Archian Foods Private Limited vs Devsar Industries & Ors on 2 May, 2024

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Delhi High Court - Orders

Archian Foods Private Limited vs Devsar Industries & Ors on 2 May, 2024

Bench: Sanjeev Narula

                                    $~37
                                    *           IN THE HIGH COURT OF DELHI AT NEW DELHI
                                    +           CS(COMM) 354/2024
                                                ARCHIAN FOODS PRIVATE LIMITED                                                      ..... Plaintiff
                                                                                      Through:                Mr. Sagar Chandra, Mr. Nikhil
                                                                                                              Sonker and Mr. Himanshu Sharma,
                                                                                                              Advocates.

                                                                                      versus

                                                DEVSAR INDUSTRIES & ORS.                                                        ..... Defendants
                                                                                      Through:                None.

                                                CORAM:
                                                HON'BLE MR. JUSTICE SANJEEV NARULA
                                                             ORDER

% 02.05.2024 I.A. 9766/2024(seeking exemption from advance service)

1. Plaintiff alleges that Defendants are manufacturing lookalike products, which are of low and inferior quality. Sale of such goods is likely to cause immense loss to hard earned goodwill of Plaintiff in their trademark. Further, Plaintiff seeks urgent interim relief against counterfeit products and for this purpose, an ex-parte appointment of Local Commissioner is also sought to confiscate the goods. Therefore, in the peculiar facts and circumstances of this case, exemption from effecting advance service upon the Defendants is granted.

2. The application is allowed and disposed of.

I.A. 9763/2024(seeking leave to file additional documents)

3. This is an application seeking leave to file additional documents under CS(COMM) 354/2024 Page 1 of 14 This is a digitally signed order.

4. Plaintiff, if it wishes to file additional documents at a later stage, shall do so strictly as per the provisions of the said Act.

5. Disposed of.

I.A. 9764/2024(seeking exemption)

6. Exemption is granted, subject to all just exceptions.

7. Plaintiff shall file legible and clearer copies of exempted documents, compliant with practice rules, before the next date of hearing.

8. Disposed of.

I.A. 9765/2024(seeking exemption from pre-institution mediation)

9. As the present suit contemplates urgent interim relief, in light of the judgment of Supreme Court in Yamini Manohar v. T.K.D. Krithi,1 exemption from attempting pre-institution mediation is granted.

10. Disposed of.

CS(COMM) 354/2024

11. Let the plaint be registered as a suit.

12. Upon filing of process fee, issue summons to the Defendants by all permissible modes. Summons shall state that the written statement(s) shall be filed by the Defendants within 30 days from the date of receipt of summons. Along with the written statement(s), the Defendants shall also file affidavit(s) of admission/denial of the documents of the Plaintiff, without which the written statement(s) shall not be taken on record.

13. Liberty is given to the Plaintiff to file replication(s) within 15 days of the receipt of the written statement(s). Along with the replication(s), if any, 1 2023 SCC OnLine SC 1382.

CS(COMM) 354/2024 Page 2 of 14

This is a digitally signed order.

The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 24/05/2024 at 20:58:16 filed by the Plaintiff, affidavit(s) of admission/denial of documents of the Defendants, be filed by the Plaintiff, without which the replication(s) shall not be taken on record. If any of the parties wish to seek inspection of any documents, the same shall be sought and given within the timelines.

14. List before the Joint Registrar for marking of exhibits 01st August, 2024. It is made clear that any party unjustifiably denying documents would be liable to be burdened with costs.

15. List before Court for framing of issues thereafter. I.A. 9761/2024(u/O XXXIX Rules 1 and 2 of CPC)

16. Mr. Sagar Chandra, counsel for Plaintiff, has presented the following facts and contentions for seeking an ex-parte ad-interim injunction against the Defendants:

16.1. The Plaintiff is engaged in the business of manufacturing and marketing of various flavoured soft drinks and non-alcoholic beverages, including soda, fruit juices, and other carbonated drinks under the formative versions of the "LAHORI" trademark, such as "LAHORI ZEERA", "LAHORI NIMBOO", "LAHORI KACHA AAM", "LAHORI SHIKANJI", "LAHORI IMLI BANTA" etc. that are packed in distinctive packaging/ trade dress.

