Delhi District Court
Kama Ayurveda Private Limited vs Zen Flower on 9 December, 2022
IN THE COURT OF SHRI SANJAY SHARMAI :
DISTRICT JUDGE (COMMERCIAL COURT)
EAST DISTRICT
KARKARDOOMA COURTS : DELHI
CS (Comm) No. 414/2019
Kama Ayurveda Private Limited
3K Jangpura Extension
K Block Commercial Circle,
New Delhi - 110 014 ................Plaintiff
Versus
Zen Flower
Plot No. 61, Parsik Hill,
sector26, CBD Belapur,
Navi Mumbai, Thane District
Maharashtra - 400614
Also at :
Zen Flower,
301, Hilton centre,
11, CBD Belapur,
Navi Mumbai 400614
Maharashtra ................Defendant
Date of institution : 03.09.2019
Date of reserving judgment : 19.11.2022
Date of judgment : 09.12.2022
JUDGMENT:
Asserting infringement of trademark, passing off, infringement of copyright, the plaintiff (a company incorporated) has brought the present suit seeking reliefs of injunction against the defendants as well as rendition of accounts and damages. 1.1 According to the pleadings, plaintiff company is CS (Comm) No. 414/2019 Kama Ayurveda Pvt. Ltd. vs. Zen Flower 1 of 20 involved into the business of trading, marketing, retail sale and export of array of Ayurvedic, Cosmetic, natural, and allied products for skin care, hair care, body care, wellness etc. All the products of the plaintiff are being sold under the registered trade mark KAMA/KAMA AYURVEDA adopted in August 200102. The plaintiff company operates through retail and franchise outlets across the country and also being a regular supplier to major hotels and shop establishments. Apart from physical retail, plaintiff also operates in the emarket through its website www.kamaayurveda.com. The plaintiff also has substantial presence and tieups with major online platforms as Amazon, Flipkart, Big Basket, Purple etc. The range of products of plaintiff company under the mark of KAMA/KAMA AYURVEDA are prepared in coordination with original Ayurvedic institution i.e. AVP Laboratories. The superior quality of goods developed by the plaintiff company had garnered voluminous and impressive sales running into several crores of Rupees and the company has built up goodwill and reputation amongst members of the trade and general public. The trademark KAMA/KAMA AYURVEDA has become highly distinctive and exclusively recognized and associated with the plaintiff. The plaintiff has expanded its business outside India as well and plaintiff company has been protecting its trademark through filing of applications across the country as well as outside India. 1.2 The plaintiff in order to strengthen its intellectual property, has also developed respective artworks and get up for all its products which are packaged in a distinctive, elegant and CS (Comm) No. 414/2019 Kama Ayurveda Pvt. Ltd. vs. Zen Flower 2 of 20 unique packaging developed and authored by Director Vivek Sahni. The plaintiff company is the owner of number of copyright registrations relating to its various packagings under which the products are sold. The details of registration have been given by the plaintiff specifically in its pleadings. 1.3 It is further asserted that plaintiff company has been continuously promoting and developing its range of products and has invested and spent substantial sums of money in advertising and promoting its products in India as well as overseas. The recognition of the plaintiff company is apparent that various awards have been conferred (which are also mentioned in the pleadings). The plaintiff claims to have crossed sales turnover for the financial year 201819 above 100 Crores mark . 1.4 It is further the case of the plaintiff that in the first week of August 2018, plaintiff company was surprised to know that defendants filed trademark application for the mark KAMAAKSHI to which opposition was filed by the plaintiff before the registrar and the same is pending. On conducting online search about the products of the defendants, plaintiff was shocked to find that website operated by the defendant is also deceptively similar i.e. www.kamaakshiayurveda.com and www.kamaakshibotanicals.com. The defendant is a partnership concern of Chirag Sharma and Meenakshi Sawhney, who are jointly and severally liable for selling infringing products. 1.5 It is contended that mark KAMAAKSHI is not only visually, phonetically and structurally similar to the plaintiff's trade mark KAMA/KAMA AYURVEDA but also contains essential distinctive features of plaintiff's well known registered CS (Comm) No. 414/2019 Kama Ayurveda Pvt. Ltd. vs. Zen Flower 3 of 20 trademark. The defendant has also used the similar pattern and floral setup on its website and products. This is likely to lead to confusion and deception amongst the consumers and also amounts to infringement of plaintiff's registered trademark and copy right.
