Delhi High Court - Orders
Krown Biscuit Private Limited & Anr vs Richfield Industries Private Limited on 6 August, 2021
Author: Jayant Nath
Bench: Jayant Nath
$~OS-9
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(COMM) 357/2021 & I.As. 9735-9737/2021
KROWN BISCUIT PRIVATE LIMITED
& ANR. ... Plaintiffs
Through Mr.Sandeep Agarwal, Sr. Adv. with
Mr.Kapil Kher, Mr.Gaurav Barathi
and Mr.Kartik Bhagat, Advs.
versus
RICHFIELD INDUSTRIES PRIVATE
LIMITED ... Defendant
Through
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH
ORDER
% 06.08.2021 This hearing is conducted through video conferencing.
CS(COMM) 357/2021 Let the plaint be registered as suit.
Issue summons to the defendants by speed post and e-mail, returnable for 11.10.2021.
I.As. 9736/2021 & 9737/2021(exemptions) Allowed subject to just exceptions.
I.A. 9735/20211. This is an application under Order 39 Rules 1 and 2 CPC seeking an ex parte injunction to restrain the defendant, its directors, etc. from manufacturing, selling, offering for sale, advertisement etc. or dealing in biscuits or in any other cognate and allied products under the impugned mark WHITE MAGIK along with its label / packaging / trade dress /get up Signature Not Verified Digitally Signed By:NIRMLA TIWARI Signing Date:09.08.2021 14:26:06 or any other label / packaging / trade dress/get up that is deceptively similar to the plaintiffs' distinct trademark BLACK MAGIC and its label/packaging/trade dress which may lead to confusion or deception amounting to passing off.
2. It is the case of the plaintiffs that they are in the field of confectionary, cookies and biscuits, etc. since 1980. On 01.09.2019, the plaintiff No.1 is said to have coined and adopted the trade mark "BLACK MAGIC" for its chocolate and vanilla crème category of biscuits. The manufacturing and sale of the same commenced in September 2019. The plaintiff has also applied for registration of the copyright in BLACK MAGIC label/ and the same, it is stated, constitutes artistic works as per the Section 2(c) of the Copyright Act and the registration was granted. It is also stated that plaintiff No.1 has applied for registration of the label BLACK MAGIC on 21.09.2019 under Class 30 of the Trade mark Act and which application is pending.
3. It is further stated that recently in June, 2021, the plaintiffs came to Signature Not Verified Digitally Signed By:NIRMLA TIWARI Signing Date:09.08.2021 14:26:06 know that the defendant is selling cream biscuits using the mark WHITE MAGIK. Further, the defendant has also adopted a deceptively and confusingly similar packaging/ label / trade dress which constitute infringement of the copyright, passing off, unfair competition, etc. On further investigation, it was found that the defendant has also filed a trademark application on 15.05.2021 for registration of its device/label on proposed to be used basis in Class 30 (Biscuits and confectionary category).
4. A perusal of the mark of the plaintiffs and defendant is as follows:
PLAITNIFF'S MARKS DEFENDANT'S MARKS Signature Not Verified Digitally Signed By:NIRMLA TIWARI Signing Date:09.08.2021 14:26:06
5. It is manifest that the trade dress / label used by the defendant is prima facie deceptively and confusingly similar to that of the plaintiffs.
6. Plaintiffs have made out a prima facie case. The defendant, its directors, etc. are restrained from using the impugned trade dress / label or any other trade dress/label which is deceptively and confusingly similar to the plaintiffs' trade dress / label / till further orders.
7. Plaintiffs to comply with Order 39 Rule 3 CPC within one week from today.
8. Issue notice to the defendant by speed post and e-mail, returnable for 11.10.2021.
JAYANT NATH, J.
AUGUST 6, 2021/st Signature Not Verified Digitally Signed By:NIRMLA TIWARI Signing Date:09.08.2021 14:26:06