Delhi District Court
Shivam Industries vs Sri Baba Industries And Ors on 13 December, 2025
IN THE COURT OF MS. PREETI AGRAWAL GUPTA,
DISTRICT JUDGE (COMMERCIAL COURT)-02,
WEST, TIS HAZARI COURTS, DELHI
"AMONGST 20 OLDEST CASES"
CS (COMM) No. 282/2020
CNR NO.DLWT010051282020
SHIVAM INDUSTRIES
H 4 UDYOG NAGAR INDUSTRIAL AREA
ROHTAK ROAD, NEW DELHI 110041
...Plaintiff
Versus
1. SRI BABA INDUSTRIES
H.NO.287, KHASRA NO.40/181
FIRST FLOOR, STREET NO.1,
VILLAGE SAMIAPUR,
LANDMARK-VIJAY BANK
NEW DELHI 110042
2. AMAZON DEVELOPMENT CENTRE INDIA PVT LTD.
2ND FLOOR - BLOCK A & b
SURVEY NO. - 109, 110,111/2
NANAKRAMGUDA VILLAGE
SERILINGAMPLAYY MANDAL
HYDERABAD-500001
3. FLIPKART INDIA PVT LTD.
VAISHNAVI SUMMIT, NO 6/B,
7TH MAIN, 80 FEET ROAD,
RD BLOCK, KORAMANGALA, BANGALORE - 560034
4. SHRI GANGA HOME APPLIANCES
A BLOCK, GALI NO.10,
SAROOP VIHAR, PRAYAS MEDICAL STORE,
NATHU PURA BURARI NORTH DELHI, DELHI-110084.
CS (Comm.) No.282/2020 Shivam Industries Vs. Sri Baba Industries & Ors. Digitally 1/66
PREETI signed by
AGRAWAL PREETI
GUPTA AGRAWAL
GUPTA
(PREETI AGRAWAL GUPTA)
District Judge (Commercial Court)-01
North-West/Rohini/New Delhi.
13.12.2025
5. ARADHYA TRADE
E-5/66, ROHINI SECTOR 16,
NEAR JAIN BHARTI SCHOOL,
DELHI-110089
...Defendants
SUIT FOR PERMANENT INJUNCTION RESTRAINING
INFRINGEMENT OF COPYRIGHT; INFRINGEMENT OF
REGISTERED TRADEMARKS; INFRINGEMENT OF TRADE DRESS
PASSING OFF; UNFAIR COMPETITION; RENDITION OF
ACCOUNTS; DELIVERY UP ETC.
Date of institution of Suit : 22.10.2020
Date of Assignment to this court : 28.10.2020
Date of hearing of final argument : 09.12.2025
Date of Judgment : 13.12.2025
JUDGMENT
1. By way of present judgment, I shall conscientiously adjudicate upon the Suit of plaintiff for Permanent Injunction Restraining Infringement Of Copyright; Infringement Of Registered Trademarks; Infringement Of Trade Dress Passing Off; Unfair Competition; Rendition Of Accounts; Delivery Up etc. against the Defendants and in favour of the Plaintiff alongwith costs of the Suit.
2. As derived from the pleadings, the concise facts of the plaint are being summarised hereunder:
2.1 The Plaintiff is a proprietorship firm with its registered office at H4, Udyog Nagar, Industrial Area, Rohtak Road, New Delhi-110041. The suit is filed through Mr. Rajesh Rojore, duly authorized vide Authorisation Letter by the sole Proprietor, Mr. Rajiv CS (Comm.) No.282/2020 Shivam Industries Vs. Sri Baba Industries & Ors. Digitally 2/66 PREETI signed by AGRAWAL PREETI GUPTA AGRAWAL GUPTA (PREETI AGRAWAL GUPTA) District Judge (Commercial Court)-01 North-West/Rohini/New Delhi.
13.12.2025 Malhotra, in its favour.
2.2 The Plaintiff, established in 1987, is a sole proprietorship of Mr. Rajiv Malhotra and operates from the above-
mentioned registered address, as also mentioned in GST certificate. To expand its brand "SURYAFLAME," the Plaintiff executed a Memorandum of Understanding/License Agreement on 01.04.2010 with its sister concern, M/s Stufa Manufacturing Enterprise and incorporated M/s Malbro Appliances Pvt. Ltd., which was licensed to manufacture and trade under the mark "SURYAFLAME." A further license was granted to another sister concern, M/s Malhotra Brothers, a partnership firm of Mr. Karan Malhotra. The agreements are collectively annexed with the plaint.
2.3 The Plaintiff's flagship gas burners sold under the trademark "SURYAFLAME" are used nationwide and are recognized for quality, environmental consciousness, cost-effectiveness, and low fuel consumption. The Plaintiff continues to develop new products and plans to expand both domestic and export markets. The Plaintiff has grown into a leading manufacturer and supplier of domestic gas burners, known for tailoring products to consumer needs and anticipating market demand, thereby establishing leadership in its product range. "SURYAFLAME" is the flagship brand of plaintiff, sold across the Country and recognized as a symbol of quality and reliability.
2.4 For over three decades, 'SURYAFLAME' has built strong brand equity through consistent quality, ethical practices, and high performance. Known primarily for LPG gas stoves and other CS (Comm.) No.282/2020 Shivam Industries Vs. Sri Baba Industries & Ors. 3/66 Digitally PREETI signed by AGRAWAL PREETI GUPTA AGRAWAL GUPTA (PREETI AGRAWAL GUPTA) District Judge (Commercial Court)-01 North-West/Rohini/New Delhi.
13.12.2025 white goods, it is a channel partner of IOC, HPCL, and BPCL for beyond-LPG products such as hot plates and Suraksha hoses. Its technologically advanced manufacturing facilities produce a wide range of LPG stoves, single to five burners, meeting stringent safety and quality standards. 'SURYAFLAME' has a nationwide and global distribution network with over 120 distributors and 14,000 retail outlets, supported by fully integrated in-house production of key components, ensuring precision, safety, and environmental efficiency. All products come with warranties and maintain high thermal efficiency and low emissions. The Plaintiff has strong distributor relations and provides training to ensure quality service. The trademark 'SURYAFLAME' was registered in 2003 in the name of Shri Rajiv Malhotra, proprietor of M/s Shivam Industries, with the registration and renewal certificates, as annexed with the plaint.
2.5 Owing to the superior quality of products sold under the 'SURYAFLAME' trademark along with substantial promotional efforts, the mark, trade dress, labels, and packaging have acquired significant reputation and are exclusively associated by traders and consumers with the Plaintiff. The Plaintiff has actively educated consumers about the 'SURYAFLAME' mark and cautioned the public against infringing products, incurring substantial expenditure to protect its intellectual property rights. Through prior adoption and long, continuous, and extensive use of the inherently distinctive mark SURYAFLAME, the Plaintiff has acquired strong common law rights in India. The 'SURYAFLAME' brand is regarded as a well-known mark and owing to widespread use, advertising, and promotional CS (Comm.) No.282/2020 Shivam Industries Vs. Sri Baba Industries & Ors. Digitally 4/66 PREETI signed by AGRAWAL PREETI GUPTA AGRAWAL GUPTA (PREETI AGRAWAL GUPTA) District Judge (Commercial Court)-01 North-West/Rohini/New Delhi.
13.12.2025 efforts, the 'SURYAFLAME' mark, along with its distinctive get-up, colour scheme, and packaging layout, has acquired a unique identity, with traders and consumers, exclusively associating it with the products of the plaintiff.
2.6 The Plaintiff has extensively advertised the 'SURYAFLAME' mark across television, radio, print media, hoardings, banners, event sponsorships, cinema vans, and shop-front displays, making it one of the most heavily promoted brands in India for domestic gas burners. These efforts have created significant brand awareness. The balance sheets showing sales and advertising expenditure are annexed with the plaint. Through continuous publications, advertising, and the consistent quality of its products, the Plaintiff has built strong goodwill and established itself as a leading manufacturer and distributor of domestic LPG gas burners, making 'SURYAFLAME' a household name. SURYAFLAME, being the Plaintiff's house mark, forms an essential part of its trademark rights. The Plaintiff has been vigilant in protecting the 'SURYAFLAME' mark and has regularly taken legal action against parties attempting to misuse or infringe the said mark. 'SURYAFLAME' is a popular and well-known mark in India as it is arbitrary and inherently distinctive, has acquired secondary meaning through long and extensive use, has been heavily promoted and advertised and enjoys strong public recognition across written, audio, and visual media, leading consumers to associate the mark exclusively with the Plaintiff.
Digitally CS (Comm.) No.282/2020 Shivam Industries Vs. Sri Baba Industries & Ors. PREETI signed by 5/66 AGRAWAL PREETI GUPTA AGRAWAL GUPTA (PREETI AGRAWAL GUPTA) District Judge (Commercial Court)-01 North-West/Rohini/New Delhi.
13.12.2025 2.7 Defendant No. 1, operating as M/s Sri Baba Industries from H. No. 287, Khasra No. 40/181, First Floor, Street No. 1, Village Samaypur, Landmark: Vijaya Bank, New Delhi-110042 , is manufacturing, distributing, and selling duplicate/infringing LPG gas stoves and related products and is responsible for their circulation across the region and other parts of the country, thereby infringing the Plaintiff's registered trademark.
2.8 Defendant No. 2, Amazon Development Centre India Pvt. Ltd., operating from 2nd Floor, Block A & B, Survey Nos. 109, 110, 111/2, Nanakramguda Village, Serilingampally Mandal, Hyderabad-500001, is an e-commerce platform that has permitted Defendant No. 1 to sell its infringing LPG gas stoves and related products across India, thereby facilitating infringement of the Plaintiff's registered trademark.
2.9 Defendant No. 3, Flipkart India Pvt. Ltd., with its registered office at Vaishnavi Summit, No. 6/B, 7th Main, 80 Feet Road, 3rd Block, Koramangala, Bangalore-560034, is an e- commerce platform that has allowed Defendant No. 1 to sell infringing LPG gas stoves and similar products across India, thereby infringing the Plaintiff's registered trademark.
2.10 Defendant No. 4, Shri Ganga Home Appliances, operating from A Block, Gali No. 10, Saroop Vihar, Prayas Medical Store, Nathu Pura, Burari, North Delhi-110084, manufactures, distributes, and sells duplicate/infringing products across the region and other parts of the country, thereby infringing registered trademark of plaintiff.
Digitally CS (Comm.) No.282/2020 Shivam Industries Vs. Sri Baba Industries & Ors. PREETI signed by 6/66 AGRAWAL PREETI GUPTA AGRAWAL GUPTA (PREETI AGRAWAL GUPTA) District Judge (Commercial Court)-01 North-West/Rohini/New Delhi.
13.12.2025 2.11 Defendant No. 5, Aradhya Trade, operating from E-5/66, Rohini Sector 16, near Jain Bharti School, Delhi-110089 , manufactures, distributes, and sells duplicate/infringing products across the region and other parts of the country, thereby infringing the registered trademark of plaintiff.
2.12 The Plaintiff issued legal notices dated 03.10.2019, and 19.11.2019, to Defendants 1 and 2 respectively, directing them to immediately remove LPG gas stove burners and other products having infringed trademark "SURYA SHINING FLAME" or any mark with "SURYA", provide an undertaking not to engage in such activities, and destroy all brochures and packaging bearing the mark. Despite this, Defendant No. 1 continues selling infringing products via online trading portals www.amazon.com and www.flipkart.com, while Defendant No. 2/Amazon continues selling, advertising, and distributing infringing products of Defendants 1, 4, and 5. These acts constitute ongoing infringement of the Plaintiff's registered trademark and copyright and amounts to passing off. The present Suit is filed against the Defendants for manufacturing, stocking, distributing, and selling gas burners and similar products under the deceptively similar trademark "SURYA SHINING FLAME", featuring "SURYA" prominently and imitating the Plaintiff's font and style, thereby infringing the Plaintiff's copyright in the artistic work of the plaintiff.
2.13 In the month of September 2019, plaintiff discovered that Defendants no. 1, 4, and 5 are selling LPG gas burners and similar products on the online portals www.amazon.com and Digitally CS (Comm.) No.282/2020 Shivam Industries Vs. Sri Baba Industries & Ors. PREETI signed by 7/66 AGRAWAL PREETI GUPTA AGRAWAL GUPTA (PREETI AGRAWAL GUPTA) District Judge (Commercial Court)-01 North-West/Rohini/New Delhi.
13.12.2025 www.flipkart.com. Investigation revealed that these Defendants are manufacturing, assembling, stocking, distributing, and selling infringing goods under the deceptively similar trademark "SURYA SHINING FLAME", copying the font, writing style and overall product getup of the plaintiff, causing public and trade confusion. Defendants 1, 4, and 5 use the mark "SURYA SHINING FLAME" in the same font and stylization as the Plaintiff's SURYAFLAME, with products nearly identical in overall getup and trade dress. This malafide conduct indicates an intent to trade on the Plaintiff's reputation and goodwill. By doing so, the defendants have infringed the Plaintiff's registered trademark SURYAFLAME; Passed off their products as those of the Plaintiff; Infringed the Plaintiff's trade dress and copyright in the product label; Deceptively represented their products as originating from the Plaintiff. The impugned mark and trade dress were deliberately adopted to exploit the Plaintiff's well- known reputation and goodwill.
2.14 Confusion is likely to be caused among consumers because the Defendants' 'SURYA SHINING FLAME' mark is identical or deceptively similar to SURYAFLAME; the color scheme, font, and writing style closely resemble the Plaintiff's; the trade dress of the Defendants' products is nearly identical to the products of plaintiff; Copyright in the Plaintiff's label has been substantially reproduced; Defendants use packaging identical to the Plaintiff's; 'SURYAFLAME' is a well-known mark with long, continuous public recognition; the mark has been extensively advertised and promoted; both Plaintiff and Defendants operate in the same goods and trade Digitally CS (Comm.) No.282/2020 Shivam Industries Vs. Sri Baba Industries & Ors. PREETI signed by 8/66 AGRAWAL PREETI GUPTA AGRAWAL GUPTA (PREETI AGRAWAL GUPTA) District Judge (Commercial Court)-01 North-West/Rohini/New Delhi.
13.12.2025 channels. The Defendants' adoption of a deceptively similar mark, trade dress, and artistic work appears solely to exploit the Plaintiff's goodwill and reputation, likely misleading consumers into believing the Defendants' products originate from or are affiliated with the Plaintiff, causing misrepresentation and loss.
2.15 The Plaintiff's mark and trade dress will be diluted if Defendants use identical or deceptively similar marks, creating multiple similar products in the market. The Plaintiff's products undergo strict quality control, earning goodwill and reputation, which is jeopardized by the Defendants' look-alike packaging, likely misleading consumers.
