Delhi High Court - Orders
Dfm Food Ltd vs Guiltfree Industries Limited & Ors on 19 December, 2023
Author: Prathiba M. Singh
Bench: Prathiba M. Singh
$~44
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(COMM) 906/2023, I.As. 25643/2023, 25644/2023, 25645/2023,
25646/2023 & 25647/2023, 25648/2023
DFM FOOD LTD ..... Plaintiff
Through: Mr. Dhruv Anand, Ms. Udita Patro,
Ms. Sampurnaa Sanyal and Ms
Nimrat Singh, Advs. (M.
9313399860)
versus
GUILTFREE INDUSTRIES LIMITED & ORS. ..... Defendants
Through: None.
CORAM:
JUSTICE PRATHIBA M. SINGH
ORDER
% 19.12.2023
1. This hearing has been done through hybrid mode.
I.A. 25645/2023 (for additional document)
2. This is an application filed by the Plaintiff seeking leave to file additional documents under the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 (hereinafter, 'Commercial Courts Act'). The Plaintiff, if it wishes to file additional documents at a later stage, shall do so strictly as per the provisions of the Commercial Courts Act and the DHC (Original Side) Rules, 2018.
3. The application is disposed of.
I.A.25646/2023 (for exemption)
4. This is an application seeking exemption from filing originals/certified/cleared/typed or translated copies of documents, left side margins, electronic documents, etc. Original documents shall be CS(COMM) 906/2023 Page 1 of 8 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 20/12/2023 at 23:24:14 produced/filed at the time of Admission/Denial, if sought, strictly as per the provisions of the Commercial Courts Act and the DHC (Original Side) Rules, 2018.
5. Exemption is allowed, subject to all just exceptions.
6. Accordingly, the application is disposed of.
I.A.25648/2023 (u/S 12A of the Commercial Courts Act)
7. This is an application filed by the Plaintiff seeking exemption instituting pre-litigation mediation under Section 12A of the Commercial Courts Act. Considering the facts and circumstances of the case, the Court is satisfied that in terms of the judgment of the Hon'ble Supreme Court in Yamini Manohar v. T.K.D Keerthi, (2023 LiveLaw (SC) 906), that the present suit contemplates urgent interim relief.
8. The exemption is granted to the Plaintiff. Accordingly, the application is disposed of.
I.A. 25647/2023 (for court fees)
9. Court fee is stated to be filed. Let the stamp be filed within one week. Accordingly, the application is disposed of. CS (COMM) 906/2023
10. Let the plaint be registered as a suit.
11. Issue summons to the Defendants.
12. The written statement to the plaint shall be positively filed within 30 days from date of receipt of summons. Along with the written statement, the Defendants shall also file an affidavit of admission/denial of the CS(COMM) 906/2023 Page 2 of 8 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 20/12/2023 at 23:24:14 documents of the Plaintiff, without which the written statement shall not be taken on record.
13. Liberty is given to the Plaintiff to file a replication within 15 days of the receipt of the written statement. Along with the replication, if any, filed by the Plaintiff, an affidavit of admission/denial of documents of the Defendants, be filed by the Plaintiff, without which the replication shall not be taken on record. If any of the parties wish to seek inspection of any documents, the same shall be sought and given within the timelines.
14. List before the Joint Registrar for marking of exhibits on 13th February, 2024. It is made clear that any party unjustifiably denying documents would be liable to be burdened with costs.
15. List before Court on 13th May, 2024.
I.A. 25643/2023 (u/O XXXIX Rules 1 & 2 CPC) and I.A. 25644/2023 (seeking discovery)
16. Issue notice.
17. The present suit has been filed by the Plaintiff- DFM Foods Ltd., seeking an injunction against the Defendants- Guiltfree Industries Limited and other retailers from using the trademark 'CURLS' in respect of snack food products. The case of the ld. Counsel for the Plaintiff is that it is one of the leading manufacturer and seller of various snacks products under the marks CRAX, CURLS, FRITTS and NATKHAT as well as traditional namkeens such as Bhujiyas, Mixtures, Daals and Nut Mixes.
18. The Plaintiff claims to have launched iconic 'CRAX' rings in 1984 which became extremely popular amongst children. The present suit relates CS(COMM) 906/2023 Page 3 of 8 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 20/12/2023 at 23:24:14 to the products of the Plaintiff 'CURLS' which is stated to have been launched by the Plaintiff in December, 2016 followed by a nation-wide launch in March 2017. The 'CURLS' product is an extruded corn snack product having a distinctive packaging. The trademark 'CURLS' has also been registered by the Plaintiff in Class 30 in two forms i.e. 'CURLS' and 'CRAX CURLS'. The details of which are as under:-
Sr. Trademarks Registration Class Valid up to
No. No.