1.6 It is further claimed that website of defendant has a similar layout, getup, look and feel and presentation. The consumers visiting the defendant's website would get confused and deceived to the effect that defendant's website is either permitted or approved or associated with the plaintiff. 1.7 According to the plaintiff, defendant is trying to take unfair advantage of using the trademark and packaging features deceptively similar to that of the plaintiff. The online platform are also deceptively similar and defendant is attempting to encash upon the goodwill and reputation of the plaintiff. The acts of the defendant is unethical and dishonest and amounts to misrepresentation to the general public.
2.1 Contesting the claim of the plaintiff company, defendant has filed written statement and application, stating that defendant is a partnership firm having registered office at Mumbai. The defendant has coined, invented and developed the mark KAMAAKSHI after due diligence and caution with bonafide intention. The goods of the defendant are clearly distinguishable from that of the plaintiff. The defendant has been using the said mark in respect of goods relating to class 3 advertised in Trademark Journal dated 08.04.2019. The business of defendant has started since 04.01.2019 and since then has reached new heights.
CS (Comm) No. 414/2019Kama Ayurveda Pvt. Ltd. vs. Zen Flower 4 of 20 2.2 Referring to the history of Ayurveda, it is claimed by the defendant that brand name has been derived from the name of Goddess "KAMAAKSHI" which is the conjunction of three words "Ka, Ma, and Aksh". The related story have also been spelled out in the written statement. According to the defendant, the Mark KAMA used by plaintiff and Mark KAMAAKSHI used by defendant are not only independent but also relate to two different entities having different line of origin. There is no scope that marks can be confused with each other, which are otherwise phonetically different. The plaintiff is not justified in claiming monopoly of mark "KAMA" as the same is the name of God. The judgment of Bombay High Court in case "Freudenberg Gala Household Products Pvt. Ltd. Vs. GEBI Products, order dated 01.08.2017, passed in Commercial Appeal No. 72/2017"
has been relied upon. The judgment of Delhi High Court in "Kama Ayurveda Private Limited vs RWL Healthworld Ltd. and Ors., CS (Comm) No. 420 of 2017" has also been cited wherein the court refused to grant interim injunction vide order dated 12.09.2014.
2.3 The defendant has specifically denied that it is in any manner infringing the registered trademark or copy right of the plaintiff by adopting deceptively similar name or similar get up, floral pattern, trade dress, packaging etc. The website is also stated to be different. Comparing the homepage sequence and product page sequence of the website of the plaintiff and defendant, it is contended that they are different and there is no resemblance. The mark is also not visually and phonetically CS (Comm) No. 414/2019 Kama Ayurveda Pvt. Ltd. vs. Zen Flower 5 of 20 similar. The dissimilarities in the trademarks have also been pointed out through pictorial display. It is asserted that there are striking dissimilarities between the trademark of the plaintiff and defendant including description, net quantity and other ingredients. The defendant has through pictorial display given the differentiation of Ubtan, rose water, Kumkumadi, Lip balm and hair oil. According to the defendant, the suit filed by the plaintiff is a deliberate attempt to curb the defendant and to cause huge financial losses. The plaintiff company is mischievously attempting to conceal the vital facts and not entitled to any relief. 3.1 The plaintiff also filed replication to the written statement of defendant, reiterating the contents of the plaint and denying the counter allegations.
