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Delhi District Court

M/S Guanji Marotrao Thaokar & Co vs M/S Vinod Biri Company on 31 October, 2013

     IN THE COURT OF SH. SUNIL  K  AGGARWAL : ADDL. DISTRICT 
                   JUDGE­10 (CENTRAL) : DELHI
                                                            TM No:  6/2010


M/s Guanji Marotrao Thaokar & Co.
3/3 C, Small Factory Area,
Bhandara Road, Nagpur,
Maharashtra.
Also at :­
S­45, Mangolpuri, New Delhi­110008.                                                      ......Plaintiff


                                       VERSUS 


M/s Vinod Biri Company,
Ram Mandir Ward, Bada Bazaar,
Distt­ Bhandhara,
Maharastra­441904.                                                                    .....Defendant



                                                               Plaint presented on 29.01.2007
J U D G M E N T:

­

1. Present suit has been filed by the plaintiff, a Private Limited Company through its Director Sh. Kamlesh Thaokar for restraining the defendant, its servants, agents, dealers and all other persons carrying on business on its behalf as manufactures or vendors of chewing Tobacco and from selling, advertising, offering or procuring any such products under the offending label bearing trademark 'SARVOSHREST THAWKAR ZARDA' in the infringing labels with artistic features, writing style, colour combination and arrangement of words similar to their trademark 'SARVOTKRISTA NAGPURI ZARDA' and label as well as registered copyright of the plaintiff. The defendant is further sought to be permanently restrained from passing off its goods under the impugned trademark/label as are TM No. 6 of 2010 Page No. 1 of 18 likely to leave an impression that the same has emanated from the plaintiff. An order for rendition of accounts of profits earned by the defendant by sale of chewing tobacco under the infringing trademark/label and decree for the amount found due on the basis of sales made by the defendant till the date of decree has also been urged to be passed. A direction against the defendant for delivery up of all the offending, counterfeit labels, wrappers, dies, blocks, containers and other material/ equipment bearing the infringing trademark in possession and/or control of the defendant is sought for purposes of destruction/erasure.

2. It is stated that the plaintiff has been carrying on the business of manufacturing and marketing of chewing tobacco for the last more than four decades. The trademark/label 'SARVOTKRISTA NAGPURI ZARDA' is being used by plaintiff since 1962 with its unique features and is duly registered under no. 263410 dated 29.03.1970 in Class­34 under the provisions of The Trade & Merchandise Act, 1958. The registration has been renewed from time to time and is subsisting and effective throughout India. The plaintiff's label has unique artistic features and is registered under number A­61088/02 as per the provisions of The Copyrights Act, 1957. The plaintiff has given wide publicity to its trademark/label by way of wall posters, hangers, tin plates, newspapers by incurring huge amount with the result that this trademark connotes the standard goods originating from plaintiff. Due to long extensive and exclusive use of the trademark/label for more than 45 years, the plaintiff's mark has acquired unique goodwill and enviable reputation in the minds of purchasing public and traders that it has come out of one of the oldest and leading manufacturers of chewing tobacco of superior quality. The plaintiff has its head office at Nagpur and a branch office in Delhi.

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3. The defendant has recently adopted and pirated the trademark/label 'SARVOSHREST THAWKAR ZARDA' with other artistic features identical to that of the plaintiff's trademark/label for the same class of goods. The label of defendant could not have been designed except by placing the label of plaintiff on side. Despite the trademark having altogether different middle name, the totality of label gives an impression of having some connection with the plaintiff. The defendant is already facing a criminal prosecution for selling the pirated products of the plaintiff. The purchasers of goods on many occasions are illiterate people such as farmers, labourers, servants etc with imperfect recollection who recognize and demand the goods by the trademark and colour­scheme of the plaintiff. Since the rival pouches have close deceptive similarity, the confusion and deception amongst the public and traders is inevitable. The defendant has printed the name and photo of Sh. Marotrav Vithoba Thawkar who has no connection with the defendant. It is rather the name of grandfather of the plaintiff and is being used to show connection with plaintiff.

