Delhi District Court
Mrs. Tkd Keerthi, Sole Proprietress, ... vs Ms. Yamini Manohar on 30 August, 2025
IN THE COURT OF SH. LOKESH KUMAR SHARMA
DISTRICT JUDGE (COMMERCIAL COURTS)-05,
SOUTH DISTRICT, SAKET COURTS, NEW DELHI
In the matter of
CS (COMM) 205/2022
CNR No. DLST01-002556-2022
Mrs. T K D Keerthi
Sole Proprietress,
M/s LIFEIMPRESSIONS
Aged about 29 years,
D/o: T K Devadoss
R/o: House No. 35, Ground Floor,
Gayathri Nagar, 2nd Street,
Medavakkam, Chennai-600100
Mob. 9840479727
Email: [email protected]
Also At:
Address: No. 2, 4th Avenue, RWD Palm,
Gayathri Nagar, Medavakkam,
Kanchipuram, Tamil Nadu-600100 ..... Plaintiff
Versus
Ms. Yamini Manohar
R/o : B-98, Nityananad Nagar,
Gandhi Path, Vaishali Nagar,
Jaipur, Rajasthan- 302021
Mob: 8866220055
Email: [email protected]
Also at:
Address: 112 A, Nemisagar Colony
Vaishali Nagar, Jaipur- 302021
Rajasthan, India
Mob : 9610015500; 9099015500
Email: [email protected] ..... Defendant
CS (COMM) 205/22 Mrs. TKD Keerthi, Sole Proprietress of M/S LIFEIMPRESSIONS Vs. Ms. Yamini Manohar Page 1 of 43
Institution of the Suit : 26.03.2022
Arguments concluded on : 08.08.2025
Judgment pronounced on : 30.08.2025
JUDGEMENT
1. This suit for permanent injunction is filed by the plaintiff for restraining infringement of trade mark and passing off, unfair trade competition, rendition of account, damages and delivery up, etc. against defendant.
2. Brief facts:- Plaintiff was stated to be a sole proprietoress of M/s Lifeimpressions, which she had adopted in 2015, and Ms. T K D Keerthi, was stated to be duly authorized to sign and file the present lis.
Plaintiff was stated to be engaged in the business of marketing and selling of Baby Hand and Foot Casting, Couple Casting, Parents Aashirwad Casting, Belly Casting, Lip Casting, Face Casting, Family Casting and Pet Casting in India under the trade name and trade mark "LIFEIMPRESSIONS" and had been carrying on her business through both online and offline stores.
It was stated that Plaintiff had got registered her trademark in class 20 vide application no. 4280803 dated 16.02.2020. Plaintiff had filed an application for registration of her logo composite trade Mark under the Provisions of Trade Marks Act, 1999, vide application no. 3869807 dated 25.06.2018, in class 40, however, the same was stated to have been abandoned by the Plaintiff due to some CS (COMM) 205/22 Mrs. TKD Keerthi, Sole Proprietress of M/S LIFEIMPRESSIONS Vs. Ms. Yamini Manohar Page 2 of 43 miscommunication between her and Ld. Registrar due to which Plaintiff could not comply with the necessary directions of the Registrar but the aforesaid application was a part of public record and was pre-existing prior to that of the Defendant's Trade Mark application/adoption of the Trademark "LIFE IMPRESSIONS/IMPRESSIONS LIFE/ IMPRESSIONS FOREVER/ .
It was stated that Plaintiff had started promoting her products through her interactive website www.lifeimpressions.in since 2016 and had also created Facebook, Instagram as well as YouTube pages on 26.06.2016, 15.10.2016 and 20.08.2016 respectively.
It was stated further that plaintiff had spent huge amount on the publicity and advertisement of her trademark and related goods and business through print media including newspaper, magazines, etc. as well as through visual and electronic media and also through various sales promotion scheme.
It was stated that Plaintiff's Trademark had become distinctive and widely recognized due to long term use and was highly demanded in the market on account of the high standard quality and during the past many years, Plaintiff had established large and extensive sale/service of its goods under the impugned trademark throughout the country and had also built up a great reputation and enviable goodwill thereunder.
CS (COMM) 205/22 Mrs. TKD Keerthi, Sole Proprietress of M/S LIFEIMPRESSIONS Vs. Ms. Yamini Manohar Page 3 of 43Plaintiff's trademark was stated to be well known trademark within the meaning of Section 2(1)(zg) and the relevant provisions of Section 11 of the Trade Marks Act, 1999.
3. Defendant was stated to be in the same business as that of the Plaintiff with the similar name and mark i.e. "LIFE IMPRESSIONS/ IMPRESSIONS LIFE/ IMPRESSIONS FOREVER/ and had also started selling her counterfeit products under the brand name "LIFEIMPRESSIONS" through website www.lifeimpressions.co.in; and www.impressionslife.com.
It was stated that defendant's had been selling her counterfeit products, which were of inferior and sub standard quality, as compared to the products of the Plaintiff, malafidely and dishonestly with the ulterior object of trading upon the goodwill and reputation of the Plaintiffs and had been earning profits by such illegal means.
It was stated that Plaintiff had sent a legal notice dated 06.11.2020 to the defendant to restrain her from using the Plaintiff's mark and the same was delivered to Defendant on 11.11.2020 and to investigate the magnitude and extent of misuse of her Trade Mark, Plaintiff had placed an order vide Order ID No. 14896 on 03.04.2021 of the Defendant's product through Defendant's interactive website www.lifeimpressions.co.in, but the said product was not delivered till filing of the present lis.
CS (COMM) 205/22 Mrs. TKD Keerthi, Sole Proprietress of M/S LIFEIMPRESSIONS Vs. Ms. Yamini Manohar Page 4 of 43It was stated that defendant in her affidavit filed along with the Trade Mark Application bearing no. 4735126 as well as in her Counter Statement dated 27.07.2021 to the Opposition Proceedings initiated by the Plaintiff on 24.05.2021, had admitted the date of using the impugned trade mark as 05.05.2017.
It was averred further that defendant's marketing and advertising of its products was deceiving and misleading the public at large as buyers believed that those products were of the Plaintiff due to which Plaintiff had suffered significant losses and injury.
It was stated that the loss of money or injury sustained or likely to be sustained by the Plaintiff due to erroneous actions and conduct of defendant could not have been calculated in terms of money.
Defendant had been passing off its goods as those of plaintiff's goods and was getting the benefits from the goodwill and reputation of plaintiff.
4. The cause of action was stated to have arisen firstly in October, 2020, when Plaintiff had come to know about the website of Defendant and had again arisen on 06.11.2020, when Plaintiff had sent a legal notice to the defendant and had again arisen when Plaintiff came to know about the publication of the Defendant's impugned Trade Mark in the Trademark Journal No. 1984 dated 25.01.2021. The cause of action was CS (COMM) 205/22 Mrs. TKD Keerthi, Sole Proprietress of M/S LIFEIMPRESSIONS Vs. Ms. Yamini Manohar Page 5 of 43 stated to be still continuing and subsisting in favor of the Plaintiff and against the Defendant.
5. Since the defendant was soliciting, networking and had intended to sell her impugned goods and business under the impugned trademark/label in the markets of South Delhi viz. Saket, Malviya Nagar, Mehrauli, Hauz Khas. etc. which were situated within the jurisdiction of this Court, and since the Plaintiff was also selling its products in the markets of South Delhi viz. Saket, Malviya Nagar, Mehrauli, Hauz Khas. etc., which had fallen within the territorial jurisdiction of this court, and since the subject matter of the suit was "Commercial" in nature as per section 2(1)(c)(xvii) of the Commercial Courts, Commercial Appellate Division of High Courts Ordinance, 2015, hence this court was stated to have territorial jurisdiction to try and decide the present lis.