4.1 From the pleadings of the parties, following issues were framed on 27.2.2022 :
1. Whether the plaintiff is entitled for a decree of permanent injunction against the defendant for restraining it from selling, offering for sale any goods bearing the trade mark 'Kamaakshi' or any goods with similar or deceptively similar trade mark with similar trade dress, packaging etc. and for restraining them to use the registered trade mark of the plaintiff 'Kama/Kama Ayurveda'? OPP
2. Whether the plaintiff is entitled for a decree of permanent injunction for restraining the defendant from using or operating the website and domain name under www.kamaakshibotanicals.com and www.kamaakshiayurveda.com and further to restrain them from publishing and communicating the contents of the said website or any other website with similar layout, getup etc. ? OPP
3. Whether the plaintiff is entitled for damages of Rs. 10 lacs against the defendants as prayed for? OPP CS (Comm) No. 414/2019 Kama Ayurveda Pvt. Ltd. vs. Zen Flower 6 of 20
4. Whether the plaintiff is entitled for a decree of rendition of account from the defendants regarding the profits made out by it by using the infringed trade mark 'Kamaakshi'? OPP
5. Whether the defendant had coined, invented and developed and is the first adopter and originator of the trade mark 'Kamaakshi' in respect of class III goods and if so, its effects? OPD
6. Relief.
5. At the trial, the plaintiff company examined its authorized representative Shri Rajat Sharma who tendered his evidence by way of affidavit ex.PW1/A and proved the following documents :
True copy of Board Resolution/Authorization dated 26.8.2019 as Ex.PW1/1. (OSR) Original printout of master data taken from the website of Ministry of Corporate Affairs as Ex.PW1/2.
Print out and copies of the invoices from the e records/database of the plaintiff company as Ex.PW1/3 (colly.).
Original printouts of online status/registration certificates for the mark Kama/Kama Ayurveda as Ex.PW1/4 (colly.).
Another printouts in original of online status/registration certificates for the mark Kama/Kama Ayurveda as Ex.PW1/5 (colly.).
More printouts in original of online status/registration certificates for the mark Kama/Kama Ayurveda as Ex.PW1/6 (colly.). (OSR) Copies of the Copyright registrations as Mark P1 (colly.).
Copy of the Certificate for Advertisement expenses as Ex.PW1/8. (OSR) Print out and copies of the advertisement cutting from the erecords/database of the plaintiff company and internet for the mark Kama/Kama Ayurveda as Ex.PW1/9 (colly.).
Certificate of Turnover issued by the Chartered Accountant as Ex.PW1/10. (OSR) Original print outs of the plaintiff website under CS (Comm) No. 414/2019 Kama Ayurveda Pvt. Ltd. vs. Zen Flower 7 of 20 the domainname www.kamaayurveda.com and display on Amazon and Flipkart as Ex.PW1/11 (colly.).
Original packaging of different products under which the plaintiff company sells its products as Kama/Kama Ayurveda as Ex.PW1/12.
Print out of the defendant's trademark application No.4046914 and notice of opposition filed by the plaintiff as Ex.PW1/13.
Invoice issued by the defendant for sale of products at Delhi alongwith image of products as Ex.PW1/14. (pages 346 to 355) (OSR of images).
Print out of the defendant's website www.kamaakshibotanicals.com and and display on Amazon and Flipkart as Ex.PW1/15 (colly.).
Original printouts from websites showing similar presentation of the defendant as that of the plaintiff as Ex.PW1/16.
The Certificate by way of affidavit as Ex.PW1/17 executed by me.
Affidavit under Section 65B of the Evidence Act in support of computer generated documents as Ex.PW1/18.
The Legal Proceedings Certificates filed by the plaintiff of its registered trademarks as Ex.PW1/19 (colly. 18 pages).
True copy of few advertisement cuttings bearing plaintiff's trademark Kama/Kama Ayurveda as Ex.PW1/20. (OSR)
6. The defendant had filed affidavit of Shri Tejasvi Sharma - partner of the defendant firm. However, it was reported that said Shri Tejasvi Sharma met with an accident and Ld. Counsel sought further opportunity to lead evidence but the defendant failed to lead any evidence despite opportunities granted by this court. Hence, evidence of the defendant was closed. Thereafter, the defendant approached the Hon'ble High Court against the order of this court of closing the evidence of the defendant. The Hon'ble High court granted one opportunity to the defendant to lead its evidence but again the defendant failed to bring on record any evidence, stating that Ms. Meenakshi sharma CS (Comm) No. 414/2019 Kama Ayurveda Pvt. Ltd. vs. Zen Flower 8 of 20
- another partner of the defendant, expired and the partnership firm of the defendant had dissolved. Hence, evidence for the defendant was closed.
