Delhi District Court
Amarjeet Juneja vs Sahara Brush Ware on 6 March, 2023
IN THE COURT OF MS SAVITA RAO, DISTRICT JUDGE
COMMERCIAL COURT-04, SHAHDARA,
KARKARDOOMA COURTS, DELHI
CNR No. DLSH01-007296-2021
CS (Comm) No. : 329/2021
In the matter of :-
Amarjeet Juneja
Trading as and Proprietor of
New Brush Industry
A-1/124, DSIDC Jhilmil Flatted Factories Complex
(Near A Block Post Office)
Jhilmil Industrial Area, Delhi- 110095
............Plaintiff
Vs.
1. Sahara Brush Ware
Through its Proprietor
Mr. Naim Ahmad
Moh. Shekhan
Nagarpalika Road, Sherkot,
Tehsil Dhampur, District Bijnor
Uttar Pradesh - 246747
2. M/s Verma Agencies
Verma Niwas, Kamlanagar
Sanjauli, Shimla
Himachal Pradesh - 171006
3. M/s Shree Ganesh Furniture
NH 05, Near Petrol Pump
Bithal, District Shimla
Himachal Pradesh
4. M/s Radhika Trading Company
CS (Comm) No. 329 of 2021 1/31
Khawara Chowki, Shoghi
Shimla, Himachal Pradesh - 171219
.........Defendants
Date of institution of the case : 09.09.2021
Date of final arguments : 24.01.2023
Date of judgment : 06.03.2023
JUDGMENT
1. This is suit for permanent injunction against infringement of Trademark and Passing Off, Rendition of account, Delivery up of Goods and Damages for Rs. 10,00,000/- (Rs. ten lacs only) filed by plaintiff against the defendants
2. Plaintiff, as stated, is carrying on the business of manufacturing and trading of paint brushes under its renowned registered trademark DIAMOND, which is being used since 1979 by the plaintiff and was registered vide trademark registration no. 699877 in class 16 with respect to paint brushes and artistic material. Plaintiff's firm, as stated, had also obtained registration of copyright of one of its packing boxes, under the provisions of Copyright Act vide copyright registration no. A-26922/80.
3. In the month of July 2021, it came to the notice of plaintiff that defendant no.1 is in the similar business of manufacturing and marketing of paint brushes under a deceptively similar trademark DIMAND which is being sold in packaging, identical and strikingly deceptively similar to the plaintiff's packaging and its trade dress. Since defendant no.1 by his abovesaid act is violating the plaintiff's aforesaid trademark/label/packaging /trade dress as well as diluting the plaintiff's rights therein, legal notice dated 22.07.2021 was sent by plaintiff to defendant, which was replied by CS (Comm) No. 329 of 2021 2/31 defendant no.1 and undertaking dated 10.08.2021 was given by defendant no.1 regarding stopping of the user of the said brand. However, despite furnishing said undertaking, defendant no.1 continued to indulge in manufacturing and marketing of the infringing and duplicate paint brushes and defendants no. 2 to 4 also were selling the products manufactured and supplied by defendant no.1. Hence, instant suit was filed alongwith application under order 39 rules 1 & 2 CPC r/w section 151 CPC. Coloured photographs of product and packaging of plaintiff and defendant no.1 was also filed on record.
4. After filing of the suit, vide order dated 17.09.2021, ex- parte ad-interim injunction was granted in favour of plaintiff and against the defendants. Due to continuous non-appearance for the last many dates, defendants no. 2 to 4 were proceeded ex-parte vide order dated 09.01.2023.
5. In written statement filed on behalf of defendant no.1, it was submitted that plaintiff in its plaint has claimed that plaintiff is using the said trademark DIAMOND since the year 1979 which is absolutely false and frivolous claim of the plaintiff. Plaintiff is not using the said trademark since year 1979 and deliberately claimed false user in its plaint as well as in the trademark application and as such the present suit is liable to be dismissed.
6. It was further stated that plaintiff has no exclusive right in the word DIAMOND as this word is highly generic in nature and as such plaintiff cannot claim any exclusive proprietary right over the said word/mark DIAMOND nor any higher lever of legal protectability. There are several persons/entities who are using the said word DIAMOND alongwith suffix/prefix for their CS (Comm) No. 329 of 2021 3/31 business even prior to the plaintiff and plaintiff has concealed this fact from court.
7. It was further stated that in the year 2020, Mr. Naim Ahmad, proprietor of M/s Sahara Brush Ware in order to expand his business of Paint Brushes and Roller Brushes, adopted the trademark DIMAND. He applied for registration of said trademark vide application no. 4788869 in class-11 with respect to Paint Brush and Roller Brush claiming user as 'proposed to be used' and subsequently started using the said trademark for his business. Defendant no.1's trademark DIMAND is entirely different and distinct i.e. visually phonetically and apparently, from the trademark as well as packing material of the plaintiff and there is no likelihood or possibility of any confusion, deception amongst the consumers and trade.
8. It was further submitted that though there is no infringement on the part of defendant no.1, however as plaintiff had objected to use of the mark by defendant no.1 , as such in order to maintain healthy business relationship in the market, defendant no.1 issued the said letter/undertaking to the plaintiff. But the intention of the plaintiff was to extort money from defendant no.1 and therefore despite issuance of said letter/undertaking by defendant no.1, present suit was filed by the plaintiff. It was further submitted that as per knowledge of defendant no.1, defendant no. 2 to 4 never adopted the said trademark nor ever used for their business and plaintiff has deliberately dragged the said defendants into the present litigation.
9. Vide order dated 09.01.2023, following issues were framed:-
CS (Comm) No. 329 of 2021 4/311. Whether the plaintiff is entitled for permanent injunction, as prayed? OPP
2. Whether the plaintiff is entitled for recovery of damages and cost of the suit, as claimed? OPP
3. Relief
10. It was noted that there was no requirement to lead oral evidence pertaining to issue no.1 which can be decided on the basis of pleadings and documents filed on record, therefore, parties were directed to leave evidence only pertaining to issue no.2.
11. In plaintiff's evidence, plaintiff Sh. Amarjeet Juneja examined himself as PW1.
12. In defendant's evidence, Proprietor of defendant no.1 Sh. Naim Ahmad filed affidavit in evidence, however was not cross- examined by counsel for plaintiff.