4. The defendant projects its label on the pouches as if it is a registered trademark whereas the plaintiff has filed opposition to the registration application of the defendant which is pending. On account of the defendant's unfair trade activities the plaintiff has suffered huge losses in the well­established business for which pecuniary compensation will not be adequate. The adoption of the impugned trademark/label by the defendant is primarily aimed at cashing upon the image and status acquired by the plaintiff despite the same amounting to infringement of the registered trademark and passing off their goods as that of the plaintiff. It is claimed TM No. 6 of 2010 Page No. 3 of 18 that the cause of action had arisen in the last week of January, 2007 when the plaintiff had come across the impugned pack of the defendant being sold within the jurisdiction of this court.

5. Sh. Vinod Premlal Nashine, the proprietor of the defendant has filed the written statement taking preliminary objection that suit deserves to be dismissed in limine as the plaintiff did not approach the court with clean hands but to harass him. The defendant has not been selling its goods in Delhi nor the plaintiff has any office here, therefore this court has no territorial jurisdiction to try the suit. The bills dated 01.11.2006; 15.12.2006 & 17.12.2006 have been created by the plaintiff just to show having a cause of action in Delhi otherwise they lack very essential particulars. The case is based on misconceived cause of action as there is no similarity whatsoever between the two trademarks/labels. The plaintiff may raise objections in this behalf before the Registrar of Trademarks at Mumbai.

6. On merits the registration of Trademark/label 'SARVOTKRISTA NAGPURI ZARDA' and copyright in the artistic features of plaintiff, has been admitted. Rest of the contents of the plaint have been generally termed wrong and therefore denied except admitting that the plaintiff has its branch office in Delhi. According to him the plaintiff could have filed a suit either at Bhandara or Nagpur but no cause of action has accrued in Delhi, therefore this court lacks territorial jurisdiction. Dismissal of the suit therefore, is urged.

7. Opportunity of filing replication was specifically denied to the plaintiff on 25.07.2007. An application U/o 39 Rules 1 and 2 CPC for restraining the TM No. 6 of 2010 Page No. 4 of 18 defendants from infringing the Trademark/Label during pendency of the suit was dismissed on 10.08.2007 by treating the case as one under The Trade & Merchandise Marks Act, 1958 and observing that Delhi Court does not have jurisdiction to entertain the suit.

8. Aggrieved by the order on interim application, plaintiff preferred FAO No. 351/07 in the Hon'ble High Court of Delhi which was dismissed as not pressed on 09.09.2011 by holding that the suit be disposed off in accordance with the Trademarks Act, 1999, within a period of 2 years and that the observations with regard to territorial jurisdiction in the impugned order were for limited purposes of disposing off the injunction application.

9. On the basis of pleadings of the parties following issues were framed on 26.11.2011:

1.Whether this court has territorial jurisdiction to entertain and try the suit? OPP

2.Whether the bills dated 01.11.2006, 15.12.2006 and 17.12.2006 produced by the plaintiff are valid and genuine documents? OPP

3.Whether marketing of chewing tobacco under Trade Mark "Sarvoshrest Thawkar Zarda"by the defendant infringes the Trade mark/label and copyright of plaintiff in "Sarvotkrista Nagpuri Zarda"? OPP

4.Whether the defendant is liable to be restrained from passing off their substandard goods under trademark deceptively similar tothat of the plaintiff's product TM No. 6 of 2010 Page No. 5 of 18 chewing tobacco? OPP

5.Whether the plaintiff is entitled to decree of rendition of account of profits earned by the defendant on sale of chewing tobacco under infringing trademark/label?

OPP

6.Whether the plaintiff is entitled to an order of delivery up of the offending and incriminating product and material against the defendant for destruction/erasure?

OPP

7.Relief.

10. The suit was originally filed when plaintiff was a registered partnership firm. The factum of its conversion into a private limited company was incorporated in the plaint by way of an amendment which was allowed on 24.03.2012 with the consent of defendant.