7. I have heard arguments as advanced by Shri N Mahabir - Ld. Counsel for the plaintiff assisted by Shri PC Arya
- Advocate, Shri Lakshay Saini - Ld. Counsel for the defendant and have carefully gone through the records of the case. My findings on the issues are as under :
ISSUES No. 1 and 2 :
8. Arguing on behalf of plaintiff, Ld. Counsel submitted that defendant is responsible for infringing registered trade mark and copy right of the plaintiff company which has got immense goodwill and reputation in the market. The trade name and trade dressing of the plaintiff is peculiar and associated with the plaintiff and by adopting deceptively similar trademark and trade dressing, the defendant want to encash upon the goodwill of the plaintiff, which has been built up by putting in time, efforts and money. The website floated by the defendant is also similar to that of the plaintiff thereby giving an indication to the general public that defendants are associated with the plaintiffs. 8.1 Arguing on behalf of defendant, Ld. Counsel Ms. Bina Madhavan submitted that suit and application of the plaintiff has no merit or substance and there is no infringement of trade name or trade dressing by the defendant. The defendant is operating through website only and it has no physical shops or outlets. The consumers who are purchasing the goods of the defendant through website are presumably educated and intelligent enough to differentiate between trademark KAMA and CS (Comm) No. 414/2019 Kama Ayurveda Pvt. Ltd. vs. Zen Flower 9 of 20 KAMAAKSHI. Even otherwise, the brand names are quite different and distinct alphabetically and phonetically. There is no similarity in the style trade name is written and the floral pattern is imprinted/displayed. The packaging of the products is also very different in their shapes, sizes, quantity and colour combination. It is very unlikely that a person with common intelligence would get deceived. The names KAMA and KAMAAKSHI denote different meanings and there is no scope of being associated with each other. No dishonest intention can be attributed to the defendant.
8.2 The trademark/trade name is an essential feature of identification and recognition, portraying the specifications and quality of the product. The trademark may get popularity over the period of time and in case of conflict, it is required to be seen as to who is the original creator of the trade mark. Similarly the formation of trade dressing/packaging is an artistic work and product generally is identified by its peculiar packaging having trade name.
8.3 The basic principles on which the law of infringement of intellectual property rights is based are:
To protect the consumers for being misled; To maintain purity and morality in trade, close or deceptive similarity affinity and proximity is not permissible;
To preserve the reputation and goodwill of bonafide owner of intellectual property rights.
8.4 The plaintiff company has been into the business of Ayurvedic Cosmetic, natural, and allied products for skin care, hair care, body care, wellness etc since 200102 and is the CS (Comm) No. 414/2019 Kama Ayurveda Pvt. Ltd. vs. Zen Flower 10 of 20 registered proprietor of trade mark KAMA. The goods of the plaintiff company are being sold through its own establishment and through highend stores, and also through online website www.kamaayurveda.com. The trademark of the plaintiff is registered and plaintiff has been able to show that trade mark bears novel, attractive and peculiar features. On the other hand, the application for registration of trade mark in favour of defendant is still pending and objections have been filed by the plaintiff. The word 'KAMA' and 'KAMAAKSHI' are overlapping and capable of being identified with each other. The nature and character of the products of the plaintiff and defendant are the same. The brand word of the plaintiff KAMA is certainly essential and distinctive and plaintiff company has established its extensive trade and reputation. The trade mark and the label/packaging of the plaintiff stand registered thereby conferring enforceable rights upon the plaintiff. 8.5 So far as the defendant is concerned, it has recently entered into this trade and the adoption of trade mark 'KAMAAKSHI' seems to have close association with 'KAMA'.
We cannot expect the consumer to carry out investigation of brand name before purchasing the goods.
