supra) (relied by plaintiffs) and position was clarified in respect of the plaintiff having an option to chose between two forums as per Section 20 CPC or section 134 of The Trademarks Act, 1999. The decision was further discussed by Hon'ble Delhi High Court in Ultra Homes Pvt. Ltd. v. Purushottam Kumar Chaubey & Ors. and Burger King Corporation v. Techchand Shewakramani & Ors. to hold that section 134 of The Trademarks Act, 1999 and Section 62 of Copyright Act are in additon to and not in exclusion of section 20 of CPC. The same has been ratio of World Wrestling Entertainment Inc. v. M/s Reshma Collection & Ors. and Banyan Tree Holding (P) Ltd. v. A. Murali Krishna Reddy & Anr.
13. The case of plaintiffs is that the defendants are manufacturing, marketing and selling the same goods as that of plaintiff under the mark SHRI JAGAT being the impugned mark and carrying on their business of supplying the impugned products in markets of Khari Baoli and Naya Bans, which is supported by sufficient documentary evidence on record. I hold that this court has territorial jurisdiction over the subject matter and the issue stands answered in favour of plaintiff.
CS COMM No. 2006/2019 Sugandhi Snuffking Vs. Triveni Zarda Bhandar & Ors.
Page no. 10 of 15 Issue 4. Whether there is no visual or phonetic similarity between the rival trademarks of parties i.e. JAGAT (of Plaintiff) and SHREE JAGAT (of defendant) ? OPD.
14. The onus to prove this issue was upon the defen- dants. The defendants however, have not come-forth to adduce any evidence despite opportunities given. It is not established as to the factum of there being no visual or phonetic similarity be- tween the rival trademarks as alleged by defendants in written statement. In the absence of any such evidence having surfaced, the issue remained unproved and therefore is decided against de- fendants and in favor of plaintiff.
Issue 2. Whether the defendant has adopted decep- tively trade dress as that of the plaintiff label mark, packaging / colour combination? OPP.
Issue 3. Whether the defendant has passed off its goods as if they originate from the plaintiff? OPP.
Issue 4. Whether the plaintiff is entitled to the de- livery up or destruction of labels, dyes, block, in- fringing material etc? OPP.
Issue 6. Whether the plaintiff is entitled to the ren- dition of account of profit from the defendant? OPP Issue 7. To what damages, the plaintiff is entitled to and if so, against which of the defendant and at what quantum?
Issue 8. Who is entitled to the costs, against whom and in what quantum? Onus on parties.
CS COMM No. 2006/2019 Sugandhi Snuffking Vs. Triveni Zarda Bhandar & Ors.
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15. The onus to prove these issues was upon the plaintiff. Sh. Ashite Kumar Singh, AR of plaintiffs has been examined as PW-1. While reiterating the facts as in the plaint, PW-1 has proved the necessary documents including Trademark Registration Certificates in Class-31 and 34 as PW-1/7 (colly). The evidence clearly suggests that plaintiffs are using various trade marks such as JAGAT, SAGAR, DHADKAN, SACHI, SAGAR SHAKTI, etc. and their products i.e. Zarda/Chewing Tobacco under its trademark JAGAT are sold in a label/packaging on tin container having original artistic work, get-up, layout, pattern and colour combination and the trademark JAGAT being used by plaintiffs since 2003, has acquired its distinctive features with long continuous extension and exclusive use since 1992.
16. The impugned logos/trademark show deceptive similarity of the products by defendants to that of products of plaintiff and same is an act, which amounts to infringement of the plaintiff's registered trademark. Based upon the evidence on record, it is established that the defendants are infringing, supplying and selling the impugned goods under the trademark Shri Jagat which is similar to plaintiff's subject mark.
17. By adopting exactly the identical trademark of the plaintiff, the defendants have apparently tried to confuse the potential customers of plaintiff and also dent their revenues. In CS COMM No. 2006/2019 Sugandhi Snuffking Vs. Triveni Zarda Bhandar & Ors.
Page no. 12 of 15 Sun pharma Laboratories Ltd. Vs. Hetero Healthcare (DOD as 26.08.2022) by Division Bench of Hon'ble Delhi High Court, it was observed ............