11. Parties have examined only the signatories of pleadings in support of their case. PW1 Sh. Kamlesh Thaokar has proved the board resolution in his favour as Ex. PW1/A, rival lables of the parties Ex. PW1/1 and Ex. PW1/2, statement of year­wise sales of the plaintiff Ex. PW1/3, legal proceedings certificate in respect of the registration of Trademark Ex. PW1/4, copy of Trademark Registration Certificate Ex. PW1/5, copy of copyright registration Ex. PW1/6, copies of caution notices and advertisements Ex. PW1/7 to Ex. PW1/32, Sales bills of goods under registered trademark/label Ex. PW1/33 to Ex. PW1/77, the documents pertaining to criminal prosecution of the defendant Ex. PW1/78 to Ex. PW1/81 besides stating his case. He had closed the plaintiff's case on 18.10.2012.

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12. Sh. Vinod Premlal Nashine has stated his case and proved agreement dated 29.05.2001 with Sh. Marotrao for using his photographs for tobacco products as Ex. DW1/1, Certificate of registration of defendants trademark/label Ex. DW1/2, trade bill Ex. DW1/3, pouches of the parties with their labels Ex. DW1/4 and Ex. DW1/5. He had closed his evidence on 22.04.2013.

13. I have heard Sh. Ashok Mittal Advocate, learned Counsel for the plaintiff, Sh. Subhash C. Jindal, Advocate, learned Counsel for the defendant and carefully perused the file. At the threshold of filing of the suit a court question was posed to the plaintiff as to how could the relief of rendition of accounts be differently valued for the purposes of Court fee (Rs. 200/­) and jurisdiction (Rs. 5,01,000/) it was left open on 20.02.2007. This question was considered by the full Bench in 'Sheela Devi Vs. Krishan Lal Kalra, ILR (1974) II Delhi 491'to hold that the plaintiff can value the relief of rendition of accounts at one figure for the purposes of court fee and at different figure for the purposes of jurisdiction. The law allows him this freedom and the choice is of the plaintiff. The ratio was followed in Manhohar Lal Gupta Vs. State of Haryana, 1979 ILR 181 with the addition that such valuation cannot be questioned by the court unless it comes to the conclusion during trial that the plaintiff's valuation is arbitrary. The ratio was carried forwarded in 'TATA Oil Mills Company Ltd. Vs. Hansa Chemical Pharmacy, ILR (1979) II Delhi 236', 'Dabur (S. K. Burman) Vs. Vikas Pharma, 1983 PTC­169 (Delhi)', 'M/s Commercial Aviation & Travel Company Inc. Vs. Vimla Panna Lal, AIR 1986 Delhi 439' and 'Fenner India Ltd. Vs. Salbros Enterprises Pvt. Ltd., 67 (1997) DLT 673'. In view of the settled proposition of law there remains no ambiguity about the plaintiff having exercised the option in valuing the suit for twin purposes which TM No. 6 of 2010 Page No. 7 of 18 could not have been questioned at threshold. The issue­wise findings of the court are recorded hereunder:­

14. Issues No. 1 & 2:­ 14(a) Two issues are being taken up together as issue no. 1 is partially dependent on the efficacy of bills Ex. PW 1/71 to Ex. PW 1/76. The issue of territorial jurisdiction of this court being the foremost bone of contention between the parties, the plaintiff was expected to adduce substantial credible evidence in support of its stand on to establish that the defendant had been selling or offering the impugned goods within the jurisdiction of this court and further because the plaintiff has been carrying on its business in Delhi. In its order dated 14.05.2008 in FAO No. 351/07, the Hon'ble High Court had observed that as per Section 134 (2) of The Trademarks Act, 1999, a suit can be filed where the plaintiff resides and 'residence' for juristic person is where (1) it has a branch office (2) where from substantial business is carried on.

