Yash Tekwani vs Dheeraj Kashyap on 19 December, 2020

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Delhi District Court

Yash Tekwani vs Dheeraj Kashyap on 19 December, 2020

                 THE COURT OF DISTRICT JUDGE
                    (COMMERCIAL COURT01),
              SOUTHEAST, SAKET COURTS, NEW DELHI

Presiding Officer: Sh. Raj Kumar Chauhan DHJS

OMP (I) (Comm) No. 261/2020
In the matter of:

Yash Tekwani
Proprietor of Prince Paan
M - 29, Greater Kailash - I,
New Delhi - 110048.
Email : [email protected]                       ........Plaintiff

                         Vs.

1. Dheeraj Kashyap
S/o Ram Mahesh Kashyap,
5/568, Dr. Ambedkar Nagar,
Pushpa Bhawan, Delhi - 110062.

2. Ram Mahesh Kashyap
S/o Shri Yad Ram
R/o 5/568, Dr. Ambedkar Nagar,
Pushpa Bhawan,
Delhi - 110062.                                                   .........Defendants.

Date of institution                                   :           06.10.2020
Date on which argument was concluded                  :           10.12.2020
Date of pronouncement of the order                    :           19.12.2020

Case No. 261/2020         Yash Tekwani. vs. Dheeraj Kashyap                           Page 1 of 87

                                                                (RAJ KUMAR CHAUHAN)
                                                              District Judge (Commercial Court)
                                                                  /SE/Saket/ND/19.12.2020
                                        ORDER

By this order, I propose to dispose of application of the defendant under Order 39 Rule 4 r/w Section 151 CPC for vacation of exparte adinterim injunction order dated 19.10.2020 alongwith application under Order 39 Rule 1 and 2 CPC of the plaintiff.

1. The defendant has moved the application under Order 39 Rule 4 CPC with the following prayer : "(a) Allow the present application and vacate / set aside the exparte adinterim injunction order dated 19.10.2020 passed by this Hon'ble Court in favour of the plaintiff and against the defendants;

(b) Pass an order directing the Local Commissioner to release the goods seized by the Ld. Local Commissioner with a direction to place them back at the same place from where they were seized or hand them over to the defendant for sale and display at his shop till the present application is not decided;

(c) Pass an order directing the plaintiff to Case No. 261/2020 Yash Tekwani. vs. Dheeraj Kashyap Page 2 of 87 (RAJ KUMAR CHAUHAN) District Judge (Commercial Court) /SE/Saket/ND/19.12.2020 make a written apology to the answering defendant for crossing the procedure and infringing the legal right of the defendant guaranteed under the civil law;

(d) Pass such other or further order(s) as this Hon'ble Court may deem fit and proper in the facts and circumstances of the present case."

2. It is alleged that vide order dated 19.10.2020 the plaintiff was granted exparte stay without consideration and verifying the fact that defendants have already filed 02 Caveat Petitions bearing Caveat Petition No. 8/2020 and Caveat Petition No. 11/2020 on 27.08.2020, u/s 148A of the CPC in Saket District Court, New Delhi. That the plaintiff Yash Tekwani was duly informed about the filing of the Caveat Petitions in Saket District Court and the case filing registry of Saket Court was also aware about the Caveat being filed; that in case the present application is not allowed and order dated 19.10.2020 is not vacated or set aside, the purpose of filing Caveat Petition would stand defeated. It is further alleged that the plaintiff has not come to the Court with clean hands and has knowingly concealed and suppressed the material facts; the plaintiff ought to have disclosed to the Court that there was Caveat Petition filed by the defendants; that Case No. 261/2020 Yash Tekwani. vs. Dheeraj Kashyap Page 3 of 87 (RAJ KUMAR CHAUHAN) District Judge (Commercial Court) /SE/Saket/ND/19.12.2020 the plaintiff has not placed on record any certificate or document which could prove that the plaintiff is doing the business of selling gol gappa and chaat in the name and style of Prince Chaat Corner since 1965. It is further stated that exparte order dated 19.10.2020 has been obtained by the plaintiff by concealing the material facts in connivance with the officials of the registry who has not brought to the notice of the Court regarding the Caveat already having being filed by the defendant. The applicant / defendant has therefore sought vacation of the exparte ad interim order dated 19.10.2020 on the following grounds :

(a) The plaintiff has suppressed and concealed the material facts.

(b) The plaintiff has knowingly concealed the fact that defendants have already filed 02 Caveat Petitions and a copy of which was duly served upon the plaintiff through Speed Post.

(c) That the plaintiff has obtained trademark registration for the word / mark Prince Chaat Corner and the said registration has already been challenged by many.

(d) That the defendant is having sufficient documents to prove that the defendant is having prior use of the said name since the year 2000 Case No. 261/2020 Yash Tekwani. vs. Dheeraj Kashyap Page 4 of 87 (RAJ KUMAR CHAUHAN) District Judge (Commercial Court) /SE/Saket/ND/19.12.2020 and the rectification proceedings are pending disposal before the appropriate authority i.e. Trade Mark Registry.

(e) The defendant is dealing in the business of selling gol gappa and chaat for the last 35 years, therefore, plaintiff cannot claim any exclusive rights over the words or name based on the said registration and the plaintiff cannot stop anyone from using the colour, schemes, fonts, formats, logos which are not only descriptive / generic but also common to trade.

(f) The plaintiff has attempted to falsely claim that he was the registered owner of the trademark / labels of Prince Chaat Corner since 1965 whereas it has claimed the use of trademark Prince Chaat Corner since 01.10.2009 only.

(g) That the defendant has been using the same name prior to the moving of any application of trademark by the plaintiff. The defendant is having all the proofs to show that defendant has a prior use of the name Prince Chaat Bhandar / Corner and the plaintiff has no Case No. 261/2020 Yash Tekwani. vs. Dheeraj Kashyap Page 5 of 87 (RAJ KUMAR CHAUHAN) District Judge (Commercial Court) /SE/Saket/ND/19.12.2020 trademark registration for the said words nor it can obtain any trademark registration over the same as the said words are generic and descriptive in nature. The suit for trademark infringement is therefore, not maintainable.

3. In reply to the application, the plaintiff has stated that defendant has deliberately adopted the Mark 'PRINCE CHAAT BHANDAR' which is substantial reproduction of plaintiff's mark 'PRINCE CHAAT CORNER'. The said mark of the defendants are visually a carbon copy of the plaintiff's mark, thereby amounting to violation of the plaintiff's intellectual property rights. Since the plaintiffs are the registered proprietors of mark 'PRINCE CHAAT CORNER', therefore, any use of an identical mark or a mark deceptively similar to the plaintiff's wellknown mark would amount to infringement of plaintiff's registered trademark. That the plaintiff's registration qua the mark 'PRINCE CHAAT CORNER' extends worldwide and the plaintiffs have already filed documents to prove the fact that the registration extends worldwide. Hence, the adoption of the mark 'PRINCE CHAAT BHANDAR' by the defendants is dishonest and tainted and with a view to earn illegal profits. It is stated that exparte order dated 19.10.2020 needs to be confirmed in order to Case No. 261/2020 Yash Tekwani. vs. Dheeraj Kashyap Page 6 of 87 (RAJ KUMAR CHAUHAN) District Judge (Commercial Court) /SE/Saket/ND/19.12.2020 avoid irreparable loss to the plaintiff. It is further stated that the defendant in the application has failed to give any ground for vacating the well reasoned order.

4. On merit, all the averments in the application has been controverted and denied stating that the plaintiff was not duly informed about the filing of the Caveat Petitions in the Saket District Court. That there is no ground for vacating the interim order when the balance of convenience, prima facie case, irreparable loss has been established by the plaintiff. That the plaintiff has not concealed any material facts from the Court and the allegations are false and fabricated.

5. It is further stated that the plaintiff has instituted the application under Order 39 Rule 1 and 2 CPC on the following lines:

6. That the p laintiff is a registered owner of prestigious and wellknown trademark 'PRINCE / PRINCE CHAAT CORNER', with logo which have been in use since 1965 with respect to services for providing food and drink and other allied and cognate products.

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(RAJ KUMAR CHAUHAN) District Judge (Commercial Court) /SE/Saket/ND/19.12.2020

7. That the plaintiff is a proprietorship concern and has started its business in the year 1965 and the trademark 'PRINCE PAN CORNER' was coined by the father of the plaintiff Sh. Bhagwan Dass. Since then the plaintiff has been using the trademark 'PRINCE PAN CORNER' and with extensive hard work and devotion has opened 12 outlets at Pan India Level. The plaintiff is engaged in the business of providing / selling and trading of Food and Drink water with the trademark 'PRINCE / PRINCE CHAAT CORNER' since 1965. For the past 55 years the plaintiff has been getting the said products manufactured and sold through third party lincensees / franchisees in India and many other countries. The plaintiff has also adopted the trademark 'PRINCE CHAAT CORNER' with logo in the year 2009. The aforesaid trademarks are the coined word, which have no dictionary meaning and is capable of distinguishing the products sold and services rendered under it.

8. The Plaintiff is the Registered Proprietor and enjoys following registrations in its favour for the trademark 'PRINCE/ PRINCE CHAAT CORNER', under the Trade Mark Act,1999 : Case No. 261/2020 Yash Tekwani. vs. Dheeraj Kashyap Page 8 of 87 (RAJ KUMAR CHAUHAN) District Judge (Commercial Court) /SE/Saket/ND/19.12.2020 S.No. Application Trade mark Class Status Number

1. 2147455 43 Registered.

2. 2226796 43 Registered

3. 2654172 PRINCE 43 Registered

4. 2857368 43 Registered

5. 2985570 PRINCE 43 Registered CATERERS

6. 3107241 43 Registered

7. 3126710 43 Registered Case No. 261/2020 Yash Tekwani. vs. Dheeraj Kashyap Page 9 of 87 (RAJ KUMAR CHAUHAN) District Judge (Commercial Court) /SE/Saket/ND/19.12.2020

9. That Ms. Jyoti Tekwani is the wife of plaintiff and the plaintiff has given permitted use to his wife for applying and using the mark 'PRINCE CHAAT CORNER'. The word 'PRINCE' is the essential feature / prominent feature in all the plaintiff trademark / copyright Registration. By virtue of such rights, the plaintiff has become the legal owner and registered proprietor of the trademark 'PRINCE / PRINCE CHAAT CORNER', in relation to those goods and services under various goods. The plaintiff is the registered proprietor of the trademarks 'PRINCE / PRINCE CHAAT CORNER'. Every Trade Marks of the plaintiff has been renewed according to the Act and rules thereof. That the Plaintiff has applied for the Legal Proceeding Certificate (LPC) / certified extract of the Trade Mark Register on 10.09.2020 and shall file the same as and when it is received from the Registrar of Trademarks, Delhi. Since urgent interim orders are required and have been prayed for, by the Plaintiff, and postponing the filing of the suits until the grant of such Certificate will cause prejudice to the Plaintiff along severe damages and loss of revenues.

10. In order to safeguard its rights in the Plaintiff's trademarks including the mark 'PRINCE', the Plaintiff has applied for and secured registrations of the trademarks in different classes. The Case No. 261/2020 Yash Tekwani. vs. Dheeraj Kashyap Page 10 of 87 (RAJ KUMAR CHAUHAN) District Judge (Commercial Court) /SE/Saket/ND/19.12.2020 WellKnown nature of the Plaintiff's trademarks is in fact perceptibly clear from how it has been accorded registration in diversified Products. Details of registrations are as under: S. No. Application Trade mark Class Status Number

1. 2361858 PRINCE ORANGE 32 Registered

2. 1121689 32 Registered

3. 1121690 G.K PRINCE PAN 31 Registered SHOP

4. 2147455 43 Registered

5. 1121689 32 Registered

6. 1121690 G.K PRINCE PAN 31 Registered SHOP

7. 2147455 43 Registered

8. 2226796 43 Registered

9. 2226796 43 Registered

10. 1121689 32 Registered

11. 1121690 G.K PRINCE PAN 31 Registered SHOP Case No. 261/2020 Yash Tekwani. vs. Dheeraj Kashyap Page 11 of 87 (RAJ KUMAR CHAUHAN) District Judge (Commercial Court) /SE/Saket/ND/19.12.2020

12. 2147455 43 Registered

13. 2361858 PRINCE ORANGE 32 Registered

11. That the trademarks 'PRINCE / PRINCE CHAAT CORNER', with logo have been extensively advertised by the plaintiff in various print media online and offline both and by virtue of the high level of promotion and extensive publicity and advertisement, the trademarks 'PRINCE / PRINCE CHAAT CORNER', are exclusively identified with the plaintiffs only. The adoption of the trademarks 'PRINCE / PRINCE CHAAT CORNER', or any other deceptively similar trade mark will create confusion and deception and entitles the plaintiff to seek injunctions. That the Plaintiff is also spending a large amount of money on promotion/sale as well as advertisements through various modern media such as Television, Newspapers and Magazines etc in order to protect their rights over their trademarks. It is further submitted that the Plaintiff has incurred enormous expenses for promoting and popularizing the trademarks including the trademarks 'PRINCE / PRINCE CHAAT CORNER'.