Issue wise findings are as under :-
Issue no.1:
13. Plaintiff, as claimed, is carrying on the business of manufacturing and trading of paint brushes under its renowned registered trademark DIAMOND, which is being used since 1979 by the plaintiff openly, uninterruptedly and extensively throughout India and the trademark DIAMOND alongwith its packaging design has become distinctive of paint brushes manufactured and marketed by the plaintiff. For the purpose of packaging and marketing its products under the trademark DIAMOND, plaintiff designed and developed packaging material having original, unique and peculiar trade dress, artwork, design, placement, colour pattern and get up and the copy right vested in the trade dress is solely and exclusively associated with and owned by the plaintiff. The Trade CS (Comm) No. 329 of 2021 5/31 Dress, as stated, is the original work of art of the plaintiff and said trade dress also forms trademark of the plaintiff.
14. Plaintiff further claimed that because of the superior quality of the paint brushes being manufactured and sold by the plaintiff under the trademark DIAMOND, the trademark DIAMOND alongwith its trade dress, with respect to paint brushes, has become distinctive and capable of distinguishing paint brushes manufactured and marketed by plaintiff from those of others. Trademark of plaintiff 'DIAMOND' is registered vide trademark registration no. 699877 in class 16 with respect to paint brushes and artists material and the said registration is valid, subsisting and has been continuously renewed since the date of its registration and has currently been renewed till 27.02.2026. Plaintiff's firm had also obtained registration of copyright of one of its packing boxes, under the provisions of Copyright Act vide copyright registration no. A- 26922/80.
15. In the month of July 2021, it came to the notice of plaintiff that defendant no.1 is in the similar business of manufacturing and marketing of paint brushes under a deceptively similar trademark DIMAND, selling its product in identical packaging, which are deceptively similar to the plaintiff's packaging and its trade dress. Being in similar business, defendants are very well aware of the products, trademark and trade dress of the plaintiff, still defendant no.1 was manufacturing the paint brushes under the trademark DIMAND and was using the identical/deceptively similar packaging and trade dress, similar to plaintiff's trademark, packaging material and trade dress, whereas defendants no. 2 to 4 were marketing and selling paint brushes manufactured by defndant no.1. The products of defendant no.1 were being sold at the same CS (Comm) No. 329 of 2021 6/31 counter and side by side with the products of the plaintiff on sale counters in market.
16. Ld. Counsel for plaintiff made following submissions :
(a) It is apparent that defendant no.1 has copied the trademark/trade dress of packaging material of plaintiff with the sole motive of passing off its spurious products as that of plaintiff by creating a deception in the market and amongst the purchasing public in general which has been done with an ulterior motive to trade upon the goodwill and reputation of the plaintiff . Thereby, defendant no.1 is violating the plaintiff's aforesaid trademark/label/packaging /trade dress as well as diluting the plaintiff's rights therein.
(b) On account of defendant's impugned activities, plaintiff is suffering tremendously in business and goodwill and the plaintiff's said proprietary rights are being violated. The innocent purchasers are being deceived and irreparable loss and serious mischief is being caused to the plaintiff and to the consuming public.
(c) Defendant is not the proprietor of impugned trademark/trade dress and has adopted and is using the same without the leave and license of the plaintiff due to which plaintiff is suffering huge losses both in business and in reputation.
(d) Legal notice dated 22.07.2021 was sent by plaintiff to defendant no.1, which was replied by defendant no.1 and undertaking dated 10.08.2021 was given by defendant no.1 regarding stopping of the user of same in future. However, despite giving undertaking, defendant no.1 is still indulging in manufacturing and marketing of the infringing and duplicate paint brushes and defendants no. 2 to 4 are still indulging in selling the products manufactured and supplied by defendant no.1.CS (Comm) No. 329 of 2021 7/31
(e) Plaintiff issued notice upon the defendant no.1 calling upon him immediately cease and desist themselves and their franchisee
(s), distributors, dealers, retailers, servants, agents, representatives and any other person acting for or on their behalf, from infringing and passing off the trademark DIAMOND belonging to plaintiffs by selling or offering for sale or advertising or dealing with, directly or indirectly for the goods manufactured and marketed by them, and/or any other trademark deceptively similar to trademark of plaintiff including the trademark DIMAND, with respect to any of their businesses or products, and further from diluting the goodwill of plaintiff or indulging in any unfair trade practices.
(f) Defendant no.1 was further called upon to immediately cease and desist themselves and their franchise (s), distributors, dealers, retailers, servants, agents, representatives and any other person acting for and/or on their behalf, from infringing and passing off the goods manufactured and marketed by them under the said packaging and /or any other packaging having the Trade Dress which is similar/deceptively similar to the Trade Dress and Packaging material of plaintiff, with respect to any of their businesses or products and to immediately hand over all the material including boxes, labels, packing material, promotional material, stationery, bill books, blocks and plates or any other printed material etc. bearing the trademark DIAMOND or DIMAND or any other trademark deceptively similar to the trademark DIAMOND; or bearing the said packaging and trade dress.
(g) Defendant no.1 was further called upon to furnish an unconditional written undertaking acknowledging plaintiff's rights in the trademark DIAMOND, in the said packaging and trade CS (Comm) No. 329 of 2021 8/31 dress involved in it and that defendant or his representatives, franchise (s), distributors, dealers, retailers, servants,agents, affiliates and any other person acting for or on behalf of defendant, will not breach the rights of plaintiff in said trademark and trade dress, in any manner whatsoever.
(h) Defendant no.1 furnished undertaking dated 10.08.2021 stating that they had been using the demand/brand but if the plaintiff had objection to the same, they will stop using the same forever and will not use the name of said brand in future.
(i) Though this undertaking was furnished by defendant but it had not addressed the issue of its past infringement of the plaintiff's trademark, subsequent inquiries though revealed that defendant no.1 was still indulging in the manufacturing and marketing of the infringing and duplicate paint brushes with impunity without showing any seriousness or intent to abide by the undertaking by defendant no.1 which was nothing but a ploy to avoid the impending litigation.
(j) Defendants no. 2 to 4 were also indulging in selling the products manufactured and supplied by defendant no.1 under the violative trademark DIMAND and trade dress.
17. PW1 in cross examination admitted that undertaking was given by defendant prior to filing of the suit that he shall stop using the trade mark but he got to know in the market that defendant was still using the infringing trade mark. According to PW1, dealer Ashish Trading had intimated him about defendant no.1 still using the trade mark, which information was given by Ashish Trading after filing the present suit. One M/s Radhika Trading also told him regarding use of trade mark by defendant no.1 prior to filing of the suit. PW1 denied the suggestion that CS (Comm) No. 329 of 2021 9/31 after issuance of legal notice, defendant no.1 had stopped user of the trademark or that the infringed trademark was not deceptively similar to the trademark of plaintiff.