1. 3164035 30 20.01.2026
2. CRAX CURLS 3667345 30 01.11.2027
19. The sales of the products sold under the mark 'CURLS' are claimed to be more than INR 167 crores in 2022-2023 and the marketing and advertising expenditures about INR 21.5 crores till date. Ld. Counsel for the Plaintiff submits that this is one of the most popular products of the Plaintiff which is sold at Rs.5/- and extremely popular, especially, amongst children.
20. Further, it is stated that the Plaintiff has repeatedly enforced its rights against the third party use of the said marks.
21. The Defendant No. 1 Guiltfree Industries Limited, which is a part of R.P. Sanjiv Goenka FMCG group is stated to be selling snack products CS(COMM) 906/2023 Page 4 of 8 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 20/12/2023 at 23:24:14 under the mark 'TOO YUMM'. However, recently, the Plaintiff was informed of launch of a product by the name 'TOO YUMM CURLS'. The image of which is as under:-
22. Immediately, the Plaintiff is stated to have an enquiry conducted and the investigator's report has revealed that the said product has been soft launched in Kolkata and is likely to be launched across India soon.
23. The said product has also been reflected in some third party YouTube videos. The Defendants have a large retail network across the country and the Plaintiff's apprehension is that the products are likely to be launched very soon in Delhi as well.
CS(COMM) 906/2023 Page 5 of 8This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 20/12/2023 at 23:24:14
24. As per the investigator's report the products are available in D- MART and SPENCERS in Kolkata already. Thus, it is prayed that an injunction ought to be granted.
25. The facts and the documents would show that the trademark of the Plaintiff 'CURLS' is registered. The products of Defendants are identical to the Plaintiff's products. The marks are identical and the businesses of the two companies are also identical. The competing product images are set out below:
26. Under such circumstances, the adoption of the mark 'CURLS' cannot be stated to be innocent.
27. The present case is a case of TRIPLE IDENTITY as the mark is identical, the products are identical and the class of customers are identical.
CS(COMM) 906/2023 Page 6 of 8This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 20/12/2023 at 23:24:15
28. Further, in case of food products/ beverages - which are edibles consumed by different age groups, there ought to be additional caution, so | that these imitative attempts are curbed. This court relies on the judgement of Dominos Ip Holder LLC & Anr. vs Ms Dominick Pizza & Anr. (2023/DHC/7126), wherein it was held that Courts have, therefore, to be vigilant in ensuring that, where the marks relate to consumable items or to enterprises such as hotels, restaurants and eating houses where consumable items are served to customers, such imitative attempts are not allowed to go unchecked. The relevant portion is set out below:
"36. The Court is inclined to note, here, that where the marks in question pertain to food items, or eateries where food items are dispensed and served, a somewhat higher degree of care and caution is expected to be observed. Running an eating house using a mark which is deceptively similar to a reputed mark does not speak well for the enterprise concerned. The intent to capitalise on the reputation of a known and established brand, by using a mark which is deceptively similar to the mark used by the brand, can, in a given case, give rise to a legitimate apprehension of quality compromise by the imitator. Courts have, therefore, to be vigilant in ensuring that, where the marks relate to consumable items or to enterprises such as hotels, restaurants and eating houses where consumable items are served to customers, such imitative attempts are not allowed to go unchecked."
29. Accordingly, the Plaintiff has made out a prima facie case for grant of an interim injunction. Considering the products in question are food products and edibles, the balance of convenience is also clearly in favour of the Plaintiff. Further, irreparable injury shall be caused not just to the Plaintiff, but maybe caused to the public at large as well, in case products CS(COMM) 906/2023 Page 7 of 8 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 20/12/2023 at 23:24:15 with a deceptively similar mark as that of the Plaintiff are allowed to continue. These are consumable products which can be harmful to consumer health if the products are not manufactured as per food safety standards by the Defendants. Therefore, the Plaintiffs have made out a case for the grant of an ex-parte ad-interim injunction against the Defendants.
30. Since the full-fledged launch of products are yet to take, the Defendant is restrained from manufacturing, selling or offering for sale snack products under the mark 'TOO YUMM CURLS', CURLS, or any other confusingly similar mark. If the Defendants have any manufactured stock already, they are free to move an application seeking permission to dispose of the said products.
31. Compliance under Order XXXIX Rule 3 of CPC within one week.
32. Reply to the application be filed within four weeks after service of pleadings and documents.
33. List before Court on 13th May, 2024.
PRATHIBA M. SINGH, J.
DECEMBER 19, 2023 mr/bh CS(COMM) 906/2023 Page 8 of 8 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 20/12/2023 at 23:24:15