6. In the light of the aforesaid facts and circumstances, the plaintiff had prayed for passing of a decree in her favour and against the defendant detailed as hereunder:-
(a) A decree of permanent injunction restraining the defendant, its partners, directors or proprietors, servants, agents, dealers, retailers, stockists from manufacturing, trading, selling, marketing, offering for sale through e-commerce portals or dealing in any other way and/or any other goods or services under the impugned mark "LIFE IMPRESSIONS" and other formatives CS (COMM) 205/22 Mrs. TKD Keerthi, Sole Proprietress of M/S LIFEIMPRESSIONS Vs. Ms. Yamini Manohar Page 6 of 43 similar/identical to the Plaintiff's well known prior used and adopted trademark LIFEIMPRESSIONS and which might amount to Infringement of the Plaintiff's Trade Mark LIFEIMPRESSIONS.
(B) For an order for delivery up of all finished and unfinished goods, dies, blocks, labels and any other printed matter bearing the impugned trade mark and other formatives similar/identical to the Plaintiff's well known prior used and adopted trademark "LIFEIMPRESSIONS"
to the authorized representative of the Plaintiff.
(c) for removing Defendant's impugned mark "LIFEIMPRESSIONS" and other formtives similar/identical to the Plaintiff's well-known trademark from, physical stores, brochures, promotional materials, products, social media profiles, e-commerce websites/online shopping portals and all the other things being sold under the name of the Defendant or its firms/proprietary concerns.
(d) for the decree of grant of damages to the tune of Rs. 3,02,000/- and an order for rendition of accounts of profits earned by the defendant by its impugned illegal trade activities and a decree for CS (COMM) 205/22 Mrs. TKD Keerthi, Sole Proprietress of M/S LIFEIMPRESSIONS Vs. Ms. Yamini Manohar Page 7 of 43 the amount so found in favour of the plaintiff on such rendition of accounts.
(e) for an order for cost of proceedings.
7. Upon service of notice, the defendant had also appeared to contest the case of plaintiff on its merits and filed her written statement on record, wherein she had taken a preliminary objection that plaintiff was guilty of concealment of material facts as well as for not approaching the court with clean hands. No cause of action was stated to have ever arisen in favour of the plaintiff and against the defendant.
It was stated that defendant had founded her start up in 2011 and since then she was creating a niche products. Defendant had started developing her website in 2016 and on 26.08.2016 had also purchased domain name www.lifeimpressions.co.in and www.impressionslife.com and had also been available on social media websites i.e. Facebook since 18.07.2016 and on Instagram since April 2014 as well as on YouTube since 25.09.2016 and had been generating handsome profit. Apart from India, defendant was stated to have global presence. Defendant had obtained the establishment/shop license under the Rajasthan Shops and Commercial Establishment Act, 1958 on 08.11.2017 vide registration no. SCA/2017/14/150241, on 03.12.2018, she had also obtained an Importer-Exporter code certificate vide IEC No. BCZPM2683P and on 20.11.2020, had also obtained FSSAI certificate from the Government of Rajasthan as well as had also obtained GST registration CS (COMM) 205/22 Mrs. TKD Keerthi, Sole Proprietress of M/S LIFEIMPRESSIONS Vs. Ms. Yamini Manohar Page 8 of 43 certificate on 12.07.2017 bearing registration no. 08BCZPM2683P1ZD.
It was stated that Plaintiff had failed to comply with the Provisions of Section 12A of the Commercial Courts Act, and had complied the said procedural requirements only after the directions of this court vide its order dated 01.07.2022.
It was also stated that Plaintiff even after filing of the present suit, had again tried to get registered her word mark "Lifeimpressions' under Class 40 vide application no. 5440128 dated 09.05.2022, however, the same was rejected by the Ld. Registrar vide examination report dated 28.07.2022, on the ground that the Plaintiff's word mark was found to be similar to that of the Defendant. Plaintiff was stated to be not providing her services in South Delhi area as mentioned in para 40 of the Plaint, as the same fact had been personally confirmed by the Defendant's Counsel through her interactive website and the business activities of the plaintiff were restricted to the state of Tamil Nadu alone.
It was stated further that since Defendant's trade mark comprised of a unique combination of shades of blue, pink and purple which was presented in circular ribbon movement like fashion, hence, there was no similarity between the Plaintiff's and Defendant's Trademark.
It was stated that Plaintiff had no proprietary right over one word of its device i.e. "Lifeimpressions", as it was the CS (COMM) 205/22 Mrs. TKD Keerthi, Sole Proprietress of M/S LIFEIMPRESSIONS Vs. Ms. Yamini Manohar Page 9 of 43 settled preposition of law that in cases of device marks, whilst comparing the marks, one had to see the mark as a whole and as such the Plaintiff had registered her device under the name "Lifeimpressions Freeze your memories today", which fact was also evident from her trade logo. Defendant was stated to be using her registered trademark since January 2021 and was a prior user since 2017.
On merits, except for the paras which were either specifically admitted or essentially or purely constituted a matter of record, rest others were denied by her as wrong and incorrect.
8. To this written statement of the defendant, plaintiff had also filed her replication, wherein all the preliminary objections taken by the defendant were denied by her and the contents of plaint were reiterated on merits as correct.
9. On the pleadings of the parties, this court vide order dated 28.08.2024, had framed following issues for determination:
(i) Whether the plaintiff is entitled to decree for permanent injunction, as prayed ? OPP.
(ii) Whether the plaintiff is entitled to decree for rendition of accounts, if so, from whom? OPP.
(iii) Whether the Plaintiff is entitled to any damages, if so, the quantum of damages and from whom ? OPP.
(iv) Whether the Plaintiff is entitled to any relief of delivery, as prayed ? OPP.CS (COMM) 205/22 Mrs. TKD Keerthi, Sole Proprietress of M/S LIFEIMPRESSIONS Vs. Ms. Yamini Manohar Page 10 of 43
(v) Whether the suit of the Plaintiff is bad for non-compliance of provisions of Section 12A of Commercial Courts Act, 2015? OPD
(vi) Whether the present suit amount to abuse of the process by Plaintiff ? OPD
10. In order to prove her case by preponderance of probabilities, plaintiff Mrs. Keerthi TKD herself had appeared in the witness box and had filed in evidence, her examination-in- chief by way of affidavit Ex. PW1/A, wherein besides reiterating the contents of plaint on solemn affirmation, she had also placed on record the following documents:-
i. Ex. PW1/1- Copy of the E-Register main page showing the registered status of Plaintiff's trademark bearing application no. 4280803 in class 20.
ii. Ex.PW1/2 - Copy of TM-A form of
Plaintiff's application no. 4280803 dated
31.08.2019.
iii. Ex.PW1/3- Copy of the Examination Report
of Plaintiff's trademark application no. 4280803 dated 20.09.2019.
iv. Ex.PW1/4- Copy of the Trade Marks journal no. 1921 dated 30.09.2019 advertising Plaintiff's trademark.
v. Ex.PW1/5- Copy of the Registration
certificate of the Trademark dated
31.08.2019.