2.16 The Defendants' use of marks identical or deceptively similar to 'SURYAFLAME' infringes the Plaintiff's statutory rights, causes confusion, and unfairly associates their products with the Plaintiff. Their manufacture, distribution, and sale of infringing products has caused business loss and damages, which can be determined through account rendition. By exploiting the Plaintiff's trademark, the Defendants gain unfair advantage, harm the distinctive character and repute of SURYAFLAME, and dilute its goodwill. Their products are substandard, falsely bearing the Plaintiff's trademark and copyright, deceiving the public and causing monetary loss. The Defendants' actions demonstrate a deliberate intention to trade on the Plaintiff's reputation, creating consumer confusion and deception. Photographs comparing the Plaintiff's and Defendants' products are annexed with the plaint.
Digitally CS (Comm.) No.282/2020 Shivam Industries Vs. Sri Baba Industries & Ors. PREETI signed by 9/66 AGRAWAL PREETI GUPTA AGRAWAL GUPTA (PREETI AGRAWAL GUPTA) District Judge (Commercial Court)-01 North-West/Rohini/New Delhi.
13.12.2025 2.17 The Defendants' use of "SURYA SHINING FLAME"
with a getup, logos, and trade dress deceptively similar to the Plaintiff's 'SURYAFLAME' is a deliberate attempt to exploit the Plaintiff's goodwill and reputation. This infringes the Plaintiff's trademark and copyright, causing wrongful loss of business, monetary gains for the Defendants, and prejudice to public interest. The Defendants' actions have caused irreparable harm to the Plaintiff's business, reputation, and goodwill, entitling the Plaintiff to an immediate injunction and damages. While exact losses are incalculable, the Plaintiff estimates damages of at least Rs. 1,00,000/- with potential for enhancement upon rendition of accounts, reserving the right to claim higher damages, based on further sales particulars of the infringing products.
2.18 The cause of action in filing the present Suit is claimed when in or about month of September 2019, the Plaintiff discovered that Defendants were manufacturing, stocking, and selling goods with the deceptively similar trademark "SURYA SHINING FLAME", identical trade dress, and packaging, infringing the Plaintiff's copyright, via online trading portals www.amazon.com and www.flipkart.com, and physical outlets across Delhi and other regions. Cause of action further arose when despite legal notices sent on 03.10.2019, and 19.11.2019, directing/asking Defendants 1 and 2 to remove infringing products, provide undertakings, and destroy related materials, Defendant 1 continued selling via the online portals and Defendant 2 as well as defendant no.3 continued selling, advertising, and distributing infringing products of Defendants 1, 4, CS (Comm.) No.282/2020 Shivam Industries Vs. Sri Baba Industries & Ors. Digitally 10/66 PREETI signed by AGRAWAL PREETI GUPTA AGRAWAL GUPTA (PREETI AGRAWAL GUPTA) District Judge (Commercial Court)-01 North-West/Rohini/New Delhi.
13.12.2025 and 5, which constitute ongoing infringement of the Plaintiff's trademark and copyright, and passing off. Cause of action is still continuing and subsisting, until the Defendants are restrained by injunction.
2.19 This Court has territorial jurisdiction to entertain the present suit as Defendants 1, 4, and 5 reside, carry on business, manufacture, advertise and sell infringing products within its jurisdiction. Hence, each cause of action, trademark and copyright infringement, passing off, and unfair competition, arises within this Court's jurisdiction under Section 134(2) of the Trademarks Act, 1999 and Section 62(2) of the Copyright Act, 1957.
2.20. By way of present Suit, plaintiff has prayed for grant of following reliefs, in favour of the plaintiff and against the Defendants:
a) A Decree for permanent injunction restraining the Defendants no 1,4 and 5 through its principal officers, servants and agents and all others acting on their behalf from manufacturing, selling, advertising, including on the online trading portals of www.flipkart.com and www.amazon.com or other portals on internet and in any other manner using the trademarks and getup of "SURYA SHINING FLAME", or any other mark having "SURYA" as the salient feature for LPG GAS STOVE BURNERS or any other alike products etc.
b) A Decree for permanent injunction restraining the Defendants no. 2 and 3 from selling, offering for sale using trademarks and getup of "SURYA SHINING FLAME", or any other mark having "SURYA" as the prominent feature in respect of LPG GAS STOVE BURNERS or any other alike products etc.
c) A Decree for permanent injunction restraining the Defendants from infringement of copyright of plaintiff by printing or publishing any label, which are a colourable imitation or substantial reproduction of the Plaintiff's artistic works, appearing on its GAS BURNERS and allied products.
CS (Comm.) No.282/2020 Shivam Industries Vs. Sri Baba Industries & Ors. Digitally 11/66 PREETI signed by AGRAWAL PREETI GUPTA AGRAWAL GUPTA (PREETI AGRAWAL GUPTA) District Judge (Commercial Court)-01 North-West/Rohini/New Delhi.
13.12.2025
d) Decree for permanent injunction restraining the Defendants, directly or indirectly from passing off of the goods and business of the Defendants as and for those of the Plaintiff;
e) An order for delivery-up of all impugned goods in the Defendant's possession, including cartons, containers, tubes, caps, labels, films, wrappers and any other printed matter bearing the impugned copyright artistic work, get up, lay out, arrangement of features, colour scheme, etc.
f) A Decree in favor of the Plaintiff and against the Defendants for the sum of Rs.3,00,600/- for the illegal profits earned by the Defendants;
g) A Decree for rendition of accounts of profits made by the Defendants on account of use of the trade mark SURYAFLAME in any manner whatsoever;
3. It is pertinent to mention that vide orders dated 09.11.2020, application under Order XXXIX Rule 1 and 2 CPC seeking ex-parte ad interim injunction was allowed, observing as under:
"For the forgoing reasons and till further orders, all the defendants and all other persons acting on their behalf are restrained from manufacturing, exporting, offering for export, selling, offering for sale, marketing and distributing products including Gas Burner bearing the 'SURYAFLAME' Trade Marks, associated trade dress and Copyrights and /or deceptively similar to that of plaintiff's/applicant's in isolation or in conjunction with any other mark/ trade dress/ logo or any other goods as the goods of the plaintiff/applicant and further restrained from passing off its goods and business as that of the goods and business of the plaintiff. Further defendants are directed to prepare an inventory of the infringed goods and submit before this court on or before next date of hearing."
4. Perusal of record further reveals that vide orders dated 02.12.2020 application dated 26.11.2020 moved on behalf of plaintiff seeking modification in ad-interim ex-parte order dated 09.11.2020, was allowed, with the following directions :
Digitally CS (Comm.) No.282/2020 Shivam Industries Vs. Sri Baba Industries & Ors. PREETI signed by 12/66 AGRAWAL PREETI GUPTA AGRAWAL GUPTA (PREETI AGRAWAL GUPTA) District Judge (Commercial Court)-01 North-West/Rohini/New Delhi.
13.12.2025 "....Accordingly, the order dated 09.11.2020 is modified to the extent that in the Para No. 13 the word "SURYAFLAME" be read as SURYA SHINING FLAME...."
5. Vide orders dated 26.09.2023 application U/O VI Rule 17 CPC filed on behalf of plaintiff, seeking amendment in valuation clause of plaint, was allowed with liberty to the defendants to file amended Written Statement. However, no amended Written Statement was filed or sought to be filed on behalf of defendants 1, 4 & 5.
6. Vide orders dated 12.03.2024, defendants no.2 & 3 were deemed to be served through e-mail and were proceeded ex-parte.
7. The crystalised facts in defence and contest by defendants no.1 & 5, as averred in the joint Written Statement, are as under:
7.1 As per the averments in the Written Statement, the suit of the plaintiff has been outrightly denied on merits. There are several legal objections raised by defendants no.1 & 5, interalia being non-maintainability of the suit as filed without any valid cause of action; the Court lacks jurisdiction to entertain or adjudicate the suit, as the Defendants do not conduct business within its jurisdiction; suit of the plaintiff is barred by waiver, acquiescence, estoppel, or similar principles; plaintiff is not a legal entity, therefore, it cannot sue anyone before the court of law; suit has not been properly signed and verified as the alleged attorney has not been vested any power, as stated in the plaint; plaintiff has not filed a single admissible document with the present Suit, only photocopies have been CS (Comm.) No.282/2020 Shivam Industries Vs. Sri Baba Industries & Ors. Digitally 13/66 PREETI signed by AGRAWAL PREETI GUPTA AGRAWAL GUPTA (PREETI AGRAWAL GUPTA) District Judge (Commercial Court)-01 North-West/Rohini/New Delhi.
13.12.2025 produced, the authenticity of which, is seriously disputed; Receipt of legal notice denied; Plaintiff approaching this Court with unclean hands; concealment of material facts; The suit is malicious and intended to harass, exert undue pressure on the defendants to obstruct their legitimate business; Suit is a gross misuse of the process of law. 7.2 On merits, all the allegations averred in the plaint, except matter of record, are denied and disputed on behalf of Defendants no.1 & 5.
7.3 It is averred that upon receiving the summons of the present Suit, Defendant checked the official website of Trademark Registry and learned that one Mr. Naveen Jain, Proprietor of M/s Naitik Home Appliances, had filed a rectification application in respect of impugned Trade Mark 'SURYA FLAM', seeking the following reliefs:"
"It is therefore prayed that the present application may kindly be allowed and the impugned Trade Mark SURYA FLAM registered under no. 536844 dated 12.09.1990 in respect of L.P.G. Gas Stove, all kinds of stoves and part included in class 11 be cancelled and entry relating thereto may be removed from the Register of Trade Marks with cost in favour of the applicant and against the registered proprietor."
The authority issued notices on the said application to both parties on 09.09.2017, and the matter remained pending.
7.4 It is further averred that Mr. Rajiv Malhotra, Proprietor of M/s Shivam Industries, applied for registration of the trademark 'SURYAFLAME' under Application No. 2810642, but the application was rejected/refused vide orders dated 20.11.2018.
Digitally CS (Comm.) No.282/2020 Shivam Industries Vs. Sri Baba Industries & Ors. PREETI signed by 14/66 AGRAWAL PREETI GUPTA AGRAWAL GUPTA (PREETI AGRAWAL GUPTA) District Judge (Commercial Court)-01 North-West/Rohini/New Delhi.
13.12.2025 Relevant portions of the publicly available order in public domain, are reproduced below:
"A Hearing in respect of the above matter came up before me on 20/11/2018 and the following is to be communicated to the applicant/ agent.
Advocate SG Mehra applicant / Advocate / Agent appeared before me and made his submissions. I have heard arguments, gone through the records and passed the following Order. The trade mark applied for is objectionable under Section 9/11 of the Act. The application is accordingly refused..."
It is averred that in view of the above order, Mr. Rajiv Malhotra, stated to be Proprietor of M/s Shivam Industries, having already been denied relief by the concerned authority, has no right to agitate the same relief in the present suit. 7.5 It is further averred that Sections 2(m) and 17 of the Trade Marks Act, 1999 recognize that a device, word, or their combination can be independently registered as a 'mark,' and registration does not confer rights in its parts. For exclusive rights in any part, separate registration is required, as reinforced by Section 15(1) of the Act, allowing a Proprietor to register both the whole mark and its parts, separately.
7.6 It is further averred that the Hon'ble High Court of Delhi, in CS(OS) 2876/1994, case titled 'Rajiv Malhotra Trading as Shivam Industries Vs. Amit Home Appliances', vide orders dated 10.09.1996, held as under:
"15. If the word used as trade mark is an invented word and the same was being used for a long time the party claiming the proprietorship could claim to have acquired distinctiveness of its products with the trademark. The word SURYAFLAME cannot be stated to be an invented Digitally CS (Comm.) No.282/2020 Shivam Industries Vs. Sri Baba Industries & Ors. PREETI signed by 15/66 AGRAWAL PREETI GUPTA AGRAWAL GUPTA (PREETI AGRAWAL GUPTA) District Judge (Commercial Court)-01 North-West/Rohini/New Delhi.
13.12.2025 word. The coining of two words SURYA and FLAME cannot also be stated to be an invention or discovery. These are two common words known to everybody and as it appears from the record there are number of traders in the market using the word SUN and other related words selling similar products. Therefore, in a passing off action the plaintiff cannot claim, on the facts of this case, that is has acquired any distinctiveness and on the material placed before me I am not able to come to the conclusion that the plaintiff has established so much market over the years that people have come to know of SURYAFLAME only emanating from the plaintiff. As laid down by the Supreme Court in Kaviraj Pandit Durga Dutt Sharma v. Navaratna Pharmaceutical Laboratories, AIR 1965 SC 980 of the mark in essence is a question of fact and would depend on the judgment of the court based on evidence led before it as regards the user of the trademark. On a conspectus of the documents filed, I am of the view that the plaintiff has not established a prima fade strong case for the grant of injunction for passing off against the defendant. The balance of convenience is also not in favour of the plaintiff.
16. Therefore, IA No. 11895/94 under order 39 Rules 1 and 2 filed by the plaintiff is dismissed."
It is averred that since it was held that the words 'SURYAFLAME' are not invented and are common; the plaintiff had not established distinctiveness or a strong prima-facie case for passing off and consequently, IA No. 11895/94 under Order 39 Rules 1 and 2 CPC was dismissed, in view of the above, suit of the plaintiff is also liable to be dismissed.
7.7 Receipt of any Legal Notices dated 03.10.2019 or dated 19.11.2019 from the plaintiff, are outrightly denied. It is averred that plaintiff has no cause of action in his favour and against defendants no.1 & 5, praying for dismissal of the Suit of the plaintiff, with exemplary costs.
Digitally CS (Comm.) No.282/2020 Shivam Industries Vs. Sri Baba Industries & Ors. PREETI signed by 16/66 AGRAWAL PREETI GUPTA AGRAWAL GUPTA (PREETI AGRAWAL GUPTA) District Judge (Commercial Court)-01 North-West/Rohini/New Delhi.
13.12.2025
8. The crystalised facts in defence and contest by defendant no.4, as averred in the Written Statement, are as under:
8.1 As per the averments in the Written Statement, the suit of the plaintiff has been outrightly denied. There are several legal objections raised by defendant No.4, interalia being non-
maintainability of the suit as filed without any valid cause of action; suit of the plaintiff is barred under Order-I Rule-1(a) and further Order-II Rule-3 CPC; suit is bad for non-joinder, mis-joinder of parties as necessary parties are not impleaded in the present suit; Receipt of any Legal Notice denied; Plaintiff approaching this Court with unclean hands; concealment of material facts; The suit is false and concocted just to harass the defendant due to business rivalry; Suit is a gross misuse of the process of law. 8.2 On merits, all the allegations averred in the plaint, except matter of record, are denied and disputed on behalf of Defendant no.4. It is averred that the disputed trademark is neither a copy nor an adaptation of the plaintiff's mark by Defendant No. 4 and the mark/products used or traded by Defendant No. 4 are not registered in the plaintiff's name.