12. Owing to the long, continuous and ubiquitous use of the 'PRINCE' trade mark/ name since 1965 in India, coupled with Case No. 261/2020 Yash Tekwani. vs. Dheeraj Kashyap Page 12 of 87 (RAJ KUMAR CHAUHAN) District Judge (Commercial Court) /SE/Saket/ND/19.12.2020 extensive promotion and widespread sales, the plaintiff has acquired significant common law rights in the 'PRINCE' trade mark in India and even globally including Bangkok, Pattaya in Thailand, and entitled to the exclusive use thereof, especially in relation to Paan and chat products. That it is significant to note that the Plaintiff has been able to clearly establish the WellKnown nature, Extensive and Prior Use of its trademarks, not only throughout India but in many other countries as well. Therefore, a deceptively similar use of Trademark of the plaintiff in any manner, would lead the consumers to believe that such infringing goods originate from the Plaintiff.

13. It is submitted that by virtue of the above, members of the relevant trade and public are aware of the existence of Plaintiff's trademarks 'PRINCE / PRINCE CHAAT CORNER', which has gained popularity and attained the status of WELL KNOWN mark within the provisions of Section 2(1) (zg) and 11 (69) of the Trade Marks Act, 1999.

14. That the Defendant No.1 is the sole proprietor of their respective business and work under the tutelage of Defendant No. 2 who is the father of the Defendant No.1 therefore, have personal liability, in respect of selling the infringing products produced and Case No. 261/2020 Yash Tekwani. vs. Dheeraj Kashyap Page 13 of 87 (RAJ KUMAR CHAUHAN) District Judge (Commercial Court) /SE/Saket/ND/19.12.2020 sold by them. That the Defendant No.2 was the franchisee of the plaintiff and for the said purpose a franchisee agreement dated 18 th November, 2015 was executed between plaintiff and defendant No. 2. Later another Lease Agreement Cum MOU was entered between the Plaintiff and Defendant No. 2 Dated 1/06/2016 which was renewed on 1st May, 2017. It is imperative to mention that the Plaintiff and defendant No. 1 also entered into a Franchisee Agreement dated 07.08.2019 as Defendant No. 2 failed to comply with the GST compliance and in all these agreements both the Defendants had categorically admitted that the Plaintiff is the sole proprietor of the mark 'PRINCE CHAT CORNER'. That vide MOU / agreement dated 25th September, 2019 the plaintiff has terminated all the previous franchisee agreement entered with defendants. In the termination it was agreed between the parties that the defendant will not open their shop / outlet within the four to Five kilometre for the same goods and services specifically a chat shop. Also no consent whatsoever was ever given to the defendant to use the mark 'PRINCE / PRINCE CHAAT CORNER'.

15. That the Defendant in gross violation of the MOU/Agreement firstly opened a chat shop just within the same vicinity in fact just two shops away. That the plaintiff was constrained Case No. 261/2020 Yash Tekwani. vs. Dheeraj Kashyap Page 14 of 87 (RAJ KUMAR CHAUHAN) District Judge (Commercial Court) /SE/Saket/ND/19.12.2020 to invoke its Arbitration Clause and had to appoint the Arbitrator as per the Arbitration Clause of the MOU, the Defendants chose not to appear and participate in the Arbitration proceedings, the Arbitrator was pleased to pass a restraining order against the defendants prohibiting them to operate within the radius of 45 Kms of the shop of the Plaintiff situated at M29/5 Greater Kailash Part 1 New Delhi 110048. That the Defendants has filed a Section 16 of Arbitration & Conciliation Act petition before the District Judge, Saket Court and till date no relief has been granted by the Court in favour of the Defendant and the same is pending adjudication.

16. That the Defendant No. 2 is originally the Proprietor of the 'MAHESH CHAAT CORNER' and had also entered into a partnership Agreement with M/s Sprism Enterprises in the name of her Wife Vimlesh wherein the Defendant No. 2 had categorically admitted to be the proprietor of Mahesh Chat Corner. It is only after flouting the terms of the agreement with M/s Spris Enterprises the Defendants in connivance with each other malafidely adopted the well known trade name of the Plaintiff 'PRINCE CHAAT BHANDAR'. It is further alleged that the Defendants are the habitual violators and infringers and during the last week of August, 2020 plaintiff became aware of defendant no.1's trade mark application bearing no. 4619941, bearing Case No. 261/2020 Yash Tekwani. vs. Dheeraj Kashyap Page 15 of 87 (RAJ KUMAR CHAUHAN) District Judge (Commercial Court) /SE/Saket/ND/19.12.2020 the mark 'PRINCE CHAAT BHANDAR (LOGO)' in class

43. The defendant no. 1 has claimed the user since 06/07/2000, which is false and frivolous as the defendant himself is around 26 years old and by no stretch of imagination can claim a user for 20 years.

17. The Plaintiff submits that the cause of action for the present suit arose in during the Last week of August When plaintiff became aware of defendant no.1's trade mark application bearing no. 4619941, bearing the mark 'PRINCE CHAAT BHANDAR' in class

43. The cause of action further arose during last week of First Week September 2020 when one of the marketing person who came across of infringing products of defendant that same are being sold under the deceptively similar trademark 'PRINCE / PRINCE CHAAT BHANDAR', and the defendant has opened their shop under the trade name 'PRINCE CHAAT BHANDAR', with logo at C28/6 Amar Colony Market, Lajpat Nagar4 and the defendant is using 'PRINCE CHAAT BHANDAR', as a trademark also. The cause of action is a continuous one and continues till the Defendants are restrained from use of trademarks/ trade name 'PRINCE / PRINCE CHAAT BHANDAR'. That the defendant shop i.e C28/6 Amar Colony Market, Lajpat Nagar4, Opp Depauls Coffee is within the jurisdiction Case No. 261/2020 Yash Tekwani. vs. Dheeraj Kashyap Page 16 of 87 (RAJ KUMAR CHAUHAN) District Judge (Commercial Court) /SE/Saket/ND/19.12.2020 of this Hon'ble Court. The defendants are allegedly carrying on their business within the jurisdiction of this Court. That the Defendants are allegedly selling the impugned products and providing its services under the marks 'PRINCE / PRINCE CHAAT BHANDAR', at C 28/6 Amar Colony Market, Lajpat Nagar4 Opp Depauls Coffee South East, District, Delhi within the jurisdiction of this Court.

18. That the Defendants allegedly in their trademark / trade name 'PRINCE CHAAT BHANDAR', have fully copied Plaintiffs trademarks 'PRINCE / PRINCE CHAAT CORNER', use of the identical trade mark 'PRINCE / PRINCE CHAAT BHANDAR', will enable the Defendants to pass off their product as that of the Plaintiff. That the comparison chart of plaintiffs registered mark and defendants mark is made by the plaintiff herein below: S. No. Plaintiff Marks Defendant Infringing mark

19. The Plaintiff is using the marks 'PRINCE / PRINCE CHAAT CORNER', since1965. Being a prior user, the Plaintiff has Case No. 261/2020 Yash Tekwani. vs. Dheeraj Kashyap Page 17 of 87 (RAJ KUMAR CHAUHAN) District Judge (Commercial Court) /SE/Saket/ND/19.12.2020 exclusive rights on the marks 'PRINCE / PRINCE CHAAT CORNER'. The Defendant's adoption and use of the mark 'PRINCE / PRINCE CHAAT BHANDAR', with logo are the infringement of trademarks and also will lead to passing off. It will lead to deception and confusion. As the Defendants were the franchisee of the plaintiff and defendant is in the same trade as that of Plaintiff, they were fully aware of Plaintiff's prior use due to extensive advertisements of the mark 'PRINCE / PRINCE CHAAT CORNER', before their adoption of the impugned marks. Defendants adoption of the marks is fraudulent, dishonest and malafide, conceived for the sole purpose to pass off their goods as of the plaintiff. The Defendants without due cause is trying to take unfair advantage by the use of deceptively similar marks 'PRINCE / PRINCE CHAAT BHANDAR', to that of Plaintiff's mark 'PRINCE / PRINCE CHAAT CORNER'. Defendants by this act seek to gain an unfair advantage over Plaintiffs products. Defendant's acts are contrary to honest practises in commercial matters. Therefore, the defendant should be restrained from use of the mark 'PRINCE / PRINCE CHAAT BHANDAR'.

20. It is alleged that the Defendant's act is patently illegal and dishonest. The Defendants are misrepresenting to the general public Case No. 261/2020 Yash Tekwani. vs. Dheeraj Kashyap Page 18 of 87 (RAJ KUMAR CHAUHAN) District Judge (Commercial Court) /SE/Saket/ND/19.12.2020 and amounts to playing fraud on the consumer. Use of the deceptively similar mark 'PRINCE / PRINCE CHAAT BHANDAR', by the Defendants on its product and stationery is without authorization or permission and is a violation of Plaintiff's exclusive rights in the trade mark. This would cause irreparable and permanent loss of goodwill and reputation to the Plaintiff. The Defendants ought to be restrained from making this misrepresentation. The Defendants act also amount to a violation of Plaintiff's common law rights and is an act of unfair competition. That the Plaintiff has acquired all the necessary permissions and registration from the concerned authorities including MCD and other Government Authorities. That the marks 'PRINCE / PRINCE CHAAT BHANDAR', are identical, visually, phonetically and structurally similar to Plaintiffs trademarks 'PRINCE / PRINCE CHAAT CORNER'. Use of the marks 'PRINCE / PRINCE CHAAT BHANDAR', amounts to infringement of Plaintiffs above referred registered trademarks.

21. In the application under Order 39 Rule 1 and 2 CPC r/w section 151 of the Trademark Act the plaintiff had made the prayer : "(i) restraining the defendants, its directors, agents distributors, partners or Case No. 261/2020 Yash Tekwani. vs. Dheeraj Kashyap Page 19 of 87 (RAJ KUMAR CHAUHAN) District Judge (Commercial Court) /SE/Saket/ND/19.12.2020 any person claiming under them or through them from selling, offering for sale any goods, advertising or promoting any product under the trade mark / tradename PRINCE / PRINCE CHAAT BHANDAR or any trade mark which is similar to plaintiff's trade mark PRINCE / PRINCE CHAAT CORNER which is infringement of plaintiffs registered trade mark PRINCE / PRINCE CHAAT CORNER.

(ii) restraining the defendants, its Directors, agents, distributors, partners or any person claiming under them or through them from selling, offering for sale any goods, advertising or promoting any product under the trade mark tradename PRINCE / PRINCE CHAAT CORNER or any trade mark which is similar to plaintiff's trade mark PRINCE / PRINCE CHAAT CORNER which may cause confusion and deception in the market and lead to passing off of defendant's goods / services as that of the plaintiffs.

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(RAJ KUMAR CHAUHAN) District Judge (Commercial Court) /SE/Saket/ND/19.12.2020

(iii) Such other order as this Hon'ble Court may deem fit in the facts and circumstances of the case."

22. The defendant has filed reply to the application under Order 39 Rule 1 and 2 CPC taking the preliminary objection that plaintiff knowingly and willfully did not disclose the fact that the Caveat Petition have been filed by the defendant which were duly served upon him. It is further stated that order dated 19.10.2020 suffers from the fraud having being committed by the plaintiff and deserves to be vacated on this ground. Further all the facts which were narrated in application under Order 39 Rule 4 CPC has been reproduced in reply starting from para 2 to 10 of the reply.