16.2. The rights in the afore-noted trademarks and trade dress are derived by the Plaintiff from their predecessor-in-interest, M/s Archian Foods, under the Deed of Assignment dated 30th November, 2021, whereunder 'Archian Foods' transferred all their intellectual property to the Plaintiff. Archian Foods adopted the trademark "LAHORI" in the year 2013 in respect of 'kulfi' sold by them. In the year 2015, the Plaintiff diversified its business under the Trademark 'LAHORI' and launched a non-alcoholic flavoured CS(COMM) 354/2024 Page 3 of 14 This is a digitally signed order.

The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 24/05/2024 at 20:58:17 beverage under the Trademark 'LAHORI ZEERA,' which the Plaintiff has been consistently and uninterruptedly using since then for non-alcoholic flavoured beverages. The Plaintiff's said goods under the trademark 'LAHORI' are sold bearing a unique and highly distinctive Trade Dresses/ Packaging/ Labels. The said Trade Dresses/ Packaging/ Labels under the Trademark 'LAHORI' have a unique arrangement of features, get up and layout along with a unique colour combination, and hence the same are highly distinctive in nature. Plaintiff is also the registered proprietor of various 'LAHORI Formative' trademarks in Class 30 and 32.2 The details of the said registrations are as follows:

Plaintiff's LAHORI marks CS(COMM) 354/2024 Page 4 of 14 This is a digitally signed order.

The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 24/05/2024 at 20:58:17 CS(COMM) 354/2024 Page 5 of 14 This is a digitally signed order.

The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 24/05/2024 at 20:58:17 16.3. One of the most popular variants of the Plaintiff's 'LAHORI' brand is the 'LAHORI ZEERA' variant which was launched by the Plaintiff in the year 2015. In the year 2022, Plaintiff adopted and started using the logo " ", and a new Trade Dress/ Packaging " " for its said goods.3 Plaintiff has also obtained a Copyright registration bearing No. A-146655/2023 for the label " ." Plaintiff also has a valid Design registration on the shape and configuration of the bottle 3 Collectively referred to as Plaintiff's marks and packaging.

CS(COMM) 354/2024 Page 6 of 14

This is a digitally signed order.

16.4. The sale of goods under the trademark "LAHORI ZEERA" for the financial year 2022-23 has been 203 Crores.

16.5. On account of long and continuous use, extensive promotional campaign and marketing network, the Plaintiff's mark and packaging and registered bottle design have acquired enviable goodwill and reputation amongst the members of trade and public at large.

16.6. Defendant No.1, 2 and 3 are involved in the manufacturing and marketing of flavoured/non-flavored non-alcoholic beverages, soft/drinks and beverages including soda and other carbonated drinks under mark " ", label /bottle design "4. Defendant No. 4 is the stockist of Defendant No. 1,2 and 3.

16.7. In April 2024, the Plaintiff came across the Defendants' products,5 bearing the Impugned trademark, packaging and bottle design being promoted, offered for sale and sold on the e-commerce platform 4 Impugned trade mark, packaging and bottle design.

Impugned Products CS(COMM) 354/2024 Page 7 of 14 This is a digitally signed order.

The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 24/05/2024 at 20:58:17 https://indiamart.com and being promoted on social media platform Facebook https://www.facebook.com/reel/741455641301472. Plaintiff's enquiries into various markets of Delhi revealed that the Impugned products under the Impugned mark/ logo/ trade dress/ packaging/ label/bottle design are being promoted and sold in various markets of Delhi, in a clandestine manner without any issuance of invoices. Furthermore, the wordmark "XAICA" incorporated in the Impugned label/packaging " " is registered in Defendant No.3's name bearing registration no. 2985385.

