Rajiv Aggarwal vs Ashutosh Corporate Llp on 1 April, 2022

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Delhi High Court - Orders

Rajiv Aggarwal vs Ashutosh Corporate Llp on 1 April, 2022

Bench: Prathiba M. Singh

                                                           Signature Not Verified
                                                           Digitally Signed By:Devanshu
                                                           Signing Date:03.04.2022
                                                           13:56:26



$~10
*      IN THE HIGH COURT OF DELHI AT NEW DELHI
+           CS(COMM) 199/2022 & I.As. 5031-36/2022
       RAJIV AGGARWAL                                 ..... Plaintiff
                      Through: Mr. Jayant K. Mehta, Sr. Advocate
                               with Mr. Karan Bajaj, Mr. Rupin
                               Bahl, Mr. Arjun Kakar, Mr. Kunal
                               Arora and Mr. Karan Kakkar,
                               Advocates.
                      versus
       ASHUTOSH CORPORATE LLP                      ..... Defendant
                      Through: None.
       CORAM:
       JUSTICE PRATHIBA M. SINGH
                ORDER

% 01.04.2022

1. This hearing has been done through hybrid mode.

I.A. 5036/2022 (seeking extension of time for filing court fee)

2. This is an application under Section 149 read with Section 151 CPC filed on behalf of the Plaintiff seeking extension of time for filing court fee. Ld. Counsel for the Plaintiff submits that the amount has been deposited in the Treasury and the stamp would be deposited within ten days. Time for filing court fee is extended by one week.

3. I.A.5036/2022 is disposed of.

I.A. 5035/2022 (u/O 12A (1) CPC)

4. This is an application seeking exemption from instituting pre- litigation mediation. In view of the orders passed in CS (COMM) 132/2022 titled Upgrad Education v. Intellipaat Software, the application is allowed and disposed of.

CS(COMM) 199/2022 Page 1 of 8 Signature Not Verified Digitally Signed By:Devanshu Signing Date:03.04.2022 13:56:26

I.A. 5034/2022 (for exemption)

5. This is an application seeking exemption from effecting advance service on the Defendant. Since the Plaintiff is praying for an ex parte relief in the present suit and legal notice has already been served upon the Defendant, exemption from advance service to the Defendant is granted.

6. I.A. 5034/2022 is disposed of.

I.A. 5033/2022 (for exemption)

7. Allowed, subject to all just exemptions.

8. I.A 5033/2022 is disposed of.

I.A. 5032/2022 (u/O XI Rule 1(4) CPC)

9. This is an application filed on behalf of the Plaintiff seeking leave to file additional documents. The additional documents shall be filed strictly in accordance with the provisions of the Commercial Courts Act, 2015.

10. I.A.5032/2022 is allowed in the above terms and disposed of. CS(COMM) 199/2022

11. Let the plaint be registered as a suit.

12. Issue summons to the Defendant through all modes upon filing of Process Fee.

13. The summons to the Defendant shall indicate that a written statement to the plaint shall be positively filed within 30 days from date of receipt of summons. Along with the written statement, the Defendant shall also file an affidavit of admission/denial of the documents of the Plaintiff, without which the written statement shall not be taken on record.

14. Liberty is given to the Plaintiff to file a replication within 15 days of the receipt of the written statement(s). Along with the replication, if any, filed by the Plaintiff, an affidavit of admission/denial of documents of the CS(COMM) 199/2022 Page 2 of 8 Signature Not Verified Digitally Signed By:Devanshu Signing Date:03.04.2022 13:56:26 Defendant, be filed by the Plaintiff, without which the replication shall not be taken on record. If any of the parties wish to seek inspection of any documents, the same shall be sought and given within the timelines.

15. List before the Joint Registrar for marking of exhibits on 23rd May, 2022. It is made clear that any party unjustifiably denying documents would be liable to be burdened with costs.

16. List before Court on 5th August, 2022.

I.A. 5031/2022 (u/O XXXIX Rule 1 and 2 CPC)

17. The present suit has been filed by the Plaintiff - Mr. Rajiv Aggarwal, trading as M/s. Ramanand Sales, which is a sole proprietary concern, seeking protection of the registered trademarks ('RHINO') used in respect of stainless steel kitchen sinks, imported sinks, bathrooms fittings such as taps, imported health faucets, coupling, PVC Cisterns, PVC tanks and PVC seat covers, and other cognate goods. The Plaintiff has also authorized his son, Mr. Karan Aggarwal, trading under the name- M/s Rameshwar Enterprises, to use the Plaintiff's registered mark as a licensee of the Plaintiff.

18. The Plaintiff adopted the mark 'RHINO' with two distinctive logos and labels in the year 1996. On 9th February, 2009, the Plaintiff applied for the registration of the said mark vide Application No.1782608 and the said mark has been duly registered in Class-11, in respect of 'stainless steel kitchen sinks, C.P. bathroom fittings, PVC Cisterns, PVC Tanks, and other cognate/allied goods. On 12th September, 2018, the Plaintiff's registration for the mark 'RHINO' was renewed for a period of ten years till 9th CS(COMM) 199/2022 Page 3 of 8 Signature Not Verified Digitally Signed By:Devanshu Signing Date:03.04.2022 13:56:26 February, 2029. The Plaintiff claims goodwill and reputation in the mark 'RHINO' which has been used by the Plaintiff, since the year 1996 i.e., for more than 25 years. The Chartered Accountant's Certificates showing the sales of the Plaintiff under the mark 'RHINO' are placed on record.