CS (COMM) 205/22 Mrs. TKD Keerthi, Sole Proprietress of M/S LIFEIMPRESSIONS Vs. Ms. Yamini Manohar Page 11 of 43
vi. Ex.PW1/6- Copies of the TM-M form dated
04.03.2022 and legal proceeding certificates of Plaintiff for trademark bearing no. 4280803. vii. Ex.PW1/7- Copy of the E-Register main page showing the registered status of Plaintiff's trademark bearing application no. 5440128 in class 40.
viii. Ex.PW1/8- Copy of TM-A form of Plaintiff's application bearing no. 5440128. ix. Ex. PW1/9- Copy of the Examination Report of Plaintiff's trademark application no. 5440128.
x. Ex.PW1/10- Copy of the Trade Marks journal no. 2117 dated 04.08.2023 advertising Plaintiff's trademark.
xi. Ex.PW1/11- Copy of the registration
certificate of the trademark
xii. Ex.PW1/12- Copies of the TM-M form and
legal proceeding certificate of Plaintiff for trademark bearing no. 5440128.
xiii. Ex.PW1/13- Copy of order information of Plaintiff's purchase of the website domain and internet extracts of her website.
xiv. Ex.PW1/14- Copy of internet extracts evidencing "LIFEIMPRESSIONS" presence on Facebook since 2016, especially since 26.06.2016. xv. Ex.PW1/15- Copy of the internet extracts evidencing "LIFEIMPRESSIONS" presence on Instagram since the year 2016 dated 15.10.2016.
CS (COMM) 205/22 Mrs. TKD Keerthi, Sole Proprietress of M/S LIFEIMPRESSIONS Vs. Ms. Yamini Manohar Page 12 of 43xvi. Ex. PW1/16- Copy of internet extracts evidencing "Life impressions's" presence on YouTube since 20.08.2016, Facebook and Google Ads Tool since the year 2016.
xvii. Ex.PW1/17- Copy of invoices evidencing the extensive sales of "LIFEIMPRESSIONS"
products.
xviii. Ex.PW1/18- Copy of GST Returns duly filed by Plaintiff under her trade name along with GST Registration Certificate issued on 01.06.2018 of the Plaintiff under the trade name "LIFEIMPRESSIONS".
xix. Ex.PW1/19- Copy of Defendant's website extracts evidencing that the Defendant was dishonestly and malafidely selling products and services identical/similar to that of the Plaintiff under the mark "LIFEIMPRESSIONS"
identical/similar to that of the Plaintiffs prior adopted and prior used well-known trademark "LIFEIMPRESSIONS".
xx. Ex.PW1/20- Copy of the legal notice dated 06.11.2020 along with postal receipts.
xxi. Ex.PW1/21- Copy of tracking report of notice dated 06.11.2020.
xxii. Ex.PW1/22- Copy of the Order ID No. 14896 dated 03.04.2021 placed by Plaintiff upon defendant through later's interactive website.
CS (COMM) 205/22 Mrs. TKD Keerthi, Sole Proprietress of M/S LIFEIMPRESSIONS Vs. Ms. Yamini Manohar Page 13 of 43xxiii. Ex.PW1/23- Copy of extract of Defendant's India Mart page under the name "Life Impressions".
xxiv. Ex.PW1/24- Copy of the E-Register main page showing the opposed status of Defendant's trademark application no. 4735126 in class 40.
xxv. Ex.PW1/25- Copy of the trademark application of Defendant wherein she has cited the use of her trademark since 05.05.2017.
xxvi. Ex. PW1/26- Copy of the Examination Report dated 27.11.2020 of Defendant's trademark bearing application no. 4735126 (however, in affidavit Ex. PW1/A inadvertently written as 4280803).
xxvii. Ex.PW1/27- Copy of the Trade Marks journal no.1984 dated 25.01.2021 advertising Defendant's trademark.
xxviii. Ex. PW1/28- Copy of Plaintiff's Notice of Opposition to the Defendant's trademark application bearing no.4735126.
xxix. Ex. PW1/29- Copy of Defendant's Counter-
statement.
xxx. Ex. PW1/30- Copy of Evidence Affidavit in compliance of Rule 45 Trade Marks, Rules, 2017 filed by Plaintiff.
xxxi. Ex. PW1/31- Copy of Letter of Reliance filed by Defendant .
xxxii. Ex. PW1/32- Plaintiff's affidavit under section 65B of Indian Evidence Act, 1872.
CS (COMM) 205/22 Mrs. TKD Keerthi, Sole Proprietress of M/S LIFEIMPRESSIONS Vs. Ms. Yamini Manohar Page 14 of 43xxxiii. Ex.PW1/33- PW1s affidavit under Section 63 of Bhartiya Sakshya Adhiniyam.
(However, documents Ex. PW1/7 to Ex.
PW1/12 were de-exhibited as the same were not found available on record at the time of tendering).
During her cross-examination conducted by Ld. Counsel for the defendant, PW1 had admitted that in order to avail Plaintiff's services, the customer had to come to their store physically. She had denied the suggestion that she was doing business only in the State of Tamil Nadu and Kerala, however, she had admitted having no branch office either in Delhi or in Rajasthan. She had further admitted that she herself had not placed any order on the defendant for the purchase of her product, however, she had volunteered that the same was done by her Counsel on her behalf. She had personally not made any complaint or written any email to the defendant regarding non delivery of product, rather the same was done by her team. She had denied the suggestion that no such complaint was ever made either by her or by her team and that is why, she had not filed any document on record in that regard. She had denied the suggestion that she had got the legal notice issued to defendant after placing the order upon her. She had admitted that she was a permanent resident of Chennai.
The suit was stated to have been filed in Delhi by her to ensure the easy availability of defendant. However, she had CS (COMM) 205/22 Mrs. TKD Keerthi, Sole Proprietress of M/S LIFEIMPRESSIONS Vs. Ms. Yamini Manohar Page 15 of 43 denied the suggestion that she had filed the present suit in Delhi without any cause of action having accrued within its territorial jurisdiction.
She had admitted that she had started using the mark "Lifeimpressions" in the year 2015, however, she had no invoice for that year, but she had invoices for the year 2016. She could not remember as to how many orders she had received from September 2016 to March 2018. The number of invoices placed by her on record for the said period did not reflect the exact no. of orders she had actually received, however, she had volunteered that sometimes the customers did not ask for bills.
She had denied the suggestion that her business had started declining since 2020 or that she had initiated action against the defendant in the year 2020 with the sole object of extorting money from her. She had further denied the suggestion that she had adopted the device mark/logo of her product only in the year 2019. As she did not remember, hence, she could not have admitted or denied the suggestion that she was not using the device mark as on 31.08.2019. She did not remember if she had abandoned her 2018 application and later on proposed to use the said mark in her 2019 application. She had denied the suggestion that no customer of the defendant had put any negative reviews against her on the internet and therefore, she had not placed any such document on record, however, she had volunteered that she had placed document on record.
CS (COMM) 205/22 Mrs. TKD Keerthi, Sole Proprietress of M/S LIFEIMPRESSIONS Vs. Ms. Yamini Manohar Page 16 of 43PW1 had stated further that she came to know about the defendant's using the same trademark, when she had applied for registration of her trademark in 2019-20, however a suggestion put to her to the contrary was denied by her that she was aware about defendant's using the same trademark in the year 2018 itself. She had denied the suggestion that apart from her and defendant, there were other persons as well, who were using the same trademark for their products. She had denied the suggestion that she had signed her affidavit on the instructions of her counsel. She had denied the suggestion that she was deposing falsely.
Plaintiff had also examined her husband Sh. Nagacharan Jankin Gurumoorthy, S/o Sh. Gurumoorthy, JR, aged about 42 yrs R/o No. 35, Gayatri Nagar, Medavakkam, Chennai- 600100, who had placed on record, his affidavit Ex. PW2/A in examination-in-chief, wherein he had reiterated the stand of the Plaintiff and claimed himself to be engaged in the business of Plaintiff i.e. casting baby hand and feet, couple casting, parents ashirwad casting, belly casting, lip casting, face casting, family casting and pet casting etc, along with Plaintiff, who was stated to have adopted the word mark "Lifeimpressions" as a part of her trade mark and trade name in the year 2015. He was also stated to be involved in development of Plaintiff's website www.lifeimpressions.in and was taking online bookings and door to door services since 2016, which were stated to have increased the goodwill of the Plaintiff in the market. He had also supported the other contentions of the Plaintiff as contained in the Plaint.