23. In parawise reply on merit in para no. 1, it is stated that it is the defendant who has actually copied the trademark of the defendant which has been continuously in use from last 02 decades by the father of the defendant. In para no. 2 it is stated that Mrs. Jyoti Tekwani is the alleged registered owner of Prince Chaat Corner; that as per Section 53 of Trademark Act no person other than the registered owner of a particular trademark (who is Mrs. Jyoti Tekwani in the case in hand) can claim any trademark infringement and not the Case No. 261/2020 Yash Tekwani. vs. Dheeraj Kashyap Page 21 of 87 (RAJ KUMAR CHAUHAN) District Judge (Commercial Court) /SE/Saket/ND/19.12.2020 plaintiff. It is further stated that plaintiff had not been an exclusive user for the word 'PRINCE' for selling of Golgappa and Chaat; that the defendant is the first and exclusive owner of the brand name 'PRINCE CHAAT CORNER' and was the one who actually originated the said Chaat business of selling Golgappa and Tikki Chaat in the year 2000 at M29, Greater KailashI, New Delhi; that the plaintiff had relied upon and placed on record some bills (annexed from page no. 94 to 105 alongwith application under Order 39 Rule 1 and 2 CPC) which were actually issued by the defendant's father Mr. Ram Mahesh Kashyap on his own TIN No. i.e. 07137102202 which has now being unlawfully and fraudulently used by the plaintiff to wrongfully assert the usage of disputed trade name; that the plaintiff was aware of the fact that answering defendant has been using the brand name 'PRINCE CHAAT CORNER' since the year 2000. It is further reiterated that it is the father of the defendant who is the first one to prepare and sell Golgappa and Tikki (Chaat) under the name and style of Prince Chaat Corner; that the defendants were using the said trade name till 19.10.2020 which was never interrupted by the plaintiff. It is further averred that the trade name Prince Chaat Corner alongwith logo descripting Prince Chaat Corner has been got registered by the wife of the plaintiff in the year 20152016, however, the father of the defendant has been continuously using Case No. 261/2020 Yash Tekwani. vs. Dheeraj Kashyap Page 22 of 87 (RAJ KUMAR CHAUHAN) District Judge (Commercial Court) /SE/Saket/ND/19.12.2020 the same trade name since the year 2000 and was the first and foremost person to originate the Chaat business at the same address i.e. M29, Greater KailashI, New Delhi under the tenancy of the plaintiff. It is further alleged that the defendant and his father are both illeterate and unaware about the nuances of the intellectual property rights and as such could not get their disputed trade name registered in their name and could not raise any objection while plaintiff's wife was getting the same trade name registered in her name. It is further alleged that the LPC has not been submitted in this case and in the absence of LPC (Legal Proceeding Certificate) the suit for trademark infringement cannot be filed. It is further submitted that the father of the defendant had also advertised his business on various platform through various modes as he has been running the Chaat business from last 02 decades at M29, Greater KailashI, New Delhi with the same trade name. That various celebrities and famous personalities who used to visit the defendant's shop and praised the defendant's quality and taste shows that defendant has earned the long reputation of the said trade name i.e. 'PRINCE CHAAT CORNER' since the year 2000. True copy of the colored photographs of the celebrities enjoying Chaat at the shop has been annexed as annexure D3; that the defendant is the prior user and first seller of the Chaat products under the trade name 'PRINCE CHAAT CORNER' since Case No. 261/2020 Yash Tekwani. vs. Dheeraj Kashyap Page 23 of 87 (RAJ KUMAR CHAUHAN) District Judge (Commercial Court) /SE/Saket/ND/19.12.2020 the year 2000 is evident from the true copy of the complaint dated 06.07.2000 reflecting the defendant operating the business of Chaat under the name and style of 'PRINCE CHAAT BHANDAR / CORNER' and the said complaint is annexed as annexure D4. It is further alleged that defendant is having a prior use of the trade name i.e. 'PRINCE CHAAT CORNER' and has following evidence in support of its case as under : A true copy of Identity Card issued by the Greater Kailash Market Association in the name of the father of the defendant showing that he is a member of the market association running the business under the name and style of Prince Chaat Corner of the said copy of the ID Card is annexed as annexure D5. The defendant has further relied upon the copy of the details received from the network provider Hutch now Vodafone depicts that the father of the defendant got his rental number activated at the address of his shiop i.e. Prince Chaat Corner in the year 2001 annexed as Annexure D6. The defendant has further relied upon the bank account maintained with the Axis Bank, East of Kailash, New Delhi Branch which shows that the father of the defendant was already running a Chaat shop under the name and style of Prince Chaat Corner and the said account was opened in the month of April 2009 which is prior to the registration of the trade name 'PRINCE CHAAT CORNER' registered in the Case No. 261/2020 Yash Tekwani. vs. Dheeraj Kashyap Page 24 of 87 (RAJ KUMAR CHAUHAN) District Judge (Commercial Court) /SE/Saket/ND/19.12.2020 favour of the wife of the plaintiff. The copy of the bank account is annexed as Annexure D7. It is further prayed that order dated 19.10.2020 be set aside or vacated and the application under Order 39 Rule 1 and 2 CPC be dismissed.

24. I have heard the learned counsels for parties at length.

25. Learned counsel for applicant / defendant has also filed written arguments regarding application under Order 39 Rule 4 CPC wherein he has reiterated the same facts in his arguments as are averred in the application. In his written arguments the learned counsel for defendant has submitted arguments as under : 25.1 Firstly that the order is liable to be recalled and set aside as the same has been passed without considering the Caveat Petition of the defendant / applicant. Further the plaintiff has failed to comply the order under Order 39 Rule 3 CPC as the copies of the plaint and documents were not supplied within 10 days as directed by this Court. 25.2 Secondly, it is argued that defendant is the prior user of the trademark 'PRINCE CHAAT CORNER' since 2000 and there are various documents led by the plaintiff as mentioned in the application in that regard.

25.3 Thirdly, it was argued that the suit by plaintiff is not Case No. 261/2020 Yash Tekwani. vs. Dheeraj Kashyap Page 25 of 87 (RAJ KUMAR CHAUHAN) District Judge (Commercial Court) /SE/Saket/ND/19.12.2020 maintainable because it is the wife who is registered owner of the alleged trademark. Learned counsel for defendant has relied upon the following judgments :

(i) Zila Parishad, Baduan And Ors. Vs Brahma Rishi Sharma Air 1970 All 376 wherein it was held in para no. 13 to 16 as under : "13. Let us now examine the scheme of Rules 1 to 4 of Order XXXIX. Rules 1 and 2 provide for the making of an interim order of injunction. Rule 3 firstly provides that an interim injunction should ordinarily be granted after notice to the adversary party. Secondly, it provides that notice may be dispensed with where the court is satisfied that it would defeat the purpose of granting an injunction. Rule 4 provides that an order of injunction may be discharged or varied or set aside on an application made by the party dissatisfied with such order.

14. Three things follow from these provisions.

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(RAJ KUMAR CHAUHAN) District Judge (Commercial Court) /SE/Saket/ND/19.12.2020 The law does not require the issue of notice when an ex parte injunction is made, although courts, as a matter of caution, issue a notice. The service of the ex parte order of injunrtion itself is adequate notice. Again, Rule 4 shows that an order of injunction may be discharged, varied or set aside on the application of the adversary party. Such application may be given when the order is ex parte or even after it has been made absolute. Until it is discharged or varied or set aside on such an application, either written or oral, the ex parte order operates with full vigour and stands on its own feet, provided it has not expired earlier. Thirdly, the provisions of Order XXXIX do not classify orders of injunction into (1) an ex parte order of injunction and (2) a final order of injunction. Courts have coined this dichotomy for the sake of convenience of speech and expressions. In the eye of law an 'ex parte' order is as much an order under Rule 1 or 2 as a 'final' order. Both orders last for the period each is granted or till each of them is Case No. 261/2020 Yash Tekwani. vs. Dheeraj Kashyap Page 27 of 87 (RAJ KUMAR CHAUHAN) District Judge (Commercial Court) /SE/Saket/ND/19.12.2020 discharged or varied or set aside under Rule 4. The temporal life of each may be shorter than the life of the suit.

15. An injunction Interferes with substantial and substantive rights of a person. The object of Rule l(r) of Order 43 is to provide a remedy for improper or invalid interference with his rights. If we restrict this rule to only final orders of injunction, the object of the rule will not be fully achieved. For instance, where a grievance of the party affected by the ex parte interim injunction is that the court granting it has also acted from bias against him it is meaningless to force him to go to that very Court in the first instance. It shall only prolong the suspension of his valuable rights. In many cases he may get no relief in the end. Similarly, where the order of injunction is founded on an Act challenged as unconstitutional, appeal may yield quicker relief.

16. The language and the object of Rule 1(r) of Case No. 261/2020 Yash Tekwani. vs. Dheeraj Kashyap Page 28 of 87 (RAJ KUMAR CHAUHAN) District Judge (Commercial Court) /SE/Saket/ND/19.12.2020 Order 43 and the scheme ot Rules 1 to 4 of Order 39 show that an appeal also lies against the ex parte order of injunction. As soon as an interim injunction is issued and the party affected thereby is apprised of it, he has two remedies: (1) he can either get the ex parte injunction order discharged or varied or set aside under Rule 4 of Order 39 and if unsuccessful avail the right of appeal as provided for under Order 43, Rule 1 (r), or (2) straightway file an appeal under Order 43, Rule 1 (r) against the injunction order passed under Rules 1 and 2 of Order 39. C.P.C. It is not unusual to provide for alternative remedies. For instance, when an ex parte decree is passed against a person, he has two remedies:

either he may go up in appeal against the ex parte decree or he may seek to get the ex parte decree set aside by the same court."

(Emphasis is mine)

ii) P.Gayazuddin & Ors. Vs State Of Andhra Pradesh 2015 (3) Civil Court Cases 380 (A.P.) (DB) wherein it was held that : Case No. 261/2020 Yash Tekwani. vs. Dheeraj Kashyap Page 29 of 87 (RAJ KUMAR CHAUHAN) District Judge (Commercial Court) /SE/Saket/ND/19.12.2020 "7. After hearing both the learned counsel, we find force in the argument of the learned counsel for the appellants that by virtue of the Writ Rules, the provision of Order XXXIX Rule 3 of CPC are applicable and the same is set out hereunder:

Rule 3. Before granting injunction Court to direct notice to opposite party: The Court shall in all cases, except where it appears that the object of granting the injunction would be defeated by the delay, before granting an injunction, direct notice of the application for the same to be given to the opposite party:

Provided that, where it is proposed to grant an injunction without giving notice of the application to the opposite party, the Court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant

(a) to deliver to the opposite party, or to send to Case No. 261/2020 Yash Tekwani. vs. Dheeraj Kashyap Page 30 of 87 (RAJ KUMAR CHAUHAN) District Judge (Commercial Court) /SE/Saket/ND/19.12.2020 him by registered post, immediately after the order granting the injunction has been made, a copy of the application for injunction together with

(i) a copy of the affidavit filed in support of the application;

(ii) a copy of the plaint; and

(iii) copies of documents on which the applicant relies; and

(b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.

8. It is thus clear that ordinarily the Court shall not grant any injunction or interim relief as prayed for without issuing notice to the adversary, but the Legislature has carved out an exception when without issuing a notice, an order of injunction can be passed. The word shall, succeeding the word Court in the proviso, clearly denotes that it is mandatory. The Court Case No. 261/2020 Yash Tekwani. vs. Dheeraj Kashyap Page 31 of 87 (RAJ KUMAR CHAUHAN) District Judge (Commercial Court) /SE/Saket/ND/19.12.2020 has to form an opinion with reasons that the object of granting injunction would be defeated by delay, in event prior notice is served, then in that case, without giving any notice to the opposite party, an ad interim ex parte order can be passed. According to us, it is not a mere legal formality and it is the duty of the Court. But, we feel that in which case and under what circumstances, an ad interim order can be granted is the duty of the Court to examine and take decision. In this case, the Honble Trial Judge has not recorded any reasons as a result, has failed to discharge the duty as mentioned in the proviso. The Court has to act on the assistance of the learned Lawyers and we think that such assistance was not rendered properly as a result mandatory requirement envisaged in the law has not been fulfilled. On this ground alone we would have set aside the order and remanded for fresh hearing. We think in this case instead of taking recourse to the sort of measure, we examine this Case No. 261/2020 Yash Tekwani. vs. Dheeraj Kashyap Page 32 of 87 (RAJ KUMAR CHAUHAN) District Judge (Commercial Court) /SE/Saket/ND/19.12.2020 case whether ad interim order was warranted at all."