8.3 It is averred that defendant No. 1 was using the trademark 'SURYA SHINING FLAME' prior to its copying and mapping by Defendant No. 4 for use on its products. As per the online trading policies of Amazon (Defendant No. 2) and Flipkart (Defendant No. 3), any supplier on these platforms may copy and map an unregistered trademark/trade name of another supplier for online trading of its own products. Accordingly, before doing so, Defendant No. 4 conducted a public search on the Government of Digitally CS (Comm.) No.282/2020 Shivam Industries Vs. Sri Baba Industries & Ors. PREETI signed by 17/66 AGRAWAL PREETI GUPTA AGRAWAL GUPTA (PREETI AGRAWAL GUPTA) District Judge (Commercial Court)-01 North-West/Rohini/New Delhi.
13.12.2025 India's trademark portal https://ipindiaonline.gov.in/tmrpublicsearch/ frmmain.aspx and confirmed that 'SURYA SHINING FLAME' was not a registered trademark of Defendant No. 1 or of any other person. Only after this confirmation, Defendant No. 4 copied and mapped the said unregistered mark in accordance with the online trade policies of the said e-commerce platforms. Copy of Amazon Intellectual Property Policy annexed with the plaint.
8.4 It is further averred that 'SURYA SHINING FLAME' is neither identical nor deceptively similar to the plaintiff's trademark SURYAFLAME, as the font, writing style, and overall artistic features differ, and thus, no infringement of the plaintiff's artistic work arises. The physical form and technology of the plaintiff's product are also not protected under any patent and therefore, require no further response. From the standpoint of intangible product value, namely trademark and market goodwill, Defendant No. 4 has not infringed the plaintiff's mark, as it used only the unregistered mark 'SURYA SHINING FLAME' of Defendant No. 1, which is not deceptively similar to 'SURYAFLAME'. Hence, there is no malafide, willful, or dishonest intent, nor any attempt to exploit the plaintiff's reputation or goodwill.
8.5 It is averred that neither the plaintiff nor defendants Nos. 1, 2, or 3 ever issued or served any Notice upon Defendant No. 4 regarding the matters stated in the plaint. The allegations to the contrary are false, frivolous, and baseless. Further, Defendants Nos. 1, 2, and 3 took no action against Defendant No. 4 upon receiving notice from the plaintiff under Section 80 CPC. 8.6. It is further averred that the suit is liable to be dismissed CS (Comm.) No.282/2020 Shivam Industries Vs. Sri Baba Industries & Ors. Digitally 18/66 PREETI signed by AGRAWAL PREETI GUPTA AGRAWAL GUPTA (PREETI AGRAWAL GUPTA) District Judge (Commercial Court)-01 North-West/Rohini/New Delhi.
13.12.2025 as Defendant No. 4 received service of the plaint on 21.01.2021 and prior to such service, had already removed the products bearing the unregistered trademark SURYA SHINING FLAME, in September 2020 from Amazon (Defendant No. 2) and in January 2021 from Flipkart (Defendant No. 3). Therefore, no cause of action survives against Defendant No. 4 on this ground.
8.7 It is averred that The plaintiff claims rights over the mark SURYAFLAME registered in Class 11, but holds no registration for 'SURYA SHINING FLAME' in that class and therefore, cannot allege any violation regarding that term. Defendant No. 4 used 'SURYA SHINING FLAME' with a distinct design, font, style, and artistic work for goods in Class 11, for which the plaintiff has no registered trademark. Hence, the suit for infringement is not maintainable and is liable to be dismissed. 8.8. It is averred that defendant No. 4 has neither infringed the plaintiff's trademark SURYAFLAME, nor its trade dress, packaging, artistic work, or copyright, nor passed off its goods as those of the plaintiff. Defendant No. 4 uses its own trademark SURYA HOTTER, which is entirely distinct in font, style, and design and does not infringe any third party's rights. Defendant No. 4 has neither copied the plaintiff's registered trademark nor duplicated its products, nor acted with any intent to mislead consumers or create an adverse association with the plaintiff. Defendant No. 4 markets its own brand, SURYA HOTTER, which enjoys strong market goodwill due to its high quality and good service.
8.9 It is averred that 'SURYA SHINING FLAME' is an unregistered trademark, not belonging to the plaintiff and in any CS (Comm.) No.282/2020 Shivam Industries Vs. Sri Baba Industries & Ors. Digitally 19/66 PREETI signed by AGRAWAL PREETI GUPTA AGRAWAL GUPTA (PREETI AGRAWAL GUPTA) District Judge (Commercial Court)-01 North-West/Rohini/New Delhi.
13.12.2025 event, Defendant No. 4 had already removed all products bearing this mark from the online portals of Defendants Nos. 2 and 3, before receiving service of the plaint. It is averred that plaintiff has no cause of action in his favour and against defendant no.4, praying for dismissal of the Suit of the plaintiff, with exemplary costs.
9. No replication is filed or sought to be filed on behalf of plaintiff, despite opportunity.
10. It is pertinent to mention that after filing Written Statement, defendant no.4 failed to appear for further prosecution of the case and accordingly, was proceeded ex-parte, vide orders dated 21.08.2024.
11. On completion of pleadings, several preliminary objections taken by respective Written Statements of defendant no.1 & 5 on one hand and defendant no.4 on the other hand, were not pressed for making any legal issue and accordingly, after hearing the parties, following issues have been framed on disputed questions of contest, as under:-
1. Whether plaintiff is entitled for a decree of Permanent Injunction? OPP.
2. Whether the plaintiff is entitled for a preliminary decree for rendition of account ? OPP
3. Whether the plaintiff is entitled for a decree of Rs.3,00,600/-(3,60,000/-) as prayed ? OPP
4. Relief.
12. Plaintiff in support of its case got examined its sole witness Sh. Rajesh Rajore, AR of the plaintiff, who tendered himself Digitally CS (Comm.) No.282/2020 Shivam Industries Vs. Sri Baba Industries & Ors. PREETI signed by 20/66 AGRAWAL PREETI GUPTA AGRAWAL GUPTA (PREETI AGRAWAL GUPTA) District Judge (Commercial Court)-01 North-West/Rohini/New Delhi.
13.12.2025 in evidence as PW1 and his affidavit of chief-examination is tendered and relied upon as Ex.PW1/A bearing his signatures at Point A and Point B. By way of affidavit of chief-examination, PW1 has deposed as per the averments in the plaint and has relied upon documents, as under:
S.No. DOCUMENT EXHIBIT
1. Letter of authorization. Ex. PW1/1
(OSR)
2. Partnership agreement. Ex. PW1/2
(OSR)
3. Trademark certificate along with renewal. Ex. PW1/3
(colly, 02
(Objected to as to mode of proof). pages) (OSR)
4. Copy of balance sheet of the company showing its gross Ex. PW1/4
sales as well as expenditures of advertisement. (Colly. 33
pages)
(Objected to as to mode of proof). (OSR)
12.1 PW-1 sought to tender one affidavit of a person related
to investigation as Ex.PW1/5, which has been de-exhibited as no such document was found on record. Further, PW-1 sought to tender photographs of products of the plaintiff and that of defendants as Ex.PW1/6 (Colly), without satisfying the requisite nature of proof, which were de-exhibited and were accordingly allowed to be placed on record as Mark-A (Colly.).
12.2. PW1 namely Sh. Rajesh Rajore, has been cross- examined by ld. Counsel for the defendant n.1 & 5, at length. During cross-examination, PW-1 deposed that he is the Vice President of the plaintiff company but has not filed any document to prove this. He admitted that plaintiff has never applied for registration of the CS (Comm.) No.282/2020 Shivam Industries Vs. Sri Baba Industries & Ors. Digitally 21/66 PREETI signed by AGRAWAL PREETI GUPTA AGRAWAL GUPTA (PREETI AGRAWAL GUPTA) District Judge (Commercial Court)-01 North-West/Rohini/New Delhi.
13.12.2025 trademarks "SURYA," or "FLAME," or "SURYA SHINING FLAME." During further cross-examination, witness expressed lack of knowledge if the trademark "SURYA" was already registered trademark or not. However, no such registration certificate of trademark 'SURYA' was confronted to the plaintiff. PW1 admitted that there was no document on record to show infringement of "SURYAFLAME" by Defendants No. 1 and 5, however, denying that Defendants No. 1 and 5 did not infringe the trademark of plaintiff, in any manner.
12.3 The Plaintiff did not examine any other witness and the plaintiff's evidence was closed.
13. IN DEFENCE EVIDENCE, only defendant no.1 & 5 sought to examine their sole witness Sh. Rakesh Kumar Jain, AR of defendants No.1 & 5, whereas, no witness was offered by any of the other defendants. Defendant no.4 remained ex-parte after its Written Statement and did not appear at any stage to cross-examine the plaintiff witness or the witness of other defendants. Accordingly, the sole defendant testimony on record is through Sh. Rakesh Kumar Jain, AR of defendants no.1 & 5, who tendered himself in evidence as DW1 and his affidavit of chief-examination is tendered and relied upon as Ex.DW1/A bearing his signatures at Point A and Point B. By way of affidavit of chief-examination, the defendant witness has deposed as per the averments in the Written Statement and has relied upon documents as under:-
Digitally CS (Comm.) No.282/2020 Shivam Industries Vs. Sri Baba Industries & Ors. PREETI signed by 22/66 AGRAWAL PREETI GUPTA AGRAWAL GUPTA (PREETI AGRAWAL GUPTA) District Judge (Commercial Court)-01 North-West/Rohini/New Delhi.
13.12.2025
S.No. DOCUMENT EXHIBIT
1. Special power of attorney dated 04.02.2021 of Sri Baba Ex. DW1/1.
Traders.
2. Special power of attorney dated 04.02.2021 of Aradhya Ex. DW1/2
Traders
13.1 The other documents sought to be tendered by DW1 by
way of copy of application dated 01.08.2017 for rectification as Ex. DW1/3; Copy of notice dated 09.09.2017; Copy of order dated 20.11.2018; Copy of status of application no. 2810642 as on 20.01.2021, were disallowed to be exhibited and ordered to be de-
exhibited with the copies placed on record as Mark-A, Mark-B, Mark-C and Mark-D, respectively.
13.2 DW1 was duly cross-examined by ld. Counsel for the plaintiff. During cross-examination, DW1 denied that he did not deposed by way of his affidavit of chief-examination Ex.DW1/A or that the same was not prepared on his instructions. DW1 further deposed that he last checked the status of the plaintiff's trademark registration upon receiving the plaintiff's legal notice and was not aware of the current status, including the rectification proceedings, admitting that the deposition in para 4 and 5 of the affidavit Ex.DW1/A, were as per the earlier status and that he was not presently aware of status of those statements. During further cross- examination, DW1 admitted that he was selling gas stoves online under the name 'SURYA SINING FLAME'. He further deposed that he knew the concept of deceptive similarity and asserted that his goods were not deceptively similar to the plaintiff's.
CS (Comm.) No.282/2020 Shivam Industries Vs. Sri Baba Industries & Ors. Digitally 23/66 PREETI signed by AGRAWAL PREETI GUPTA AGRAWAL GUPTA (PREETI AGRAWAL GUPTA) District Judge (Commercial Court)-01 North-West/Rohini/New Delhi.
13.12.2025 13.3 On another date of hearing i.e. on 22.04.2025, DW1 deposed that he was not aware whether adding a prefix, suffix, or word/letter to a registered trademark constitutes infringement. He further testified that he had not used "SURYAFLAME" and was unaware if it was a well-known trademark for gas burners. DW1 denied that he ever applied for distributorship of "SURYAFLAME". He deposed that he did not hold any position in Defendant Nos. 1 and 5 and that Defendant No. 1 was a proprietorship concern of his wife, Nisha Jain, and Defendant No. 5 was a proprietorship concern of his son, Abhishek Jain. He categorically denied the suggestion that he was not involved in the day-to-day functioning of defendant no.1 &
5. DW1 further testified that both firms were now closed, and their online business ceased after receiving the notice from the plaintiff.
13.4 During final leg of his cross-examination, DW1 deposed that the mark 'SURYA SHINING FLAME' used by Defendant Nos. 1 and 5 was unregistered, and no application was filed for it's registration. He denied the suggestion that the mark 'SURYA SHINING FLAME' was being used by defendants no.1 & 5, to gain undue advantage of the plaintiff's trademark, or that it caused financial or reputational damage to the plaintiff. He denied the suggestion of deposing falsely, or deliberately, using the mark to ride on the goodwill of "SURYAFLAME."
13.5 Defendant no.1 & 5 did not examine any other witness and the DE was closed. As already considered that defendants no.2 and 3 did not file their Written Statement to contest the suit, whereas Digitally CS (Comm.) No.282/2020 Shivam Industries Vs. Sri Baba Industries & Ors. PREETI signed by 24/66 AGRAWAL PREETI GUPTA AGRAWAL GUPTA (PREETI AGRAWAL GUPTA) District Judge (Commercial Court)-01 North-West/Rohini/New Delhi.
13.12.2025 defendant no.4 filed his defence but later stopped participating during the progress of the suit and remained ex-parte.
14. Arguments on behalf of the parties by Sh.P.R. Chatterjee, ld. Counsel for plaintiff and Sh. Bharat Bhushan, Ld. Counsel for defendants no.1 & 5, have been heard at length and the entire record including the pleadings have been perused. The applicable law has been duly considered. The entire evidence, both oral and documentary, have been appreciated. Issue-wise findings are being discussed hereunder:-
ISSUE NO.1 Whether plaintiff is entitled for a decree of Permanent Injunction? OPP.
15. The present suit has been filed by the plaintiff on the basis of its alleged proprietary rights under the name and style of the trademark 'SURYAFLAME' in respect of gas burners, for which the said trademark 'SURYAFLAME' was registered in 2003 (Class 11, Regn. No.1070424) in the name of Mr. Rajiv Malhotra, as Proprietor of Shivam Industries. It is the case of the plaintiff that the said trademark is subsisting for which renewal certificate has been relied upon. It is case of the plaintiff that "SURYAFLAME" is the flagship brand of plaintiff, sold across the Country and recognized as a symbol of quality and reliability. For over three decades, 'SURYAFLAME' has built strong brand equity through consistent quality, ethical practices, and high performance. Known primarily for Digitally PREETI signed by CS (Comm.) No.282/2020 Shivam Industries Vs. Sri Baba Industries & Ors. AGRAWAL PREETI 25/66 GUPTA AGRAWAL GUPTA (PREETI AGRAWAL GUPTA) District Judge (Commercial Court)-01 North-West/Rohini/New Delhi.
13.12.2025 LPG gas stoves and other white goods, it is a channel partner of IOC, HPCL, and BPCL for beyond-LPG products, such as hot plates and Suraksha hoses.