CS (COMM) 205/22 Mrs. TKD Keerthi, Sole Proprietress of M/S LIFEIMPRESSIONS Vs. Ms. Yamini Manohar Page 17 of 43During his cross-examination conducted by Ld. Counsel for the defendant, PW2 had stated that he had helped plaintiff in creating her website and also undertaken promotional activities of her business. He was also involved in day to day affairs of her business. He had denied the suggestion that the business of Plaintiff was confined only in the state of Tamil Nadu and Kerala. Plaintiff was stated to have provided hand casting services all over India.
However, it was admitted by him that a person had to visit their store or their franchisee in person for availing their services, though, it was volunteered by him that they also provided door step services. No franchisee of Plaintiff was stated to be situated in North India particularly in Delhi or State of Rajasthan. It was also admitted by him that their stores and franchisees were located only in South India. He used to assist Plaintiff in her invoicing as well. He could not have told as to what was the significance of the number mentioned in circle A on Ex. PW1/17 (colly) at page 94 of the paper book of the documents of Plaintiff which actually referred to invoice number. Plaintiff was stated to have adopted the business name and mark for the first time in the year 2015. The invoices started to be issued since 2016. He had admitted that an order was placed by him upon the defendant for procuring her product. He had denied the suggestion that apart from Plaintiff and defendant, there were other persons also using the same trademark as well. He had also denied the suggestion that he was deposing falsely being husband of Plaintiff.
CS (COMM) 205/22 Mrs. TKD Keerthi, Sole Proprietress of M/S LIFEIMPRESSIONS Vs. Ms. Yamini Manohar Page 18 of 4311. Thereafter Plaintiff's evidence was closed.
12. In rebuttal, defendant Ms. Yamini Manohar, herself had appeared in the witness box and had filed in evidence, her examination-in-chief by way of affidavit Ex. DW1/A reiterating the contents of written statement on solemn affirmation. She had also placed on record the following documents:-
I. Ex.DW1/1- A copy of the TM-A form of DW1's application no. 4735126 dated 06.11.2020. II. Ex.DW1/2- A copy of the TM-A application bearing no. 5440128 dated 09.05.2022 filed by Plaintiff for registration under class 40. III. Ex.DW1/3- Copy of the receipt of purchase of domain name dated 26.08.2016.
IV. Ex. DW1/4- Copy of screenshot of defendant's facebook page, where she advertised about her business.
V. Ex. DW1/5- Copy of screenshot of Defendant's Instagram page where she advertised about her business.
VI. Ex.DW1/6- Copy of screenshot of Defendant's YouTube page, where she posted videos of her business.
VII. Ex.DW1/7- copy of the invoices issued by DW1 from 2014 onwards.
VIII. Ex.DW1/8- A copy of the receipts demonstrating expenditure incurred by DW1 towards running her business.
CS (COMM) 205/22 Mrs. TKD Keerthi, Sole Proprietress of M/S LIFEIMPRESSIONS Vs. Ms. Yamini Manohar Page 19 of 43 IX. Ex.DW1/9- A copy of the GSTR- 3B filed
by DW1 since 2017.
X. Ex.DW1/10-A copy of DW1's GST
registration certificate bearing no.
08BCZPM2683P1ZD issued on 12.07.2017.
XI. Ex.DW1/11- A copy of Defendant's
establishment/shop license under the Rajasthan Shops and Commercial Establishment Act, 1958.
XII. Ex. DW1/12- A copy of Defendant's Certificate of Importer- exporter code (IEC) bearing IEC No. BCZPM2683P.
XIII. Ex.DW1/13- A copy of Defendant's FSSAI certificate from the Government of Rajasthan bearing registration no. 22220087000008. XIV. Ex.DW1/14- A copy of Defendant's ITR statement along with its computation by a CA from 2016-2017.
XV. Ex.DW1/15- A copy of the screenshot of the Plaintiff's interactive website from which it is clear that the Plaintiff operates from Chennai only and did not offer any services in Delhi.
During her cross-examination conducted by Ld. Counsel for the plaintiff, DW1 had stated that she had signed her affidavit Ex. DW1/A in her office at Jaipur and got it attested herself and had started her business under the name "Lifeimpressions" in 2011 as its proprietor and had not carried out it under any other name. On the date of her deposition, she was stated to have been running the same business with some CS (COMM) 205/22 Mrs. TKD Keerthi, Sole Proprietress of M/S LIFEIMPRESSIONS Vs. Ms. Yamini Manohar Page 20 of 43 added products in the form of kids cosmetics. All the documents, which were in her possession in respect of her business since 2011 had already been placed on record by her. Her annual turnover in the year 2014 was stated to be around Rs. 3.6 lakhs, which rose upto Rs. 40 lakhs per annum in the year 2017. She herself got the products manufactured. She had denied the suggestion that she had no proof of her registration in the year 2014 as she had started her business only in the year 2017. However, she was stated to be running her business as its proprietor.
She had admitted that all the invoices were issued in her name, however, later on said, in the name of 'Lifeimpression'. The signatures appearing on Ex. DW1/7 at portion encircled 'X' were stated to be of her husband's. The invoices were stated to have been generated from her computer and one copy of the same was handed over to the customer and other copy was kept for record. The invoices were stated to be generated on current basis as and when transactions were done.
She had denied the suggestion that she had forged the invoices Ex. DW1/7 to suit her convenience in the present case as she had started her business only in the year 2017. The customers would be easily able to identify Defendant's products only with the name of 'Lifeimpressions', even if the logo thereof was taken off or removed. She had also applied for registration of word 'Lifeimpressions' in the year 2020, however again said, it was not for word but for logo. She could not have produced any document to show the date since when she had started using word CS (COMM) 205/22 Mrs. TKD Keerthi, Sole Proprietress of M/S LIFEIMPRESSIONS Vs. Ms. Yamini Manohar Page 21 of 43 'Lifeimpressions'. She had also got the search conducted before applying for registration of logo for her trade name 'Lifeimpressions' in year 2020 itself.
She had denied the suggestion that she had not sold any products with the name of 'Lifeimpressions' in the year 2016 and that is why she had not placed any invoices of the said year on record. She had denied the suggestion that her user of trade name 'Lifeimpressions' was not a continued one.
Ex. DW1/8 at page no. 142 did not pertain to her firm, however, she had volunteered that the said firm was Mumbai based and owned by her friend, who used to assist her during the exhibitions etc. She had denied the suggestion that 'impressions forever' was also her trademark, which she had changed to 'Lifeimpressions' in the year 2017. She had not maintained any accounts of 'impressions forever'. She had admitted that her trade name as well as that of the Plaintiff had sounded phonetically similar.
She had stated that her products' first social media appearance was on Instagram in the year 2014 in the name of 'Lifeimpressions', but she did not remember the exact date. She had denied the suggestion that initially she had created her Instagram account in some other name which was later on changed to 'Lifeimpressions' in the year 2017. She had denied the suggestion that the nature of business activities as well as products of Plaintiff as well as her's were same, however, she had volunteered that she also provided casting kits.
CS (COMM) 205/22 Mrs. TKD Keerthi, Sole Proprietress of M/S LIFEIMPRESSIONS Vs. Ms. Yamini Manohar Page 22 of 43She had admitted that Plaintiff and she used to deal in baby hand and feet casting. DW1 used to deliver kits online all over India. She used to promote her products by outreaching customers through phone calls as well.
She had denied the suggestion that her turnover had increased many fold after adoption of name 'Lifeimpressions' in the year 2017. On the date of her deposition, her annual turnover was stated to be more than Rs. 40 lakhs. She had denied the suggestion that she was deposing falsely.