14(b) No title/lease papers of Delhi office of plaintiff at S­45, Mangolpuri have been filed. No bills or transport documents have been produced to show that the goods of plaintiff were dispatched from their factory in Maharashtra to the aforesaid Delhi office. No license or registration of Delhi office under the Sales Tax, Excise or other prevalent laws has been produced. Sales Tax registration of the Head Office of plaintiff in Maharashtra has also not been produced to show that the address of Delhi office is mentioned in it. Even approximate turnover of the subject product of plaintiff from Delhi office was not known to PW1 who claims to be the erstwhile partner of plaintiff when it was a firm and therefore must have naturally known such TM No. 6 of 2010 Page No. 8 of 18 figures even if by estimation. It was however admitted by him that there is no sale of plaintiff's products in Delhi at present. No suggestion was given to DW1 in cross­ examination that plaintiff has substantial sale of its products from the so called branch office in Delhi.

14(c) Neither the Manager, employee or even neighbour of local office has been examined by the plaintiff nor accounts have been produced to show that the expenses of Delhi office were being borne by the Head Office. The name and particulars of plaintiff's employee who had issued all the six bills has not been disclosed nor has it been shown that he was drawing salary from the plaintiff. None of the so called customers of the branch office has been examined. No sale/supply record, cartage/transport bills issued in the name of Delhi office has been filed. Absolutely none of the advertisements tendered by PW 1 bear the particulars of Delhi branch office. It becomes mysterious on noticing that particulars of distributors of plaintiff's products in Nagpur and Jalna were prominently published. Except contending that Delhi Court has jurisdiction as the impugned goods of defendant were being sold in Delhi, on 09.09.2011 in FAO No. 351/07 before Hon'ble High Court, there is no attempt to substantiate the assertion. Not even suggestion was given to DW1 in cross­examination that the products of defendant were being sold in Delhi. He was also not asked about the plaintiff having good sale of chewing tobacco from its Delhi office in cross­examination.

14(d) So far as the referred 6 bills are concerned, they were issued to only two parties of Paharganj within a period of 70 days for Rs. 2,250/­ each. The original serial numbers of all the bills is manifestly obliterated and new numbers from 01 to TM No. 6 of 2010 Page No. 9 of 18 06 were printed on them. None of the bills bear signatures of/on behalf of the customers. None of them bear the Sales Tax or Central Excise Number as are statutorily required. The invoices being issued by the plaintiff from Nagpur have their products already printed on them and only details like quantity and rate therein are being filled by the issuer. Normally same practice would have been followed for the branch office but as the invoices Ex. PW 1/71 to Ex. PW 1/76 would reveal they have none of the features of the bills raised by the plaintiff from its head office nor contained other essential terms and conditions. They therefore failed to generate confidence qua their reliability. Paltry sale of less than Rs. 6,000/­ per month from such outlet at best can be discerned. Even if, their veracity is accepted as gospel truth, the bills do not reflect that the plaintiff had substantial presence of their goods in Delhi in the light of sales figures of plaintiff of previous year i.e. 2005­06 being Rs. 18 crores (approx.). It was held in Gold Seal Engineering Products Pvt. Ltd. Vs. Hindustan Manufacturers, AIR 1992 Bombay 144, where in a suit for infringement of trademark and passing off the defendants were carrying on business in Kolkata. No proof could be brought by the plaintiff to show that the defendants dispatched goods for being sold in Bombay or that such supply was on commercial basis. The Bombay court was held to have no jurisdiction to entertain the suit. Similarly in S. S. Products of India Vs. Star Plast, 2001 (60) DRJ 347, where the parties had their registered office at Ludhiana. It could not be established that the plaintiff had an office in Delhi or that the defendant has been prima­faice indulging in massive sale at Delhi so as to reflect that it is 'carrying on business in Delhi', it was held that the civil court of Delhi has no territorial jurisdiction to entertain the suit for infringement of designs.