(Emphasis is mine)

26. In his written arguments, learned counsel for plaintiff has argued as under : 26.1 Firstly, that the Plaintiff had started its business way back in the year 1965 and the trademark 'PRINCE PAN CORNER' was coined by the father of the Plaintiff Sh Bhagwan Dass way back in the year 1965. Since then the Plaintiff has been continuously using the trademark 'PRINCE PAN CORNER' and with extensive hard work and devotion has opened as many as 12 Outlets at Pan India Level.

26.2 Secondly, that the Plaintiff is engaged in the business of providing / selling and trading of Food and Drink under the trademark 'PRINCE/ PRINCE CHAAT CORNER', with logo since the year1965.

26.3 Thirdly, the sales figures of Plaintiff products including for product sold under the mark trademarks 'PRINCE / PRINCE CHAAT CORNER', with logo for the years are as below : Case No. 261/2020 Yash Tekwani. vs. Dheeraj Kashyap Page 33 of 87 (RAJ KUMAR CHAUHAN) District Judge (Commercial Court) /SE/Saket/ND/19.12.2020 FINANCIAL YEAR (INR) 20142015 49,79,459/ 20152016 79,25,852/ 20162017 86,87,991/ 20172018 1,07,79,015/ 20182019 93,89,909 201920 1,20,56,969 26.4 Fourthly, Annual Advertisements figures of Plaintiff products for the years are as below :

27.FINANCIAL 28. (INR) YEAR 29.2015 30.1,00,000/ 31.2016 32.1,25,000/ 33.2017 34.1,65,000/ 35.2018 36.1,85,000/ 37.2019 38.2,10,000/ 39.2020 40.80,0000 26.5 Fifthly, that the defendants were the Franchisee of the Plaintiff and the Defendants had duly acknowledged the Plaintiff to be the Registered Proprietor of the mark 'PRINCE CHAAT CORNER/PRINCE PAN' and its logo in the Franchisee Agreements placed on record.

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(RAJ KUMAR CHAUHAN) District Judge (Commercial Court) /SE/Saket/ND/19.12.2020 26.6 Sixthly, the defendants in their trademark / tradename 'PRINCE CHAAT BHANDAR', with logo have fully copied Plaintiffs trademarks 'PRINCE / PRINCE CHAAT CORNER', with logo . This use of the identical trademark 'PRINCE/ PRINCE CHAAT BHANDAR', with logo is the infringement of trademark of the plaintiff and also amounts to passing off of the plaintiff's goods.

26.7 Seventhly, the Plaintiff has fulfilled the test of infringement and reliance has been placed on "Himalaya Drug Company Vs. S.B.L. Limited 2012 SCC Online Del 136", para nos.24 to 29.

"24. In order to establish infringement, the main ingredients of Section 29 are that the plaintiff's mark must be registered under the Trade and Merchandise Marks Act, 1958, the defendant's mark is identical with or deceptively similar to the registered trade, the defendant's use of the mark is in the course of trade in respect of the goods covered by the registered trade mark. The rival marks are to Case No. 261/2020 Yash Tekwani. vs. Dheeraj Kashyap Page 35 of 87 (RAJ KUMAR CHAUHAN) District Judge (Commercial Court) /SE/Saket/ND/19.12.2020 be compared as a whole. Where two rival marks are identical, it is not necessary for the plaintiff to prove further that the use of defendant's trade mark is likely to deceive and cause confusion as the registration shows the title of the registered proprietor and the things speak for themselves. In an infringement action, once a mark is used as indicating commercial origin by the defendant, no amount of added matter intended to show the true origin of the goods can effect the question. If court finds that the defendant's mark is closely, visually and phonetically similar, even then no further proof is necessary. It is not necessary for the plaintiff to adduce evidence of actual deception in order to prove the case of infringement. If packing of two products is different in an action of infringement, the same is immaterial. Its validity cannot be challenged in the infringement proceedings under the Trade and Merchandise Marks Act, 1958. (See Corn Products Refining Co. v. Shangrila Food Case No. 261/2020 Yash Tekwani. vs. Dheeraj Kashyap Page 36 of 87 (RAJ KUMAR CHAUHAN) District Judge (Commercial Court) /SE/Saket/ND/19.12.2020 Products Ltd. (supra), AIR 1963 SC 449 (V 50 C 63), Amritdhara Pharmacy Vs.Satya Deo Gupta and AIR 1965 SC 980, Kaviraj Pandit Durga Dutt Sharma Vs. Navaratna Pharmaceutical Laboratories, 1999 PTC (19) 81 (Del) (para 15), Automatic Electric Limited v. R.K. Dhawan and Anr. and 1963 Madras page 12 S.A.P. Balraj and Ors. Vs. S.P.V. Nadar and Sons and Another) Legal Effect of Registration

25. 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 of a registered trade mark for the vindication of the exclusive right to the use of the trade mark in relation to those goods. (See Kaviraj Pandit Durga Dutt Sharma Vs. Navaratna Case No. 261/2020 Yash Tekwani. vs. Dheeraj Kashyap Page 37 of 87 (RAJ KUMAR CHAUHAN) District Judge (Commercial Court) /SE/Saket/ND/19.12.2020 Pharmaceutical Laboratories (supra) and AIR 1971 SC 898, National Bell Co. v. Metal Goods Mfg. Co.) Essential Features

26. The courts have propounded the doctrine of prominent and essential feature of the trade mark for the purposes of adjudication of the disputes relating to infringement of trade mark. While deciding the question of infringement, the court has to see the prominent or the dominant feature of the trade mark. Even the learned single judge agrees to this proposition when the learned judge quotes McCarthy on Trade Marks that all composite marks are to be compared as whole. However, it is dependent on case to case to basis as a matter of jury question as to what can be the possible broad and essential feature of the trade mark in question.

27. It is settled law that where the defendant's mark contains the essential feature of the plaintiff's mark combined with other matter, the Case No. 261/2020 Yash Tekwani. vs. Dheeraj Kashyap Page 38 of 87 (RAJ KUMAR CHAUHAN) District Judge (Commercial Court) /SE/Saket/ND/19.12.2020 correct approach for the court is to identify an essential feature depending particularly on the court's own judgment and burden of the evidence that is placed before the Court. 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 differences, rather overall similarity has to be judged. While judging the question as to whether the defendant has infringed the trade mark or not, the court has to consider the overall impression of the mark in the minds of general public and not by merely comparing the dissimilarities in the two marks.

28. The ascertainment of an essential feature is not to be by ocular test alone but if a word forming part of the mark has come in trade to be used to identify the goods of the owner of the trade mark, it is an infringement of the mark itself to use that word as the mark or part of Case No. 261/2020 Yash Tekwani. vs. Dheeraj Kashyap Page 39 of 87 (RAJ KUMAR CHAUHAN) District Judge (Commercial Court) /SE/Saket/ND/19.12.2020 the mark of another trader for which confusion is likely to result. The likelihood of confusion or deception in such cases is not disproved by placing the two marks side by side and demonstrating how small is the chance of error in any customer who places his order for goods with both the marks clearly before him, for orders are not placed, or are often not placed, under such conditions. It is more useful to observe that in most persons the eye is not an accurate recorder of visual detail and that marks are remembered rather by general impressions or by some significant detail than by any photographic recollection of the whole. In the decision reported as (1951) 68 RPC 103 at page 105, De Cordova v. Vick Chemical Co., the plaintiffs were the proprietors of a label containing the words Vick's VapoRub as the essential feature, registered in Jamaica, and the defendants used a similar label with the words Karsote Vapour Rub as the essential feature, and it was shown that the expression VapoRub had become distinctive of the Case No. 261/2020 Yash Tekwani. vs. Dheeraj Kashyap Page 40 of 87 (RAJ KUMAR CHAUHAN) District Judge (Commercial Court) /SE/Saket/ND/19.12.2020 plaintiff's goods in Jamaica, an action for infringement was successful. (See De Cordova v. Vick Chemical Co. (supra), (1941) 58 RPC 147, Saville Perfumery Ld. v. June Perfect Ld., AIR 1972 SC 1359 at 1362, M/s. National Chemicals and Colour Co. and Others v. Reckitt and Colman of India Limited and AIR 1991 Bombay 76, M/s National Chemicals and Colour Co. and others vs. Reckitt and Colman of India Limited and another)

29. Identification of essential features of the trade marks has been discussed in details in the case of Kaviraj Pandit Durga Dutt Sharma vs. Navaratna Pharmaceutical Laboratories (supra): 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 Case No. 261/2020 Yash Tekwani. vs. Dheeraj Kashyap Page 41 of 87 (RAJ KUMAR CHAUHAN) District Judge (Commercial Court) /SE/Saket/ND/19.12.2020 imitation, no further evidence is required to establish that the plaintiff's rights are violated. Expressed in another way, if the essential features of the trade mark of the plaintiff have been adopted by the defendant, the fact that the getup, 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;......

When once the use by the defendant of the mark which is claimed to infringe the plaintiff's mark is shown to be in the course of trade, the question whether there has been an infringement is to be decided by comparison of the two marks. Where the two marks are identical no further questions arise; for then the infringement is made out....."

(Emphasis is mine) Case No. 261/2020 Yash Tekwani. vs. Dheeraj Kashyap Page 42 of 87 (RAJ KUMAR CHAUHAN) District Judge (Commercial Court) /SE/Saket/ND/19.12.2020 26.8 Eighthly, the plaintiff has also fulfilled the test of passing off in this case by the defendant and reliance has been placed on "Laxmikant V. Patel Versus ChetanBhai Shah & Anr. 2002 (3) SCC 65".

"14. In the present case the plaintiff claims to have been running his business in the name and style of Muktajivan Colour Lab and Studio since 1982. He has produced material enabling a finding being arrived at in that regard. However, the trial court has found him using Muktajivan as part of his business name at least since 1995. The plaintiff is expanding his business and exploiting the reputation and goodwill associated with Muktajivan in the business of Colour Lab and Photo by expanding the business through his wife and brotherinlaw. On or about the date of the institution of the suit the defendant was about to commence or had just commenced an identical business by adopting word Muktajivan as a part of his business name although till then his business was being run in Case No. 261/2020 Yash Tekwani. vs. Dheeraj Kashyap Page 43 of 87 (RAJ KUMAR CHAUHAN) District Judge (Commercial Court) /SE/Saket/ND/19.12.2020 the name and style of Gokul Studio. The intention of the defendant to make use of business name of the plaintiff so as to divert his business or customers to himself is apparent. It is not the case of the defendant that he was not aware of the word Muktajivan being the property of the plaintiff or the plaintiff running his business in that name though such a plea could only have indicated the innocence of the defendant and yet no difference would have resulted in the matter of grant of relief to the plaintiff because the likelihood of injury to the plaintiff was writ large. It is difficult to subscribe to the logic adopted by the Trial Court, as also the High Court, behind reasoning that the defendants business was situated at a distance of 4 or 5 Kms. from the plaintiffs business and therefore the plaintiff could not have sought for an injunction. In a city a difference of 4 or 5 Kms. does not matter much. In the event of the plaintiff having acquired a goodwill as to the quality of Case No. 261/2020 Yash Tekwani. vs. Dheeraj Kashyap Page 44 of 87 (RAJ KUMAR CHAUHAN) District Judge (Commercial Court) /SE/Saket/ND/19.12.2020 services being rendered by him a resident of Ahmedabad city would not mind travelling a distance of a few kilometers for the purpose of availing a better quality of services. Once a case of passing off is made out the practice is generally to grant a prompt exparte injunction followed by appointment of local Commissioner, if necessary. In our opinion the trial court was fully justified in granting the ex parte injunction to the plaintiff based on the material made available by him to the court. The Trial Court fell in error in vacating the injunction and similar error has crept in the order of the High Court. The reasons assigned by the Trial Court as also by the High Court for refusing the relief of injunction to the plaintiff are wholly unsustainable.