8.6 In order to appreciate the contentions of the Ld. Counsel for the parties, a comparative pictorial description of the two trademarks is given below: CS (Comm) No. 414/2019 Kama Ayurveda Pvt. Ltd. vs. Zen Flower 11 of 20 CS (Comm) No. 414/2019 Kama Ayurveda Pvt. Ltd. vs. Zen Flower 12 of 20 8.7 It was submitted by Ld. Counsel for the defendant that the trade name of the defendant KAMAAKSHI is derived by combination of three words 'Ka, Ma, and Aksh'. 'Ka' denotes to goddess Saraswati, 'Ma' to goddess Laxmi and 'Aksh' means eyes. It was submitted that the trade name of the plaintiff KAMA connotes to the god of love and lust and therefore, the two are totally different in meaning. While relying upon the judgment in Freudenberg (Supra), it was submitted that the names of Hindu gods are not exclusive and cannot be monopolized by any party. It was also submitted that the two words are not phonetically, visually and structurally similar so as to cause deception to the customers. It was also highlighted that the artwork and trade dress of the two trademarks are also different and has been differently portrayed.
8.8 Ld. Counsel for the defendant relied upon the judgment in F. Hoffman-la Roche and Co. Ltd. vs Geoffrey Manner and Co.Pvt. Ltd. (1969) 2SCC 716 wherein it was held that "true test is whether the totality of the trademark is such that is likely to cause deception or confusion or mistake in the minds of persons accustomed to the existing trademark". 8.9 He next relied on RG Anand vs Delux Films (1978) 4SCC 118 wherein it was held that "it is to be seen if the reader, spectator or the viewer after having read or seen both the work is clearly of the opinion and gets an unmistakable impression that the subsequent work appears to be a copy of the original".
CS (Comm) No. 414/2019Kama Ayurveda Pvt. Ltd. vs. Zen Flower 13 of 20 However, this judgment was in a case of copyright of a film. 8.10 It is a matter of record that the trademark of the plaintiff was registered in the year 20012002 whereas the defendant has started using its trademark in the year 2019. Thus, beyond any argument, the plaintiff is a prior user of its trademark. As already noted above, the courts have to compare the two trademarks in light of the observations to be made by layman and not by a prudent person. The end users are not expected to go into the details of the meaning of the words used in the trademark nor are expected to go into the intricacies of the artwork/trade dress, as argued by Ld. Counsel for the defendant. The test is of a common man. The products of both the companies are not only used by institutions but also by common people. Hence, the test of description of the trademark and trade dress as submitted by the Ld. Counsel for the defendant cannot be applied to the facts of the case. Ld. Counsel for the plaintiff relied upon the judgment in Parle Products Pvt. Ltd. vs JP & Company Mysore (1972) 1 SCC 618, wherein it was observed that the trademark/trade dress are to be compared from the eyes of an ordinary unwary consumer who does not have the products side by side to compare.
8.11 In one of the judgments relied upon by the Ld. Counsel for the plaintiff in Century Traders vs Roshan Lal Duggar AIR 1978 Delhi 250, it was held that "thus, the law is pretty well settled that in order to succeed at this stage, the appellant had to establish user of the aforesaid mark prior in time then the impugned user of the respondent." Admittedly, the CS (Comm) No. 414/2019 Kama Ayurveda Pvt. Ltd. vs. Zen Flower 14 of 20 plaintiff is the prior user.
8.12 It was submitted by Ld. Counsel for the defendant that the trademark adopted by the defendant was not dishonest and was coined after a lot of research. Countering the arguments the Ld. Counsel for the plaintiff relied upon Laxmikant V Patel vs Chetanbhat Shah and Anr. (2002) 3 SCC 65 wherein it was held that "where there is probability of confusion in business, an injunction will be granted even though the defendants adopted the names innocently." Thus, even if the defendant was an innocent user of the trademark KAMAAKSHI, even then it has to be restrained in case its trademark is likely to cause deception and confusion.