TM No. 6 of 2010 Page No. 10 of 18 14(e) Further it was held in St. Ives Laboratories Inc. Vs. Arif Perfumers, 2009 (40) PTC 104 (Delhi), that the allegation of clandestine sale can be made against any persons without any foundation and the plaintiff even during trial can escape giving proof of such clandestine sale saying that he has stated in the plaint that no bills for such sales were being issued. The plaintiff cannot be given absolute liberty to choose the place of suing the defendant out of entire country on the basis of unfounded and vague allegations. In such a case Civil Procedure Code provisions regarding jurisdiction will stand rendered useless. Reliance in this behalf was placed on M/s Kusum Ingots & Alloys Ltd. Vs. Union of India, (2004) 6 SCC 254 to the effect that if a small fraction of cause of action accrued had arisen within the territorial jurisdiction of a particular court, it was not bound to entertain the petition. It would be sufficiently empowered to refer the petition to the court where substantial cause of action had arisen and it would be more convenient to adjudicate the matter.

14(f) In the case of M/s Lakhanpal Shyam Kumar Vs. M/s Ram Prasad Gupta, CS(OS) No. 2208/06 decided by Hon'ble High Court of Delhi it was observed that the cause of action as is trite is a bundle of facts which are necessary to be proved in a given case and if the cause of action arises within the jurisdiction of the court concerned, it empowers the court to entertain the same. It is also settled legal position that to decide whether or not the cause of action has arisen within the jurisdiction of this court, only the pleadings in the plaint have to be looked at and nothing more. In the suit for infringement and passing off in Heinz India Pvt Ltd. Vs. Shreejee Remedies, CS (OS) No. 2367/2012 decided by Hon'ble Delhi High Court on 29.04.2013, it was held that the plaint on being looked at as a whole can TM No. 6 of 2010 Page No. 11 of 18 establish a substantive cause of action to ascertain the jurisdiction of the court. In the light of the defendant having categorically refuted carrying on any business or working for gain in Delhi, the bald averments in the plaint, not based on any cogent material cannot form the basis to raise a presumption of jurisdiction of this court which it otherwise does not have. Mere spate of vague assertions devoid of any pith and substance does not fulfill the requirement of law. In Himachal Pradesh Horticulture Produce Marketing & Processing Corporation Ltd., Shimla Vs. M/s Mohan Meakin Breweries Ltd., Solan, AIR 1981 P & H 117, it was held that the alleged sale of infringed goods at Delhi has to be a sale on commercial scale to confer jurisdiction of Delhi Court.

14(g) Ld. counsel for the plaintiff has relied upon the ratio in 'P. M. Diesels Ltd. Vs. Patel Field Marshal Industries, 1998 PTC 18 (Delhi)' to contend that for determination of territorial jurisdiction the court is required to just look into the allegations made in the plaint. The jurisdiction of the court does not depend upon the defence of the opposite party. The question in the said case was considered at preliminary stage of deciding the application for temporary injunction. On a specific issue having been framed, the plaintiff is required to establish the ground by leading evidence on which the jurisdiction of Delhi Court was claimed. 14(h) Territorial jurisdiction of this court was invoked on two grounds namely the sale of infringing goods by the defendant in Delhi and the plaintiff having its branch office herein, as per para 18 of the plaint. Not a single piece of reliable evidence could be adduced even to draw inference of availability of defendant's goods under trademark "Sarvoshrest Thawkar Zarda" in Delhi in the face of outright denial of the defendant from the beginning that they are marketing TM No. 6 of 2010 Page No. 12 of 18 their products in Delhi. There is therefore no question of the plaintiff perceiving any threat of invasion of the territory of Delhi by the products of defendant. 14(i) As has been noted above, the plaintiff has miserably failed to substantiate having commercial sale of its products from the alleged branch office within the jurisdiction of this court. Both the issues thus are decided in negative.