17. We are conscious of the law that this Court would not ordinarily interfere with the exercise of discretion in the matter of grant of temporary injunction by the High Court and the Trial Court and substitute its own Case No. 261/2020 Yash Tekwani. vs. Dheeraj Kashyap Page 45 of 87 (RAJ KUMAR CHAUHAN) District Judge (Commercial Court) /SE/Saket/ND/19.12.2020 discretion therefor except where the discretion has been shown to have been exercised arbitrarily or capriciously or perversely or where the order of the Court under scrutiny ignores the settled principles of law regulating grant or refusal of interlocutory injunction. An appeal against exercise of discretion is said to be an appeal on principle. Appellate court will not reassess the material and seek to reach a conclusion different from the one reached by the court below solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the trial court reasonably and in a judicial manner the fact that the appellate court would have taken a different view may not justify interference with the trial courts exercise of discretion [(see Wander Ltd. v. Antox India P.Ltd : 1990 (Supp) SCC 727 and N.R. Dongre v. Whirpool Corporation and another: (1996) 5 SCC 714)].

However, the present one is a case falling Case No. 261/2020 Yash Tekwani. vs. Dheeraj Kashyap Page 46 of 87 (RAJ KUMAR CHAUHAN) District Judge (Commercial Court) /SE/Saket/ND/19.12.2020 within the well accepted exceptions. Neither the Trial Court nor the High Court have kept in view and applied their mind to the relevant settled principles of law governing the grant or refusal of interlocutory injunction in trade mark and trade name disputes. A refusal to grant an injunction in spite of the availability of facts, which are prima facie established by overwhelming evidence and material available on record justifying the grant thereof, occasion a failure of justice and such injury to the plaintiff as would not be capable of being undone at a latter stage. The discretion exercised by the Trial Court and the High Court against the plaintiff, is neither reasonable nor judicious. The grant of interlocutory injunction to the plaintiff could not have been refused, therefore, it becomes obligatory on the part of this Court to interfere.

18. For the foregoing reasons these appeals are allowed. An adinterim injunction under Rules 1 and 2 of Order 39 of the CPC shall issue in favour of the plaintiffappellant Case No. 261/2020 Yash Tekwani. vs. Dheeraj Kashyap Page 47 of 87 (RAJ KUMAR CHAUHAN) District Judge (Commercial Court) /SE/Saket/ND/19.12.2020 restraining the defendantrespondents from using directly or indirectly the word Muktajivan in their trade name associated with the business and services of colour lab and studio and any other similar word or name which may be identical or deceptively similar to the plaintiffs trade name. The plaintiff appellant shall be entitled to costs throughout incurred upto this stage."

(Emphasis is mine) 26.9 Ninethly, the plaintiff is the prior user of the trademark and is entitled to injunction against the defendant reliance has been placed on "Uniply Industries Ltd vs Unicorn Plywood Pvt. Ltd. & Ors., AIR 2001 SC 2083", wherein it was held that to establish priority, the test being to determine continuous prior user and the volume of sale for the degree of familiarity of the public with the mark. Bonafide test of marketing, promotional gifts and experimental sales in small volume may be sufficient to establish a continuous prior user of the mark.

26.10 Tenthly, the defendant were franchisee of the plaintiff and has used the registered mark of the franchisor without the Case No. 261/2020 Yash Tekwani. vs. Dheeraj Kashyap Page 48 of 87 (RAJ KUMAR CHAUHAN) District Judge (Commercial Court) /SE/Saket/ND/19.12.2020 permission and the injunction needs to be granted and reliance has been placed on "Monish Gujral & Ors Vs G. Kiran Kumar & Ors, CS (Comm) 137/2017, order dated 05.07.2017 by the Hon'ble High Court of Delhi".

"48. The Defendants have unauthorizedly used the said marks despite the termination of the franchisee agreement entered into with them and such unauthorized use amounts to infringement within the meaning of Section 29 (6) of the Trademarks Act, 1999 entitling the Plaintiffs to the reliefs sought in the suit.

49. By their continued unauthorised use of the Plaintiffs' aforementioned trademarks, the Defendants will undoubtedly cause harm to the reputation and goodwill created by the Plaintiffs and is bound to cause confusion and deception in the minds of the public and members of the trade misleading them into believing that there exists a connection between the Defendants and the Plaintiffs, when in fact it does not.

50. The Defendants, being fully aware of Case No. 261/2020 Yash Tekwani. vs. Dheeraj Kashyap Page 49 of 87 (RAJ KUMAR CHAUHAN) District Judge (Commercial Court) /SE/Saket/ND/19.12.2020 the proprietorship of the Plaintiffs in the trademarks in question, have continued to unauthorizedly use the said marks with a view to exploit the goodwill and reputation of the Plaintiffs and in particular their trademarks."

26.11 Eleventhly, the defendant have copied the essential features of the plaintiff's trademark Prince and reliance has been placed on "Kaviraj Pandit Durga Dutt Sharma vs. Navaratna Pharmaceutical Laboratories, 1965 SCR (1) 737":

"―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. Expressed in another way, if the essential features of the trade mark of the plaintiff have been adopted by the defendant, the fact that the getup, Case No. 261/2020 Yash Tekwani. vs. Dheeraj Kashyap Page 50 of 87 (RAJ KUMAR CHAUHAN) District Judge (Commercial Court) /SE/Saket/ND/19.12.2020 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;......

―When once the use by the defendant of the mark which is claimed to infringe the plaintiff's mark is shown to be ―in the course of trade?, the question whether there has been an infringement is to be decided by comparison of the two marks. Where the two marks are identical no further questions arise; for then the infringement is made out...."

26.12 Twelvethly, that the defendants have raised the following defences : A. That the plaintiff Trademark Prince is Descriptive.

B. That the plaintiff has not disclosed the filing of the Caveat Petition by the Defendants. C. That the plaintiff has not complied the Order 39 R 3 of CPC.

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(RAJ KUMAR CHAUHAN) District Judge (Commercial Court) /SE/Saket/ND/19.12.2020 D. That the Plaintiff is not the Proprietor of the mark PRINCE.

26.13 Thirteenthly, regarding the above defences of the defendant it has been submitted in the written arguments that defendant should not be allowed to raise this defence regarding trademark 'PRINCE' being descriptive because the defendant itself applied for the registration of the mark using the word 'PRINCE' and is therefore, estopped from contending that the mark is descriptive or generic. Reliance has been placed on "Automatic Electric Limited vs. R.K. Dhawan & Anr. 77 (1999) DLT 292", wherein it was held that : "16. The defendants got their trade mark "DIMMER DOT" registered in Australia. The fact that the defendant itself has sought to claim trade proprietary right and monopoly in "DIMMER DOT", it does not lie in their mouth to say that the word "DIMMER" is a generic expression. User of the word "DIMMER" by others cannot be a defense available to the defendants, if it could be shown that the same is being used in violation of the statutory right of the plaintiff........"

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(RAJ KUMAR CHAUHAN) District Judge (Commercial Court) /SE/Saket/ND/19.12.2020 26.14 Regarding the plaintiff has not disclosed about the filing of the Caveat Petition, it is stated that plaintiff has already filed his affidavit categorically stating that no Caveat was received by the plaintiff. The defendant has merely produced courier receipt regarding sending of the Caveat Petition to the plaintiff but there is nothing to show that whether the envelope was containing the material sent or not. It is further argued that the plaintiff operate from its shop M29/5 and the Defendants have their shop at M29/3 and also have his workers working at the shop of the Plaintiff, therefore there's always a likelihood of managing and wrongly handling the service of the caveat and the plaintiff has already filed his affidavit of not receiving the caveat. Reliance has been placed on "Sahil Kohli Versus Registrar of Trademark, IPAB, Case No. OA/68/2018/TM/DEL, Dated:

18.10.2018".

"42..... The photocopies of the courier receipts are not able to prove beyond any doubt. Secondly the respondent no.1 record showing only copy of the letter having receipt embossed of the date 13.03.2018 and does not attached any copy of the cover envelope, which could have proved the date of receipt of the courier"

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(RAJ KUMAR CHAUHAN) District Judge (Commercial Court) /SE/Saket/ND/19.12.2020 26.15 Regarding the plaintiff has not complied the Order 39 Rule 3 CPC it is stated that on this aspect the plaintiff submits that compliance was duly done as the order was to be complied within 10 working days the copy of the order was given on 20.10.2020 and it was a national holiday on 23rd and 24th October due to festival of Dusherra and Eid on 29th Octobers and the compliance was duly done on 31st October, 2020. The plaintiff has relied on "Institute For Inner Studies & Ors. vs. Charlotte Anderson & Ors., CS (OS) 2252/2011, decided on 10.01.2014 by the Hon'ble High Court of Delhi", wherein it was held that : "52. Now I shall be proceeding to discuss another ground of non compliance of the provisions of Order 39 Rule 3 CPC as raised by defendants in order to seek vacation of interim order before adverting to the grounds on merits.

53. It has been argued by the learned counsel for the defendant No. 2 that the plaintiffs have failed to comply with the mandatory provisions of Order 39 Rule 3 CPC within the prescribed period of 7 days from the date of Order dated 14th September, 2011. It has been argued that Case No. 261/2020 Yash Tekwani. vs. Dheeraj Kashyap Page 54 of 87 (RAJ KUMAR CHAUHAN) District Judge (Commercial Court) /SE/Saket/ND/19.12.2020 the plaintiffs though have sent a copy of the plaint and interim injunction application to the Defendant No. 2 herein by way of letter dated 14th September, 2011 which was received on 17th September, 2011 but the plaintiffs have served the documents along with the plaint by way of letter dated 20th September, 2011 which was received merely on 24th September, 2011 which was after passing of the period of the compliance of the provisions of Order 39 Rule 3 CPC. The plaintiffs have also filed the postal receipts and courier receipts alongwith an affidavit of Ravinder Sharma. The same was filed on 21st September, 2011 within one week as time granted by the court while passing the interim order.

54. It has been further argued that the plaintiffs have failed to comply with the prescribed mode of service through the delivery of documents by hand or registered post as per the provisions of Order 39 Rule 3 CPC for the purposes of serving the documents filed along with the plaint on 20th September, 2011 and have Case No. 261/2020 Yash Tekwani. vs. Dheeraj Kashyap Page 55 of 87 (RAJ KUMAR CHAUHAN) District Judge (Commercial Court) /SE/Saket/ND/19.12.2020 deliberately sent the document through courier. In view of the same, it has been said that the plaintiffs have not complied with the provisions of Order 39 Rule 3 CPC in the prescribed form. Various judgments have been cited at the bar to lay stress on the proposition that the provisions of Order 39 Rule 3 CPC are mandatory in nature and the same cannot be given a go bye by the court.

55. I have gone through the affidavit in compliance filed by the plaintiff along with the annexures containing the particulars of the dispatch of the records of the present case and have also given careful consideration to the submissions advanced by the learned counsel for the defendant No.2 on the ground of the noncompliance of the mandatory provisions of Order 39 Rule 3 CPC by the plaintiff. After considering everything, I am of the opinion that the defendant No.2 is agitating on the aspect of strict compliance of the provisions on Order 39 Rule 3 CPC not on the ground that the Case No. 261/2020 Yash Tekwani. vs. Dheeraj Kashyap Page 56 of 87 (RAJ KUMAR CHAUHAN) District Judge (Commercial Court) /SE/Saket/ND/19.12.2020 plaintiffs have failed to act by supplying the documents as provided in code within the time prescribed by the court but on the ground that the defendants have received the documents outside the outer limit of the time period prescribed by the plaintiff to act upon. It is also not the case of the defendant No. 2 that in fact the said defendant did not receive the nature of the documents including the plaint, injunction application and documents as filed by the plaintiff in the court as the prescribed manner in the code. On the contrary, the defendant is aggrieved by the later delivery of the list of documents along with the documents, the steps to serve the same have already been taken by the plaintiff within the time period of 7 days as provided by the court.

56. I find after going through the records that the plaintiffs have sufficiently complied with the provisions of the Order 39 Rule 3 CPC within the period of 7 days. The defendant No.2 is too much insistent on hyper technicalities in order Case No. 261/2020 Yash Tekwani. vs. Dheeraj Kashyap Page 57 of 87 (RAJ KUMAR CHAUHAN) District Judge (Commercial Court) /SE/Saket/ND/19.12.2020 to just bring the issue when as a matter of fact the plaintiffs have acted within the period of 7 days of the passing of order and proceeded to send the entire set of the documents to the defendant No.2.