15.1 It is the case of the plaintiff that its products under the trademark 'SURYAFLAME' have a nationwide and global distribution network with over 120 distributors and 14,000 retail outlets, supported by fully integrated in-house production of key components, ensuring precision, safety, and environmental efficiency. Owing to the superior quality of products sold under the 'SURYAFLAME' trademark along with substantial promotional efforts, the mark, trade dress, labels, and packaging have acquired significant reputation and are exclusively associated by traders and consumers with the Plaintiff. It is claimed that through prior adoption and long, continuous, and extensive use of the inherently distinctive mark SURYAFLAME, the Plaintiff has acquired strong common law rights in India. The 'SURYAFLAME' brand is regarded as a well- known mark and owing to widespread use, advertising, and promotional efforts, the 'SURYAFLAME' mark, along with its distinctive get-up, colour scheme, and packaging layout, has acquired a unique identity, with traders and consumers, exclusively associating it with the products of the plaintiff.
15.2 As per case of the plaintiff, through continuous publications, advertising, and the consistent quality of its products, the Plaintiff has built strong goodwill and established itself as a leading manufacturer and distributor of domestic LPG gas burners, making 'SURYAFLAME' a household name. 'SURYAFLAME', CS (Comm.) No.282/2020 Shivam Industries Vs. Sri Baba Industries & Ors. Digitally 26/66 PREETI signed by AGRAWAL PREETI GUPTA AGRAWAL GUPTA (PREETI AGRAWAL GUPTA) District Judge (Commercial Court)-01 North-West/Rohini/New Delhi.
13.12.2025 being the Plaintiff's house mark, forms an essential part of its trademark rights. The Plaintiff has been vigilant in protecting the 'SURYAFLAME' mark and has regularly taken legal action against parties attempting to misuse or infringe the said mark. It is claimed that 'SURYAFLAME' is a popular and well-known mark in India and owing to its inherent distinctiveness has acquired secondary meaning through long and extensive use and enjoys strong public recognition, leading consumers to associate the mark exclusively with the Plaintiff.
15.3 Defendant No. 1, operating as M/s Sri Baba Industries, Defendant No. 4 under the name and style of Shri Ganga Home Appliances, Defendant No. 5 under the title Aradhya Trade, have been manufacturing, distributing, and selling duplicate/infringing LPG gas stoves and related products, under the infringing trademark 'SURYA SHINING FLAME' and are responsible for their circulation across the region and other parts of the country, thereby infringing the Plaintiff's registered trademark 'SURYAFLAME'. In the month of September 2019, plaintiff discovered that Defendants no. 1, 4, and 5 are selling LPG gas burners and similar products on the online portals www.amazon.com and www.flipkart.com.
15.4 It is alleged that defendants no.1, 4 and 5 have been manufacturing, assembling, stocking, distributing, and selling infringing goods under the deceptively similar trademark "SURYA SHINING FLAME", copying the font, writing style and overall product getup of the plaintiff, causing public and trade confusion. Defendants 1, 4, and 5 use the mark 'SURYA SHINING FLAME' in CS (Comm.) No.282/2020 Shivam Industries Vs. Sri Baba Industries & Ors. Digitally 27/66 PREETI signed by AGRAWAL PREETI GUPTA AGRAWAL GUPTA (PREETI AGRAWAL GUPTA) District Judge (Commercial Court)-01 North-West/Rohini/New Delhi.
13.12.2025 the same font and stylization as the Plaintiff's 'SURYAFLAME', with products nearly identical in overall getup and trade dress. This malafide conduct indicates an intent to trade on the Plaintiff's reputation and goodwill. By such infringing acts of defendants no.1, 4 and 5, the plaintiff's registered trademark 'SURYAFLAME' has been malafidely infringed and defendants have passed off their products as those of the Plaintiff and have further infringed the Plaintiff's trade dress and copyright in the product label. It is alleged that defendants no.1, 4 and 5 have deceptively represented their products as originating from the Plaintiff and have adopted the impugned mark and trade dress under the mark 'SURYA SHINING FLAME' deliberately, with the intent to exploit the Plaintiff's well- known reputation and goodwill, by passing off their inferior quality goods to the deceived customers.
15.5 It is case of the plaintiff that the unsuspecting consumers have been targeted and capitalised owing to dishonest adoption of the trademark by defendants no.1, 4 and 5 as 'SURYA SHINING FLAME' mark, which is identical or deceptively similar to 'SURYAFLAME' in its the color scheme, font, and writing style closely resembling to that of the Plaintiff and adopting the trade dress of the Defendants' products nearly identical to the products of plaintiff. It is further claimed that Copyright in the Plaintiff's label has been substantially reproduced by defendants no.1, 4 and 5 by using packaging, identical to that of the Plaintiff's. It is further averred that Plaintiff and Defendants operate in the same goods and trade channels and therefore, the acts of the Defendants' adoption of CS (Comm.) No.282/2020 Shivam Industries Vs. Sri Baba Industries & Ors. Digitally 28/66 PREETI signed by AGRAWAL PREETI GUPTA AGRAWAL GUPTA (PREETI AGRAWAL GUPTA) District Judge (Commercial Court)-01 North-West/Rohini/New Delhi.
13.12.2025 a deceptively similar mark, trade dress and artistic work, appears solely to exploit the Plaintiff's goodwill and reputation, likely misleading consumers into believing the Defendants' products originate from or are affiliated with the Plaintiff, causing misrepresentation and loss. It is further asserted that the plaintiff mark has been diluted and jeopardized by the Defendants' look-alike packaging, thereby misleading consumers.
15.6 It is the case of the plaintiff that it discovered the products of defendant no.1, 4 and 5 in selling LPG gas burners and similar products in the month of September 2019, after which legal notices were issued to the defendants, to desist them from continuing to deal in LPG gas stove burners and other products with the infringing trademark 'SURYA SHINING FLAME' or any other mark with 'SURYA'. However, defendants no.1, 4 and 5 continued to continues selling infringing products via online trading portals www.amazon.com and www.flipkart.com, thereby constituting act of continuous infringement of the Plaintiff's registered trademark and copyright and as well as passing off.
15.7 It is prayed that cause of action exists in favour of plaintiff and against the defendants, within the territorial jurisdiction of this Court as defendants no.1, 4 and 5 are operating within the territorial jurisdiction of this Court. It has been further averred that cause of action for infringement of trademark and copyright, passing off, and unfair competition, arises in favour of the plaintiff and against the defendants within the jurisdiction of this Court, under Section 134(2) of the Trademarks Act, 1999 and Section 62(2) of the Digitally CS (Comm.) No.282/2020 Shivam Industries Vs. Sri Baba Industries & Ors. PREETI signed by 29/66 AGRAWAL PREETI GUPTA AGRAWAL GUPTA (PREETI AGRAWAL GUPTA) District Judge (Commercial Court)-01 North-West/Rohini/New Delhi.
13.12.2025 Copyright Act, 1957.
15.8 Within this issue for determination covers prayer (a) to prayer (d) in the prayer paras of the plaint, whereby the plaintiff has prayed for a Decree for Permanent Injunction restraining the Defendants no 1, 4 and 5 through its principal officers, servants and agents and all others acting on their behalf from manufacturing, selling, advertising, including on the online trading portals of www.flipkart.com and www.amazon.com or other portals on internet and in any other manner using the trademarks and getup of "SURYA SHINING FLAME", or any other mark having "SURYA" as the salient feature for LPG GAS STOVE BURNERS or any other alike products etc.; restraining the Defendants from infringement of copyright of the plaintiff by using colourable imitation or substantial reproduction of the Plaintiff's artistic works, appearing on its GAS BURNERS and allied products.; restraining the Defendants, directly or indirectly from passing off the goods and business of the Defendants as and for those of the Plaintiff. 15.9 Further, a Decree for permanent injunction has been prayed seeking restraint orders against Defendants no. 2 and 3 from selling, offering for sale using trademarks and getup of "SURYA SHINING FLAME", or any other mark having "SURYA" as the prominent feature in respect of LPG GAS STOVE BURNERS or any other alike products etc. 15.10 During the pendency of the Suit, application under Order XXXIX Rule 1 and 2 CPC seeking ex-parte ad interim injunction was pressed upon and vide orders dated 09.11.2020, all the Digitally PREETI signed by CS (Comm.) No.282/2020 Shivam Industries Vs. Sri Baba Industries & Ors. AGRAWAL PREETI 30/66 GUPTA AGRAWAL GUPTA (PREETI AGRAWAL GUPTA) District Judge (Commercial Court)-01 North-West/Rohini/New Delhi.
13.12.2025 defendants and all other persons acting on their behalf were restrained from manufacturing, exporting, offering for export, selling, offering for sale, marketing and distributing products including Gas Burner bearing the SURYA SHINING FLAME Trade Marks, associated trade dress and Copyrights and /or deceptively similar to that of plaintiff's/applicant's in isolation or in conjunction with any other mark/ trade dress/ logo or any other goods as the goods of the plaintiff/applicant and further restrained from passing off its goods and business as that of the goods and business of the plaintiff. Further, during pendency, modification order was passed confirming the ad-interim orders by which the restraint orders passed against the defendants, was modified to be read as and operating in respect of the trademark of defendant no.1, 4 and 5 in the name and style of 'SURYA SHINING FLAME'. The interim orders remained operative during the pendency of the Suit.
15.11 After service upon the defendants no.1, 4 and 5, a joint Written Statement was filed on behalf of defendant no.1 and 5 on one part and a separate Written Statement was filed on behalf of defendant no.4 on the other part.
15.12 As per the averments in the Written Statement filed on behalf of defendant no.1 and 5, several preliminary issues/objections were raised but not pressed during the pendency of the Suit, for which, no issues were framed accordingly. Defence put forth by the defendant is in opposition of the Suit being malicious and intended to harass, exert undue pressure on the defendant to obstruct their legitimate business and has been denied as gross misuse of the process of law.
Digitally PREETI signed by CS (Comm.) No.282/2020 Shivam Industries Vs. Sri Baba Industries & Ors. AGRAWAL PREETI 31/66 GUPTA AGRAWAL GUPTA (PREETI AGRAWAL GUPTA) District Judge (Commercial Court)-01 North-West/Rohini/New Delhi.
13.12.2025 15.13 A unique defence was raised on behalf of defendant no.1 and 5 with the averments that rectification application was filed in respect of the impugned trademark 'SURYA FLAM' by one third party, which was pending. It has been further averred that the registration of trademark 'SURYAFLAME' moved by the plaintiff was rejected and that the plaintiff was not a registered trademark holder of the trademark 'SURYAFLAME', as claimed. It has been further averred that Sections 2(m) and 17 of the Trade Marks Act, 1999 recognize that a device, word, or their combination can be independently registered as a 'mark,' and registration does not confer rights in its parts. For exclusive rights in any part, separate registration is required, as reinforced by Section 15(1) of the Act, allowing a proprietor to register both the whole mark and its parts separately. It is claimed that an earlier suit filed by the plaintiff against 3rd party, the distinctiveness of its products with trademark word 'SURYAFLAME' was not demonstrated by the plaintiff, for sustaining its action for passing off against other traders in the industry. It is claimed that the words 'SURYAFLAME' are not invented and are common and the plaintiff had not established distinctiveness over its trademark. It is averred that plaintiff has no cause of action in its favour and against defendants no.1 & 5, praying for dismissal of the Suit of the plaintiff, with exemplary costs. 15.14 As per the Written Statement filed on behalf of defendant no.4, again, the averments in the plaint have been outrightly denied. Although, several preliminary objections were raised but were not pressed during the pendency, for which, no issues have been framed.
Digitally CS (Comm.) No.282/2020 Shivam Industries Vs. Sri Baba Industries & Ors. PREETI signed by 32/66 AGRAWAL PREETI GUPTA AGRAWAL GUPTA (PREETI AGRAWAL GUPTA) District Judge (Commercial Court)-01 North-West/Rohini/New Delhi.
13.12.2025 15.15 On merits, it is the case of the defendant no.4 that the disputed trademark 'SURYA SHINING FLAME' is neither a copy nor an adaptation of the plaintiff's mark by Defendant No. 4 and the mark/products used or traded by Defendant No. 4 are not registered in the plaintiff's name. It is averred that defendant No. 1 was using the trademark 'SURYA SHINING FLAME', prior to its copying and mapping by Defendant No. 4 for use on its products. After confirmation that 'SURYA SHINING FLAME' was not a registered trademark of Defendant No. 1 or of any other person, defendant No. 4 copied and mapped the said unregistered mark, in accordance with the online trade policies of e-commerce platforms i.e. Amazon (defendant no.2) and Flipkart (defendant no.3). It is further averred that 'SURYA SHINING FLAME' is neither identical nor deceptively similar to the plaintiff's trademark 'SURYAFLAME', as the font, writing style, and overall artistic features differ, and thus, no infringement of the plaintiff's artistic work arises. Defendant No. 4 has not infringed the plaintiff's mark, as it used only the unregistered mark 'SURYA SHINING FLAME' of Defendant No. 1, which is not deceptively similar to 'SURYAFLAME'. Hence, there is no malafide, willful, or dishonest intent, nor any attempt to exploit the plaintiff's reputation or goodwill. It is denied that defendant no.4 ever received any Notice.
15.16 It is the defence put forth by defendant no.4 that prior to receipt of Summons of the Suit, defendant no.4 had already removed the products bearing the unregistered trademark SURYA SHINING FLAME, in September 2020 from Amazon (Defendant No. 2) and in January 2021 from Flipkart (Defendant No. 3) and that no cause of Digitally CS (Comm.) No.282/2020 Shivam Industries Vs. Sri Baba Industries & Ors. PREETI signed by 33/66 AGRAWAL PREETI GUPTA AGRAWAL GUPTA (PREETI AGRAWAL GUPTA) District Judge (Commercial Court)-01 North-West/Rohini/New Delhi.
13.12.2025 action survives against Defendant No. 4. It is further averred that plaintiff claims rights over the mark SURYAFLAME registered in Class 11, but holds no registration for 'SURYA SHINING FLAME' in that class and therefore, cannot allege any violation regarding that term. It is averred that defendant No. 4 markets its own brand, SURYA HOTTER, which enjoys strong market goodwill due to its high quality and good service.
15.17 As such, any entitlement of the plaintiff on the relief claimed has been denied asserting that even otherwise no cause of action survives in favour of the plaintiff and against defendant no.4, after removal of the impugned products, though denying any proprietary rights of the plaintiff over the trademark 'SURYA SHINING FLAME'.
15.18 It is already observed that vide orders dated 12.03.2024, defendants no.2 & 3 were deemed to be served through e-mail and were proceeded ex-parte. It is also pertinent to mention that after filing Written Statement, defendant no.4 failed to appear for further prosecution of the case and accordingly, was proceeded ex-parte, vide orders dated 21.08.2024.