18. Per contra, it was submitted by Ld. counsel for defendant no.1 that no cause of action had ever arisen in favour of plaintiff to file the present suit. Though there was no similarity between the two marks nor there was any infringement of the trademark, yet defendant no.1 had furnished the undertaking that they will stop using the said trademark. As submitted, nothing has been brought on record to show that defendant had ever used the infringed material thereafter and invoices which had been seized by Ld. Local Commissioner were prior to undertaking i.e. 10th to 12th June 2020 and there was not a single invoice after the said undertaking, therefore the injunction cannot be granted.
19. It was also submitted by Ld. Counsel for defendant that there is no likelihood of confusion or deceptive similarity between the mark used by the plaintiff and the defendant. It was denied that same cannot be differentiated or distinguished from the other and as submitted, there can be no confusion in the mind of public with regard to the two marks. Reliance was also placed by Ld. Counsel for defendant upon SBL Limited Vs. Himalya Drug Co. MANU/DE/0311/1997 and Bigtree Entertainment Pvt. Ltd. Vs. Brain Seed Sportainment Pvt. Ltd. And Ors.
MANU/DE/5189/2017 wherein interalia it was observed that:
" the act does not lay down any criteria for determining what is likely to deceive or cause confusion within the meaning of section 8 (c) and section 19 (1). Therefore, every case must depend on its own particular facts, and the value of authorities lies not so much in the actual decision as in the tests applied for determining what is likely to deceive or cause confusion. A trade mark is likely to deceive or cause confusion by its resemblance to another already on the Register. It is likely to do so in the course of its legitimate use in a market where the two marks are assumed to CS (Comm) No. 329 of 2021 10/31 be in use by traders in that market. In considering the matter, all the circumstances of the case must be considered. What degree of resemblance is necessary to deceive or cause confusion must in the nature of thing be incapable of definition a priori. For deceptive resemblance, two important questions are (1) who are the persons whom the resemblance must be likely to deceive or confuse, and (2) what rules of comparison are to be adopted in judging whether such resemblance exists " .
20. Report of Local Commissioner substantiates the claim of the plaintiff. Vide order dated 17.09.2021, Local Commissioner was appointed in the matter. In terms of report of Ld. Local Commissioner, packed paint brush, packaging material, bill books, estimate books, loose bills and many rough bills in which the bills were made in name of ' DIMAND" under the company name "
SAHARA BRUSH WARE" were found. The paint brush and its packing were identical as of same colour, design, trade dress, label artwork, trademark, colour combination, layout, and pattern and packaging from front, and back with that of the plaintiff in the name of " DIMAND" . It was further mentioned in the report of Local Commissioner that the defendant used the name "
DIMAND" for selling and manufacturing of the paintbrushes, which were similar to the paint brushes of the plaintiff. The workers and Mrs. Shehnaz Praveen W/o Naim Ahmad of SAHARA BRUSH WARE on inquiry stated that " they used to sell and manufacture the paint brushes in the name of DIMAND which was identical as trademark, design, label, and packing, on regular basis, however now, they were manufacturing and selling paint brushes in the name of " NELSON BRAND SAHARA BRUSH WARE" .
21. Though it is correct that the invoices seized by the Ld. Local Commissioner were dated prior to the undertaking furnished by the defendant no.1 but the paint brush, packaging material etc. CS (Comm) No. 329 of 2021 11/31 were also found from the premises of defendant no.1. Ld. Counsel for defendant no.1 submitted that only one paint brush was seized from the premises of defendant no.1.Report of Local Commissioner remained unchallenged on record by the defendants. Coloured photographs of product and packaging of plaintiff and defendant no.1 were also filed on record. Defendant no.1 at the time of visit of the Local Commissioner was found in possession of the infringing material, which was after the undertaking having been furnished by defendant no.1 with regard to stopping of the user of infringing trademark. Had defendant no.1 stopped manufacturing/sale of infringing material , it was obligatory upon the defendant to destroy all the infringing material. Albeit, it was still found at the premises belonging to defendant no.1.
22. Defendant had been manufacturing/selling the product which was deceptively similar to the product of the plaintiff. From the material available on record, it is evident that the similarity between the products of plaintiff and defendant no.1 is very striking and an ordinary person may not be able to identify any dis- similarity and would thereby be deceived. The trade dress of original and peculiar work, design, placement, colour pattern, layout, design and getup of the packaging of the product of defendant no.1 is also very similar to that of plaintiff.
23. An action for infringement of trademark or more of passing off will lie wherever the defendant's product's name, or its intended name, is calculated to deceive, and so to divert business from the plaintiff, or to occasion a confusion between the two businesses. If this is not made out there is no case. The CS (Comm) No. 329 of 2021 12/31 ground is not to be limited to the date of the proceedings; the court will have regard to the way in which the business had been carried on or may be carried on in future, and to its not being carried on precisely as carried on at the date of the proceedings. Where there is probability of confusion in business, an injunction will be granted even if the defendant adopted the name innocently (Kerly Law of Trade Marks and Trade Names).
24. Honesty and fair play are, and ought to be, the basic policies in the world of business . When a person adopts or intends to adopt a name in connection with his business or services which already belongs to someone else, it results in confusion and has propensity of diverting the customers and clients of someone else to himself and thereby resulting in injury.
25. "The legal and economic basis of tort is to provide protection for the right of property which eixsts not in a particular name, mark or style but in an established business, commercial or professional reputation or goodwill. So to sell merchandise or carry on business under such a name, mark, description, or otherwise in such a manner as to mislead the public into believing that the merchandise or business is that of another person is a wrong, actionable at the suit of that other person. This form of injury is commonly, though awkwardly, termed that of passing off one's goods or business as the goods or business of another and is the most important example of the wrong of injurious falsehood. The gist of the conception of passing off is that the goods are in the effect telling a falsehood about themselves, are saying something about themselves which is calculated to mislead. The law on this matter is designed to protect traders against that form of unfair competition which CS (Comm) No. 329 of 2021 13/31 consists in acquiring for oneself, by means of false or misleading devices, the benefit of the reputation already achieved by rival traders" (Salmond and Heuston in Law of Torts).
26. " Gist of passing off action was definded in Oertli Vs. Bowman (1957) RPC 388 , (at page 397), that it was essential to the success of any claim to passing off based on the use of given mark or get up that the plaintiff should be able to show that the disputed mark or get-up has become by user in the country distinctive of the plaintiff's goods so that the use in relation to any goods of the kind dealt in by the plaintiff of that mark or get up will be understood by the trade and the public in that country as meaning that the goods are the plaintiff's goods. It is in the nature of acquisition of a quasi proprietary right to the exclusive use of the mark or get up in relation to goods of that kind because of the plaintiff having used or made it known that the mark or get up has relation to his goods. Such right is invaded by anyone using the same or some deceptively similar mark, get up or name in relation to goods not of plaintiff. The three elements of passing off action are the reputation of goods, possibility of deception and likelihood of damages to the plaintiff ".