8.13 It was also contended on behalf of the plaintiff that the first syllable in a trademark is very important and similarity in the first syllable in the trademark of the plaintiff and defendant is likely to lead to confusion. Reliance was placed on the judgment in Amba Lal Sarabhai Enterprises Ltd. vs Sara Pharmaceuticals and ors. 1982(2) PTC 214 Delhi. In that case, the plaintiff's trademark was Sara while the defendant was using trademarks as Saralyte, Saragyl and Sarapham. The court held that "the first syllable of the trademark of the defendants contained the words SARA. It is distinguishing feature and the main part of the trademark. The first syllable of a trademark even otherwise, is generally considered the most important part especially in case of short words. The defendant's trademark thus, use the whole of the trademark of the plaintiff." Similar view was taken in Amrutanjan Ltd. vs Amarchand Sobachand CS (Comm) No. 414/2019 Kama Ayurveda Pvt. Ltd. vs. Zen Flower 15 of 20 PTC (Suppl.) (I) 213 Mad. The disputed words in the said case were Amrut and Amar.
8.14 The Ld. Counsel for the plaintiff relied upon a number of judgments in which there was close similarity in the trade names of the plaintiff and the defendant and the defendant was accordingly injuncted from using the disputed trademark. Some of the said judgments are as under: Lakme Ltd. vs Subhash Trading & Ors. 1996 (16) PTC
567. The disputed trademarks were 'Lakme' and 'Likeme'. In Izuk Chemical Works vs Babu Ram Dharam Prakash (MANU/DE/2011/2007), the words there were 'Moonstar' and 'Superstar'. In Godrej Consumer Products Ltd. vs Alchemy Biotech (2013) SCC Online Bom 325, it was the words 'Ezee' and 'Easy Wash' and so on.
8.15 In the instant case, the first syllable in the trademark of both the plaintiff and defendant is KAMA which is of great importance as people generally address the product by its first name and thus, in view of the above judgments, the defendant has to be restrained from using that syllable.
8.16 As regard the meaning of the trademarks of the two parties are concerned, both connotes the name of the god and goddess. The defendant also filed trademark application for registration of its trademark to which an objection has been filed. The said application is already Ex. PW1/13 and has not been abandoned by it. It was submitted by Ld. Counsel for the plaintiff that the courts have to protect the name of the trademark which has name of the god or goddess. Reliance was placed on the CS (Comm) No. 414/2019 Kama Ayurveda Pvt. Ltd. vs. Zen Flower 16 of 20 judgment in KR Chinna Krishna Chettiar vs Sri Ambal and Com. Madras and Anr. AIR 1970 SC 146. The dispute there was in the names 'Sri Ambal and Sri Andal'. Both were name of goddess and the Hon'ble Supreme Court protected the name of the plaintiff holding that the trade name used by the defendant was deceptively similar to that of the plaintiff. 8.17 It is also worth noting that the plaintiff in its evidence examined PW1 Shri Rajat Sharma and he deposed all the facts as contained in the plaint and as culled out hereinabove. He was cross examined at length but nothing came out in his cross examination to the benefit of the defendant. In his cross examination, he deposed that the products of the plaintiff are meant for all ages but generally of the people above the age of 3540 years. He further deposed that he was unable to say if the consumers of his products were educated as it is a subjective term. He also deposed that the offline and online sales of the plaintiff are equal but during Covid lockdown, the online sales were more than the offline sales. He denied the suggestion that his company caters to only elite class of consumers. He also deposed that the products of the defendant firm having similarity to the plaintiff's product were namely rosewater mist, balm and others. There was no further cross examination of this witness. On the other hand, the defendant failed to prove its defence by not examining any witness despite opportunity. 8.18 The above discussion shows that the plaintiff has been able to prove its case. There is all likelihood in the minds of the unwary customers of deception while purchasing the products CS (Comm) No. 414/2019 Kama Ayurveda Pvt. Ltd. vs. Zen Flower 17 of 20 of the defendant which may pass off as that of the plaintiff because of the similarity in the trade name/trademark as also of the trade dress. Even otherwise, the trade dress acquires secondary importance as to the trade name because people generally purchase a product by the first trade name then going by the trade dress or get up. Similarly, even in online purchase, the customers are more often attracted by the trade name then by the trade dress. Since the product of the plaintiff is much prior in time in the market, public is generally used to its name and buy by that name. The confusion is likely to occur when the product of the defendant is also being sold on the same website. It is also noteworthy that the website of the defendant and its domain name is also strikingly similar to that of the plaintiff that is www.kamaakshibotanicals.com and www.kamaakshiayurveda.com. 8.19 The trademark of the plaintiff has been quite popular and has acquired secondary meaning which is reflected from the fact as proved by PW1 that the last sales figure of the plaintiff company cross Rs. 100 crores and a substantial amount is being spent by the plaintiff company for the publicity of its products whereas the defendant has failed to show or plead any sales figure or to mention any amount spent by it in the publicity of its products. Therefore, it cannot be said that the product of the defendant has also gained popularity and can be compared with that of the plaintiff.