15.19 In support of its case, plaintiff has examined one sole witness Sh. Rajesh Rajore, AR of plaintiff as PW1, whose chief examination, as per averments in the plaint, has been tendered as Ex.PW1/A. PW1 duly proved the authorisation in his favour to depose as plaintiff witness as Ex.PW1/1. PW1 has testified that plaintiff is a proprietorship firm and that in order to expand its brand name 'SURYAFLAME', it has entered into a partnership agreement Digitally CS (Comm.) No.282/2020 Shivam Industries Vs. Sri Baba Industries & Ors. PREETI signed by 34/66 AGRAWAL PREETI GUPTA AGRAWAL GUPTA (PREETI AGRAWAL GUPTA) District Judge (Commercial Court)-01 North-West/Rohini/New Delhi.
13.12.2025 with a partnership firm, having his brother as one of the partners and the partnership agreement is tendered as Ex.PW1/2(Colly). It is testified that the mark 'SURYAFLAME' was registered way back in 2003 in the name of Sh. Rajiv Malhotra, Proprietor of M/s Shivam Industries. The trademarks certificate along with the renewal is annexed herewith are tendered as Ex. PW1/3 (Colly). 15.20 The mode of proof was objected to, however, it is considered that the original certificate and its renewal was duly produced in the Court and was allowed to be returned on filing the copies and marking exhibits. As per well settled position of law, the certified copy of public document can be relied upon as exhibits unless serious question on the genuinity have been raised, which is not so in the present case. It is no one's defence claiming rights over the trademark 'SURYAFLAME' and it is not the case put forth by any of the defendants that the Trademark Certificate or the renewal Certificate are false/forged or fabricated. Accordingly, PW1 has duly proved Ex.PW1/3.
15.21 The witness has also presented the balance-sheet of the plaintiff company claiming expenditure of advertisement and gross sales as Ex.PW1/4 (Colly. 33 pages), whose testimonial credibility shall be examined in cross-examination. During cross-examination, PW1 admitted that plaintiff was not the applicant/owner of the trademark 'SURYA' or 'FLAME' or 'SURYA SHINING FLAME' and failed to disclose, if there was another registered trademark holder under the trademark 'SURYA', though, defendant did not specifically confront the said trademark 'SURYA' in Class-11 to the plaintiff witness. PW1 further admitted that there was no document Digitally CS (Comm.) No.282/2020 Shivam Industries Vs. Sri Baba Industries & Ors. PREETI signed by 35/66 AGRAWAL PREETI GUPTA AGRAWAL GUPTA (PREETI AGRAWAL GUPTA) District Judge (Commercial Court)-01 North-West/Rohini/New Delhi.
13.12.2025 on record to show infringement of 'SURYAFLAME' by defendant no.1 and 5.
15.22 In defence, only one defence witness DW1 on behalf of defendant no.1 & 5 was examined, who tendered the authority in his favour Ex.DW1/1 and Ex.DW1/2 on behalf of both the defendants as duly proved and unchallenged document. Remaining documents relied upon are not exhibited and therefore, not admissible to be considered. During cross-examination, DW1 strongly testified in support of its chief-examination Ex.DW1/A and admitted that the objections raised in the Written Statement as to the trademark registration status of plaintiff was beyond his knowledge, thereby admitting that the objections taken in the Written Statement regarding the trademark registration in favour of the plaintiff under the trademark 'SURYAFLAME' are not reaffirmed by testimony of DW1. DW1 admitted having sold gas stove online, on behalf of defendants no.1 & 5 under the name 'SURYA SHINING FLAME', denying any deceptive similarity with those products of the plaintiff under the trademark 'SURYAFLAME'. DW1 explained that he was connected with business of defendants no.1 & 5 as the Proprietor(s) thereof were his family members. Most importantly, DW1 testified that both defendants no.1 and 5 firms were now closed and that the online business had ceased, pursuant to notice issued by the plaintiff, thereby, conceding to the rights asserted by the plaintiff against defendant no.1 and 5. He admitted that the mark 'SURYA SHINING FLAME' used by defendant no.1 and 5 was unregistered, though denying that the defendants ever gained any financial benefits by riding of/on the goodwill of 'SURYAFLAME'. No other defence CS (Comm.) No.282/2020 Shivam Industries Vs. Sri Baba Industries & Ors. Digitally 36/66 PREETI signed by AGRAWAL PREETI GUPTA AGRAWAL GUPTA (PREETI AGRAWAL GUPTA) District Judge (Commercial Court)-01 North-West/Rohini/New Delhi.
13.12.2025 evidence has been led.
16. Evidence led on record, as also the documents relied upon and proved, have been appreciated. Detailed arguments addressed by respective Counsels have been considered for the purpose of adjudication of the present issue. 16.1 Ld. Counsel for the plaintiff has strenuously contended that Defendant Nos. 1, 4 and 5 are engaged in the manufacture, stocking, distribution, and sale of counterfeit gas stoves and LPG burners bearing the deceptively similar mark "SURYA SHINING FLAME", thereby infringing the Plaintiff's registered trademark "SURYAFLAME", its associated artistic works, and trade dress, despite receipt of legal notices dated 03.10.2019 and 19.11.2019. It is contended that all the three defendants have continued their infringing activities through physical outlets as well as through e- commerce portals such as Amazon and Flipkart. The persistent and deliberate use of the impugned mark amounts to willful trademark infringement, passing off, and unfair competition. 16.2 It is contended that Plaintiff is the registered proprietor and prior user of the trademark "SURYAFLAME" (Class 11, Regn. No.1070424, registered since 2003) for gas burners and allied kitchen appliances and enjoys an unbroken, extensive, and continuous use since 1987. It is contended that plaintiff has acquired an enviable reputation and goodwill throughout India and is a household name in the gas-stove segment. It is claimed that the distinctive get-up, font, colour combination, and packaging of "SURYAFLAME" products constitute protectable trade dress and artistic works within the meaning of Section 2(c) of the Copyright Act, 1957. CS (Comm.) No.282/2020 Shivam Industries Vs. Sri Baba Industries & Ors. Digitally 37/66 PREETI signed by AGRAWAL PREETI GUPTA AGRAWAL GUPTA (PREETI AGRAWAL GUPTA) District Judge (Commercial Court)-01 North-West/Rohini/New Delhi.
13.12.2025 16.3 During further arguments, it is contended that plaintiff has duly discharged the onus to prove that defendants no.1, 4 and 5 have dishonestly adopted and used the mark "SURYA SHINING FLAME", incorporating the dominant and essential element "SURYAFLAME" and dishonestly copying the styling and colour scheme of plaintiff's packaging, slavishly. It is contended that defendants no.1, 4 and 5 have mischievously attempted to rely upon an old judicial order passed in 1996, prior to the plaintiff obtaining registration of the mark 'SURYAFLAME' in the year 2003 and that ever since, the mark has been uninterruptedly being used by the plaintiff and since then, the Plaintiff has developed enviable reputation with their product and research & development. Plaintiff has also spend huge amounts towards advertisement making the mark famous and distinguishable. It is further contended that the alleged rectification petition, that was filed by third party against the mark of the plaintiff, has since been withdrawn with trademark 'SURYAFLAME' subsisting in favour of the plaintiff under Section 31 of the Act. Once registration stands, Section 28 confers an exclusive right to use the mark and to seek relief for infringement against similar or deceptively similar marks. 16.4 During the arguments, reliance has been placed upon the evidence of the plaintiff on record, stating that the plaintiff has duly produced and proved Registration certificates and renewal documents of "SURYAFLAME" as Ex.PW1/3 (Colly). It is contended that despite the cross-examination of the plaintiff witness by the defendant(s) extensively, the testimony of the plaintiff witness remained unrebutted. It is further contended that defendants have not CS (Comm.) No.282/2020 Shivam Industries Vs. Sri Baba Industries & Ors. Digitally 38/66 PREETI signed by AGRAWAL PREETI GUPTA AGRAWAL GUPTA (PREETI AGRAWAL GUPTA) District Judge (Commercial Court)-01 North-West/Rohini/New Delhi.
13.12.2025 produced any license, registration or assignment, authorizing use of the impugned mark. It is further contended that defendant no.4 has himself admitted the use of impugned mark 'SURYA SHINING FLAME' on LPG Gas Stoves on Amazon and Flipkart and has also admitted that the impugned mark 'SURYA SHINING FLAME' was 'copied and mapped', by taking it from defendant no.1, thereby proving that defendant no.1, 4 and 5 deliberately adopted a deceptively similar mark as that of the plaintiff, thereby increasing likelihood of confusion.
16.5 The deliberate adoption of a mark combining "SURYA"
"FLAME" with identical font and layout reveals clear intent to ride on Plaintiff's goodwill. The conduct satisfies the test of dishonest adoption laid down in: 'Ruston & Hornsby Ltd. v. Z. Engineering Co.', (1969) 2 SCC 727; and 'Cadila Health Care Ltd. v. Cadila Pharmaceuticals Ltd.', (2001) 5 SCC 73. It is contended that even if the words "SURYA" or "FLAME" are individually descriptive, their combination as "SURYAFLAME" has, by long and exclusive use, acquired distinctive character and secondary meaning, warranting full statutory protection.
16.6 The test of deceptive similarity under Section 29 is, whether the average consumer with imperfect recollection would be confused. Reliance placed on 'Amritdhara Pharmacy v. Satya Deo Gupta', AIR 1963 SC 449. It is contended that the adoption of the prefix "SURYA" and suffix "FLAME" in near-identical get-up, leaves no doubt of infringement. It is further contended that the triad of goodwill, misrepresentation, and damage is fully satisfied. The impugned mark trades upon the Plaintiff's goodwill and causes Digitally CS (Comm.) No.282/2020 Shivam Industries Vs. Sri Baba Industries & Ors. PREETI signed by 39/66 AGRAWAL PREETI GUPTA AGRAWAL GUPTA (PREETI AGRAWAL GUPTA) District Judge (Commercial Court)-01 North-West/Rohini/New Delhi.
13.12.2025 dilution and loss of distinctiveness--contrary to the ratio in ' Daimler Benz v. Hybo Hindustan', AIR 1994 Del 239. It is further contended that the label and packaging of "SURYAFLAME" constitute an artistic work under Section 2(c) of the Copyright Act and substantial reproduction by Defendants 1 and 5 violates Section 51(a). It is further contended that the deliberate imitation of trade dress and attempt to pass off inferior goods as those of Plaintiff's constitutes unfair trade practice under Section 2(47) of the Consumer Protection Act, 2019.
16.7 As against defendant no.2 and 3, it is contended that Defendant Nos. 2 i.e. Amazon Development Centre India Pvt. Ltd. and 3 i.e. Flipkart India Pvt. Ltd., are e-commerce intermediaries facilitating sale, advertisement and distribution of counterfeit and infringing goods of Defendants No. 1, 4, and 5 bearing the deceptively similar trademark 'SURYA SHINING FLAME', thereby infringing the Plaintiff's registered trademark 'SURYAFLAME' and its associated copyrights and trade dress, which was discovered by the plaintiff in September, 2019. It is submitted that despite receipt of legal notices dated 03.10.2019 and 19.11.2019, both the intermediaries continued to list, display, and sell infringing goods and have asserted that they lost their protection under Section 79 of the Information Technology Act, 2000 and be held liable as active participants in trademark infringement. It is further submitted that Defendant Nos. 2 and 3 (Amazon and Flipkart respectively) ceased displaying and selling the infringing products including gas burners, bearing trademark 'SURYA SHINING FLAME', only after the restraining orders were passed vide orders dated 09.11.2020. CS (Comm.) No.282/2020 Shivam Industries Vs. Sri Baba Industries & Ors. Digitally 40/66 PREETI signed by AGRAWAL PREETI GUPTA AGRAWAL GUPTA (PREETI AGRAWAL GUPTA) District Judge (Commercial Court)-01 North-West/Rohini/New Delhi.
13.12.2025 16.8 It is further the arguments of ld. Counsel for plaintiff that as per Section 79(1) of the IT Act, only conditional protection is granted to intermediaries, provided they observe "due diligence" and do not "initiate, select or modify" the information being hosted. It is submitted that Under Section 79(3)(b), an intermediary loses 'safe harbour' once it has "actual knowledge" of unlawful activity or upon being notified by the rights owner or a Government agency. Reliance has been placed on the ruling of Hon'ble High Court of Delhi in 'Christian Louboutin SAS v. Nakul Bajaj & Ors'., 2018 SCC OnLine Del 13018, wherein it was held that an intermediary which continues to participate in or facilitate sale of infringing goods despite knowledge ceases to remain a neutral conduit and becomes an active participant in infringement. It has been further contended that the legal position has been reaffirmed by the Hon'ble High Court in 'Amway India Enterprises Pvt. Ltd. v. 1MG Technologies Pvt. Ltd. & Ors.', 2023 SCC OnLine Del 2650, further reaffirmed that intermediaries cannot claim safe-harbour protection where they knowingly allow continued sale of unauthorized or infringing goods and act only after being compelled by court directions. Reliance has been further placed on the latest pronouncement of Hon'ble High Court of Delhi in 'Lifestyle Equities CV & Anr. v. Amazon Technologies Inc. & Ors.', 2025 SCC OnLine Del 1387 (decided on 25 February 2025), wherein Hon'ble Delhi High Court held that an e- commerce platform cannot hide behind the "passive intermediary"
label, where the intermediary had actual knowledge of the infringing goods being sold on its platform and failed to act proactively until compelled by court order, such conduct takes it beyond safe-harbour Digitally CS (Comm.) No.282/2020 Shivam Industries Vs. Sri Baba Industries & Ors. PREETI signed by 41/66 AGRAWAL PREETI GUPTA AGRAWAL GUPTA (PREETI AGRAWAL GUPTA) District Judge (Commercial Court)-01 North-West/Rohini/New Delhi.
13.12.2025 protection under IT Act, 2000 and renders it jointly liable for trademark infringement and passing-off. 16.9 It has been strongly contended by ld. Counsel for defendants and particularly defendant no.1 and 5 that at no point of time defendant no. 1 and 5 have used the trademark "SURYAFLAME" for their products. It is submitted that defendant no. 1 and 5 have never dealt in any manner with the word "SURYAFLAME" in their trade/business or that they have never sold any Gas Stove and allied products in the name and style of "SURYAFLAME".
