Delhi High Court - Orders
Allied Blenders And Distillers Pvt. Ltd vs Snj Distillers Private Limited & Anr on 17 February, 2022
Author: Sanjeev Narula
Bench: Sanjeev Narula
$~17
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(COMM) 115/2022
ALLIED BLENDERS AND DISTILLERS PVT. LTD. ..... Plaintiff
Through: Mr. Akhil Sibal, Senior Advocate
with Mr. Pravin Anand, Mr. Shrawan
Chopra, Mr. Prem Chandar, Mr.
Vibhav Mithal, Mr. Achyut Tewari
and Mr. Sanjay Chhabra, Advocates.
versus
SNJ DISTILLERS PRIVATE LIMITED & ANR. ..... Defendants
Through: None.
CORAM:
HON'BLE MR. JUSTICE SANJEEV NARULA
ORDER
% 17.02.2022
[VIA HYBRID MODE]
I.A. No. 2713/2022 (u/ Order XI Rule 1(4) r/w Section 151 of the Code of Civil Procedure, 1908 [hereinafter "CPC"] seeking leave to file additional documents)
1. This is an application seeking leave to file additional documents under the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 [hereinafter "Commercial Courts Act"].
2. The Plaintiff, if they wish to file additional documents at a later stage, shall do so strictly as per the provisions of the Commercial Courts Act.
3. Accordingly, the application stands disposed of.
I.A. No. 2715/2022 (seeking exemption from filing clearer copies and/ or with exact margins and/ or appropriate translation or typed version of hand written documents; and from filing English language translations or Signature Not Verified Digitally Signed CS(COMM) 115/2022 Page 1 of 8 By:AKANSHA SINGH Signing Date:17.02.2022 19:23:07 originals or other relevant documents at this stage)
4. Exemption is granted, subject to all just exceptions.
5. The Plaintiff shall file better copies of exempted documents, compliant with practice rules, before the next date of hearing.
6. Accordingly, the application stands disposed of.
I.A. No. 2716/2022 (seeking exemption from filing notarized plaint; statement of truth and the affidavits in support of the plaint)
7. Exemption is granted, subject to all just exceptions.
8. The Plaintiff shall file the exempted documents within six weeks from the day the facility for attestation of affidavits is resumed.
9. Accordingly, the application stands disposed.
I.A. No. 2714/2022 (u/ Section 12A of the Commercial Courts Act r/w Section 151 of CPC)
10. Issue notice to the Defendants, by all permissible modes, upon filing of process fee, returnable on the next date of hearing.
CS(COMM) 115/2022
11. Let the plaint be registered as a suit.
12. Upon filing of process fee, issue summons to the remaining Defendants, by all permissible modes. Summons shall state that the written statement shall be filed by the Defendants within 30 days from the date of receipt of summons. Along with the written statement, the Defendants shall also file an affidavit of admission/ denial of the documents of the Plaintiff, without which the written statement shall not be taken on record.
13. Liberty is given to the Plaintiff to file a replication within 15 days of Signature Not Verified Digitally Signed CS(COMM) 115/2022 Page 2 of 8 By:AKANSHA SINGH Signing Date:17.02.2022 19:23:07 the receipt of the written statement. Along with the replication, if any, filed by the Plaintiff, an affidavit of admission/ denial of documents of the Defendants, be filed by the Plaintiff, without which the replication shall not be taken on record. If any of the parties wish to seek inspection of any documents, the same shall be sought and given within the timelines.
14. List before the Joint Registrar for marking of exhibits on 18th April, 2022. It is made clear that any party unjustifiably denying documents would be liable to be burdened with costs.
15. List before Court for framing of issues on 05th July, 2022.
I.A. No. 2712/2022 (u/ Order XXXIX Rule 1 & 2 r/w Section 151 of CPC)
16. The Plaintiff has filed the instant suit, inter alia, seeking permanent injunction; restraining infringement of trademark; dilution; passing off; damages; delivery-up, among other ancillary reliefs.