27. According to Kerly, passing off cases are often cases of deliberate and intentional misrepresentation, but it is well settled that fraud is not a necessary element of the right of action, and the absence of an intention to deceive is not a defence though proof of fraudulent intention may materially assist a plaintiff in establishing probability of deception. Christopher Wad Low in Law of Passing off states that the plaintiff does not have to prove actual damage in order to succeed in an action for passing off. Likelihood of CS (Comm) No. 329 of 2021 14/31 damage is sufficient. As to how the injunction granted by the court would shape depends on the plaintiff's distinctive trade mark or business name, the order may be an absolute injunction that he would not use or carry on business under the name.
28. Reliance is placed upon following authorities:
(a) Devagiri Farms Pvt. Ltd. Vs. Mr. Sanjay Kapur and Anr. , FAO (OS) 274/2014, decided on 01.02.2016 " 7. Tested on the well recognized touchstone of the principle of deception, it would be apparent to the naked eye that any purchaser of tea with the usual imperfect recollection to which all humans are prone to, would be deceived when she/he comes across the tea packed by the appellant.
8. It is the overall get up and similarity which has to be seen and not the minor variations because it is similarity which strikes and not the dissimilarities which distinguish when an ordinary person recollects an object seen in the past".
(b) Parle Products (P) Ltd. Vs. J.P. and Co. Mysore, Civil Appeal no. 1051 of 1967, decided on 28.01.1972, AIR 1972 SC 1359, MANU/SC/0412/1972.
" 6......The expression " deceptively similar" has now been defined under section 2 (d) of the Act of 1958, thus:
A mark shall be deemed to be deceptively similar to another mark if it so nearly resembles that other mark as to be likely to deceive or cause confusion;
7.. To decide the question as to whether the plaintiff's right to a trademark has been infringed in a particular case, the approach must not be that in an action for passing off goods of the defendants as and for those of the plaintiff. According to this, Court in Durga Dutt Vs. Navratna Laboratories MANU/SC/0197/1964: (1965) 1 SCR737.
While an action for passing off is a Common Law Remedy being in substance an action for deceit, that is, a passing off by a person of his own goods as those of another, that is not the gist of an action for infringement. The action for infringement is a statutory remedy conferred on the registered proprietor of a registered trade mark for the vindication of the exclusive right to the use of the trade mark in relation to those goods (vide section 21 of the Act). The use by the defendant of the trademark of the plaintiff is not essential CS (Comm) No. 329 of 2021 15/31 in an action for passing off, but is the sine qua non in the case of an action for the infringement.
In the above case, the court further pointed out:
In an action for infringement, the plaintiff must, no doubt, make out that the use of the defendant's mark is likely to deceive, but where the similarity between the plaintiff's and the defendant's mark is so close either visually, phonetically or otherwise and the Court reaches the conclusion that there is an imitation, no further evidence is required to establish that the plaintiff's rights are violated. Expresses in another way, if the essential features of the trademark of the plaintiff have been adopted by the defendant, the fact that the get up, packing and other writing or marks on the goods or on the packets in which he offers his goods for sale show marked differences, or indicate clearly a trade origin different from that of the registered proprietor of the mark would be immaterial ; wheres in the case of passing off, the defendant may escape liability if he can show that the added matter is sufficient to distinguish his goods from those of the plaintiff.
8...According to Karly's Law of Trade Marks and Trade (9th Edition paragraph 838):
Two marks, when placed side by side, may exhibit many and various differences yet the main idea left on the mind by both may be the same. A person acquainted with one mark, and not having the two side by side for comparison, might well be deceived, if the goods were allowed to be impressed with the second mark, into a belief that he was dealing with goods which bore the same mark as that with which he was acquainted. Thus, for example, a mark may represent a game of football; another mark may show players in a different dress, and in very different positions, and yet the idea conveyed by each might by simply a game of football. It would be too much to expect that persons dealing with trade-marked goods, and relying, as they frequently do, upon marks, should be able to remember the exact details of the marks upon the goods with which they are in the habit of dealing. Marks are remembered rather by general impressions or by some significant detail than by any photographic recollection of the whole. Moreover, variations in detail might well be supposed by customers to have been made by the owners of the trade mark they are already acquainted with for reasons of their own.
9...It is therefore clear that in order to come to the conclusion whether one mark is deceptively similar to another, the broad and essential features of the two are to be considered. They should not be placed side by side to find out if there are any differences in the design and if so, whether they are of such character as to prevent one design from being mistaken for the other. It would be enough if the impugned mark bears such an overall similarity to the registered mark as would be likely to mislead a person usually dealing with one, to accept the other if offered to him. In this case, we find that the packets are practically of the same size, the court scheme of the two wrappers is almost the same; the design on both though not identical bears such a close resemblance that one can easily be mistaken for the other. The essential features of both are that there is a girl with one arm raised and carrying CS (Comm) No. 329 of 2021 16/31 something in the other with a cow or cows near her and hens or chickens in the foreground. In the background, there is a farm house with a fence. The word " Glucose Biscuits" in one and " Glucose Biscuits" on the other occupy a prominent place at the top with a good deal of similarity between the two writings. Anyone in our opinion who has a look at one of the packets to-day may easily mistake the other if shown on another day as being the same article which he had seen before. If one was not careful enough to note the peculiar features of the wrapper on the plaintiffs' goods, he might easily mistake the defendant's wrapper for the plaintiffs' if shown to him sometime after he had seen the plaintiffs'. After all, an ordinary purchaser is not gifted with the powers of observation of a Sherlock Holmes. We have therefore no doubt that the defendant's wrapper is deceptively similar to the plaintiffs' which was registered".
(c) CS (OS) No. 3/2020, I.A. No. 21/2010 titled as The Timken Company Vs. Timken Services Pvt. Ltd.
" A fair and honest trader will not give a misleading name to its product to the continuing detriment of the plaintiff who has built up their goodwill in the business after years of hard work. It is this intangible right to property which the law seeks to protect. Mere concurrent user is not sufficient in law. It must be honest. The mark is said to be in use as against the mark which is admittedly registered. The presumption available in law in favour of the registered trade mark must necessarily flow from the facts of the case . To establish honesty, the efforts made by the defendant, who says that the mark is honestly used, must be such, which will satisfy the conscience of the court that the user was honest. Such defendant carries a higher degree of obligation of being more diligent in establishing the case of honesty, especially when such user is put against the mark which is the registered trade mark.