19. The grievance of the Plaintiff is that the Defendant who is trading under the name- M/s. Ashok Corporate LLP, runs an identical business and was using the trademark ' ' in respect of identical or similar products. The said mark was also registered by the Defendant in Classes 17, 21, 35, and 6, vide registration Nos. 5067264, 5067265, 5067266, 5067268 respectively. The records of the Trademark Registry showing various registrations have been placed on record. The Plaintiff came to know of the Defendant's use of the mark ' ' (RHINO) in February, 2022. Upon inquiry, it was revealed that the Defendant has also filed an application for the trademark 'RHINO' in Class 11 vide application bearing No.5067270, on 30th July, 2021.

20. The Plaintiff then addressed a cease and desist notice on 14th February, 2022 to the Defendant. In reply dated 18th February, 2022 to the same, the Defendant denied all the allegations, and did not agree to comply with the requisitions given by the Plaintiff. The stand of the Defendant was that the Defendant was not aware of the prior user of the Plaintiff in the mark 'RHINO'. An allegation was also made by the Defendant to the effect that the issuance of the cease and desist notice and filing of a trademark by the Plaintiff, has been done with mala fide intention, and the same constitutes an offence under Sections 420, 192, 193 of Indian Penal Code, CS(COMM) 199/2022 Page 4 of 8 Signature Not Verified Digitally Signed By:Devanshu Signing Date:03.04.2022 13:56:26 1860 and punishable under the Code of Criminal Procedure, 1973, as also liable to be punished under Section 102, 103, 105 and 109 of the Trademarks Act, 1999.

21. The case of the Plaintiff is that the change of the mark ' ' to ' ' by the Defendant is completely dishonest and mala fide inasmuch as the mark is being used in an identical colour combination as that of the Plaintiff's marks ' '. It is submitted that the Defendant is also promoting its product under the mark ' ' on various online platforms, including IndiaMart, Facebook and Instagram. Screenshots of the IndiaMart, Facebook and Instagram pages of the Defendant showing the mark ' ' have also been placed on record.

22. Mr. Mehta, ld. Senior Counsel along with Mr. Bajaj, ld. Counsel submits that the reply to the cease and desist notice proves the dishonest intention of the Defendant who blatantly denied the knowledge of the Plaintiff's existence while attempting to register an identical mark in an identical colour combination. Ld. Counsel points out that the threats levelled against the Plaintiff also show the mala fide intentions of the Defendant. It is also pointed out that the Plaintiff's mark was well within the knowledge of the Defendant inasmuch as, in response to the application filed by the Defendant claiming user from May, 2021, the registered mark of the CS(COMM) 199/2022 Page 5 of 8 Signature Not Verified Digitally Signed By:Devanshu Signing Date:03.04.2022 13:56:26 Plaintiff in Class 11 was, in fact, cited by the Trademark Office, in the Examination Report. Thus, the Defendant's claim of ignorance is completely belied by the examination report issued by the Trademark Registry.

23. A perusal of the record shows that the Plaintiff's mark is clearly prior in point of time, both in terms of adoption, as also, use. The Chartered Accountant's Certificates which have been placed on record show the sales of the Plaintiff for the last several years. In any case, the Defendant's mark is of July, 2021 with a user claim of May, 2021, which is subsequent to the Plaintiff's adoption of the mark. The competing marks are set out below:

CS(COMM) 199/2022 Page 6 of 8 Signature Not Verified Digitally Signed By:Devanshu Signing Date:03.04.2022 13:56:26

24. A perusal of the above marks shows that an identical mark is being used in respect of identical products. Hence, under Section 29(3) of the Trademarks Act, 1999, this is a case of deemed confusion. Considering the fact that the Plaintiff's registered mark which is a device mark, has the word 'RHINO' as the prominent and essential feature, the rights vest in the Plaintiff for the mark 'RHINO' in respect of the products which are being manufactured and sold by the Plaintiff.

25. The Plaintiff has made out a prima facie case for the grant of interim injunction. The balance of convenience lies in favour of the Plaintiff, and irreparable injury would be caused to the Plaintiff if the Defendant is not injuncted, especially in view of the fact that the Defendant ought to have been aware of the Plaintiff's mark, being in the same trade as the Plaintiff mark. The stand of the Defendant, in the reply to the cease and desist notice, also does not appear to be bona fide.

26. Accordingly, the Defendant, its distributors, traders and all others acting for or on its behalf, are restrained from using the mark and logo ' ' which is identical to the Plaintiff's mark and logo ' ' as also any other mark or logo which is deceptively similar to the Plaintiff's mark, either as a trademark, trade name or domain name, till the next date of hearing. If the Defendant has any existing manufactured stock bearing the mark 'RHINO', the Defendant is permitted to move an application to seek appropriate reliefs, in accordance with law.

27. Compliance of Order XXXIX Rule 3 CPC be made within one week.

CS(COMM) 199/2022 Page 7 of 8 Signature Not Verified Digitally Signed By:Devanshu Signing Date:03.04.2022 13:56:26

28. Reply to the application being I.A.5031/2022 be filed within four weeks from service of the present order, along with the paper-book. List before the Court for hearing, on 5th August, 2022.

29. The digitally signed copy of this order, duly uploaded on the official website of the Delhi High Court, www.delhihighcourt.nic.in, shall be treated as the certified copy of the order for the purpose of ensuring compliance. No physical copy of orders shall be insisted by any authority/entity or litigant.

PRATHIBA M. SINGH, J.

APRIL 1, 2022 Rahul/ad CS(COMM) 199/2022 Page 8 of 8

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Delhi High Court - Orders