16.10 It is contended that defendant no.1 and 5 have sold only few Gas Stoves in the name and style of 'SURYA SHINING FLAME' through online trade and the said trademark does not belong to the Plaintiff. It is further submitted that even though, proprietary rights of the plaintiff over the trademark 'SURYA SHINING FLAME' is not claimed or established, in order to avoid the controversy, after receiving the legal notice dated 19.11.2019 from the Plaintiff, the Defendant no. 1 and 5 have never sold any Gas Stove in the name and style of "SURYA SHINING FLAME". It has been further undertaken not to sell any Gas Stove in the name and style of 'M/S SURYA SHINING FLAME' in future. It is asserted that defendant No.1 and 5 are not the manufacturers of the gas stove burners or allied products, in the name and style of 'M/S SURYA SHINING FLAME' 16.11 During further contentions on behalf of the defendants, it is contended that the defendants have good reputation in its business circle and never required the trade name of the plaintiff and had/have Digitally CS (Comm.) No.282/2020 Shivam Industries Vs. Sri Baba Industries & Ors. PREETI signed by 42/66 AGRAWAL PREETI GUPTA AGRAWAL GUPTA (PREETI AGRAWAL GUPTA) District Judge (Commercial Court)-01 North-West/Rohini/New Delhi.
13.12.2025 never used the trade mark 'SURYAFLAME' as alleged by the plaintiff. It is contended that the plaintiff with malafide intention raised false claim before the Court against the defendants and by way present suit the plaintiff wants that the word 'SURYA' be fixed/ confined for them only as claimed by him the relief clause. 16.12 There have been numerous litigations in different courts in Delhi wherein the word/trade name 'SURYA' has been used and assigned to other players of the market for different classes of products and therefore, the present plaintiff cannot claim the exclusivity over the use of the prefix 'SURYA' in its trademark 'SURYAFLAME'. It is contended that Hon'ble Supreme Court of India and Hon'ble High Court of Delhi, in many cases have held that the word SURYA, SUN cannot be confined to anyone's trade name. 16.13 Reliance has been placed on the orders of Hon'ble High Court of Delhi in the case bearing No. CS(OS) 2876/1994, titled 'Rajiv Malhotra trading as Shivam Industries Vs. Amit Home Appliances', wherein it was held vide order dated 10.09.1996, that: -
"15, If the word used as trade mark is an invented word and same was being used for a long time the party claiming the proprietorship could claim to have acquired distinctives of its products wit the trademark. The word SURYAFLAME cannot be stated to be an invented word. The coining of two words SURYA and FLAME cannot also be stated to be an invention or discovery; these are two common words known to everybody as it appears rom the record there are number of traders in the market using the word SUN and other related words selling similar products. Therefore, in a passing off action the plaintiff cannot claim, on the facts of this case, that is has acquired any distinctiveness and, on the material, placed before me I am not able to come to the conclusion that the plaintiff has established so much market over the years that people have come to know of SURYAFLAME only emanating from the plaintiff. As laid down by the Supreme Court in Kaviraj Pandit Durga Dutt Sharma v. Navaratna Pharmaceutical Laboratories, AIR 1965 SC 980 of the mark in essence is a question of fact and would depend on the judgement of the court on evidence led before it as regards the user of the trademark. On a conspectus of the documents filed, I am of the view that the plaintiff has not established a prima fade strong case for the grant of injection for passing of f against the CS (Comm.) No.282/2020 Shivam Industries Vs. Sri Baba Industries & Ors. Digitally 43/66 PREETI signed by AGRAWAL PREETI GUPTA AGRAWAL GUPTA (PREETI AGRAWAL GUPTA) District Judge (Commercial Court)-01 North-West/Rohini/New Delhi.
13.12.2025 defendant. The balance of convenience is also not in favour of the plaintiff.
16. Therefore, IA No.11895/94 under order 39 Rules 1 and 2 files by the plaintiff is dismissed."
16.14 It is further contended that the present suit is not maintainable by the plaintiff, neither for infringement of their trademark nor for their registered trademarks represented in an artistic manner as shown in the documents appended to the plaint of the prayers prayed for infringement as not a single document has been placed by the plaintiff with the present suit which is admissible in evidence. The photocopies have been placed, authenticity of which is seriously disputed by the defendant and therefore, praying for dismissal of the Suit. It is contended that Section 2(m) of the Trade Marks Act, 1999 specifically classifies/recognizes a "device", "word", as well as a combination thereof to be separate / independent subject matters, which are capable of separate / independent registration as a "mark" under the TM Act. Consisted with the above analysis, Section 17 of the TM Act clearly says that the registration of a trade mark will not confer any rights in the parts of a trade mark. For claiming rights in such parts, Section 2(m) read with Section 17 mandates separate registration of such parts. In furtherance of this scheme of the TM Act, Section 15(1) states that, "Where a proprietor of a trade mark claims to be entitled to the exclusive use of any part thereof separately, he may apply to register the whole and the part as separate trade marks", praying for dismissal of the suit. 16.15 During evidence, plaintiff has duly proved the registration of its trademark 'SURYAFLAME' and its renewal certificate vide Ex.PW1/3(Colly). It has already been considered that CS (Comm.) No.282/2020 Shivam Industries Vs. Sri Baba Industries & Ors. Digitally 44/66 PREETI signed by AGRAWAL PREETI GUPTA AGRAWAL GUPTA (PREETI AGRAWAL GUPTA) District Judge (Commercial Court)-01 North-West/Rohini/New Delhi.
13.12.2025 the exhibition of the trademark certificate with renewal certificate was objected as to the mode of proof, at the time of recording of the evidence of PW1 and also during arguments addressed before the Court. The Court has perused the documents sought to be relied upon by the plaintiff vide Ex.PW1/3(Colly) which have been duly tendered on record after the originals were seen and returned. There is no cross-examination of the plaintiff witness PW1 to suggest that the certificates relied upon as Ex.PW1/3 are forged or fabricated. If that was the line of cross-examination, the plaintiff would have the onus to summon the witness from the Trademark Registry to prove the genuinity of the certificates, for which no doubt has been created despite cross-examination of PW1. Accordingly, PW1/3 are duly proved documents to show that the trademark 'SURYAFLAME' is duly registered vide Regn. No.1070424 in Class 11 in the year 2003 in respect of LPG gas stoves and parts thereof, in favour of Proprietor of the plaintiff namely Sh. Rajiv Malhotra, trading as Shivam Industries, and the appended renewal thereafter, to show the subsisting trademark till date, has also been proved. 16.16 The other evidentiary documents sought to be relied upon during arguments on behalf of plaintiff, such as photographs of products of the plaintiff, an investigating person, who has neither any authority of law nor examined in personal capacity before the Court, remained documents and assertions, which are not proved, in accordance with law, in favour of the plaintiff. PW1 Sh. Rajesh Rajore, as duly authorised witness of the plaintiff, has deposed by way of its chief-examination vie Ex.PW1/A, as per the averments in the suit. During cross-examination, it has been admitted that the CS (Comm.) No.282/2020 Shivam Industries Vs. Sri Baba Industries & Ors. Digitally 45/66 PREETI signed by AGRAWAL PREETI GUPTA AGRAWAL GUPTA (PREETI AGRAWAL GUPTA) District Judge (Commercial Court)-01 North-West/Rohini/New Delhi.
13.12.2025 plaintiff did not ever apply for trademarks 'SURYA' or 'FLAME' or 'SURYA SHINING FLAME' and expressed lack of knowledge, if 'SURYA' was registered trademark in favour of anyone or not. 16.17 The sole defence witness DW1 Sh. Rakesh Kumar Jain, AR of defendants no.1 & 5. tendered his affidavit as DW1/A reaffirming the averments on behalf of defendant no.1 & 5 as stated in the Written Statement and reproduced herein-above, after proving the authority in his favour vide Ex.DW1/1 and Ex.DW1/2, no other document tendered through DW1, were admissible in evidence, being mere photocopies and for failure to prove the same, as per law. During cross-examination, DW1 admitted lack of knowledge in respect of status of registration of the trademark 'SURYAFLAME' in favour of the plaintiff and admitted that the averments in the Written Statement in respect of rectification proceedings, against the trademark 'SURYAFLAME' of the plaintiff, were not valid as per the present status, owing to subsequent developments. DW1 admitted that he was engaged in selling gas stove burners online under the name 'SURYA SHINING FLAME', on behalf of defendants no.1 and 5, while denying that the goods dealt to him were not deceptively similar to that of the plaintiff and asserted that the registered trademark of the plaintiff 'SURYAFLAME' was not used by the defendants. DW1 admitted that the mark 'SURYA SHINING FLAME' used by defendants no.1 and 5 remained unregistered, though denying that the same was used deliberately, to ride on the goodwill of 'SURYAFLAME'.
16.18 After careful appreciation of the entire evidence on record, the plaintiff has been able to successfully prove its CS (Comm.) No.282/2020 Shivam Industries Vs. Sri Baba Industries & Ors. 46/66 Digitally PREETI signed by AGRAWAL PREETI GUPTA AGRAWAL GUPTA (PREETI AGRAWAL GUPTA) District Judge (Commercial Court)-01 North-West/Rohini/New Delhi.
13.12.2025 proprietary rights through its proprietor Mr. Rajiv Malhotra in respect of the trademark 'SURYAFLAME' registered in the year 2003 under Class 11, vide Regn. No.1070424, which has been proved to be subsisting. It has been further established on record that defendant no.1, 4 and 5 were dealing in selling the gas stove burners in the name and style of impugned trademark 'SURYA SHINING FLAME' via online sale through defendant no.2 (Amazon) and defendant no.3 (Flipkart). It has been further established on record that the impugned trademark 'SURYA SHINING FLAME', under which defendant no.1, 4 and 5 were selling the gas burners, was an unregistered trademark and further that defendant no.4 removed the products with the impugned trademark, in September 2020 from Amazon (Defendant no.2) and in January 2021 from Flipkart (Defendant no.3).
16.19 After careful consideration of the pleadings, evidence and contentions, it is further established on record, as per admitted case of the plaintiff themselves that defendant no.2 namely Amazon and defendant no.3 namely Flipkart ceased to display and sell the alleged infringing products with the impugned trademark 'SURYA SHINING FLAME', for the goods namely gas burners, in compliance of the restraining orders passed by this Court dated 09.11.2020. None for defendant no.2 and 3 have appeared before the Court, despite service and remained ex-parte and accordingly, it is admitted and proved on record that the impugned products under the name and style of 'SURYA SHINING FLAME' being sold through online portals of defendant no.2 and 3, were removed from listing and sale, after the interim orders were passed by this court on CS (Comm.) No.282/2020 Shivam Industries Vs. Sri Baba Industries & Ors. Digitally 47/66 PREETI signed by AGRAWAL PREETI GUPTA AGRAWAL GUPTA (PREETI AGRAWAL GUPTA) District Judge (Commercial Court)-01 North-West/Rohini/New Delhi.
13.12.2025 09.11.2020.
16.20 It is the case of the plaintiff that legal notices dated 03.10.2019, and 19.11.2019 were duly served upon the defendants. The plaintiff has contended that both defendants no.2 and 3 have lost protection of a'safe harbour' U/S 79 of the IT Act since they continued to list, display and sell infringing goods, despite receipt of the alleged legal notice(s). However, except the averments and deposition of PW1 about issuance of legal notices dated 03.10.2019 and 19.11.2019 upon defendant no.2 and 3 respectively, PW1 has failed to prove the issuance or receipt of the alleged legal notices upon defendant no.2 and 3. It is a matter of admitted record that defendant no.2 and 3 did not display or sell the impugned products under the name and style of 'SURYA SHINING FLAME', after the restraint orders were passed by this Court dated 09.11.2020.
17. At this stage, it is relevant for the Court to consider the statutory position, as well as the binding judgment and law, on the aspect of role of Intermediaries in cases pertaining to Intellectual Property Rights. It may be pertinent to mention that defendant no.2 namely Amazon Development Centre India Pvt. Ltd. and defendant no.3 namely Flipkart India Pvt Ltd. have been impleaded in the array of defendants as intermediaries. An intermediary has been defined under Section 2(w) of the Information Technology Act, 2000 as "any person who on behalf of another person receives, stores, or transmits that record or provides any service with respect to that record and include telecom service providers, web- hosting service providers, search engines, online payment sites, online auction sites, online CS (Comm.) No.282/2020 Shivam Industries Vs. Sri Baba Industries & Ors. Digitally 48/66 PREETI signed by AGRAWAL PREETI GUPTA AGRAWAL GUPTA (PREETI AGRAWAL GUPTA) District Judge (Commercial Court)-01 North-West/Rohini/New Delhi.
13.12.2025 market places, and cyber cafes." By way of the 2008 Amendment Act, the definition of the term "intermediary" has been broadened and made an inclusive one.
17.1 Section 79 of the Act is a 'safe harbour' provision that grants conditional immunity to intermediaries from liability for third party acts. It grants immunity concerning any third-party information, data, or communication link made available or hosted by them. This immunity is however, subject to the provisions of Section 79(2) and 79(3) of the Act.
17.2 Section 79(2) essentially covers cases where the activity undertaken by the intermediary is of a technical, automatic, and passive nature. For applicability of Section 79(2), the intermediaries should neither have knowledge nor control over the information which is transmitted or stored. Furthermore, Section 79(3)(b) of the IT Act, 2000 envisages a 'notice and takedown' regime, wherein the intermediary is required to take down unlawful content upon receiving actual knowledge of its existence. Furthermore, the Information Technology (Intermediary Guidelines) Rules, 2011 were notified by the Central Government which interalia prescribed due diligence practices to be adopted by the intermediaries.
17.3 In the landmark judgment on 'intermediary liability', in case of Shreya Singhal v. Union of India; AIR 2015 SC 1523 , the Hon'ble Apex Court laid/settled binding guidelines on the issue whether intermediaries could be left to decide the legality of the content on their platforms. The Hon'ble Supreme Court held as under:
Digitally CS (Comm.) No.282/2020 Shivam Industries Vs. Sri Baba Industries & Ors. PREETI signed by 49/66 AGRAWAL PREETI GUPTA AGRAWAL GUPTA (PREETI AGRAWAL GUPTA) District Judge (Commercial Court)-01 North-West/Rohini/New Delhi.
13.12.2025 "Section 79 is valid subject to Section 79(3)(b) being read down to mean that an intermediary upon receiving actual knowledge from a court order or on being notified by the appropriate government or its agency that unlawful acts relatable to Article 19(2) are going to be committed then fails to expeditiously remove or disable access to such material. Similarly, the Information Technology "Intermediary Guidelines" Rules, 2011 are valid subject to Rule 3 sub-rule (4) being read down in the same manner as indicated in the judgment."
17.4 Therefore, a guiding principle was laid down by the Hon'ble Apex Court that intermediaries were not to apply their minds for judging the legality of the content, as per the framework of the IT Act. It was also held that the intermediaries could only be asked to remove content from their platforms vide a Court order or by an appropriate government agency. It is, hence, settled law on the content takedown and also protects intermediary platforms from liability based on user-generated content and ensure that frivolous takedown requests were culled out, protecting user speech online.