8.20 Considering the aforesaid and in light of the above discussion, issue no. 1 & 2 are decided in favour of the plaintiff.
CS (Comm) No. 414/2019Kama Ayurveda Pvt. Ltd. vs. Zen Flower 18 of 20 ISSUE No. 3 :
9.1 The plaintiff has claimed damages of Rs. 10 lacs for the alleged infringement but has not led any evidence to show the actual loss caused to it. Since actual damage has not been proved by the plaintiff, a notional damage of Rs. 2 lacs is hereby awarded to the plaintiff. This issue is decided accordingly. ISSUE No. 4 :
10.1 The onus to prove this issue was upon the plaintiff however, no evidence was led on this issue nor any argument was advanced by the Ld. Counsel for the plaintiff on this issue. It is a matter of record that the defendant is a new entrant in the market and started its business in the year 2019. The sales figure of the defendants are not available and therefore, it cannot be said that it had made any huge profit by using the infringed mark KAMAAKSHI. Even otherwise, the defendant was restrained from using the said trademark on 20.12.19 itself. Hence, there is no scope for conducting any inquiry for rendition of accounts nor any purpose would be served by passing any decree in that regard. Hence, this issue is decided against the plaintiff. ISSUE No. 5 :
11.1 The onus to prove this issue was upon the defendant but it failed to lead any evidence and prove this issue. Hence this issue is decided against the defendant.
ISSUE No. 6/Relief 12.1 In view of the findings on the above issues, defendant is hereby restrained from selling, offering for sale any goods bearing the trade name "KAMAAKSHI" or any other CS (Comm) No. 414/2019 Kama Ayurveda Pvt. Ltd. vs. Zen Flower 19 of 20 goods with similar or deceptively similar trademark, trade dress, packaging etc. The defendant is further restrained from using or operating the website and domain name www.kamaakshibotanicals.com and www.kamaakshiayurveda.com and are further restrained from publishing and communicating the contents of the said website or any other website with similar layout, get up etc. 12.2 In view thereof, it is held that the suit of the plaintiff is accordingly decreed in its favour.
13. The Ld. Counsel for the plaintiff has sought actual cost incurred in filing of the present suit and has placed on record the details of the actual cost alongwith affidavit of PW1 as Ex. A, assessing such cost at Rs. 6,60,555/. He relied upon the judgment in Aditya Birla Nuvo Ltd. vs RS Sales Corporation 2018 SCC Online Del 9794 and Christian Louboutin Sas vs Ashish Bansal 2018 SCC Online Del 10205 wherein actual costs were awarded to the plaintiff while decreeing the suit. In the circumstances, the actual costs incurred by the plaintiff in this case as aforesaid are also awarded to the plaintiff.
Decree Sheet be prepared accordingly.
File be consigned to Record Room.
ANNOUNCED IN OPEN COURT ON 09th day of December 2022 (SANJAY SHARMAI) District Judge (Commercial Court) East District, Karkardooma Courts, Delhi CS (Comm) No. 414/2019 Kama Ayurveda Pvt. Ltd. vs. Zen Flower 20 of 20