"... It is settled law that in case of an action for passing off, the similarity between the competing marks is to be seen along with the fact whether there is a likelihood of deception or causing confusion. The Supreme Court, in the facts of the case, held that the products being sold by the parties will be purchased by both villagers and townsfolk, literate as well as illiterate, and the question has to be approached from the point of view of 'a man of average intelligence and imperfect recollection...".
18. It is observable that the defendants did not enter the witness box to prove the defence as taken in the written statement and chose not to lead any evidence. It is held in various cases that when the defendant fails to examine himself, an adverse inference can be drawn against him as provided by Section 114 (g) of the Indian Evidence Act. In Vidhyadhar vs Manikrao & Anr. (1999) 3 SCC 573, it was held in para 16 as under :
"16. Where a party to the suit does not appear into 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 series of decisions passed by various High Courts and the Privy Council beginning from the decision in Sardar CS COMM No. 2006/2019 Sugandhi Snuffking Vs. Triveni Zarda Bhandar & Ors.
Page no. 13 of 15 Gurbakhsh Singh v. Gurdial Singh and Anr. This was followed by the Lahore High Court in Kirpa Singh v. Ajaipal Singh and Ors. AIR (1930) Lahore 1 and the Bombay High Court in Martand Pandharinath Chaudhari v. Radhabai Krishnarao Deshmukh AIR (1931) Bombay 97. The Madhya Pradesh High Court in Gulla Kharagjit Carpenter v. Narsingh Nandkishore Rawat also followed the Privy Council decision in Sardar Gurbakhsh Singh's case (supra).
The Allahabad High Court in Arjun Singh v. Virender Nath and Anr. held that if a party abstains from entering the witness box, it would give rise to an inference adverse against him. Similarly, a Division Bench of the Punjab & Haryana High Court in Bhagwan Dass v. Bhishan Chand and Ors. , drew a presumption under Section 114 of the Evidence Act against a party who did not enter into the witness box".
19. In light of the above law, an adverse inference has to be drawn against the defendants that the facts stated in the written statement are incorrect and thus, the defence taken by them cannot be relied upon. I hold that plaintiffs have been successful in proving their case. The adoption and use of an identical mark by defendants without authorization of the plaintiff amounts to infringement of plaintiff's statutory rights. The plaintiffs are entitled to statutory remedies against infringement of its trade-mark and copyright. They are also entitled to protection of their goodwill in the trademark and have common law remedy of passing off. The weight of the evidence and the clear infringement of plaintiff's subject mark by CS COMM No. 2006/2019 Sugandhi Snuffking Vs. Triveni Zarda Bhandar & Ors.
Page no. 14 of 15 defendants calls for the Judgment and Decree in favor of plaintiffs. The issues stand answered in favor of plaintiff and against defendants.
20. As regards the issues of damages and costs prayed by plaintiffs, plaintiffs claim for an award of damages. In view of the fact that defendants are guilty of infringement by dishonestly adopting almost identical design, color combination, style, trademark/mark etc. and have chosen to deliberately stay away from the proceedings despite service and knowledge of the same, plaintiffs are entitled to notional damages and costs.
So far as prayer of delivery up of the goods lying in superdari concerns, the defendants shall hand over all the products, which are lying in superdari with them to the Authorized Representative of Plaintiffs' Company.
Relief :
The suit of the plaintiffs stands decreed in respect of the reliefs prayed. The plaintiffs are also entitled for notional damages for a sum of Rs.1,50,000/- against the defendants. Costs will follow the result in the suit. Decree sheet be prepared in the above terms.
File be sent to Record Room.
Digitally signed by RAVINDER RAVINDER BEDI Announced in the open Court BEDI Date: 2024.01.18 on 18.01.2024 16:19:11 +0530 (Ravinder Bedi) District Judge (Commercial Court)-12
Central District, Tis Hazari Courts /Delhi CS COMM No. 2006/2019 Sugandhi Snuffking Vs. Triveni Zarda Bhandar & Ors.
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