17.5 In another important judgment of Hon'ble High court of Delhi in 'Amway India Enterprises Pvt Ltd. v. 1 MG Technologies Pvt Ltd.'; AIRONLINE 2019 DEL 1322, dated 08.07.2019, the Hon'ble High Court expanded the protection of intermediaries wherein it has been held that :
"...as per Section 79 of the IT Act, an intermediary shall not be liable for any third-party information, data, or communication link made available or posted by it, as long as it complies with Section 79(2) and (3) of the Act. In other words, the intermediaries have to show that they- Do not initiate the transaction, Do not select the receiver of the transmission, and Do not select or modify the information contained in the Digitally PREETI signed by CS (Comm.) No.282/2020 Shivam Industries Vs. Sri Baba Industries & Ors. AGRAWAL PREETI 50/66 GUPTA AGRAWAL GUPTA (PREETI AGRAWAL GUPTA) District Judge (Commercial Court)-01 North-West/Rohini/New Delhi.
13.12.2025 transmission."
17.6 It may be now relevant to consider the citation relied upon by the ld. Counsel for plaintiff in 'Christian Louboutin SAS v. Nakul Bajaj & Ors.'; (2018 SCC OnLine Del 13018), wherein it was held that once an e-commerce platform plays an active role in promotion, description, logistics, packaging or pricing of goods, it ceases to remain a mere intermediary and becomes liable for trademark infringement.
17.7 In the facts and circumstances of the present case, it is not disputed that Defendant Nos. 2 namely Amazon Development Centre India Pvt. Ltd. and 3 namely Flipkart India Pvt. Ltd. are intermediaries, as defined under Section 2(w) of the Information Technology Act, 2000. It is also considered that the intermediaries enjoy the protection of 'safe harbour' by virtue of Section 79 of the Information Technology Act, 2000, by which, the intermediaries are protected from liability for 3rd party acts. As per well settled law, in the facts of the present case, there is nothing to demonstrate the active role of defendant no.2 and/or defendant no.3, in respect of the display and sale of the products of defendant no.1, 4 or 5 with the impugned trade-name 'SURYA SHINING FLAME', through its online marketing portals/websites. It is further a matter of admitted fact that pursuant to the ad-interim orders passed by the Court in the present case dated 09.11.2020, both defendant no.2 and 3 (Amazon and Flipkart respectively), complied with the injunction orders passed by this court by taking down the impugned products from its online portal for further sale thereof, under the trade-name 'SURYA Digitally CS (Comm.) No.282/2020 Shivam Industries Vs. Sri Baba Industries & Ors. PREETI signed by 51/66 AGRAWAL PREETI GUPTA AGRAWAL GUPTA (PREETI AGRAWAL GUPTA) District Judge (Commercial Court)-01 North-West/Rohini/New Delhi.
13.12.2025 SHINING FLAME', as products of defendant no.1, 4 or 5. There is nothing on record to show non-compliance on the part of defendant no.2 or 3 in respect of alleged legal notices allegedly issued by the plaintiff upon both the intermediaries. It has already been considered that the plaintiff has failed to establish on record the alleged fact of issuance of the said notices or receipt of the notices by defendant no.2 and 3. Even otherwise, as per the well settled principle laid down by the Hon'ble Superior Courts, and in particularly, the binding ruling of Hon'ble Apex Court in Shreya Singhal (Supra), defendant no.2 and 3 as intermediary platforms, cannot be held liable on any take down requests by private parties. It is the binding law that intermediaries are responsible for timely compliance and removal of offensive or infringing content from their platform vide a Court Order or by an appropriate Government Agency. The plaintiff has not been able to establish and prove the case of infringement of its Intellectual Property Rights for its trademark 'SURYAFLAME' or Copyright of the trade dress/label thereof, against defendant no.2 or defendant no.3. Defendant no.2 and defendant no.3 are entitled to the protection provided under Section 79 of the Information Technology Act, 2000 and therefore, this issue is not proved against defendant no.2 and 3.
18. The legal aspect relevant for consideration of the issue is now being considered. During arguments, reliance has been placed on the decision of Hon'ble Apex Court in 'Cadila Health Care Ltd. Vs. Cadila Pharmaceuticals Ltd.', 2001 PTC 541 (SC) at page 560- 561, wherein the Hon'ble Apex Court has held, as under:
Digitally PREETI signed by CS (Comm.) No.282/2020 Shivam Industries Vs. Sri Baba Industries & Ors. AGRAWAL PREETI 52/66 GUPTA AGRAWAL GUPTA (PREETI AGRAWAL GUPTA) District Judge (Commercial Court)-01 North-West/Rohini/New Delhi.
13.12.2025 "What is likely to cause confusion would vary from case to case. However, the appellants are right in contending that where medicinal products are involved, the test to be applied for adjudging the violation of trade mark law may not be on a par with cases involving non-medicinal products. A stricter approach should be adopted while applying the test to judge the possibility of confusion of one medicinal product one another by the consumer.
While confusion sets of goods are so commonly dealt with by the same traders and so commonly consumed by the same class of customers that a customer of the plaintiff's articles while posed with the defendant's articles would be led away to believe that the defendant's goods, higher the possibility of deception or confusion and likelihood of passing off."
18.1 It has been contentious arguments before the Court, in plaintiff asserting its exclusivity, dominance and unique identification in its registered trademark under Clause 11 for Gas Burners and allied products under the trademark 'SURYAFLAME'. It has been claimed that defendants no.1, 4 and 5 have been selling gas burners and similar products under the name and style of 'SURYA SHINING FLAME', riding on the goodwill, recognition and reputation of the plaintiff, who is well settled in the consumer market for the said products since 2003. On the other hand, the defendant has challenged the exclusive right of the plaintiff to claim monopoly over the word 'SURYA' on the ground that 'SURYA' and/or 'SUN' are generic words and cannot be assigned to the exclusion in favour of any one entity, to the exclusion of others. In this light, it may be relevant to consider the law laid down by Hon'ble High Court of Delhi in 'South India Beverages Pvt. Ltd. Vs. General Mills Marketing Inc.' FAO(OS) 389/2014 dated 13.10.2014, wherein Hon'ble High Court of Delhi held as under:
"19. Though it bears no reiteration that while a mark is CS (Comm.) No.282/2020 Shivam Industries Vs. Sri Baba Industries & Ors. Digitally 53/66 PREETI signed by AGRAWAL PREETI GUPTA AGRAWAL GUPTA (PREETI AGRAWAL GUPTA) District Judge (Commercial Court)-01 North-West/Rohini/New Delhi.
13.12.2025 to be considered in entirety, yet it is permissible to accord more or less importance or 'dominance' to a particular portion or element of a mark in cases of composite marks. Thus, a particular element of a composite mark which enjoys greater prominence vis-a- vis other constituent elements, may be termed as a 'dominant mark'.
21. The view of the author makes it scintillatingly clear, beyond pale of doubt, that the principle of 'anti dissection' does not impose an absolute embargo upon the consideration of the constituent elements of a composite mark. The said elements may be viewed as a preliminary step on the way to an ultimate determination of probable customer reaction to the conflicting composites as a whole. Thus, the principle of 'antidissection' and identification of 'dominant mark' are not antithetical to one another and if viewed in a holistic perspective, the said principles rather compliment each other."
18.2 Further, in 'V. Guard Industries Ltd. vs. Crompton Greaves Consumer Electricals Ltd.' [(2022) 91 PTC 214], Hon'ble High Court has held as under:
"29. Coming to the present case, the word PEBBLE, in my view, is an essential and the dominant part of Plaintiff's registered label mark. Tested on the touchstone of the aforementioned precedents, Defendant cannot be permitted to argue that Plaintiff cannot assert a right for exclusive use on the word PEBBLE on the basis of registration in the label/device, pending registration in the word PEBBLE per se."
18.3 Further, in another relevant authority in 'Skyline Education Institute (I) Private Ltd. Versus S.L. Vaswani and Anr.' [2010 (42) PTC 217(SC)], wherein Hon'ble Apex Court held as under:
"17. In the light of the above, we shall now consider whether the impugned order is vitiated by an error of law apparent on the face of the record or refusal of the High CS (Comm.) No.282/2020 Shivam Industries Vs. Sri Baba Industries & Ors. Digitally 54/66 PREETI signed by AGRAWAL PREETI GUPTA AGRAWAL GUPTA (PREETI AGRAWAL GUPTA) District Judge (Commercial Court)-01 North-West/Rohini/New Delhi.
13.12.2025 Court to grant injunction in terms of the prayer made by the appellant has resulted in manifest injustice. A little journey in the backdrop of the case shows that the only ground on which the appellant sought temporary injunction against the respondents was that the word 'Skyline' is a specific/distinct word and being a prior user, it was entitled to seek a restraint against the respondents from using that word in the name of the Institute of Engineering and Technology established by them. The learned Single Judge, after examining the rival pleadings and material placed before him recorded a well reasoned finding that the appellant has failed to make out a prima facie case. The learned Single Judge opined that the word 'skyline' is a generic word because the same is being used by thousands of persons and institutions as part of their trading name or business activities. The learned Single Judge noted that while the plaintiff is neither approved by AICTE nor affiliated with any university, the respondents have obtained the requisite recognition and affiliation from the concerned statutory bodies and 240 students have already been admitted in the five years course and held that grant of injunction in terms of the prayer made by the appellant will be inequitable. The Division Bench independently considered the entire matter and expressed its agreement with the learned Single Judge that the appellant has failed to make out a prima facie case for grant of injunction. The Division Bench also agreed with the learned Single Judge that the word 'skyline' was a generic word because it was being used by a large number of people in India and abroad. The Division Bench then held that after recording adverse findings on the issues of prima facie case, balance of convenience and equity, the learned Single Judge was not justified in directing the respondents not to undertake in courses in management, tour and travels, etc. and append a note in the advertisements that their institute has no concern, whatsoever with the appellant's institution. Accordingly, the Division Bench substantially vacated the modified injunction order passed by the learned Single Judge.
18. In our opinion, the findings recorded by the learned Single Judge and Division Bench on the crucial factors like prima facie case, balance of convenience and equity are based on a correct and balanced consideration of various facets of the case and it is not possible to find any fault with the conclusions recorded by them that it is not a Digitally CS (Comm.) No.282/2020 Shivam Industries Vs. Sri Baba Industries & Ors. PREETI signed by 55/66 AGRAWAL PREETI GUPTA AGRAWAL GUPTA (PREETI AGRAWAL GUPTA) District Judge (Commercial Court)-01 North-West/Rohini/New Delhi.
13.12.2025 fit case for restraining the respondents from using the word 'skyline' in the name of the institute established by them. It has not been disputed on behalf of the appellant that the word 'skyline' is being used as trade name by various companies/organizations/business concerns and also for describing different types of institute/institutions. The voluminous record produced by the respondents before this Court shows that in India as many as 117 companies including computer and software companies and institutions are operating by using word 'skyline' as part of their name/nomenclature. In United States of America, at least 10 educational/training institutions are operating with different names using 'skyline' as the first word. In United Kingdom also two such institutions are operating. In view of this, it is not possible to agree with the learned counsel for the appellant that the skyline is not a generic word but is a specific word and his client has right to use that word to the exclusion of others."
18.4 It is further considered that in 'Delhivery Pvt. Ltd. vs. Treasure Vase Ventures Pvt. Ltd.', [2020 SCC Online Del 2766], Hon'ble High Court held :
75. I am in agreement with the aforesaid conclusion of the Court. The said conclusion clearly applies to this case in view of my conclusion that the mark 'DELHIVERY' is phonetically a generic word. In substance, the conclusion is that there is no estoppel against law, unless a generic word is held to be distinctive, which in any case is a matter of trial. It is a settled law that at this stage the court shall not conduct a mini trial as held in the judgment of this Court in the case of Advance Magazine Publishers Inc (supra). The submission of Mr. Grover that the mark 'DELHIVERY' has achieved distinctiveness as the plaintiff has been using the mark 'DELHIVERY' since 2011 and has high sale figures; I am afraid, these two aspects are not conclusive to hold that the mark has attained distinctiveness. In this regard, it is appropriate to reproduce the following paragraph of the judgment of the Bombay High Court in the case of People Interactive (India) Pvt. Ltd. (supra):
18. Exclusivity claims based on secondary meaning acquisition must be established by cogent material.
Digitally PREETI signed by CS (Comm.) No.282/2020 Shivam Industries Vs. Sri Baba Industries & Ors. AGRAWAL PREETI 56/66 GUPTA AGRAWAL GUPTA (PREETI AGRAWAL GUPTA) District Judge (Commercial Court)-01 North-West/Rohini/New Delhi.
13.12.2025 References to sales and promotional expenses may be used to establish the acquisition of reputation and goodwill, i.e., to show the popularity of a mark. Mere use and statements of sales and expenses do not, of their own, establish the acquisition of a secondary meaning. That proof is always required of goods or services in the second category, 'merely descriptive' expressions; for these are not ordinarily registrable without such proof. That proof must be directed to establishing that the 'merely descriptive' expression in question is now firmly established in the public imagination with the claimant and its goods and services. High sales and expenses will not do; the claimant must show from carefully neutralized market surveys, etc., that this is indeed how the public perceives the mark - not as a mere description, but a pointed reference to the origin, viz., the claimant. Use itself does not establish distinctiveness. The extent to which a mark has lost its primary meaning and the extent to which it has acquired a secondary one are conclusions to be drawn from evidence. That evidence, showing the displacement of the primary meaning by the secondary meaning, must be of the members of the public as well, not merely those specially placed to attest to its uniqueness."
18.5 Considering the well settled authorities and legal position on the facts of the present case, it is the law of the land that plaintiff cannot claim any exclusivity or monopoly over the use of generic word 'SURYA'. However, word 'SURYA' is not a trademark over which the plaintiff claims proprietary rights. By way of the present suit, plaintiff has claimed its right of recognition and identification in the consumer market of gas burners, under its trademark 'SURYAFLAME', when word 'SURYA' and 'FLAME' are conjoined, to form one single word 'SURYAFLAME'. Even though, each of the two parts of a trade name 'SURYAFLAME' may not be capable of a trademark registration, a newly coined combination as Digitally CS (Comm.) No.282/2020 Shivam Industries Vs. Sri Baba Industries & Ors. PREETI signed by 57/66 AGRAWAL PREETI GUPTA AGRAWAL GUPTA (PREETI AGRAWAL GUPTA) District Judge (Commercial Court)-01 North-West/Rohini/New Delhi.