As was further observed that " defendant has also copied the plaintiff's art work, font and orange colour which prima facie amounts to infringement of plaintiff's copyright . There is an uncanny degree of similarity between the plaintiff and defendant's copyright, colour scheme , get up, font and artwork. This would only mean that one of the parties has copied from the other and it has never been the case of the defendant that the plaintiff has copied from them. The plaintiff's copyright has been in continuous and prior use".
(d) Kavi Raj Pandit Durga Dutt Sharma v. Navaratna Pharmaceutical Laboratories, AIR 1965 SC 980 and in National Bell Co. v. Metal Goods Mfg. Co., AIR 1971 SC 898 " on registration of a trade mark, the registered proprietor gets, under Section 28, the exclusive right to the use of such trade marks in relation to the goods in respect of which the trade mark is registered and to obtain relief in respect of any infringement of such trade mark. The action for infringement is a statutory remedy conferred on the registered proprietor CS (Comm) No. 329 of 2021 17/31 of a registered trade mark for the vindication of the exclusive right to the use of the trade mark in relation to those goods".
(e) American Home Products vs. Mac Laboratories, AIR 1986 SC 137 " when a person gets his trade mark registered, he acquires valuable rights by reason of such registration. The registration of the trade mark gives the goods in respect of which it is registered and if there is any invasion of this right by any other persons using a mark which is the same or deceptively similar to the trade mark, one can protect the trade mark by an action for infringement in which an injunction can be obtained" .
(f) Mahendra & Mahendra Paper Mills Ltd. v. Mahindra & Mahindra Ltd., (2002) 2 SCC 147 " the plaintiff has been using the word 'Mahindra' and 'Mahindra & Mahindra' in its companies/business concerns for a long span of time extending over five decades. The name has acquired distinctiveness and a secondary meaning in the business or trade circles. People have come to associate the name 'Mahindra' with a certain standard of goods and services. Any attempt by another person to use the name in business and trade circles is likely to and in probability will create an impression of a connection with the plaintiff's group of companies. Such user may also affect the plaintiff prejudicially in its business and trading activities".
(g) Laxmikant V. Patel v. Chetanbhai Shah, (2002) 3 SCC 65 " an injunction has to be granted where there is probability of confusion even though the defendant adopted the name innocently. The law does not permit any one to carry on his business in such a way as would persuade the customers or clients in believing that the goods or services belong to someone else are his or are associated therewith. It does not matter whether the latter person does so fraudulently or otherwise. The reasons are two. Firstly, honesty and fair play are, and ought to be, the basic policies in the world of business. Secondly, when a person adopts or intends to adopt a name in connection with his business or services which already belongs to someone else it results in confusion and has propensity of diverting the customers and clients of someone else to himself and thereby resulting in injury" .
(h) Midas Hygiene Industries Pvt. Ltd. v. Sudhir Bhatia, 2004 (28) PTC 121 (SC), "in cases of infringement either of trade mark or of copyright normally an injunction must follow. Mere delay in bringing action is not sufficient to defeat grant of injunction in such cases. The Court further held that grant of injunction also becomes necessary if it prima facie appears that the adoption of the Mark was itself dishonest".
CS (Comm) No. 329 of 2021 18/31(i) Milment Oftho Industries v. Allegran Inc., 2004 (28) PTC 585 (SC), " even if there is no sale of goods in India, the plaintiff is entitled to injunction as long as the plaintiff is the prior user in the and transborder reputation is established. The ultimate test is who is first in the market".
(j) Daimler Benz Aktiegesellschaft v. Hybo Hindustan, AIR 1994 Del 239 "the trade mark law is not intended to protect a person who deliberately sets out to take the benefit of somebody else's reputation with reference to goods, especially so when the reputation extends worldwide".
(k) Aktiebolaget SKF v. Rajesh Engineering Corporation, 1996 (16) PTC 160 (Del.) " the different explanations of the respondent for using the impugned trade mark does not strengthen its case but detracts from the truthfulness of the explanation. The use of the trade mark by the respondent, therefore, is not bona fide, and is a colourable imitation of the appellant's trade mark. Since the adoption of the mark was dishonest, the alleged use of the same will be of no consequence.
(l) Baker Hughes Ltd. v. Hiroo Kushalani, 74 (1998) DLT 715 " there can be an informed class of purchasers who have a degree of knowledge and a sense of discrimination more substantial than that of an ordinary purchaser, but the mere fact that the customers are sophisticated, knowledgeable and discriminating does not rule out the element of confusion if the trade marks/trade names/corporate names of two companies are identical or if the similarity between them is profound. In several cases it has been held that initial confusion is likely to arise even amongst sophisticated and knowledgeable purchasers under a mistaken belief that the two companies using the same corporate name, trading name or style are inter-related. It is this class of buyers who are likely to think that there is some sort of association between the products of two different companies when they come across common or similar trade names or corporate names or trading styles used by them. The sophistication of a buyer is no guarantee against likely confusion. The court further held that in some cases, however, it is also possible that such a purchaser after having been misled into an initial interest in a product manufactured by an imitator discovers his folly, but this initial interest being based on confusion and deception can given rise to a cause of action for the tort of passing off as the CS (Comm) No. 329 of 2021 19/31 purchaser has been made to think that there is some connection or nexus between the products and business of two disparate companies".
(m) B.K. Engineering Co. v. Ubhi Enterprises (Registered) 27 (1985) DLT 120 " fair and honest trader will not give a misleading name to his product to the continuing detriment of the plaintiff who has built up his goodwill in the business after years of hard work. It is this intangible right to property which the law seeks to protect".
(n) M/s Lupin Laboratories v. M/s Jain Products, AIR 1998 Bom 312, " mere concurrent user is not sufficient in law. It is must be honest. The presumption available in law in favour of the registered trade mark must necessarily flow from the facts of the case. To establish honesty, the efforts made by the defendant, who says that the mark is honestly used, must be such which will satisfy the conscience of the Court that the user was honest. Such a defendant carries a higher degree of obligation of being more diligent in establishing the case of honesty, especially when such user is put against the mark which is the registered trade mark".