15. Issues No. 3 & 4:­ 15(a) Admitted case of parties is that the plaintiff had obtained registration of trademark"Sarvotkrista Nagpuri Zarda"many decades prior to the registration of defendant's trademark "Sarvoshrest Thawkar Zarda"for the goods of same Class­34. Both the registrations are valid, subsisting and effective. The claim of plaintiff of having started using its trademark for the goods of said class from 1962, has not been challenged. The plaintiff has actually proved the invoices reflecting sale of its products under registered trademark from 1976 onwards. The defendant has not proved any of its invoices to counter the claim of prior user of the plaintiff. 15(b) It was observed in L'Oreal Vs. Dushyant Shah, 2011 (48) PTC 240 (Delhi) that a person need not adopt and use the whole of the mark of the plaintiff and it is sufficient if the mark is used or proposed to be used by him is identical with or deceptively similar to the mark of the plaintiff. The similarity between the two marks can be phonetic, visual, structural or otherwise. In fact any clever person seeking to encash upon the reputation and goodwill of an established brand would not adopt that mark in toto and would make some changes here and there so that in the event of his mark being challenged in the court, he may take the plea that the mark adopted by him is not identical to the mark of the plaintiff. Hence, what the TM No. 6 of 2010 Page No. 13 of 18 court is called upon to examine is whether the trademark used or proposed to be used by the defendant is visually, phonetically or structurally or otherwise so similar to the trademark of the plaintiff that it can be said to be deceptively similar. 15(c) To perceive infringement of a trademark through deceptive similarity it has been held in 'Corn Products Refining Company Vs. Shangrila Food Products Ltd., PTC (Suppl.) (1) 13 (SC)' that the question whether the two marks are likely to give rise confusion or not is a question of first impression. It was held in Kaviraj Pandit Durga Dutt Sharma Vs. Navratna Pharmaceutical Lab., AIR 1965 SC 980 that the action for infringement is a statutory remedy conferred on the registered proprietor of a registered trademark in relation to those goods. If the essential features of the trademark of plaintiff have been adopted by the defendants, the facts 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 make would be immaterial. The observations were adopted in Marvel Tea Estate India Ltd. Vs. P. M. Batra, Proprietor M/s Gurukripa Traders, 2012 (49) PTC 82 (Delhi) where the essential features of passing off action have been quoted from an English Judgment as (i) misrepresentation, (ii) made by a person in the course of trade, (iii) two prospective customers of his or ultimate consumer of the goods or service supplied by him, (iv) which calculated to injure the business or goodwill of another trader and

(v) which actually causes damage to the business or goodwill of the trader by whom the action is brought or will probably do so. It has been reiterated that the law does not permit anyone to carry on his business in such a way as would persuade the customers or clients in believing that his goods or services belonging to someone TM No. 6 of 2010 Page No. 14 of 18 else are his or associated therewith. It does not matter whether the latter person does so fraudulently or otherwise. Further in Colgate Palmolive Company Vs. Anchor Health & Beauty Care Pvt. Ltd., 2003 (27) PTC 478 (Delhi), it was laid that it is the overall impression that a customer gets at the source and origin of the goods from visual impression of colour combination, shape of the container, packaging etc. If illiterate, unwary and gullible customer gets confused as to the source and origin of the goods which he has been using for longer period by way of getting the goods in a container having particular shape, colour combination and get up, it amounts to passing off. In other words, if the first glance of the article without going into minute details of its features gives the impression as to deceptive or near similarities, it is a case of confusion and amounts to passing off once own goods as those of the other with a view to encash upon the goodwill and reputation of the latter. In Koninklijke Philips Electronics NV vs. Smt. Kanta Arora & Ors., 2005 (30) PTC 589 (Delhi), it is held that the registration does not in itself prevent a prior user from restraining use of his trademark by any other person including one who may have got the same registered in his name­ Essence of the action in passing off lies in the need to maintain commercial honesty. No trader can use a trademark to market his goods by creating a deception or confusion in the mind of a consumer with ordinary memory and power of recall.