13. Thereafter DE was also closed.
14. I have heard the arguments advanced at length at bar by Sh. Madhav Anand, Ld. Counsel for Plaintiff and Ms. Shraddha Chirania, Ld. Counsel for Defendant through VC, at length and have gone through the written submissions filed on behalf of the parties and also perused the material available on record.
15. It has been contended in the written submissions filed on behalf of the Plaintiff that Plaintiff had filed an application for registration of device mark, featuring the word "LIFEIMPRESSIONS" in bold font as a dominant feature with a baby's feet depiction sybmolizing, capturing and freezing precious family moments, with the Registrar of Trade mark vide application no. 4280803 dated 31.08.2019 and the same was registered on 16.02.2020 in class 20.
CS (COMM) 205/22 Mrs. TKD Keerthi, Sole Proprietress of M/S LIFEIMPRESSIONS Vs. Ms. Yamini Manohar Page 23 of 43It was further contended in the written submissions filed on behalf of the Plaintiff that the evidence placed on record by the defendant was inconsistent and insufficient because as per Indian Trademark Law, priority could not be claimed only by mere sporadic or earlier use of a mark, the user must have to be continuous, substantial, and in good faith. Section 34 of the Trade Marks Act, 1999 had protected only those, who had been continuously using an identical/nearly resembling trademark since a date prior to the Plaintiff's first use or registration. In the case in hand, defendant's own evidence of alleged prior user was stated to be riddled with inconsistencies and gapes. Defendant had claimed over the use of word mark "Lifeimpressions" since 2011, however, she had failed to placed on record any document in respect of any business or sales from 2011-2013. She had placed on record only few invoices from mid 2014 to early 2015 with wide time gaps and there was no invoice or sales records from mid March 2015 till April 2017, which was a gap of almost 2 years.
In this regard, Plaintiff had placed reliance on the citation of our own Hon'ble High Court in case titled as "Peps Industries Pvt. Ltd. v. Kurlon Ltd." 2022 SCC OnLine Del 3275, decided on 07.10.2022, in which it was held that:
"....7. The learned Single Judge held as under:
"21. From the facts as noted above, it is thus evident that the plaintiff has a registered trade mark 'NO TURN' in its favour, the mark 'NO TURN' is being used by the plaintiff as a trade mark. The plaintiff has been in continuous use of this trade mark 'NO TURN' since 15th January, CS (COMM) 205/22 Mrs. TKD Keerthi, Sole Proprietress of M/S LIFEIMPRESSIONS Vs. Ms. Yamini Manohar Page 24 of 43 2008. Defendant is the prior user of the mark since the year 2007 however since the use of the mark by the defendant is intermittent and not voluminous so as to establish the defence under Section 34 of the Trade Marks Act. However, the plaintiff would still not be entitled to the relief of injunction for the reason the mark "NO TURN" is a descriptive mark. The plaintiff has placed no material on record to show that on the date of application or even on the date of registration plaintiff's trademark 'NO TURN' had acquired the distinctiveness to achieve the status of a well known mark. Hence, no interim injunction is granted in favour of the plaintiff. Consequently, IA 4871/2019 is dismissed and IA 6715/2019 is disposed of."
........
49. Once the learned Single Judge had come to the conclusion that there was no merit in the defence raised by the defendant that he is entitled to use the mark, being a prior user in terms of Section 34 of the Trade Marks Act, 1999, the statutory right in respect of the registered mark was liable to be protected and the interim injunction should have followed.
It was averred further in the written submissions of Plaintiff that Defendant in her cross-examination had claimed her sales in the year 2014 were around Rs. 3.6 Lakhs, however as per the document Ex. DW1/7, her sales were around Rs. 54,500/-, which contradicted the documentary evidence. In this regard, Ld. Counsel for Plaintiff had placed reliance on the citation of Hon'ble Supreme Court in case titled as "Allauddin Khan v. The State of West Bengal, 2015 SCC OnLine Cal 3033, decided on 01.09.2015, in which it was held as infra:
CS (COMM) 205/22 Mrs. TKD Keerthi, Sole Proprietress of M/S LIFEIMPRESSIONS Vs. Ms. Yamini Manohar Page 25 of 43"...15. It is the settled proposition of law that there bound to be some discrepancies between the depositions of different witnesses when they speak on details, and unless the contradictions are of a material dimension, the same should not be used to jettison the evidence in its entirety. But discrepancy has to be distinguished from contradiction. While minor discrepancy or variance in evidence will not make the prosecution's case doubtful, contradiction in the statement of witness is fatal for the case. The above principle of law has been laid down in the matter of State of H.P. vs. Lekh Raj, reported in (2000) 1 SCC 247 and the relevant portions of the above decision is quoted below:-
"7. In support of the impugned judgment the learned counsel appearing for the respondents vainly attempted to point out some discrepancies in the statement of the prosecutrix and other witnesses for discrediting the prosecution version. Discrepancy has to be distinguished from contradiction. Whereas contradiction in the statement of the witness is fatal for the case, minor discrepancy or variance in evidence will not make the prosecution's case doubtful. The normal course of the human conduct would be that while narrating a particular incident there may occur minor discrepancies, such discrepancies in law may render credential to the depositions. Parrot-like statements are disfavoured by the courts. In order to ascertain as to whether the discrepancy pointed out was minor or not or the same amounted to contradiction, regard is required to be had to the circumstances of the case by keeping in view the social status of the witnesses and environment in which such witness was making the statement. This Court in Ousu Varghese v. State of Kerala held that minor variations in the accounts of the witnesses are often the hallmark of the truth of their testimony. In Jagadish v. State of M.P. this Court held that when the discrepancies were comparatively of a minor character and did not go to the root of the CS (COMM) 205/22 Mrs. TKD Keerthi, Sole Proprietress of M/S LIFEIMPRESSIONS Vs. Ms. Yamini Manohar Page 26 of 43 prosecution story, they need not be given undue importance. Mere congruity or consistency is not the sole test of truth in the depositions. This Court again in State of Rajasthan v. Kalki held that in the depositions of witnesses there are always normal discrepancies, however, honest and truthful they may be. Such discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence, and the like. Material discrepancies are those which are not normal and not expected of a normal person."
(Emphasis supplied) Whether the discrepancy is minor or the same is contradiction fatal for the case is a matter of fact which is special to each case. The search of the appellant in person is not in dispute in this case. Therefore, in order to ascertain whether the discrepancies pointed out by the appellant were minor or those were contradictions fatal for the case applying the settled proposition of law as discussed hereinabove, the following factors are taken into consideration:-
(a) According to the PW 1, PW 3 and PW 5, the search and seizure were conducted at a point of time in between 10-00 to 12-00 hours on July 18, 2010.
(b) But in view of the evidence of PW 2, he came to the office at about 17-00 hours on July 18, 2010 and the search and seizure had been conducted at about 16-30 hours on that date.
(c) The evidence of PW 7 with regard to time of seizure was also relevant. He was approached by the respondents to render his assistance to record the statement of the appellant in Hindi at about 16.00/16-30 hours. The statements were recorded CS (COMM) 205/22 Mrs. TKD Keerthi, Sole Proprietress of M/S LIFEIMPRESSIONS Vs. Ms. Yamini Manohar Page 27 of 43 at 17.00/17.30 hours. According to him, the seizure list was prepared thereafter."
It was stated further on behalf of the Plaintiff that it is the settled preposition of law that even the registered proprietor of a mark cannot interfere with the rights of a prior user of an identical mark, and in the present case, Plaintiff held both prior user rights and registration rights.