(o) Alfred Dunhill Limited v. Kartar Singh Makkar, 1999 (19) PTC 294 (Del.) " the real test is whether defendants have any right to represent their business as the business of plaintiff. It ultimately leads to the question as to why defendants were using the trade name 'Dunhill' to their products. The defendants have not offered any explanation whatsoever as to why the mark 'Dunhill' was being used by them. The name 'Dunhill' is neither parental name of defendants nor in any way connected with them. The mark 'Dunhill' is attributable to the surname of Alfred 'Dunhill'. All of the goods marketed by plaintiff company are sold under the trade mark and trade name 'Dunhill'. The trade mark and trade name 'Dunhill' has become distinctive of the plaintiff's goods as a result of substantially exclusive and continuous use in commerce since 1893. Thus, the use of the trade name 'Dunhill' by defendants is indicative of their intent. The defendants' desire to market their goods under the name of mark 'Dunhill' is to trade upon and encash on the name, fame, reputation, image and good will acquired by the plaintiff company".
(p) Jolen Inc. v. Doctor & Company, 98 (2002) DLT 76, " when a party after copying a trade mark comes out with an explanation as to its invention which is unbelievable or may be plausible, its attempt to synchronize combination of words is a mere after-thought and an act of searching excuses and explanation. It is natural for the parties who have copies trade mark to try and explain its conduct and to look out for CS (Comm) No. 329 of 2021 20/31 means to explain derivation of words so adopted. If trade mark having element of prior continuance and use has been copied, no amount of explanation even if it is plausible is capable of defending infringement of copyright of such prior use. The Court further held that there is an uncanny degree of similarly between the plaintiff and defendant's trade mark, colour scheme, get up, lay out of the container and the carton etc. which could only mean that one of the parties has copied from the other and it has never been the case of the defendant that the plaintiff has copied from them. The defendants have quagmired themselves to invent explanation. The Court further held that the explanation of the defendant in choosing the impugned trade name is highly implausible, farfetched and wholly unconvincing and the dishonesty in choosing the name and the ill design to trade and cash upon the reputation and goodwill of the plaintiff is pronounced ad prominent. The Court held that passing off involves elements of misrepresentation and deceit. The object of adopting the trade name or deceptively similar name of another person is to trade upon and derive the financial benefit from the reputation and goodwill of that person. As a consequence the business or the goodwill of the other person suffers damage in financial as well as in terms of reputation. That is why the remedy against passing off action is independent of the infringement action arising from the violation of the statutory right to a trade mark".
(q) Hamdard National Foundation v. Abdul Jalil, 2008 (38) PTC 109 (Del.), " the balance of convenience lies in favour of the plaintiff and ad interim injunction is granted. The defendant took a calculated risk in using the 'Hamdard' word and eye mark; indeed its use of the eye mark points to an attempt to "free ride" on the plaintiff's reputation. The Court further held that unless injuncted, the plaintiff would continue to suffer commercially".
(r) Punjab Tractors Ltd. v. Pramod Kumar Garg, 85 (2000) DLT 567, " the criteria for determining what is likely to deceive or cause confusion is whether the trade mark by its resemblance to another trade mark already on the register is likely to deceive in the normal course of its legitimate use in the trade and that the goods are such that by virtue of some similarly, affinity or other circumstances the purchasing public will consider them as coming from the same source if marketed under similar trade marks. The approach has to be from a business and commercial point of view and the test of sameness and description should be a business and practical test. In judging the nature and composition of the goods, their respective usages and functions and the trade channels through which they are bought and sold are to be taken notice of" .
(s) Sony Kabushiki Kaisha v. Mahaluxmi Textile Mills, 2009 (41) PTC 184 (Cal.), CS (Comm) No. 329 of 2021 21/31 " if a person is the holder of a trade mark which has acquired a wide reputation transcending international barriers even though in respect of a specified class or category of goods, that trade mark cannot be allowed to be violated by another person in respect of different category of goods because that other person will be deliberately using the trade mark of the former with an intent to get some undue advantage because of its reputation and goodwill".
(t) Beiersdorf A.G. v. Ajay Sukhwani, 156 (2009) DLT 83, " misrepresentation cannot exist in vacuum and is co-relatable to the extent, value and nature of goodwill of the plaintiff. Greater the goodwill, greater is the need to protect and wider is the cover and the field of protection. The Court further held that looking at the similarly of the two marks, fraudulent adoption of the said mark by the defendants, the nature and extent of the goodwill of the plaintiff, nature and difference of trade by itself is not sufficient to defeat the suit for passing off. Damage/loss can be presumed as a natural consequence of misrepresentation.
(u) Rolex SA v. Alex Jewellery Pvt. Ltd. 2009 (6) R.A.J. 489 (Del.) " plaintiff was the proprietor of a well-known registered trade mark 'Rolex' in respect of watches and the defendant started using the mark in respect of artificial jewellery. This Court held that the 'Rolex' in respect of watches and the defendant started using the mark in respect of artificial jewellery. This Court held that the 'Rolex' was a well-known trade mark and has also reputation in India and therefore, the defendant was restrained under Sec. 29 (4) (c) of the Trade Marks Act from using the trade mark "Rolex".
(v) Vardhman Properties Ltd. v. Vardhman Devlopers and Infrastructures, 166 (2010) DLT 782, " the plaintiff, a real estate developer, was registered proprietor of the trade mark of 'Vardhman' and the defendant adopted the same for business of booking flats and real estate consultancy. This Court held that acquiescence prima facie does not arise in such situation where there is nothing showing the plaintiff's action, over or otherwise encouraging defendant to continue using the mark. The Court held that once a prima facie case in infringement actions is established, the Courts ordinarily should not withhold relief. The Court restrained the defendant from using the plaintiff's trade mark.
(w) Marvel Tea Estate India Ltd. v. P.M. Batra (Prop) M/s Gurukripa Traders, 2012 (49) PTC 82 (Del.), " in order to prove the case for infringement of trade mark, the plaintiff has to show that the essential features of the registered trade mark which has been adopted by the defendant, has been taken out from the CS (Comm) No. 329 of 2021 22/31 plaintiff's registration. Only the marks are to be compared by the Court and in case the registration is granted in favour of the plaintiff, he acquires valuable right by reason of the said registration".
(x) Ozone SPA Private Limited v. Ozone Club, 2010 (42) PTC 469 (Del.) " the registered proprietor of the trade mark 'Ozone' was running a spa whereas the defendant adopted the same trade mark for running fitness center, health club and gymnastics. The plaintiff's trade mark was a well- known trade mark within the meaning of Section 2(1) (zg) and had acquired goodwill and reputation and, therefore, the case was covered under Section 29 (4) of the Trade Marks Act for protection of the mark in respect of dissimilar goods as well" .