57. It is true that the courts have from time to time emphasized the mandatory nature of the provisions of Order 39 Rule 3 CPC and proceeded to vacate the order by withdrawing the discretion of the injunction exercised in favour of the plaintiff who is at fault in not complying the provisions of the Order 39 Rule 3 CPC. Having said that, the court's while withdrawing or vacating the injunction on the grounds of failure to comply with the provisions of Order 39 Rule 3 CPC have always taken into consideration the facts and circumstances of each case. In cases, where it is plain and unambiguously clear from the record, the courts have discharged or vacated the injunction on the counts of failure to comply with the provisions Order 39 Rule 3 Case No. 261/2020 Yash Tekwani. vs. Dheeraj Kashyap Page 58 of 87 (RAJ KUMAR CHAUHAN) District Judge (Commercial Court) /SE/Saket/ND/19.12.2020 CPC.

58. On the other hand, there are line of cases where it is doubtful to ascribe any motives to the plaintiffs and it seems that the plaintiffs have acted with due diligence in substantially complying the provisions of Order 39 Rule 3 CPC without causing any real prejudice to the defendants except enabling the defendants to raise the ground for sake of agitating the same. In the later kind of cases, the courts have also acted judiciously by not withdrawing the discretion and vacating the order on the said ground. The reason for the same is plain and simple which is that it is true that the provisions of the Order 39 Rule 3 CPC are mandatory in nature, but the consequence of its non compliance is not provided explicitly in the code of civil procedure. It is the judicious approach which the court has to adopt while seeing the facts of each case in order to infer in which case there Case No. 261/2020 Yash Tekwani. vs. Dheeraj Kashyap Page 59 of 87 (RAJ KUMAR CHAUHAN) District Judge (Commercial Court) /SE/Saket/ND/19.12.2020 exists violation of the provisions of Order 39 Rule 3 CPC and in which case there is no such violation in true sense but the ground is urged only on hyper technicalities."

(Emphasis is mine) 26.16 Regarding the condition that plaintiff is not the proprietor of the trademark 'PRINCE' as his wife is the registered owner of the trademark, it is argued that the wife of the plaintiff has already signed the Trademark Usage Agreement in favour of the plaintiff place at Page No. 78 79 of the Plaint. Reliance has been placed upon the case of "Ashland Licensing & Intellectual Property Llc v. Savita Chemicals Limited, ILR (2010) 6 Del 376" : "12. The Court will first address to the question as to whether the plaintiff can maintain the suit since Ashland Inc was the first owner and the present use of the mark is by Valvoline Cummins Ltd. - a 50:50 joint venture between Ashland Inc, and Cummins Sales and Service India Ltd. Here, the judgment of this Court in George V. Records, SARL v. Kiran Jogani and Anr., 2004 (28) PTC Case No. 261/2020 Yash Tekwani. vs. Dheeraj Kashyap Page 60 of 87 (RAJ KUMAR CHAUHAN) District Judge (Commercial Court) /SE/Saket/ND/19.12.2020 347 is instructive. The Court had in that case held that for the purpose of trademark usage, it is open to one corporate entity within a group to rely on the usage by a company or concern which is part of the same group. The Court relied upon the ruling in Revlon v. Cripps & Lee, 1980 FSR 85 and Food Distributors v. London Borough of Tower Hamlets, 1976 AHER 462 where it was held that "there is evidence of general tendency to ignore the separate legal entities of the various companies within a group and to look instead at the economic entity of the whole group." Here the plaintiff has placed materials on record to show that Ashland Inc, was the original trademark owner and that it assigned ownership to the present plaintiff. The averments and materials also point to an arrangement with Cummins Sales and Service Limited for use of the mark by Valvoline Cummins Ltd. In the circumstances, the plaintiff is prima facie entitled to maintain and Case No. 261/2020 Yash Tekwani. vs. Dheeraj Kashyap Page 61 of 87 (RAJ KUMAR CHAUHAN) District Judge (Commercial Court) /SE/Saket/ND/19.12.2020 institute the present suit."

(Emphasis is mine)

27. On the basis of written arguments and the material brought on record by the parties the following points are enumerated for consideration of this Court for the disposal of application under Order 39 Rule 4 CPC of defendant and application under Order 39 Rule 1 and 2 CPC of the plaintiff.

(i) Whether the plaintiff has failed to comply the Order 39 Rule 3 CPC and that the exparte order dated 19.10.2020 is liable to be vacated for noncompliance of Order 39 Rule 3 CPC by the plaintiff?

(ii) Whether the plaintiff has concealed the fact of receiving of the copy of the Caveat Petition of the defendant from the Court before passing of the order dated 19.10.2020, if so, its effects?

(iii) Whether defendant is prior user of the registered trademark of the plaintiff, if so, its effects?

(iv) Whether the plaintiff is entitled to the interim relief claimed in application under Order 39 Rule 1 and 2 CPC?

28. Points Wise Discussion 28.1 Point No. 1 : Whether the plaintiff has failed to comply the Order 39 Rule 3 CPC and that the exparte order Case No. 261/2020 Yash Tekwani. vs. Dheeraj Kashyap Page 62 of 87 (RAJ KUMAR CHAUHAN) District Judge (Commercial Court) /SE/Saket/ND/19.12.2020 dated 19.10.2020 is liable to be vacated for noncompliance of Order 39 Rule 3 CPC by the plaintiff?

It is submitted on behalf of defendant that the plaintiff has not served the copy of the plaint and other documents in compliance of Order 39 Rule 3 CPC and the copy has been sent only on 31.10.2020 which was received on 02.11.2020 by the defendant. It is submitted that compliance of Order 39 Rule 3 CPC has been done beyond 10 days. Learned counsel for plaintiff on the other hand submitted that as per direction of the Court the Order 39 Rule 3 CPC was ordered to be complied within 10 working days and the plaintiff has sent the said process on 31.10.2020 within 10 working days because the copy of the order was received on 20.10.2020 and thereafter, 24.10.2020 and 25.10.2020 were holidays and on 31.10.2020 the process was sent on the 10th working day excluding 24.10.2020 and 25.10.2020. It is further submitted that even 30.10.2020 and 31.10.2020 were holidays and as such the plaintiff has complied the direction within 10 working days. The affidavit of Sh. Mahesh Ram clerk of Sh. Gautam Panjwani had been filed for compliance of Order 39 Rule 3 CPC wherein he has stated that he has served the defendant a complete set of paper book alongwith letter on 31.10.2020 and has attached the service report. It is also admitted by the defendant that the process regarding compliance of Order 39 Rule Case No. 261/2020 Yash Tekwani. vs. Dheeraj Kashyap Page 63 of 87 (RAJ KUMAR CHAUHAN) District Judge (Commercial Court) /SE/Saket/ND/19.12.2020 3 CPC was sent on 31.10.2020 which was received on 02.11.2020. Learned counsel for plaintiff has relied upon the case of "Institute For Inner Studies & Ors. vs. Charlotte Anderson & Ors., (supra)", wherein it was held that the defendant had received the documents outside the outer limit of the time period given to the plaintiff to act upon i.e. 7 days as provided by the Court. Para no. 58 of the judgment is relevant and is reproduced hereunder : "58. On the other hand, there are line of cases where it is doubtful to ascribe any motives to the plaintiffs and it seems that the plaintiffs have acted with due diligence in substantially complying the provisions of Order 39 Rule 3 CPC without causing any real prejudice to the defendants except enabling the defendants to raise the ground for sake of agitating the same. In the later kind of cases, the courts have also acted judiciously by not withdrawing the discretion and vacating the order on the said ground. The reason for the same is plain and simple which is that it is true that the provisions of the Order 39 Rule 3 CPC Case No. 261/2020 Yash Tekwani. vs. Dheeraj Kashyap Page 64 of 87 (RAJ KUMAR CHAUHAN) District Judge (Commercial Court) /SE/Saket/ND/19.12.2020 are mandatory in nature, but the consequence of its non compliance is not provided explicitly in the code of civil procedure. It is the judicious approach which the court has to adopt while seeing the facts of each case in order to infer in which case there exists violation of the provisions of Order 39 Rule 3 CPC and in which case there is no such violation in true sense but the ground is urged only on hyper technicalities."

Moreover, it is not the case that the defendant was not aware about the order of the Court and the material on the basis of which the said order has been passed. Learned Local Commissioner in his report has stated that on 21.10.2020 he has executed the commission in the presence of defendant and his advocate. It is stated in the Local Commissioner's report that at around 2:30 p.m. the defendant no. 1 arrived with the lawyer at the spot. Learned Local Commissioner has showed them the order of this Court. Although defendant's lawyer started questioning about the whole investigation but he could not ascertain even a single shred of ambiguity in the Hon'ble Courts order language. The report of the Learned Local Commissioner shows that the defendant as well as his lawyer came to Case No. 261/2020 Yash Tekwani. vs. Dheeraj Kashyap Page 65 of 87 (RAJ KUMAR CHAUHAN) District Judge (Commercial Court) /SE/Saket/ND/19.12.2020 know about the contents of the order and the material on the basis of which the detailed exparte order was passed by this Court.

The facts of the present case are squarely covered by the case of "Institute For Inner Studies & Ors. vs. Charlotte Anderson & Ors., (supra)", and compliance of Order 39 Rule 3 CPC has been done within 10 working days. Point No. 1 is decided in favour of the plaintiff and against the defendant.

28.2 Point No. 2 : Whether the plaintiff has concealed the fact of receiving of the copy of the Caveat Petition of the defendant from the Court before passing of the order dated 19.10.2020, if so, its effects?

It is submitted on behalf of the defendant that defendant has filed Caveat Petition No. 8/2020 and Caveat Petition No. 11/2020 on 27.08.2020 u/s 148A CPC in District Court, Saket, New Delhi. It is submitted that neither the Filing Section of the District Court Saket nor the plaintiff has informed the Court regarding the said Caveat Petition before the passing of the exparte order by this Court. It is submitted that the defendant has served the copy of the Caveat upon the plaintiff by registered post which has been duly received on behalf of the plaintiff. It is therefore submitted that plaintiff has concealed the material facts from the Court and has obtained the exparte order Case No. 261/2020 Yash Tekwani. vs. Dheeraj Kashyap Page 66 of 87 (RAJ KUMAR CHAUHAN) District Judge (Commercial Court) /SE/Saket/ND/19.12.2020 despite receiving the copy of the Caveat Petition and it was obligatory for the plaintiff to serve the copy of the exparte adinterim injunction application alongwith copy of the plaint and documents before filing the same in the Court. Since the plaintiff had failed to observe that obligation and the exparte order is therefore liable to be set aside.

The counsel for plaintiff on the other hand submitted that plaintiff has not received the copy of the Caveat Petition and plaintiff has filed an affidavit in that regard clearly stating that he has not received the Caveat. It is further stated that no prejudice had been caused to the defendant because the defendant has no case at all for opposing the interim order granted by this Court in favour of the plaintiff. Plaintiff has filed an affidavit dated 31.11.2020 categorically stating as under : " I say that I have not received any Caveat Petition in the aforesaid matter from the defendant herein and the plaintiff has filed the present affidavit in view of the directions by this Hon'ble Court."

No counter affidavit to the affidavit of the plaintiff has been filed by the defendant. In case, the affidavit of plaintiff is false, the defendant is at liberty to take action as per law. At this stage, the affidavit of plaintiff is to be believed by this Court wherein it is Case No. 261/2020 Yash Tekwani. vs. Dheeraj Kashyap Page 67 of 87 (RAJ KUMAR CHAUHAN) District Judge (Commercial Court) /SE/Saket/ND/19.12.2020 categorically stated that he has not received the copy of Caveat Petition, if any, filed by the defendant in this case.

Regarding Caveat Petition not having been attached in the case file by the Filing Section of District Court, Saket, I have called the concerned official to know about the filing of the Caveat Petition. The concerned official had admitted that the Caveat Petition was filed by the defendant but the same could not be attached with the suit file inadvertently due to shortage of staff because very few numbers of staff was being called at that time due to Covid Pandemic and due to oversight the said Caveat Petition could not be attached. Further, the said Caveat Petition has been sent to this Court by the Filing Section only today. The Caveat No. 10/2020 and 12/2020 were filed and registered on 27.08.2020 by the order of Learned District & Sessions Judge, SouthEast District, Saket. Further, for non compliance of the provision of 148A by not attaching the Caveat alongwith the case file, a request letter will be sent to the Learned Principal District & Sessions Judge, SouthEast, Saket Courts for taking appropriate action against the concerned official.