17. The case as set out in the Plaint if as follows: Plaintiff is in the business of, inter alia, manufacturing and marketing alcoholic beverages including Indian Made Foreign Liquor ["IMFL"], under various distinctive trademarks and labels, such as - "OFFICER'S CHOICE", "OFFICER'S CHOICE BLUE", "CLASS VODKA", "LORD & MASTER", "CALYPSO", "KYRON", "JOLLY ROGER", "OFFICER'S CLUB", "CLUB CLASS", "STERLING RESERVE", etc.
18. The Plaintiff's trademark viz. "OFFICER'S CHOICE" was coined and adopted in the year 1988 by the predecessor in rights, title, and interest of the Plaintiff which was subsequently assigned to the Plaintiff along with Signature Not Verified Digitally Signed CS(COMM) 115/2022 Page 3 of 8 By:AKANSHA SINGH Signing Date:17.02.2022 19:23:07 goodwill of the business. The trademark "OFFICER'S CHOICE" has been used openly, continuously, extensively, and exclusively by the Plaintiff's predecessor and subsequent thereto, by the Plaintiff has been recognized as a well-known trademark under the Trade Marks Act, 1999 [hereinafter "Trademarks Act"]. Plaintiff's "OFFICER'S CHOICE" is the largest selling whisky product in the world and is sold under, inter alia, various proprietary, unique, and distinctive labels and packaging, which are produced hereinbelow: -
"
"
19. The Plaintiff is also a registered proprietor of the trademark "OFFICER'S CHOICE" "OFFICER'S CHOICE BLUE" and "CHOICE". The details of such registration are provided in paragraph No. 7 of the Plaint. Apart from the said marks, the Plaintiff is also a registered proprietor of a series of formative marks such as - "OFFICERS", "OFFICER'S SPECIAL", "OFFICER'S NO. 1", "OFFICER'S & GENTLEMAN", "CLUB CLASS"
and "OFFICER'S CLUB". The aforesaid marks are all valid, subsisting and renewed in accordance with law.Signature Not Verified Digitally Signed CS(COMM) 115/2022 Page 4 of 8 By:AKANSHA SINGH Signing Date:17.02.2022 19:23:07
20. The Plaintiff has also set out the details of the sales of the product bearing the trademark - "OFFICER'S CHOICE" and the expenditure(s) incurred towards the marketing and sales promotion of the product in paragraphs No. 12 and 13 of the Plaint.
21. Defendant No. 1 viz. SNJ Distillers Pvt. Ltd. is a company engaged in the business of manufacturing of industrial and potable spirits (including IMFL). Defendant No. 2 viz. Empee Distillers Ltd. is also in similar trade. Plaintiff believes that the ownership and control of Defendant No. 2 resides with Defendant No. 1 after the takeover under insolvency proceedings.
22. Plaintiff's primary grievance is with respect to the infringement and passing off of Plaintiff's trademarks viz. "CHOICE", "OFFICER'S CHOICE" and "OFFICER'S CHOICE BLUE".
23. In the month of August, 2019 - the Plaintiff first learnt about Defendants' intent to infringe Plaintiff's well-known trademark, when Defendant No. 1 filed a trademark application viz. TM Application No. 4211097 on 'proposed to be used' basis for the mark/ label - "GREEN CHOICE"/ " " [hereinafter "impugned mark"]. The Plaintiff opposed the said application on 12th December, 2019 and the same is pending adjudication before the Trade Marks Registry. Defendant No. 1, despite being aware of the opposition, proceeded to launch its product under the impugned mark. Initially, the impugned products were launched in Signature Not Verified Digitally Signed CS(COMM) 115/2022 Page 5 of 8 By:AKANSHA SINGH Signing Date:17.02.2022 19:23:07 Andhra Pradesh. However, since then Defendant No. 1 has expanded its activities in Karnataka as well.