(y) Himalaya Drug Company v. SBL Limited, 2013 (53) PTC 1 (Del.)(DB), " the rival marks are to be compared as a whole. Where two marks are identical, it is not necessary for the plaintiff to prove further that the use of defendant's mark is likely to deceive or cause confusion as the registration shows the title of the registered proprietor and the things speaks for themselves. If the Court finds that the defendant's mark is closely, visually and phonetically similar then no further proof is necessary. It is no necessary for the plaintiff to adduce evidence of actual deception in order to prove the case of infringement".
(z) LT Foods Limited v. Sulson Overseas Pvt. Ltd. (192) 2012 DLT 373, "the foundation of the law of infringement of the trade mark, copyright and of passing off is honesty. No one shall be permitted to enrich himself on the goodwill and reputation built up or earned by anyone else".
29. The term passing off refers to the infringement of trade mark done in such a way that the mark is not only deceptively similar to the trade mark of that other concern but is also capable of creating or is creating confusion for the customers which ultimately results in damage of business of the plaintiff concern. The fundamental principal behind the term passing off is that man cannot sell his goods under the pretence that they are goods of another person.
30. Reliance is placed upon following authorities:
(a) S. Saiyed Meinuddin Vs. P. Sulochna Bai CS (Comm) No. 329 of 2021 23/31 " passing off right is wider remedy than that of infringement. This is because the passing off doctorine operates on the general principal that no person should sell his business as the business of another person. A person may sell his goods or services as such in case of profession under a trading name or style. With the lapse of time such business or services associated with the person acquire reputation or goodwill/which becomes a property which is protected by courts. A competitor initiating sale of goods or services in the same name or by imitating that name results in injury to the business of one who has the property in that name. The law does not permit anyone to carry on his business in such a way as would persuade the customers or clients in believing that the goods or services belonging to someone else are his or are associated therewith".
(b) CS (OS) No. 3/2020, I.A. No. 21/2010 titled as The Timken Company Vs. Timken Services Pvt. Ltd.
" The plaintiff has also made out a case of passing off as the use of the trade mark ' Timken' in similar art work, font and colour as that of plaintiff is likely to create confusion in the minds of the users as if the products/services for the defendant have belonged to the plaintiff. The use of mark ' Timken' by the defendant is calculated to mislead and deceive its customers into believing that its products originate from the plaintiff. The object of adopting the trade name or deceptively similar name of another person is to trade upon and derive the financial benefit from the reputation and goodwill of that person. As a consequence the business or the goodwill of the other person suffers damage in terms of financial as well as reputation. That is why the remedy against passing off action is independent of the infringement action arising from the violation of the statutory right to a trade mark" .
(c) Wander Ltd. v. Antox India (P) Ltd, 1990 Supp. SCC 727, " passing-off is said to be a species of unfair trade competition or of actionable unfair trading by which one person, through deception, attempts to obtain an economic benefit of the reputation which another has established for himself in a particular trade or business".
(d) Bengal Waterpoof Ltd. v. Bombay Waterproof Manufacturing CO., (1997) 1 SCC 99 " an action for passing off is a common law remedy being an action in substance of deceit under the Law of Torts. Wherever and whenever fresh deceitful act is committed, the person deceived would naturally have a fresh cause of action in his favour. Thus every time when a person passes off his goods as those of another he commits the act of such deceit.
Similarly, whenever and wherever a person commits breach of a registered trade mark of another he commits a recurring act of breach or infringement of such trade mark giving a recurring and fresh cause of action at each time of such infringement to the party aggrieved. The Supreme Court further held that in cases of continuous causes of action or recurring causes of action, bar of Order 2 rule 2 Sub-rule (3) cannot be invoked. Section 22 of Limitation CS (Comm) No. 329 of 2021 24/31 Act, 1963 lays down that, 'in the case of continuing breach of contracts or in the case of a continuing tort, a fresh period of limitation begins to run to every moment of the time during which the breach or tort, as the case may be, continues."
(e) Laxmikant V. Patel v. Chetanbhai Shah (supra) " where there is probability of confusion in business, an injunction has to be granted even though the defendants adopted the name innocently, passing off cases are often cases of deliberate and intentional misrepresentation, but it is well settled that fraud is not a necessary element of the right of action, and the absence of an intention to deceive is not a defence, though proof of fraudulent intention may materially assist a plaintiff in establishing probability of deception. The Supreme Court further held that the plaintiff does not have to prove actual damage in order to succeed in an action for passing -off. Likelihood of damage is sufficient. The defendant's state of mind is wholly irrelevant to the existence of the cause of action for passing-off".
31. Question therefore is whether the use of the mark can bring misconception in the mind of general public with regard to the identity of plaintiff and defendant. Here it is not the case that merely some deceptive similar word has been used by the defendant . Rather in the present case, the mark, packaging being used by defendant no.1 is not only similar but reaches to the extent of being deceptively similar for the identical product, sufficient to cause confusion in the mind of the public with regard to identity of the plaintiff and the defendant, besides the claim of the plaintiff that both the goods are being sold at the same counter with every likelihood to cause confusion in the mind of public.
32. It is also borne out from the record that the plaintiff is prior user of the word " DIAMOND". It is also not disputed on record that the defendant is manufacturing/selling similar product i.e. paint brushes. As already noted " to sell merchandise or carry on business under such a name, mark, description, or otherwise in CS (Comm) No. 329 of 2021 25/31 such a manner as to mislead the public into believing that the merchandise or business is that of another person is a wrong, actionable at the suit of that other person. The law on this matter is designed to protect traders against that form of unfair competition which consists in acquiring for oneself, by means of false or misleading devices, the benefit of the reputation already achieved by rival traders". " The three elements of passing off action are the reputation of goods, possibility of deception and likelihood of damages to the plaintiff ". " A competitor initiating sale of goods or services in the same name or by imitating that name results in injury to the business of one who has the property in that name. The law does not permit anyone to carry on his business in such a way as would persuade the customers or clients in believing that the goods or services belonging to someone else are his or are associated therewith". Case of plaintiff squarely falls in above noted criteria . There is no answer from the side of the defendant as to why it used this deceptively similar tradename/label/trade dress/packing when the same was already in the market having already earned goodwill. The obvious reason in these circumstances can be to encash the goodwill/name earned by the plaintiff.
33. Hence, it can be concluded that defendant no.1 has knowingly, intentionally and dishonestly infringed the impugned trademark/trade dress of plaintiff; passed of its goods and business as that of the plaintiff; infringed the plaintiff's trademark and copyright by using, publishing, reproducing the same and defendant no.1 apparently is guilty of falsification and unfair trade practices. The mis-conduct of the defendant no.1 is in complete violation of plaintiff's statutory and common law rights and amounts to CS (Comm) No. 329 of 2021 26/31 infringement of the registered trademark/trade dress and copyright of the plaintiff. Therefore, plaintiff deserves permanent injunction in its favour. Issue no.1 is decided in favour of plaintiff and against the defendant no.1.