The learned counsel for plaintiff in that regard has already argued that the plaintiff has already filed his affidavit categorically stating that no Caveat was received by the plaintiff. It is further stated the defendant has merely produced courier receipt regarding sending of the Caveat Petition to the plaintiff and there is Case No. 261/2020 Yash Tekwani. vs. Dheeraj Kashyap Page 68 of 87 (RAJ KUMAR CHAUHAN) District Judge (Commercial Court) /SE/Saket/ND/19.12.2020 nothing to show that envelope was carrying the material sent or not. It is further submitted that submitting the photocopy of the courier receipt has not proved the service of the Caveat Petition upon the plaintiff. The reliance has been placed upon the case of "Sahil Kohli Versus Registrar of Trademark, IPAB, (supra)". The following observations are relevant : "42..... The photocopies of the courier receipts are not able to prove beyond any doubt.

Secondly the respondent no.1 record showing only copy of the letter having receipt embossed of the date 13.03.2018 and does not attached any copy of the cover envelope, which could have proved the date of receipt of the courier"

In "Reserve Bank of India Employee vs. The Reserve Bank of India & Ors. AIR 1981 AP 246", the Hon'ble Andhra Pradesh, High Court was pleased to observe that mere lodgment of a Caveat would not deprive the Court of its power to pass an order even if the caveator was not informed of the date of hearing of the matter. As the lodgment of a caveat is merely a right to be informed of the hearing date and it has no effect by way of curtailing the power of a court to pass an order on the merits of the case. In this case in hand Case No. 261/2020 Yash Tekwani. vs. Dheeraj Kashyap Page 69 of 87 (RAJ KUMAR CHAUHAN) District Judge (Commercial Court) /SE/Saket/ND/19.12.2020 admittedly the Caveat Petition was filed by the defendant which was registered by the order of Learned District & Sessions Judge, South East, Saket Courts on 27.08.2020 as Caveat Petition No. 10/2020 and 12/2020 and following order was passed : "Present : None.

Be registered.

Put up with file when any case / matter relating to this Caveat is filed.

(District & Session Judge, South East Saket Court, New Delhi)"

The said Caveat Petitions were not attached with the case file of this case when it was received by way of assignment on 06.10.2020 in this Court. As already noted the concerned staff was called to explain and it was informed that due to the shortage of staff because of preventive measures due to Covid19 Pandemic and further due to oversight inadvertently the Caveat Petitions could not be attached with the case file and has not been brought within the knowledge of this Court when the exparte order was passed by this Court.

In these given facts and circumstances of the case it is to be seen whether any substantial prejudice has been caused to the defendant for not informing about the filing of this case. Detailed Case No. 261/2020 Yash Tekwani. vs. Dheeraj Kashyap Page 70 of 87 (RAJ KUMAR CHAUHAN) District Judge (Commercial Court) /SE/Saket/ND/19.12.2020 reasons has been given while passing the exparte order dated 19.10.2020. In para no. 26 of the said order it has been observed that the plaintiff apparently has been successful in making out a good primafacie case in its favour for grant of exparte injunction. The defendant has not yet filed his written statement despite repeated requests and directions by this Court. Learned counsel for defendant moreover insisted on deciding the application under Order 39 Rule 4 CPC and has filed only reply to the application under Order 39 Rule 1 and 2 CPC for purpose of disposal of the same on merits. Thus, the averments in the reply to the application under Order 39 Rule 1 and 2 CPC in the absence of written statement are not supported by statement of truth. Whatever opposition, the defendant could have made in case of prior notice of the present suit, the same has been raised in the application under Order 39 Rule 4 CPC for vacating the exparte order. The said application has been filed by the defendant primarily on 03 grounds, firstly there is noncompliance of Order 39 Rule 3 CPC, secondly the Caveat Petition filed by the defendant has been ignored while passing the exparte order and thirdly defendant was in the prior use of the allegedly registered trademark of the plaintiff. All these 03 concerns of the defendant are being looked after by this Court after giving ample opportunity to the defendant to submit on that aspects. Therefore, in these facts and circumstances, no substantial prejudice has been caused in this case to the defendant due Case No. 261/2020 Yash Tekwani. vs. Dheeraj Kashyap Page 71 of 87 (RAJ KUMAR CHAUHAN) District Judge (Commercial Court) /SE/Saket/ND/19.12.2020 to noninforming the defendant of filing of the present suit as he had the right to be informed of filing of the suit in view of the Caveat Petition so filed by the defendant. Whether the defendant has been successful in legally raising the grounds of establishing him to be the prior user of the mark 'PRINCE CHAAT CORNER' would be decided in the subsequent part of this order. Point No. 2 is accordingly decided in favour of the plaintiff and against the defendant.

28.3 Point No. 3 : Whether defendant is prior user of the registered trademark of the plaintiff, if so, its effects?

Admittedly, the defendant has not filed any written statement and the contents of the plaint as on today are not substantially denied because the defendant has simply filed the reply to the application under Order 39 Rule 1 and 2 CPC. Further, in his application under Order 39 Rule 4 CPC as well as reply to the application of plaintiff under Order 39 Rule 1 and 2 CPC the defendant has alleged that the defendant is having the prior use of the trade name i.e. 'PRINCE CHAAT CORNER' and has relied upon Identity Card issued by Greater Kailash Association in the name of father of defendant showing that he is a member of the market association running the business under the name and style of Prince Chaat Corner. The said copy of the ID Card is annexed as annexure Case No. 261/2020 Yash Tekwani. vs. Dheeraj Kashyap Page 72 of 87 (RAJ KUMAR CHAUHAN) District Judge (Commercial Court) /SE/Saket/ND/19.12.2020 D5. The defendant has further relied upon the copy of the details received from the network provider Hutch now Vodafone which depicts that the father of the defendant got his rental number activated at the address of his shop i.e. Prince Chaat Corner in the year 2001 annexed as Annexure D6. The defendant has further relied upon the bank account maintained with the Axis Bank, East of Kailash, at the address of Prince Chaat Corner and the said account was opened in the month of April 2009 which is prior to the registration of the trade name 'PRINCE CHAAT CORNER' in the favour of the wife of the plaintiff. The copy of the bank account is annexed as Annexure D7. It is further prayed that order dated 19.10.2020 be set aside or vacated and the application under Order 39 Rule 1 and 2 CPC be dismissed.

It was argued that the father of the defendant had also advertised his business on various platform through various modes as he has been running the Chaat business from last 02 decades at M29, Greater KailashI, New Delhi with the same trade name. It was further submitted that various celebrities and famous personalities who used to visit the defendant's shop and praised the defendant's quality and taste shows that defendant has earned the long reputation of the said trade name i.e. 'PRINCE CHAAT CORNER' since the year 2000. The defendant has relied upon the true copy of the colored photographs of the celebrities enjoying Chaat at the shop which has Case No. 261/2020 Yash Tekwani. vs. Dheeraj Kashyap Page 73 of 87 (RAJ KUMAR CHAUHAN) District Judge (Commercial Court) /SE/Saket/ND/19.12.2020 been annexed as annexure D3. The defendant further relied upon the complaint dated 06.07.2000 reflecting that the defendant was operating the business of Chaat under the name and style of Prince Chaat Bhandar / Corner and the said complaint is annexed as annexure D4.

The question arises whether the documents D3 to D7 as discussed above can be considered a piece of evidence which can be considered and relied to establish at this preliminary stage the prior use of the trade name 'PRINCE CHAAT CORNER' by the defendant. Admittedly, the defendant has not submitted any detail of earning of income / sale from the use of said trademark since 2000. Nothing has been alleged or brought on record, if the defendant has spent any amount on advertisement to show that he has been using trade name 'PRINCE CHAAT CORNER / BHANDAR' since 2000. The photographs of celebrities, Vodafone connection and opening of account in Axis Bank at this stage cannot be considered to be sufficient material to establish that defendant was prior user of the above mentioned trade name. It is so because the material brought on record by the plaintiff is more convincing and more relevant than the alleged documents of the defendant as mentioned above. The defendant has not placed on record any certificate u/s 65B of Indian Evidence Act so as to believe the electronic evidence allegedly being Case No. 261/2020 Yash Tekwani. vs. Dheeraj Kashyap Page 74 of 87 (RAJ KUMAR CHAUHAN) District Judge (Commercial Court) /SE/Saket/ND/19.12.2020 relied by the defendant as a proof of prior use to the trade name 'PRINCE CHAAT CORNER'.

The plaintiff on the other hand has primafaciely established that it is the plaintiff who is the registered owner of the trade name 'PRINCE CHAAT CORNER' as is evident from the registration of the trademark in various classes as find mentioned in plaint and has been reproduced in this order in para no. 10. The plaintiff has also substantially established the sale proceeds and amount spent on advertisements as find mentioned in para no. 26.3 and 26.4 of this order.

Another objection taken by the defendant was that wife of plaintiff is the registered owner of the trademark and plaintiff has no right to bring an action for infringement of the trademark. In that regard the plaintiff has argued that wife of plaintiff has already signed the trademark usage agreement in favour of the plaintiff placed at Page No. 78 and 79 of the paper book. The said trademark usage agreement is dated 07.11.15 wherein Ms. Jyoti Tekwani, wife of Sh. Yash Tekwani, the plaintiff herein has been shown to be vendor and plaintiff Sh. Yash Tekwani is shown as lessor. The wife of the plaintiff has agreed to permit plaintiff to the use of the registered trademark for any purposes.

It has been argued on behalf of plaintiff that wife of the Case No. 261/2020 Yash Tekwani. vs. Dheeraj Kashyap Page 75 of 87 (RAJ KUMAR CHAUHAN) District Judge (Commercial Court) /SE/Saket/ND/19.12.2020 plaintiff has every right to transfer her rights in the registered trademark in favour of her husband. It is argued that the law is already settled where even companies are transferring rights in the registered trademark to their sister concerns. Reliance has been placed on "Ashland Licensing & Intellectual Property Llc v. Savita Chemicals Limited, (supra)" wherein it was held that for the purpose of trademark usage, it is open to one corporate entity within a group to rely on the usage by a company or concern which is part of the same group. It was further held that the plaintiff has placed material on record that Ashland Licensing & Intellectual Property Llc was the original trademark owner and that it assigned ownership to the present plaintiff. In these circumstances, the plaintiff was held primafacie entitled to maintain and institute the suit. For the above reasons for the purpose of deciding the application under Order 39 Rule 1 and 2 CPC as well as under Order 39 Rule 4 CPC on the basis of trademark usage agreement executed by wife of the plaintiff, the plaintiff is entitled to institute the present proceedings and seeking relief for violation of infringement of trademark. The defendant is at liberty to take objection in that regard in his written statement and on the basis of material available during trial, the said question can be determined by the Court as per law based on the pleadings and the material to be brought on record by the parties to the suit.

Case No. 261/2020 Yash Tekwani. vs. Dheeraj Kashyap Page 76 of 87

(RAJ KUMAR CHAUHAN) District Judge (Commercial Court) /SE/Saket/ND/19.12.2020 Regarding the contention of the defendant about prior use of the trademark 'PRINCE CHAAT CORNER' since 2000, it was argued on behalf of the plaintiff that the defendant no. 1 has claimed user of 'PRINCE CHAAT BHANDAR' logo in Clause 43 since 06.07.2000 which is false and frivolous as the defendant is himself around 26 years old and by no stretch of imagination he can claim to be user for the last 20 years. It is further submitted that defendant has not brought on record anything to show that he was using the said trademark logo on behalf of his father and no pleadings has been made in this regard.

For the above discussion, defendant at this stage of the suit has failed to show any prior use of the trademark 'PRINCE CHAAT CORNER / PRINCE CHAAT BHANDAR' with the alleged logo in Clause 43. Point No. 3 is accordingly decided in favour of the plaintiff and against the defendant.

28.4 Point No. 4 : Whether the plaintiff is entitled to the interim relief claimed in application under Order 39 Rule 1 and 2 CPC?