13.12.2025 'SURYAFLAME' may constitute a valid trademark, if the proprietor thereof is able to satisfy the court of its identification in the market under the name and style of the trademark, which in this case is 'SURYAFLAME'. Furthermore, even if the contentions of defendant are considered of other players prevalent in the market having different versions of user of the word 'SURYA' in their trade name, it does not protect defendants no.1,4 or 5 in putting up a case of claiming right for use of the word 'SURYA' in their trade-name 'SURYA SHINING FLAME'. It is an admitted case of defendant no.1, 4 and 5 that 'SURYA SHINING FLAME' is an unregistered trademark. The Defendants witness DW1 has admitted that it was never applied for registration. None of the defendants no.1, 4 or 5 have tendered any evidence on record to show their widespread market presence and independent prominence by way of their sales figures or market turnover, under the name and style of 'SURYA SHINING FLAME'. There is nothing on record to show the date of adoption of the impugned trademark 'SURYA SHINING FLAME' and none of the defendants have claimed any copyright over the use of 'SURYA SHINING FLAME' 18.6 The only defence that has been raised on behalf of defendant no.1, 4 and 5, is to the effect that the plaintiff does not have any proprietary rights over 'SURYA SHINING FLAME', which is the trademark that was being adopted and used by defendant no.1, 4 and 5. The sole plaintiff witness has been cross-examined on behalf of defendants, to assert that the plaintiff did not apply for the trademark 'SURYA SHINING FLAME', which is the impugned trademark. In defence evidence, the sole defendant witness DW1, in Digitally CS (Comm.) No.282/2020 Shivam Industries Vs. Sri Baba Industries & Ors. PREETI signed by 58/66 AGRAWAL PREETI GUPTA AGRAWAL GUPTA (PREETI AGRAWAL GUPTA) District Judge (Commercial Court)-01 North-West/Rohini/New Delhi.
13.12.2025 his cross-examination himself admitted that defendants no.1, 4 and 5 were selling gas stove burners online under the trade-name 'SURYA SHINING FLAME'. DW1 also admitted that none of the defendants have applied for registration of the trademark 'SURYA SHINING FLAME'. On the contrary, it has been testified to the sole defendant witness that the firms, defendant no.1 and defendant no.5, were closed after receiving the notice from the plaintiff and their online business has ceased. Accordingly, defendants no.1 and 5 have given up their right and claim in favour of the impugned mark 'SURYA SHINING FLAME', over which, no further rights have been asserted. Same is the position in respect of defendant no.4, who remained ex-parte after filing Written Statement, wherein it has been stated that the defendant no.4 had already discontinued operation of dealing in the unregistered trademark 'SURYA SHINING FLAME', after service of the Summons of the Suit.
18.7 PW1 has tendered evidence to prove its registered trademark 'SURYAFLAME' vide Trademark Certificate and its renewal vide Ex.PW1/3(Colly.). PW1 has further tendered the balance-sheet of the company to demonstrate its gross sales and has also placed on record the alleged expenditure on advertisements as Ex.PW1/4(Colly) to assert its widespread market presence and investment in attaining goodwill, on the basis of expenses of advertisements. These facts remained unchallenged by way of cross- examination of PW1. The fact that defendant no.1, 4 and 5 conceded to have stopped their operation under the name and style 'SURYA SHINING FLAME' and failed to assert their rights of their adopted trade-name 'SURYA SHINING FLAME' as against the plaintiff's Digitally CS (Comm.) No.282/2020 Shivam Industries Vs. Sri Baba Industries & Ors. PREETI signed by 59/66 AGRAWAL PREETI GUPTA AGRAWAL GUPTA (PREETI AGRAWAL GUPTA) District Judge (Commercial Court)-01 North-West/Rohini/New Delhi.
13.12.2025 registered trademark 'SURYAFLAME', in itself establishes a good case in favour of he plaintiff to show that the plaintiff had acquired enviable goodwill, reputation in the consumer market under the name and style of its trademark 'SURYAFLAME'.
18.8 In 'Kellogg Company Vs. Pravin Kumar Bhadabhai'; 1996 (16) PTC 187 Del), Hon'ble High Court of Delhi held :-
19.In the present case, in spite of any other close resembleness in the cartons, the name 'AIMS' written prominently on the respondents carton would, in our view, prima facie, as in case before Lord Halsbury show that there was no intention on the part of the defendant to play fraud by misrepresenting his goods as the goods of the appellant. In that very case, Lord Hal bury emhasized the need to see the whole description on the goods as one whole and not the individual features in isolation. He said :
"Inasmuch as you and certainly not to impute fraud without proof, you are not to suggest that people are fradulently committing some commercial trick without sufficient evidence, and I cannot conceive here how anybody could gravely argue that the one thing could be mistaken for the other by anybody who looked as it.
The whole question is these cases is whether the thing - taken in its entirety, looking at the whole thing, is such that in the ordinary course of things a person with reasonable apprehension and with proper eyesight would be deceived."
20. Thus, the above case also lays down that the trade dress or rather the whole thing must be seen in its entirely and not parts in isolation. It is not permissible, therefore to say that the square on the left side top had a small red and green border or there was a red band horizontally and defendant's carton if examined from close quarters, showed these feature. Viewed as a whole, one can see that the words Kellogg's, and AIMS are Digitally CS (Comm.) No.282/2020 Shivam Industries Vs. Sri Baba Industries & Ors. PREETI signed by 60/66 AGRAWAL PREETI GUPTA AGRAWAL GUPTA (PREETI AGRAWAL GUPTA) District Judge (Commercial Court)-01 North-West/Rohini/New Delhi.
13.12.2025 prominently displayed on each and therefore there can be no confusion, prima facie."
18.9 Plaintiff has been able to establish its superior rights over its trademark 'SURYAFLAME' and proved its distinctive identity in the consumer market for dealing in the products of gas burners and allied products under its trademark 'SURYAFLAME', as against defendant no.1, 4 and 5.
18.10 It is further considered that even if there are other players of different variations of use of the word 'SURYA' in their trademark in Class 11 or otherwise, the trade-name 'SURYA SHINING FLAME' that was adopted and used by defendant no.1, 4 and 5 for online marketing of their gas burners, in itself shows deceptive similarity with registered trademark of the plaintiff in the name and style of 'SURYAFLAME'.
18.11 The plaintiff has been able to establish a legally enforceable right over its trademark 'SURYAFLAME' and it is duly proved by preponderance of probabilities that plaintiff is a registered proprietor of trademark 'SURYAFLAME' and is legally entitled to protect the same from dishonest infringers. 18.12 The plaintiff has not tendered any evidence to establish its supremacy of alleged copyright over its label and packaging of 'SURYAFLAME' to show that it was Proprietor of an artistic work under Section 2(c) of the Copyright Act.
18.13 In view of the facts and reasons herein-above, the plaintiff has been able to prove a good case in its favour to satisfy the Court on the test of infringement of its trademark 'SURYAFLAME' Digitally CS (Comm.) No.282/2020 Shivam Industries Vs. Sri Baba Industries & Ors. PREETI signed by 61/66 AGRAWAL PREETI GUPTA AGRAWAL GUPTA (PREETI AGRAWAL GUPTA) District Judge (Commercial Court)-01 North-West/Rohini/New Delhi.
13.12.2025 by defendants no.1, 4 and 5 by adopting and marketing their products under the trade-name 'SURYA SHINING FLAME'.
18.14 The plaintiff has also been able to duly prove on record, in its favour and against all the defendants except defendant no.2 and 3, that the balance of convenience lies in favour of the plaintiff and against these defendants, as they themselves have conceded to the rights of the plaintiff during the pendency of the Suit. Furthermore, plaintiff has been able to duly prove by test of ' preponderance of probabilities' that irreparable loss and injury is likely to be caused to the plaintiff, if all the defendants are allowed to display or sell the products of defendant no.1, 4 and/or 5 under the name and style of 'SURYA SHINING FLAME'. The plaintiff has further established by settled test of proof that the plaintiff, through its sole Proprietor Mr.Rajiv Malhotra, is the proprietor of the registered trademark 'SURYAFLAME', which commands recognition, goodwill and reputation in the market for its products of gas burners and allied products. It is proved that the consumers of the plaintiff have developed trust in the quality of products sourced from the plaintiff, by duly proving its impressive sales figures. The plaintiff has further discharged the onus to show that if defendant no.1, 4 and 5 are not restrained from marketing their products under the name and style of the impugned trademark 'SURYA SHINING FLAME' then irreparable damages may be caused to the plaintiff which may not be capable of being compensated. Accordingly, plaintiff is entitled to following reliefs :
Digitally PREETI signed by CS (Comm.) No.282/2020 Shivam Industries Vs. Sri Baba Industries & Ors. AGRAWAL PREETI 62/66 GUPTA AGRAWAL GUPTA (PREETI AGRAWAL GUPTA) District Judge (Commercial Court)-01 North-West/Rohini/New Delhi.
13.12.2025
(a) A Decree of Permanent Injunction in its favour and against the defendants, thereby restraining the Defendants no 1,4 and 5 through its principal officers, servants and agents and all others acting on their behalf from manufacturing, selling, advertising, including on the online trading portals of www.flipkart.com and www.amazon.com or other portals on internet and in any other manner using the trademarks and getup of "SURYA SHINING FLAME" for LPG GAS STOVE BURNERS or any other alike products etc.
(b) A Decree for permanent injunction is passed in favour of the plaintiff and against the defendants, restraining the Defendants, directly or indirectly from passing off of the goods and business of the Defendants as and for those of the Plaintiff.
(c) A Decree of Permanent Injunction is passed in favour of plaintiff and against defendant no.2 and 3, restraining Defendants no. 2 and 3 from selling, offering for sale using trademarks and getup of "SURYA SHINING FLAME" in respect of LPG GAS STOVE BURNERS or any other alike products, till any other better claimant of the said title, asserts its rights in the Court of Law.
Issue No.1 is decided accordingly.
ISSUE NO.2.
Whether the plaintiff is entitled for a preliminary decree for rendition of account ? OPP
19. By way of the present Suit, plaintiff has prayed for rendition of accounts in its favour and against the defendants with the assertions that there have been substantial losses to the plaintiff Digitally PREETI signed by CS (Comm.) No.282/2020 Shivam Industries Vs. Sri Baba Industries & Ors. AGRAWAL PREETI 63/66 GUPTA AGRAWAL GUPTA (PREETI AGRAWAL GUPTA) District Judge (Commercial Court)-01 North-West/Rohini/New Delhi.
13.12.2025 owing to the infringing activities of the defendant, in selling the impugned and deceptively similar goods with the similar trademark 'SURYA SHINING FLAME'.
20. In an effort to prove its case, the balance-sheets have been tendered by the plaintiff through its witness PW1 as Ex.PW1/4 (Colly). The said balance-sheet remained proved on record as an undisputed and unchallenged document. However, by way of the testimonies of the witness(es) of plaintiff or defendants, nothing has come up to show that defendants no.1, 4 or 5 did any substantial business under the name and style of impugned trademark 'SURYA SHINING FLAME', which as per the case of the plaintiff, came to his knowledge, at the earliest, as per the case of the plaintiff. There has been no evidence led by the plaintiff to show any accountable business of defendants no.1, 4 or 5, who appeared to have entered the business as small time businessman, without having any long standing business operations under the impugned trademark 'SURYA SHINING FLAME'. So much so, that all the defendants stopped their operations and ceased to have business under the impugned trademark, after receipt of Summons of the Suit and practically conceded to the proprietary rights of the plaintiff and accepted their own inferior proprietary rights over the impugned trademark 'SURYA SHINING FLAME'.
21. In these facts and circumstances, there is no case made out to direct the defendants for rendition of accounts. As already considered defendant no.2 and 3 being intermediary enjoy the protection of law and cannot be held liable for any business done, Digitally CS (Comm.) No.282/2020 Shivam Industries Vs. Sri Baba Industries & Ors. PREETI signed by 64/66 AGRAWAL PREETI GUPTA AGRAWAL GUPTA (PREETI AGRAWAL GUPTA) District Judge (Commercial Court)-01 North-West/Rohini/New Delhi.
13.12.2025 prior to the Court restraint orders, for taking down the contents.
Issue No.2 is decided accordingly.
ISSUE NO.3.
3. Whether the plaintiff is entitled for a decree of Rs.3,00,600/- as prayed ? OPP
22. The findings on Issue no.2 herein-above are relevant and be considered in adjudication of this issue also, which is not being repeated herein for the sake of brevity. The plaintiff has claimed a decree of Rs.3,00,600/- as quantised losses on account of estimated damage for loss of business of the plaintiff, by operations of the defendants under the impugned trademark 'SURYA SHINING FLAME'. The plaintiff has failed to submit time-wise turnover of its business to show that there was any notable decline of business of the plaintiff in its sales or turnover, due to business of the defendants under the name and style of 'SURYA SHINING FLAME'. The plaintiff has failed discharge the onus to prove the quantised damages as claimed, in its favour and against the defendants.
Issue no.3 is accordingly decided against the plaintiff.
ISSUE NO.4
4. Relief.
23. Keeping in view the above findings, suit of the plaintiff is decreed in favour of the plaintiff and against the defendants. The plaintiff is entitled to following reliefs:
Digitally PREETI signed by CS (Comm.) No.282/2020 Shivam Industries Vs. Sri Baba Industries & Ors. AGRAWAL PREETI 65/66 GUPTA AGRAWAL GUPTA (PREETI AGRAWAL GUPTA) District Judge (Commercial Court)-01 North-West/Rohini/New Delhi.
13.12.2025
(a) A Decree of Permanent Injunction in its favour and against the defendants, thereby restraining the Defendants no 1,4 and 5 through its principal officers, servants and agents and all others acting on their behalf from manufacturing, selling, advertising, including on the online trading portals of www.flipkart.com and www.amazon.com or other portals on internet and in any other manner using the trademarks and getup of "SURYA SHINING FLAME" for LPG GAS STOVE BURNERS or any other alike products etc.
(b) A Decree for permanent injunction is passed in favour of the plaintiff and against the defendants, restraining the Defendants, directly or indirectly from passing off of the goods and business of the Defendants as and for those of the Plaintiff.
(c) A Decree of Permanent Injunction is passed in favour of plaintiff and against defendant no.2 and 3, restraining Defendants no. 2 and 3 from selling, offering for sale using trademarks and getup of "SURYA SHINING FLAME" in respect of LPG GAS STOVE BURNERS or any other alike products, till any other better claimant of the said title, asserts its rights in the Court of Law.
Parties to bear their own costs.
Decree sheet be drawn accordingly.
File be consigned to record room, after due completion. Announced in the open Court today on this 13th day of December, 2025. Digitally PREETI signed by AGRAWAL PREETI GUPTA AGRAWAL GUPTA (PREETI AGRAWAL GUPTA) District Judge (Commercial Court)-01 North-West/Rohini/New Delhi.
13.12.2025 CS (Comm.) No.282/2020 Shivam Industries Vs. Sri Baba Industries & Ors. 66/66 (PREETI AGRAWAL GUPTA) District Judge (Commercial Court)-01 North-West/Rohini/New Delhi.
13.12.2025