17. The Court has considered the afore-noted contentions. A comparison of the conflicting products is as follows:

18. The afore-noted comparison reveals that the Impugned products are CS(COMM) 354/2024 Page 8 of 14 This is a digitally signed order.

The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 24/05/2024 at 20:58:17 nearly identical to the Plaintiff's products. The Defendants have emulated the colour scheme, manner and style of writing the trademark "LAHORE JEERA", the device of sliced lemons, and the design of the label affixed on the product, as well as the shape of bottle of the Plaintiff's "LAHORI ZEERA" product. In view of similarity of marks and goods to which they applied, the goods reflect infringement of Plaintiff's Lahori marks, in respect of which they hold registrations. While the word mark "LAHORI JEERA" and device marks " " and " " are not registered in the Plaintiff's favour, they have, through material placed on record, prima facie demonstrated that on account of long and continuous use, extensive promotional campaign and marketing network, the Plaintiff's mark and packaging and registered bottle design have acquired enviable goodwill and reputation amongst the members of trade and public at large. The wordmarks "LAHORE JEERA" are phonetically and structurally similar to the Plaintiff's mark "LAHORI ZEERA". Although the Impugned products bear an additional word - "XAICA", it is written in a significantly smaller font size on the Impugned label, thereby giving prominence to the afore-noted wordmarks. Such minor changes in the label may go unnoticed by an average consumer and therefore, prima facie, it appears that Defendants are attempting to pass off the impugned products as that of the Plaintiff's. Therefore, prima facie, it appears that Defendants are attempting to pass off the Impugned products as that of the Plaintiff's. Their actions also constitute an infringement and piracy of Plaintiff's registered copyright in their artwork and design in the bottle.

CS(COMM) 354/2024 Page 9 of 14

This is a digitally signed order.

The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 24/05/2024 at 20:58:17

19. In view of the above, the Plaintiff has made out a prima facie case in its favour and in case an ex-parte ad-interim injunction is not granted, Plaintiff will suffer an irreparable loss; balance of convenience also lies in favour of the Plaintiff and against the Defendants.

20. Accordingly, till the next date of hearing, Defendants or anybody acting on their behalf, are restrained from using, manufacturing, selling, offering for sale, importing, exporting or advertising in any manner. including on the internet and e-commerce platforms, or directly or indirectly dealing in impugned goods being flavoured/ non-flavoured non-alcoholic beverages/ drinks and soft drinks, including soda and other carbonated drinks, or any other cognate and allied goods under the impugned marks/logo, packaging/label and bottle design- "LAHORE JEERA/ ", " " and " " or any other mark/logo/trade dress/packaging/get up that may be identical or deceptively similar to the Plaintiff's marks and bottle design "LAHORI ZEERA/ / / " that would amount to infringement of the Plaintiff's registered trademarks nos. 3501393, 3260534, 4673809, 4673811, 4673808, 4673810 and 5582577, passing off of CS(COMM) 354/2024 Page 10 of 14 This is a digitally signed order.

The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 24/05/2024 at 20:58:17 Impugned products as that of the Plaintiiff's, infringement of Plaintiff's registered copyright under No. A-146655/2023, and piracy of Plaintiff's registered design bearing No. 352339-001

21. Compliance of Order XXXIX Rule 3 of the Code of Civil Procedure, 1908 shall be done within two weeks from today.

22. Upon filing of process fee, issue notice to the Defendants, by all permissible modes, returnable on the next date of hearing. Reply, if any, be filed within four weeks from the date of service. Rejoinder thereto, if any, be filed within two weeks thereafter.

