Delhi High Court - Orders
Retail Royalty Company & Anr vs Al Ahmad Frozen Foods Private Limited on 7 December, 2022
Author: Manmohan
Bench: Manmohan
$~6
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA(COMM) 59/2022 & C.M.Nos.38825/2022, 38828/2022
RETAIL ROYALTY COMPANY & ANR. ..... APPELLANTS
Through: Mr.Dushyant K. Mahant with
Mr.Urfee Roomi, Mr.Jaskaran Singh
and Mr.Anubhav Chhabra,
Advocates.
versus
AL AHMAD FROZEN FOODS PRIVATE LIMITED
..... RESPONDENT
Through: None
CORAM:
HON'BLE MR. JUSTICE MANMOHAN
HON'BLE MR. JUSTICE SAURABH BANERJEE
ORDER
% 07.12.2022 The appellants have filed an affidavit of service, in which it has been stated that a complete set of paperbook has been served upon one of the directors of the respondent i.e. Mr.Siraj Ahmad Khan. In view of the said affidavit, service upon the respondent is deemed to be complete.
Since despite service, none has appeared on behalf of the respondent, it is proceeded ex parte.
Learned counsel for the appellants states that reliance by the Trial Court on the order of the learned Single Judge of this Court in Retail Royalty Company v. Pantaloons Fashion & Retail Ltd. & Ors. CS(OS) No. 2872/2015 dated 23rd September, 2015 suffers from non application of mind as the said order has been overruled in part in an appeal preferred by the Signature Not Verified Digitally Signed By:JASWANT SINGH RAWAT Signing Date:08.12.2022 17:46:52 Appellant before a Division Bench vide order dated December 10, 2015. He states that if the learned District Judge was of the view that the order of the learned Single Judge was binding upon him, he could have posted the matter for clarification where the Appellants would have apprised the learned District Judge of the later order of the Division Bench setting aside the order of the learned Single Judge.
He also states that before the learned District Judge, the Appellants had never asserted any rights and/or infringement of the word 'EAGLE', but, rather, about the Appellants' Mark that is an eagle device mark which is illegally used by the Respondent with no justification on record. He emphasises that the Appellants had solely relied on the Appellants' Flying Eagle Device mark in their pleadings, and not in their AMERICAN EAGLE OUTFITTERS mark as erroneously stated by the learned District Judge.
With the assistance of learned counsel for the appellants, we have perused the impugned order dated 28th July, 2022. We find that the Trial Court has dismissed the suit of the appellants-plaintiffs primarily relying upon the judgment of learned Single Judge of this Court in Retail Royalty Company vs. Pantaloons Fashion & Retail Ltd. & Ors., CS(OS) No.2872/2015 decided on 23rd September, 2015. However, the said judgment of learned Single Judge was partly set aside by the Division Bench of this Court in FAO (OS) No.575/2015 decided on 10th December, 2015.
This Court also finds that the Trial Court has wrongly emphasized on the minor differences in the rival marks, namely, the half-moon device and the words TWIN EAGLE, in the Respondent's Mark. These differences are too minor while comparing the marks in which the eagle devices are far more prominent. Moreover, the learned District Judge has stated that the Signature Not Verified Digitally Signed By:JASWANT SINGH RAWAT Signing Date:08.12.2022 17:46:52 words AMERICAN EAGLE OUTFITTERS are written below the Appellant's eagle device, whereas the words written below the Respondent's eagle device is TWIN EAGLE. It is pertinent to mention that nowhere in its pleadings has the Appellant relied on its rights in the mark AMERICAN EAGLE OUTFITTERS or the mark AMERICAN EAGLE OUTFITTERS along with the eagle device mark.
Consequently, the present appeal is allowed and the impugned judgment and order dated 28th July, 2022 is set aside. Accordingly, the matter is remanded back to the Trial Court for a fresh adjudication. The matter is directed to be listed before the Trial Court on 17th January, 2023.
With the aforesaid directions, present appeal along with pending applications stands disposed of.
MANMOHAN, J SAURABH BANERJEE, J DECEMBER 7, 2022 KA Signature Not Verified Digitally Signed By:JASWANT SINGH RAWAT Signing Date:08.12.2022 17:46:52