24. Mr. Pravin Anand, counsel for the Plaintiff argues that the adoption of the impugned mark is obviously a dishonest and mischievous adoption, with the intent to ride on the Plaintiff's reputation in respect of its trademarks, referred above. Mr. Anand submits that the impugned mark ex-facie infringes the Plaintiff's trademarks and thus, an injunction is necessary, failing which, the Plaintiff's immense goodwill and reputation in its trademarks would be gravely prejudiced. He submits that although the Defendants launched the products in 2020, however, since then they have extended their operations. Mr. Anand also places reliance upon the several orders passed by this Court, wherein injunctions have been granted against various entities, thus protecting the Plaintiff's trademarks. The details of the orders granted in favour of the Plaintiff are set out in paragraph No. 19 of the Plaint.
25. Mr. Akhil Sibal, Senior Counsel for the Plaintiff supplements the arguments advanced by Mr. Anand and submits that it is quite common in trade for the manufacturing companies to make variants of its products. Mr. Sibal submits that the impugned products use "GREEN" and "SUPERIOR WHISKY" which is evidently a mischievous attempt on their part considering the fact that the Plaintiff has a registered trademark viz. 'OFFICER'S CHOICE BLUE". Further, he submits that this Court in Signature Not Verified Digitally Signed CS(COMM) 115/2022 Page 6 of 8 By:AKANSHA SINGH Signing Date:17.02.2022 19:23:07 CS(COMM) 1227/2016 vide judgment dated January 16, 20171, held Plaintiff's mark "OFFICER'S CHOICE" to be a well-known mark having acquired a high degree of distinctiveness and reputation in relation to the Plaintiff's products therein, and thus, he contends that irrespective of the slight delay in approaching the Court, an ex-parte ad interim injunction should be granted in favour of the Plaintiff.
26. Having considered the submissions advanced by the counsels, the Court is of the view that the Plaintiff has made out a prima facie case for grant of an ex-parte injunction. The counsels point out that Defendant No. 1 has ten other brands and Defendant No. 2 has nine brands. That apart, the balance of convenience also lies in favour of the Plaintiff and further, in case an ex-parte injunction is not granted, the Plaintiff is likely to suffer irreparable loss, considering the immense goodwill attached with its trademarks. Accordingly, till the next date of hearing the Defendants and all others acting for and on their behalf, are restrained from using, manufacturing selling, exporting, importing, offering for sale, distributing, advertising, directly or indirectly dealing in alcoholic beverages, especially country spirits and IMFL or goods of any description and from using the impugned mark viz. "GREEN CHOICE" or any identical/ deceptively similar mark to that of the Plaintiff's trademarks "OFFICER'S CHOICE"
"OFFICER'S CHOICE BLUE", "CHOICE", as stated in paragraph No. 7 of the Plaint, in any manner whatsoever, amounting to trademark infringement or passing off.1
M/s. Allied Blenders and Distillers Pvt. Ltd. v. Surya Rao Trading as Leo Foods & Beverages.Signature Not Verified Digitally Signed CS(COMM) 115/2022 Page 7 of 8 By:AKANSHA SINGH Signing Date:17.02.2022 19:23:07
27. It is, however, clarified that the goods which have already been manufactured as on the date of this order, will not be impacted by the directions passed herein.
28. Compliance of Order XXXIX Rule 3 of CPC be done within a period of one week from today.
29. Issue notice to the Defendants, upon filing of process fee, returnable on 05th July, 2022.
30. The Defendants are directed to file an affidavit, disclosing the details of their manufacturing as on 17th February, 2022, within a period of one week from the date of the receipt of this order.
SANJEEV NARULA, J FEBRUARY 17, 2022 as Signature Not Verified Digitally Signed CS(COMM) 115/2022 Page 8 of 8 By:AKANSHA SINGH Signing Date:17.02.2022 19:23:07