In this regard, Ld. Counsel for Plaintiff had relied upon the citation of Hon'ble Supreme Court in case titled as "S. Syed Mohideen v. P. Sulochana Bai, (2016) 2 SCC 683 decided on 17.03.2015, wherein it was held as infra:
"30.4. Section 34 of the Trade Marks Act, 1999 provides that nothing in this Act shall entitle the registered proprietor or registered user to interfere with the rights of prior user. Conjoint reading of Section 34, 27 and 28 would show that the rights of registration are subject to Section 34 which can be seen from the opening words of Section 28 of the Act which states "Subject to the other provisions of this Act, the registration of a trade mark shall, if valid, give to the registered proprietor...." and also the opening words of Section 34 which states "Nothing in this Act shall entitle the proprietor or a registered user of registered trade mark to interfere......". Thus, the scheme of the Act is such where rights of prior user are recognized superior than that of the registration and even the registered proprietor cannot disturb / interfere with the rights of prior user. The overall effect of collective reading of the provisions of the Act is that the action for passing off which is premised on the rights of prior user generating a goodwill shall be unaffected by any registration provided under the Act. This CS (COMM) 205/22 Mrs. TKD Keerthi, Sole Proprietress of M/S LIFEIMPRESSIONS Vs. Ms. Yamini Manohar Page 28 of 43 proposition has been discussed in extenso in the case of N.R. Dongre And Ors. v. Whirlpool wherein Division Bench of Delhi High Court recognized that the registration is not an indefeasible right and the same is subject to rights of prior user. The said decision of Whirlpool [supra] was further affirmed by Supreme Court of India in the case of N.R. Dongre And Ors v. Whirlpool Corporation And Anr.
30.5. The above were the reasonings from the provisions arising from the plain reading of the Act which gives clear indication that the rights of prior user are superior than that of registration and are unaffected by the registration rights under the Act.
........
31.2 The applicability of the said principle can be seen as to which proprietor has generated the goodwill by way of use of the mark / name in the business. The use of the mark/ carrying on business under the name confers the rights in favor of the person and generates goodwill in the market. Accordingly, the latter user of the mark/ name or in the business cannot misrepresent his business as that of business of the prior right holder. That is the reason why essentially the prior user is considered to be superior than that of any other rights. Consequently, the examination of rights in common law which are based on goodwill, misrepresentation and damage are independent to that of registered rights. The mere fact that both prior user and subsequent user are registered proprietors are irrelevant for the purposes of examining who generated the goodwill first in the market and whether the latter user is causing misrepresentation in the course of trade and damaging the goodwill and reputation of the prior right holder/ former user. That is the additional reasoning that the statutory rights must pave the way for common law rights of passing off."CS (COMM) 205/22 Mrs. TKD Keerthi, Sole Proprietress of M/S LIFEIMPRESSIONS Vs. Ms. Yamini Manohar Page 29 of 43
Ld. Counsel for Plaintiff had also stated that when an identical mark was used for identical services, a likelihood of confusion was presumed and no further proof of deception was required for infringement under Section 29(2) (c). Ld. Counsel for plaintiff has also relied upon the citation of Hon'ble Supreme Court in case titled as "Kaviraj Pandit Durga Dutt Sharma v. Navaratna Pharmaceutical Labs, AIR 1965 SC 980, decided on 20.10.1964, wherein it was held as infra:-
"...29. When once the use by the defendant of the mark which is claimed to infringe the plaintiffs 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. When the two marks are not identical, the, plaintiff would have to establish that the mark used by the defendant so nearly resembles the plaintiffs registered trade mark as is likely to deceive or cause confusion and in relation to goods in respect of which it is registered (Vide Section 21). A point has sometimes been raised as to whether the words "or cause confusion"
introduce any element which is not already covered by the words "likely to deceive" and it has sometimes been answered by saying that it is merely an extension of the earlier test and does not add very materially to the concept indicated by the earlier words "likely to deceive". But this apart, as the question arises in an action for infringement the onus would be on the plaintiff to establish that the trade mark used by the defendant in the course of trade in the goods in respect of which his mark is registered, is deceptively similar. This has necessarily to be ascertained by a comparison of the two marks-the degree of resemblance which is necessary to exist to cause deception not being capable of definition by CS (COMM) 205/22 Mrs. TKD Keerthi, Sole Proprietress of M/S LIFEIMPRESSIONS Vs. Ms. Yamini Manohar Page 30 of 43 laying down objective standards. The persons who would be deceived are, of course, the purchasers of the goods and it is the likelihood of their being deceived that is the subject of consideration. The resemblance may be phonetic, visual or in the basic idea represented by the plaintiffs mark. The purpose of the comparison is for determining whether the essential features of the plaintiff's trade mark are to be found in that used by the defendant. The identification of the essential features of the mark is in essence a question of fact and depends on the judgment of the Court based on the evidence led before it as regards the usage of the trade. It should, however, be borne in mind that the object of the enquiry in ultimate analysis is whether the mark used by the defendant as a whole is deceptively similar to that of the registered mark of the plaintiff.
30. The mark of the respondent which he claims has been in- fringed by the appellant is the mark 'Navaratna Pharmaceutical Laboratories', and the mark of the appellant which the respondent claimed was a colourable imitation of that mark is 'Navaratna Pharmacy. Mr. Agarwala here again stressed the fact that the 'Navaratna' which constituted an essential part or feature of the Registered Trade Mark was a descriptive word in common use and that if the use of this word in the appellant's mark were disregarded, there would not be enough material left for holding that the appellant had used a trade mark which was deceptively similar to that of the respondent. But this proceeds, in our opinion, on ignoring that the appellant is not, as we have explained earlier, entitled to insist on a disclaimer, in regard to that word by the respondent. In these circumstances, the trade mark to be compared with that used by the appellant is the entire registered mark including the word 'Navaratna'. Even otherwise, as stated in a slightly different context:
CS (COMM) 205/22 Mrs. TKD Keerthi, Sole Proprietress of M/S LIFEIMPRESSIONS Vs. Ms. Yamini Manohar Page 31 of 43"Where common marks are included in the trade marks to be compared or in one of them, the proper course is to look at the marks as wholes and not to disregard the parts which are common"."
Similarly reliance was also placed on the citation of "Time incorporated Vs. Lokesh Srivastava, 2005, SCC OnLine Delhi 1, wherein the Hon'ble High Court of Delhi had granted punitive damages while recognizing the need to discourage willful trademark piracy.
Reliance was also placed on the citation of "Patil Automation Pvt. Ltd. Vs. Rakheja Engineers Pvt. Ltd.", 2022 SCC OnLine SC 1028, wherein it was held that although the compliance of Section 12A was mandatory but it would have applied only where the Plaintiff had not contemplated any urgent interim relief.
Lastly, reliance was placed on the citation of "Bolt Technology OU Vs. Ujjoy Technology Pvt. Ltd." 2022 SCC OnLine Delhi 2639, which also dealt with the dispension of compliance of Section 12A in cases contemplating the relief of urgent nature.
16. Per contra, Ld. Counsel for Defendant in its written submission filed on record had contended that the defendant was a prior adopter and continuous user of the Mark "Life Impressions" in relation to her casting services and products as CS (COMM) 205/22 Mrs. TKD Keerthi, Sole Proprietress of M/S LIFEIMPRESSIONS Vs. Ms. Yamini Manohar Page 32 of 43 she had found and started her business in the year 2011 and in this regard reliance was placed on Plaintiff's own document Ex. PW1/23 (page 340 of paper book of plaintiff's documents) which was the listing of defendant's product on India Mart showing its existence in the field of casting since 2011.