The defendant has opposed the application under Order 39 Rule 1 and 2 CPC by filing reply and no written statement has been filed stating that it is the plaintiff who is actually copying the Case No. 261/2020 Yash Tekwani. vs. Dheeraj Kashyap Page 77 of 87 (RAJ KUMAR CHAUHAN) District Judge (Commercial Court) /SE/Saket/ND/19.12.2020 trademark of the defendant which has been continuously used for the last 02 decades by the father of the defendant. It was further stated that the plaintiff was not an exclusive user for the word 'PRINCE' for selling of gol gappa and chaat and the defendant is the first and exclusive owner of the brand name 'PRINCE CHAAT CORNER' who has actually originated the said Chaat business of selling Golgappa and Tikki Chaat in the year 2000. It was further argued that the plaintiff has relied upon some bills (annexed from page no. 94 to

105) which were actually issued by the defendant's father Mr. Ram Mahesh Kashyap on his own TIN No. i.e. 07137102202. It was further argued that the LPC has not been submitted in this case and in the absence of LPC suit for trademark infringement cannot be filed. As already decided the defendant has failed to primafacie establish the prior use of the alleged trademark 'PRINCE CHAAT CORNER / PRINCE CHAAT BHANDAR' in comparison to the plaintiff. The plaintiff has already established that he is the registered owner of the trademark 'PRINCE CHAAT CORNER / PRINCE CHAAT BHANDAR' alongwith logo. The plaintiff has also given the details of sale figures and money spent on advertising as find mentioned in para no. 26.3 and 26.4 of this order. Admittedly, the plaintiff is the registered proprietor of trademark 'PRINCE CHAAT CORNER' and on registration of trademark the registered proprietor u/s 28 has Case No. 261/2020 Yash Tekwani. vs. Dheeraj Kashyap Page 78 of 87 (RAJ KUMAR CHAUHAN) District Judge (Commercial Court) /SE/Saket/ND/19.12.2020 exclusive right to use of said trademark in relation to goods in respect of which the trade mark is registered and to obtain relief in respect of said trade mark. Reliance has been placed upon the case of "Himalaya Drug Company Vs. S.B.L. Limited (supra)", the Hon'ble Court was pleased to hold in para no. 29 of the above judgment as under : " 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."

The plaintiff has also fulfilled the test of passing of its goods by the defendant. The plaintiff has relied upon the case of "Laxmikant V Patel Versus ChetanBhai Shah & Anr (supra)", to submit that once a case of passing off is made out the practice is generally to grant a prompt exparte injunction followed by appointment of Local Commissioner, if necessary. The plaintiff has Case No. 261/2020 Yash Tekwani. vs. Dheeraj Kashyap Page 79 of 87 (RAJ KUMAR CHAUHAN) District Judge (Commercial Court) /SE/Saket/ND/19.12.2020 further primafacie establish the prior use of the trademark and further that the defendant were the franchisee of the plaintiff and has used the registered mark of the franchisor without the permission of the franchisor with a view to unauthorizedly use the said marks to exploit the goodwill and reputation of the Plaintiffs. The plaintiff has further primafaciely established that by the continuous unauthorized use of the plaintiff's trademark by the defendant, defendant will undoubtedly cause harm to the reputation and goodwill created by the plaintiff and is bound to cause deception in the mind of the public and members of the trade misleading them into believing that there exists a connection between the Defendants and the Plaintiffs, when in fact it does not. The plaintiff has further primafaciely established that the defendant has copied the essential features of plaintiff's trademark. The defendant has tried to object to the grant of injunction on the ground that the trademark 'PRINCE' being deceptive and plaintiff cannot have exclusive use of the same. The counsel for plaintiff in that regard submitted that the defendant has himself applied for the registration of the mark using the word 'PRINCE' and therefore estopped from contending that the mark is descriptive or generic. The reliance has been placed on "Automatic Electric Limited v. R.K. Dhawan & Anr (supra)". The counsel for plaintiff has further relied upon the case of "Anil Verma vs. Ashok Kumar, FAO No. 578/2018, order dated Case No. 261/2020 Yash Tekwani. vs. Dheeraj Kashyap Page 80 of 87 (RAJ KUMAR CHAUHAN) District Judge (Commercial Court) /SE/Saket/ND/19.12.2020 17.01.2019, Delhi High Court" wherein it was observed that : "...........The Hon'ble Supreme Court while disposing of the appeal observed that even if the word is generic or descriptive but if it is found that such a mark has attained distinctiveness with the business of the plaintiff for a considerable period of time and thereafter the defendant adopts the similar word to induce the innocent customer, then it establishes the dishonest intention and bad faith, of the defendant and the court is empowered to restrain such user/misuser to do justice to the plaintiff......"

29. It has been alleged on behalf of plaintiff that in order to safeguard its rights in the Plaintiff's trademarks including the mark 'PRINCE', the Plaintiff has applied for and secured registrations of the trademarks in different classes. The WellKnown nature of the Plaintiff's trademarks is in fact perceptibly clear from how it has been accorded registration in diversified Products. Details of registrations are as under: S. No. Application Trade mark Class Status Number Case No. 261/2020 Yash Tekwani. vs. Dheeraj Kashyap Page 81 of 87 (RAJ KUMAR CHAUHAN) District Judge (Commercial Court) /SE/Saket/ND/19.12.2020

1. 2361858 PRINCE ORANGE 32 Registered

2. 1121689 32 Registered

3. 1121690 G.K PRINCE PAN 31 Registered SHOP

4. 2147455 43 Registered

5. 1121689 32 Registered

6. 1121690 G.K PRINCE PAN 31 Registered SHOP

7. 2147455 43 Registered

8. 2226796 43 Registered

9. 2226796 43 Registered

10. 1121689 32 Registered

11. 1121690 G.K PRINCE PAN 31 Registered SHOP

12. 2147455 43 Registered

13. 2361858 PRINCE ORANGE 32 Registered

30. That the trademarks 'PRINCE / PRINCE CHAAT CORNER', with logo have been extensively advertised by the Case No. 261/2020 Yash Tekwani. vs. Dheeraj Kashyap Page 82 of 87 (RAJ KUMAR CHAUHAN) District Judge (Commercial Court) /SE/Saket/ND/19.12.2020 plaintiff in various print media online and offline both and by virtue of the high level of promotion and extensive publicity and advertisement, the trademarks 'PRINCE / PRINCE CHAAT CORNER', are exclusively identified with the plaintiffs only. The adoption of the trademarks 'PRINCE / PRINCE CHAAT CORNER', or any other deceptively similar trade mark will create confusion and deception and entitles the plaintiff to seek injunctions. That the Plaintiff is also spending a large amount of money on promotion/sale as well as advertisements through various modern media such as Television, Newspapers and Magazines etc in order to protect their rights over their trademarks. It is further submitted that the Plaintiff has incurred enormous expenses for promoting and popularizing the trademarks including the trademarks 'PRINCE / PRINCE CHAAT CORNER'.

31. That the Defendants allegedly in their trademark / trade name 'PRINCE CHAAT BHANDAR', have fully copied Plaintiffs trademarks 'PRINCE / PRINCE CHAAT CORNER', use of the identical trade mark 'PRINCE / PRINCE CHAAT BHANDAR', will enable the Defendants to pass off their product as that of the Plaintiff. That the comparison chart of plaintiffs registered mark and defendants mark is made by the plaintiff herein below: Case No. 261/2020 Yash Tekwani. vs. Dheeraj Kashyap Page 83 of 87 (RAJ KUMAR CHAUHAN) District Judge (Commercial Court) /SE/Saket/ND/19.12.2020 S. No. Plaintiff Marks Defendant Infringing mark 1. 2.

32. The Plaintiff is using the marks 'PRINCE / PRINCE CHAAT CORNER', since1965. Being a prior user, the Plaintiff has exclusive rights on the marks 'PRINCE / PRINCE CHAAT CORNER'. The Defendant's adoption and use of the mark 'PRINCE / PRINCE CHAAT BHANDAR', with logo are the infringement of trademarks and also will lead to passing off. It will lead to deception and confusion. As the Defendants were the franchisee of the plaintiff and defendant is in the same trade as that of Plaintiff, they were fully aware of Plaintiff's prior use due to extensive advertisements of the mark 'PRINCE / PRINCE CHAAT CORNER', before their adoption of the impugned marks. Defendants adoption of the marks is fraudulent, dishonest and malafide, conceived for the sole purpose to pass off their goods as of the plaintiff. The Defendants without due cause is trying to take unfair advantage by the use of deceptively similar marks 'PRINCE / PRINCE CHAAT BHANDAR', to that of Plaintiff's mark 'PRINCE / PRINCE Case No. 261/2020 Yash Tekwani. vs. Dheeraj Kashyap Page 84 of 87 (RAJ KUMAR CHAUHAN) District Judge (Commercial Court) /SE/Saket/ND/19.12.2020 CHAAT CORNER'. Defendants by this act seek to gain an unfair advantage over Plaintiffs products. Defendant's acts are contrary to honest practises in commercial matters. Therefore, the defendant need to be restrained from use of the mark 'PRINCE / PRINCE CHAAT BHANDAR'.

33. It is alleged that the Defendant's act is patently illegal and dishonest. The Defendants are misrepresenting to the general public and amounts to playing fraud on the consumer. Use of the deceptively similar mark 'PRINCE / PRINCE CHAAT BHANDAR', by the Defendants on its product and stationery is without authorization or permission and is a violation of Plaintiff's exclusive rights in the trade mark. This would cause irreparable and permanent loss of goodwill and reputation to the Plaintiff. The Defendants ought to be restrained from making this misrepresentation. The Defendants act also amount to a violation of Plaintiff's common law rights and is an act of unfair competition. That the Plaintiff has acquired all the necessary permissions and registration from the concerned authorities including MCD and other Government Authorities. That the marks 'PRINCE / PRINCE CHAAT BHANDAR', are identical, visually, phonetically and structurally similar to Plaintiffs trademarks 'PRINCE / PRINCE CHAAT CORNER'. Use of the marks Case No. 261/2020 Yash Tekwani. vs. Dheeraj Kashyap Page 85 of 87 (RAJ KUMAR CHAUHAN) District Judge (Commercial Court) /SE/Saket/ND/19.12.2020 'PRINCE / PRINCE CHAAT BHANDAR', amounts to infringement of Plaintiffs above referred registered trademarks.

34. From the above discussion, it became crystal clear that plaintiff has been successful in making out a primafacie case in its favour. It is further primafaciely established that if interim injunction is not granted in favour of the plaintiff, he shall suffer irreparable loss and balance of convenience also lies in favour of the plaintiff and not in favour of the defendant. For these reasons the application under Order 39 Rule 1 and 2 CPC is allowed. The order dated 19.10.2020 wherein exparte injunction was granted in favour of the plaintiff and against the defendant is accordingly confirmed. The application of defendant under Order 39 Rule 4 CPC is dismissed.

41. Accordingly, the defendants, their partners, agents, servants, dealers, distributors, and anyone acting for and/on their behalf are restrained from selling, offering for sale and goods, advertising or promoting any product under the trademark / tradename, 'PRINCE / PRINCE CHAAT BHANDAR' with the logo or any trademark which may be deceptively/confusingly similar with plaintiff's wellknown trademark 'PRINCE / PRINCE CHAAT CORNER' with the logo in any form/variant. The Case No. 261/2020 Yash Tekwani. vs. Dheeraj Kashyap Page 86 of 87 (RAJ KUMAR CHAUHAN) District Judge (Commercial Court) /SE/Saket/ND/19.12.2020 application under Order 39 Rule 1 and 2 CPC is allowed in above terms.

35. Nothing stated herein shall tantamount to expression of opinion on the merit of the case. Digitally signed by RAJ KUMAR RAJ CHAUHAN KUMAR Date:

Announced through Video Conferencing CHAUHAN 2020.12.19 04:52:41 +0530 on 19.12.2020.

(RAJ KUMAR CHAUHAN) District Judge (Commercial Court) South East/Saket Courts, New Delhi Case No. 261/2020 Yash Tekwani. vs. Dheeraj Kashyap Page 87 of 87 (RAJ KUMAR CHAUHAN) District Judge (Commercial Court) /SE/Saket/ND/19.12.2020

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Yash Tekwani vs Dheeraj Kashyap on 19 December, 2020