15(d) The registration of a trademark gives exclusive rights to the owner to use it and all others are excluded from using it without his consent. It however does not permit such proprietor to use his mark in a manner which may enable him to 'pass off' his goods as that of somebody else. It has been held in Bimal Govindji Shah Vs. Panna Lal Chandu Lal, 1997 PTC (17) 347 that registration is not an absolute right to use the trademark. It is irrelevant in cases of 'passing off'. Passing TM No. 6 of 2010 Page No. 15 of 18 off action therefore can be brought against registered owner of the trademark on the ground of prior user of the same or similar mark in N. R. Dongre Vs. Whirlpool Corporation, 1996 PTC (16) 583. On the same line it was observed in Cadbury India Ltd. Vs. Neeraj Food Products, that a product capable of causing deception in the minds of consuming public and causing confusion between the products of the defendant being associated with the products of plaintiff are said to pass off. The question of deciding similarity between the two marks is approached from the point of view of a man of average intelligence and of imperfect recollection. 15(e) Parties are dealing in identical goods i.e. Zarda under rival trademarks and both belong to district Bhandara, Maharashtra. The chewing tobacco is mainly consumed by illiterate or semi­literate people belonging to rural areas or of labour or working class. The comparison of trademarks, colour composition, lay­out, get up and writing styles of labels Ex. PW1/1 and Ex. PW1/2 would reveal striking similarity at first glance. The three letter trademarks start with 'SARVO' and end with 'ZARDA'. As writing style of the words and overall impression of the two trademarks is similar, the first time purchaser is very likely to be confused. The fact that different middle word has been used by the parties in their trademarks will not make the trademark of defendant distinct from the trademark of plaintiff because of the mention of 'Thakkar' and 'Marotrav' in the packaging and thus leaves an impression that the product of defendant is coming from the same source from where the packaging of plaintiff has emanated. In East End Hosiery Mills Private Ltd. Vs. Agarwal Textile Mills, AIR 1971 Calcutta 3 it was found that 'Sacha Moti' was used by the defendant to imitate the name 'Moti' of the plaintiff. It was opined that there is tangible danger in substantial number of persons confusing the appellant's TM No. 6 of 2010 Page No. 16 of 18 "Radha's Sri Andal" mark with respondents' legend "Sri Ambal Snuff" in K R Chinnakrishna Chetty's Vs K Venkatesa Mudaliar, AIR 1974 Mad 7. The pith and substance of 'Manju Monga Vs. Manju Mittal, 2012 (51) PTC 293 is also be relevant in this context.

15(f) The writing style, font and adjustment/arrangement of words and photo in the label/packaging of defendant could not have become so similar to the packaging of plaintiff co­incidentally. Ordinarily one would use the photo of elders of the family to promote his business but the defendant consciously searched for a person having name quite close to that of the plaintiff and got an assignment of the right to use his photographs on the label/packaging for a paltry Rs. 2,000/­. The claim of DW1 that the person of whom the photograph on Ex. PW1/2 has been used is his maternal cousin, does not find backing in pleadings. The colour of the labels used by both parties is 'Khaki'. The total impact of the written material and artistic features of the two labels to a layman of imperfect recollection will be that the two are same. The trademark and label of the defendant therefore is deceptively similar to the trademark and label of plaintiff with great potential of passing off the goods as if they belong to the plaintiff. The label of defendant Ex. PW1/2 invariably infringes the copyright of plaintiff in the label Ex. PW 1/1. The issues thus are decided in affirmative albeit without commenting on the standard of goods of the defendant.

16. Issue no. 5:­ The defendant on being found to be riding his business on the goodwill and reputation of plaintiff in its registered trademark is bound to render the accounts to latter to ascertain the profit earned over all these years by sale of products under infringing trademark and label by way of natural corollary for the purpose of making TM No. 6 of 2010 Page No. 17 of 18 the amount over to them. The issue thus is decided in affirmative.

17. Issue no. 6:­ In the light of conclusion of issues no. 3 and 4 the infringing and incriminating material under trademark "Sarvoshrest Thawkar Zarda"and label Ex.PW1/2 cannot be left with the infringer lest it is misused. The only course for reversing the potential wrong in pipeline is by directing the delivery of entire lot of such ready, partially ready and raw material unto the plaintiff for the purposes of obliteration. The issue is decided in affirmative.

Announced in open court
on 31st October, 2013                                    (Sunil K Aggarwal)
                                                 Addl. District Judge (Central)­10
                                                                    Delhi




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