34. Issue no. 2: Plaintiff claimed amount of Rs. 8,92,330/- which had been spent by him towards the expenses incurred in connection with present proceedings, court fees, losses towards profits/damages and legal expenses.
35. Local Commissioner was appointed and fees of Rs. 75,000/- without TDS in addition to the travel/air travel/hotel stay and other out of pocket expenses were borne by the plaintiff. PW1 deposed that in addition to Rs. 75,000/- towards fees of Local Commissioner, an amount of Rs. 50,000/- was also incurred by him towards travel and food.
36. Damages: As deposed by PW1, as per the photographs of invoices filed by Local Commissioner, defendant no.1 had raised invoices for an amount of Rs. 76,524/- . He also stated that defendant no.1 is the manufacturer of infringing products and he has been clandestinely doing his business and manufacturing activities without issuing any invoices to avoid payment of taxes etc. and plaintiff has no other means except to rely on the said amount of invoices in sum of Rs. 76,524/-.
37. PW1 also deposed that during the period 2018-2019, his firm's sale of products was Rs. 51,99688/- which because of infringing, illegal and nefarious business activities of defendant no.1, decreased to Rs. 48,41,110/- in the financial year 2019-2020 and to Rs. 41,16,619/- in the financial year 2020-2021, thereby resulting in substantial losses to the plaintiff's firm. As further deposed by PW1, because of the infringing and illegal acts of CS (Comm) No. 329 of 2021 27/31 defendant no.1, plaintiff suffered loss of at least sum of Rs. 10,83,069/- in sales and considering that there is profit margin of about 10% on the sales value of the paint brushes for a manufacturer, he suffered loss of at least Rs. 1,08,306/- towards profits that he could have earned but for the infringing activities of defendant, he could not earn the same.
38. PW1 nevertheless admitted that he has not placed on record any certificate by Chartered Accountant certifying the annual sales figure. He was also put question that after the outbreak of Covid-19, entire business in the country including the business of plaintiff was affected, for which he answered that his business was affected only for one month and thereafter the same was resumed, though he was not able to tell the details as to for which month business of plaintiff was affected and from which month it again started. Plaintiff was asked to provide the name of any such dealer, shopkeeper or distributor who had purchased the goods of defendant no.1 believing that the goods belonged to plaintiff's firm, to which PW1 answered that Sanya Gumma, Balaji Hardware and others purchased the goods of defendant no.1 on the belief that the goods belonged to plaintiff's firm. Plaintiff has placed on record invoices raised by defendant no.1 regarding sales by defendant no.1 under the impugned trademark/trade dress DIMAND. He denied that documents placed on record do not indicate that the said entities purchased the goods of defendant no.1 believing that the same pertained to plaintiff firm.
39. It has already been established on record that defendant no.1 has knowingly, intentionally and dishonestly infringed the impugned trademark/trade dress of plaintiff; passed of its goods and business as that of the plaintiff; infringed the plaintiff's copyright in CS (Comm) No. 329 of 2021 28/31 the said Trademark/Trade dress by using, publishing, reproducing the same. Suffice it is if the product of defendant is likely to cause confusion in mind of general public. Plaintiff, therefore, is entitled for damages from defendant.
40. Present suit was filed on 09.09.2021 and total number of 20 hearings have taken place in the matter. Plaintiff also claimed damages for dilution of the goodwill and reputation of the plaintiff but in his affidavit of evidence has restricted its claim only towards loss of profits/damages and the cost of the suit. Plaintiff is awarded sum of Rs. 3,50,000/- as damages and litigation costs (inclusive of court fees).
41. Plaintiff has also claimed relief against defendants no. 2 to 4 on the submission that they had been selling the product manufactured by defendant no.1. Premises of Defendants no. 2 to 4 were not visited by Local Commissioner as Ld. Local Commissioner was appointed in the matter with directions to visit premises of defendant no.1 only. Nothing is brought on record to support the claim of plaintiff against defendants no. 2 to 4. Suit filed by plaintiff against defendants no. 2 to 4, therefore stands dismissed.
Relief :-
42. Instant suit is accordingly decreed with cost in favour of the plaintiff and against the defendant no.1, thereby :
(1) defendant no.1 is restrained by itself as also through its partners, agents, franchise(s) representatives, distributors, assigns, heirs, successors, stockists and all other acting for and on its behalf from using, selling, soliciting, exporting, displaying, advertising or by any other mode or manner dealing in or using the impugned trademark/trade dress namely 'DIAMOND' OR 'DIMAND' or any CS (Comm) No. 329 of 2021 29/31 other variant of the Plaintiff's trademark/trade dress which may be identical with and/or deceptively similar to the plaintiff's trademark/trade dress namely 'DIAMOND' in relation to impugned goods and business.
(2) Defendant no.1 is further restrained by itself as also through its partners, agents, franchise(s) representatives, distributors, assigns, heirs, successors, stockists and all other acting for and on its behalf from passing off its goods under the trademark 'DIMAND' or Trade Dress of the packaging of plaintiff, by using the same or any other deceptively similar work or mark as part of defendant's trade name or corporate name or trade mark in any manner.
(3) Defendant no. 1 is further restrained by itself as also through its partners, agents, franchise(s) representatives, distributors, assigns, heirs, successors, stockists and all other acting for and on its behalf from diluting the goodwill and reputation of plaintiff or indulging in unfair trade practices and competition by using the trademark 'DIMAND' or any other deceptively similar word or mark as a trademark or part of defendant's trade name or corporate name, or by using any deceptively similar packaging or trade dress in any manner.
43. Defendant no.1 is further directed to pay an amount of Rs. 3,50,000/- to the plaintiff towards damages and litigation cost (inclusive of court fees). If the payment towards decreetal amount is not cleared within one month, thereafter decreetal amount shall be payable alongwith interest at 12% p.a. till realization.
CS (Comm) No. 329 of 2021 30/3144. Decree sheet be prepared accordingly. After completion of formalities, files be consigned to record room.
SAVITA Digitally signed
by SAVITA RAO
RAO Date: 2023.03.07
15:13:16 +0530
Announced in the open (SAVITA RAO)
court on this 6 th day DISTRICT JUDGE
of March 2023 (COMMERCIAL COURT)-04
SHAHDARA, KKD COURTS,
DELHI
CS (Comm) No. 329 of 2021 31/31