Reliance was further placed on Ex. DW1/7 (page 50 of paper book of defendant's documents), which was Defendant's invoice dated 12.06.2014 showing her existence in the business much prior to the introduction of Plaintiff in this field. Further it was claimed the defendant was using the device mark since 05.05.2017, which fact was also evident from document Ex.DW1/1 (running page 3 of defendant's document in the form of affidavit sworn on 06.11.2020), whereas Plaintiff herself had claimed that she had started using the said trademark after 31.08.2019 under class 20 and furthermore in her application for registration she had mentioned the said mark as "proposed to be used".
It was also stated that Plaintiff had no exclusive right on the use of word "Lifeimpressions" as on the date of the filing of the present suit in March 2022, as she had obtained the registration in the name of "Lifeimpessions Freeze Your Memories today". Reliance in this regard was placed on the citation of our own Hon'ble High Court in "Vasundhra Jewellers Pvt. Ltd. Vs. Kirath Vinod Bhai Jadvani and Anr.", 2022 SCC OnLine Delhi 2996, wherein it was held that the registered proprietor of a mark could not have claimed exclusive right over a part of a device mark.
CS (COMM) 205/22 Mrs. TKD Keerthi, Sole Proprietress of M/S LIFEIMPRESSIONS Vs. Ms. Yamini Manohar Page 33 of 43Defendant was further stated to have purchased the domain name and registered her presence on social media platforms vide documents Ex. DW1/3 to Ex. DW1/6. In order to plead her protection from the registered owner of a trademark, even defendant had relied upon the citation of Hon'ble Apex Court in S. Syed Mohideen Vs. P. Sulochana Bai (Supra), which dealt with the protection u/s 34 of the Trade Marks Act.
Further it was also pleaded that from the extracts of the defendant's website as placed on record by the Plaintiff at page no. 333 and 334 of paper book of a document themselves demonstrated the goodwill and reputation of defendant's products, who had also established 14 franchisees throughout the country. While relying upon Ex. DW1/15, it was claimed both Plaintiff and defendant were operating in different territories and were having peaceful co-existence. As per said exhibit, the Plaintiff's services were not available within the territorial limit of Delhi and this fact was also admitted by the PW1 and PW2 during their cross-examination that they were not operating in North India particularly in Delhi and Rajasthan. It was also contended that Defendant was also selling DIY boxes enabling the customers to undertake the casting at their own homes, whereas in order to avail the services of Plaintiff, a customer necessarily was required to visit her establishment.
Furthermore, it was contended that the Plaintiff had failed to adduce any evidence on record to show any kind of deception or confusion ever created or occurred in the mind of CS (COMM) 205/22 Mrs. TKD Keerthi, Sole Proprietress of M/S LIFEIMPRESSIONS Vs. Ms. Yamini Manohar Page 34 of 43 any of her customers or that she had ever suffered any damages due to any act or omission of the defendant much less the damages claimed by her in the present suit.
Defendant had also placed reliance on Ex. DW1/8 being the vouchers issued by different and independent third party to show the expenses incurred by her in the course of her business. Whereas the Plaintiff vide Ex. PW1/16 was only able to prove an expenditure of Rs. 431.47 towards her business. So far as territorial jurisdiction of this court is concerned, it was claimed that neither any cause of action had ever arisen within the territorial limits of Delhi, nor the Plaintiff was having her registered office or operational business activities in Delhi which could have conferred any territorial jurisdiction upon the Courts situated at Delhi.
17. In the light of aforesaid rival submissions and contentions of both the Ld. Counsels, my issue wise findings are as under:
Issue no. 1. Whether the plaintiff is entitled to decree for permanent injunction, as prayed ? OPP.
The onus to prove this issue was upon the Plaintiff. The evidence as well as the submissions of the parties have already been discussed in detail in the preceding paras, hence, they need not be repeated here again. It is the contention of the Plaintiff's Counsel that Plaintiff had started using the said trademark since 2015 and got it registered in her name in 2020, CS (COMM) 205/22 Mrs. TKD Keerthi, Sole Proprietress of M/S LIFEIMPRESSIONS Vs. Ms. Yamini Manohar Page 35 of 43 whereas the defendant was claiming to have been using the same since 2011 without placing on record any documentary proof to that effect.
Furthermore, defendant was stated to have not produced any invoice for the year 2016 and the invoices issued after a gap of 6 months were chronologically in order, which indicated the fabrication of invoices on the part of defendant.
However, I do not find any merits in this argument and submission of Ld. Counsel because Plaintiff's own document Ex. PW1/23 had shown that the defendant's presence in the said field of business since 2011 and document Ex. DW1/7 which was an invoice dated 12.06.2014 further fortified the claim of defendant being a prior user of the said product in the said trade name. Although a suggestion put to DW1 regarding the said invoice being a forged and fabricated one. However, in the absence any explanation coming forward from the side of Plaintiff regarding the mode and manner of alleged forgery and fabrication, this suggestion appears to be merely a plea in air having no sound basis of its own.
Similarly, it was argued by Ld. Counsel for Defendant that though the Plaintiff had claimed to have conceived this idea in 2015, however, the first invoice produced on record by her Ex. PW1/17 (colly) (at page 94 of paper book) pertain to September 2016.CS (COMM) 205/22 Mrs. TKD Keerthi, Sole Proprietress of M/S LIFEIMPRESSIONS Vs. Ms. Yamini Manohar Page 36 of 43
Further it was stated that as per Ex. DW1/5, the presence of defendant was seen on Instagram since April 2014. Furthermore, the invoices Ex. DW1/3 (at page 30) and Ex. DW1/4 had proved the presence of Defendant much prior to the date of invoice placed on record by Plaintiff as well as the expansion of business of Defendant to the cities of Mumbai, Pune, Delhi, Noida, Ahmedabad, Jaipur and Hyderabad as well.
Lastly, it was stated that as per Plaintiff's own document Ex. PW1/1, she had applied for registration of trade mark in the name of "LifeImpressions Freeze Your Memories Today" on 31.08.2019, under "proposed to be used" category for class 20.
In the light of aforesaid submissions, it was argued that defendant being a prior user was entitled to all the protection under the law as provided by virtue of Section 34 of Trade Mark and Copyright Act, 1999.
So far as the plea regarding gap of few months in issuance of invoices by the defendant as well as her non- continued user of the trade mark as raised by Plaintiff are concerned, I have no hesitation in holding that the case in hands cannot be equated with the case of a person selling daily consumable items. The kind of services provided by the parties in the present suit are a very new concept and are rarely heard of by a common man, hence, it could not be presumed that a person dealing in providing of these kind of services would have a regular foot fall of customers at his place. Furthermore, not only CS (COMM) 205/22 Mrs. TKD Keerthi, Sole Proprietress of M/S LIFEIMPRESSIONS Vs. Ms. Yamini Manohar Page 37 of 43 the people who are willing to avail these kind of services are very less and few, but also, the people demanding a proper invoice for the services availed would be a rarest of the rare commodity to find out. Therefore, the gap of few months lest 6 months even if occurred in issuance of two invoices, it could not be held to be an unusual practice or incident because Plaintiff herself had claimed to be in this business since 2015 but had produced her first invoice of September 2016 i.e. almost after 18 months of her commencing the said business.
In view of my aforesaid finding and discussion, I have no hesitation in holding that the defendant in the present case is not only a prior user of the trade name and mark, but also, had not transgressed into the arena of Plaintiff's business activities at any point of time whatsoever as both of them were operating in different geographical locations and were not rendering such services in each other's areas of operation so as to create any confusion or suspicion in the minds of their prospective customers, hence, the defendant is entitled to all the statutory protections as provided to her by Section 34 of Trade Marks Act 1999, being prior user of the trade name.
Plaintiff has thus miserably failed to discharge the onus of this issue which is accordingly answered in negative and decided in favour of the defendant and against the Plaintiff.