23. Re-notify on 03rd October, 2024.

I.A. 9762/2024(seeking appointment of Local Commissioner)

24. Mr. Chandra submits that the Defendants are aware of the Plaintiff and their products, and the infringing materials placed on record are clear evidence of the intention of the Defendants to ride upon the goodwill and reputation of the Plaintiff. The Plaintiff believes that the impugned products are stocked at the premises of Defendant No. 1 and Defendant No. 4. The Defendants are likely to remove all physical evidence or deny their involvement in the infringing activities. Therefore, in order to preserve evidence of infringement, it is necessary that Local Commissioners are appointed to visit the address of Defendant No. 1 and Defendant No. 4.

25. Accordingly, following Local Commissioners are appointed to visit premises of said Defendants:-

Name of Local Commissioner Premises to be Visited Mr. Manoj Kumar Sharma, Advocate Defendant No. 1 situated at M/s [Contact No.: +91 9811139236] Devsar Industries Kanonda Village, CS(COMM) 354/2024 Page 11 of 14 This is a digitally signed order.

124507.

                                                                                                                Defendant         No.   4     situated      at
                                                                                                                Aggarwal Super Market WZ-49/24,
                                             Mr. Sanjay Singh, Advocate
                                                                                                                Bodhela Market, Vikas Puri, New
                                         [Contact No.: +91 9958118327]
                                                                                                                Delhi, Delhi-110018.

26. The Local Commissioners, along with a representative of the Plaintiff and its counsel, shall be permitted to enter upon the premises of Defendants No. 1 and 4 mentioned above, or any other location/ premises that may be identified during the course of commission, in order to conduct the search and seizure.

27. The Local Commissioners shall conduct a search at the premises and seize all material, including labels, tags, stationary, promotional material, brochure, packing material, cartons, bottles, containers, display boards, sign boards, advertising material, dies or blocks, molds, wrapper etc. that reflects passing off of Plaintiff's trademark/trade dress/packaging/bottle design-

"LAHORE JEERA /" "/ " ", or infringement of their copyright and registered trademarks.

CS(COMM) 354/2024 Page 12 of 14

This is a digitally signed order.

The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 24/05/2024 at 20:58:18

28. After seizing infringing material, the same shall be inventoried, sealed, and signed by the Local Commissioners, in the presence of the parties, and released on superdari to the Defendants on their undertaking to produce the same as and when further directions are issued in this regard.

29. The Local Commissioners shall also be permitted to make copies of the books of accounts including ledgers, cash registers, stock registers, invoices, books, etc. insofar as they pertain to the impugned products. Further, the Local Commissioners shall be permitted to undertake/arrange for photography/ videography of the execution of the commission. Both the parties shall render full assistance to the Local Commissioners for carrying out the aforenoted directions.

30. In case any of the premises are found locked, the Local Commissioners shall be permitted to break open the lock(s). To ensure an unhindered and effective execution of this order, the SHO of the local police station is directed to render all assistance and protection to the Local Commissioners, if and when sought.

31. The fee of the Local Commissioners, to be borne by the Plaintiff, is fixed at Rs 1,100,00/- for the commission to be conducted within Delhi and is fixed at Rs. 1,50,000/- for the commission which is to be conducted out of station. The Plaintiff shall also bear expenses for travel and lodging of the Local Commissioners and other miscellaneous out-of-pocket expenses for the execution of the commission. Fee of the Local Commissioners shall be paid in advance by the Plaintiff.

32. The commission shall be executed within a period of two weeks from today. Reports of the Local Commissioners shall be filed within two weeks from the date of execution.

CS(COMM) 354/2024 Page 13 of 14

This is a digitally signed order.

The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 24/05/2024 at 20:58:18

33. The application is disposed of in the above terms.

34. Copy of the order shall not be uploaded on the website of this Court for a period of two weeks from today.

35. Dasti under signature of Court Master.

SANJEEV NARULA, J MAY 2, 2024 d.negi CS(COMM) 354/2024 Page 14 of 14 This is a digitally signed order.

The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 24/05/2024 at 20:58:18

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Delhi High Court - Orders