Issue no. 2. Whether the plaintiff is entitled to decree for rendition of accounts, if so, from whom? OPP.CS (COMM) 205/22 Mrs. TKD Keerthi, Sole Proprietress of M/S LIFEIMPRESSIONS Vs. Ms. Yamini Manohar Page 38 of 43
Issue no. 3. Whether the Plaintiff is entitled to any damages, if so, the quantum of damages and from whom ? OPP. Issue No. 4. Whether the Plaintiff is entitled to any relief of delivery, as prayed ? OPP.
The onus to prove all these issues was again upon the Plaintiff. However, in view of my detailed findings given to issue no. 1 above, all these issues are also answered in negative and decided in favour of the Defendant and against the Plaintiff.
Issue no. 5. Whether the suit of the Plaintiff is bad for non- compliance of provisions of Section 12A of Commercial Courts Act, 2015? OPD The onus to prove this issue was upon the Defendant. However, no specific evidence on this issue was led by the defendant nor any material cross-examination of PW1 was offered by her on this issue. Even otherwise it is the settled preposition of law that where there is a relief of an urgent nature has been contemplated, then the statutory compliance of Provisions of Section 12A can be dispensed with, hence, I have no hesitation in holding that the defendant has failed to discharge the onus of this issue which is accordingly answered in negative and decided against the defendant and in favour of Plaintiff who was seeking an ex-parte ad interim injunction in this case.
Issue no. 6. Whether the present suit amount to abuse of the process by Plaintiff ? OPD The onus to prove this issue was again upon the Defendant. However, apart from claiming that Delhi Courts had no territorial jurisdiction to try and entertain the present suit, CS (COMM) 205/22 Mrs. TKD Keerthi, Sole Proprietress of M/S LIFEIMPRESSIONS Vs. Ms. Yamini Manohar Page 39 of 43 neither it was pleaded by DW1 either in her examination-in-chief or during cross-examination of PW1 as to how, apart from filing of the present suit within territorial jurisdiction of this court, any other abuse of process was committed by the Plaintiff.
So far as territorial jurisdiction of this court is concerned, it has now been established by evidence available on record especially in view of the admission made by PW1 and PW2 that they were neither having any branch nor any franchisee in Northern India more specifically either in Delhi or in Rajasthan which fact got further fortified by the document Ex. DW1/15 as discussed in the preceding paras, whereby it was specifically clarified that Plaintiff was not providing any services in Delhi.
While examining the issue of territorial jurisdiction of a court based upon the global accessibility of any product or service through internet and clarifying legal position in this regard, the Division Bench of our own Hon'ble High Court in case titled as "Banyan Tree Holding (P) Limited versus A. Murali Krishna Reddy & Anr, CS(OS) No. 894/2008, decided on 23.11.2009, reported as 2009 SCC Online Del 3780 : (2010) 42 PTC 361" was pleased to summarize the legal position with regard to websites as under:-
"Summary
58. We summaries our findings on the questions referred for our opinion as under:-
Question (i): For the purposes of a passing off action, or an infringement action where the Plaintiff is not carrying on business within the jurisdiction of a court, in what circumstances can it be said that the hosting of a universally CS (COMM) 205/22 Mrs. TKD Keerthi, Sole Proprietress of M/S LIFEIMPRESSIONS Vs. Ms. Yamini Manohar Page 40 of 43 accessible website by the Defendants lends jurisdiction to such Court where such suit is filed ("the forum court")?"
Answer: For the purposes of a passing off action, or an infringement action where the Plaintiff is not carrying on business within the jurisdiction of a court, and in the absence of a long-arm statute, in order to satisfy the forum court that it has jurisdiction to entertain the suit, the Plaintiff would have to show that the Defendant "purposefully availed" itself of the jurisdiction of the forum court. For this it would have to be prima facie shown that the nature of the activity indulged in by the Defendant by the use of the website was with an intention to conclude a commercial transaction with the website user and that the specific targeting of the forum state by the Defendant resulted in an injury or harm to the Plaintiff within the forum state.
Question (ii): In a passing off or infringement action, where the defendant is sought to be sued on the basis that its website is accessible in the forum state, what is the extent of the burden on the Plaintiff to prima facie establish that the forum court has jurisdiction to entertain the suit?
Answer: For the purposes of Section 20 (c) CPC, in order to show that some part of the cause of action has arisen in the forum state by the use of the internet by the Defendant, the Plaintiff will have to show prima facie that the said website, whether euphemistically termed as "passive plus"
or "interactive" was specifically targeted at viewers in the forum state for commercial transactions. The Plaintiff would have to plead this and produce material to prima facie show that some commercial transaction using the website was entered into by the Defendant with a user of its website within the forum state resulting in an injury or harm to the Plaintiff within the forum state.CS (COMM) 205/22 Mrs. TKD Keerthi, Sole Proprietress of M/S LIFEIMPRESSIONS Vs. Ms. Yamini Manohar Page 41 of 43
Question (iii): Is it permissible for the Plaintiff to establish such prima facie case through "trap orders" or "trap transactions?
Answer : "The commercial transaction entered into by the Defendant with an internet user located within the jurisdiction of the forum court cannot possibly be a solitary trap transaction since that would not be an instance of "purposeful" availment by the Defendant. It would have be a real commercial transaction that the Defendant has with someone not set up by the Plaintiff itself. If the only evidence is in the form of series of trap transactions, they have to be shown as having been obtained using fair means. The Plaintiff seeking to establish jurisdiction on the basis of such trap transactions would have to aver unambiguously in the plaint, and also place along with it supporting material, to prima facie show that the trap transactions relied upon satisfy the above test."
In the light of aforesaid legal preposition, it becomes an established fact on record that the Plaintiff's website was not accessible from Delhi, whereas Defendant had claimed to provide its DIY casting kits to the states/cities of Mumbai, Pune, Delhi, Noida, Ahmedabad, Jaipur and Hyderabad as well through her interactive website, hence, it could not be held that Defendant had ever targeted any customer segment of Plaintiff in Delhi.
Hence, I have no hesitation in holding that this court had no territorial jurisdiction to try and entertain the present suit and filing of a suit in a court not having any jurisdiction at all to try and entertain the same, itself amounts to a gross abuse of the process of law, not requiring the party alleging the same to prove any further act or omission amounting to further abuse of CS (COMM) 205/22 Mrs. TKD Keerthi, Sole Proprietress of M/S LIFEIMPRESSIONS Vs. Ms. Yamini Manohar Page 42 of 43 process. Thus, the defendant had successfully discharged the onus of this issue, which is accordingly answered in affirmative and decided in favour of the Defendant and against the Plaintiff holding that filing of the present suit amounted to a gross abuse of process of law as committed by the Plaintiff.
Relief
18. In view of my aforesaid observations given in respect of issues no. 1 to 4 and 6 above, I have no hesitation in holding that the Plaintiff herein has miserably failed to prove her case against the defendant even by preponderance of probabilities, hence, the suit of the Plaintiff is dismissed with cost of Rs 1 lakh to be paid by Plaintiff to the Defendant for unnecessarily dragging her in the present bogus litigation. Decree sheet be drawn accordingly.
19. File be consigned to record room after compliance of necessary formalities in this regard.
ANNOUNCED IN THE OPEN COURT
DATED:30.08.2025 Digitally signed
LOKESH by LOKESH
KUMAR
KUMAR SHARMA
SHARMA Date: 2025.08.30
15:47:38 +0530
(Lokesh Kumar Sharma)
District Judge (Commercial Court)-05
South/Saket/New Delhi
CS (COMM) 205/22 Mrs. TKD Keerthi, Sole Proprietress of M/S LIFEIMPRESSIONS Vs. Ms. Yamini Manohar Page 43 of 43