Delhi High Court - Orders
Is Eg Halal India Private Limited vs Standard Frozen Foods Exports Pvt. Ltd on 29 July, 2024
$~43
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(COMM) 620/2024 & I.A. Nos. 34619/2024, 34620/2024,
34621/2024, 34622/2024, 34623/2024, 34624/2024, 34625/2024 &
34626/2024
IS EG HALAL INDIA PRIVATE LIMITED .....Plaintiff
Through: Mr. Pravin Anand with Mr. Dhruv
Anand, Ms. Udita Patro and Ms.
Sampurna Sanyal, Advocates.
(M): 9313399860
versus
STANDARD FROZEN FOODS EXPORTS PVT. LTD......Defendant
Through: None.
CORAM:
HON'BLE MS. JUSTICE MINI PUSHKARNA
ORDER
% 29.07.2024 I.A. 34623/2024 (Exemption from filing originals and clear copies of documents)
1. The present is an application under Section 151 of the Code of Civil Procedure, 1908 ("CPC"), on behalf of the plaintiff, seeking exemption from filing originals, clearer and translated copies, left side margins.
2. Exemption is granted, subject to all just exceptions.
3. Applicant shall file legible, clear, and original copies of the documents, on which the plaintiff may seek to place reliance, before the next date of hearing.
4. Accordingly, the present application is disposed of.
CS(COMM) 620/2024 Page 1 of 14This 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 16/08/2024 at 21:28:10 I.A. No. 34624/2024 (Application for seeking exemption from filing Court fees)
5. The present application has been filed seeking exemption from filing Court Fees.
6. Learned counsel appearing for the plaintiff submits that Court Fees has already been paid.
7. Accordingly, the present application is disposed of, as having been infructuous.
I.A. 34626/2024 (Application for seeking exemption from serving advance notice to defendant)
8. The present is an application under Section 151 CPC seeking exemption from advance service to the defendant.
9. The plaintiff seeks urgent interim relief, and has also sought appointment of a Local Commissioner. Therefore, in the peculiar facts and circumstances of this case, exemption from effecting advance service upon the defendant, is granted.
10. For the reasons stated in the application, the same is allowed and disposed of.
I.A. 34625/2024 ((Exemption from instituting Pre-Litigation Mediation)
11. The present is an application under Section 12A of the Commercial Courts Act, 2015, read with Section 151 of CPC seeking exemption from undergoing Pre-Institution Mediation.
12. Having regard to the facts of the present case and in the light of the judgment of Supreme Court in the case of Yamini Manohar versus T.K.D. Keerthi, 2023 SCC OnLine SC 1382, and Division Bench of this Court in Chandra Kishore Chaurasia Versus RA Perfumery Works Private Ltd., CS(COMM) 620/2024 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 16/08/2024 at 21:28:10 2022 SCC OnLine Del 3529, exemption from attempting Pre-Institution Mediation, is granted.
13. Accordingly, the application stands disposed of. I.A. 34622/2024 (Application seeking leave to file additional documents)
14. This is an application seeking leave to file additional documents under Order XI Rule 1(4) as amended by the Commercial Courts, Commercial Appellate Division of the High Courts Act, 2015, read with 151 CPC.
15. The plaintiff, if it wishes to file additional documents at a later stage, shall do so strictly as per the provisions of Commercial Courts Act, and the Delhi High Court (Original Side) Rules, 2018.
16. The application is disposed of, with the aforesaid directions. I.A. No. 34620/2024 (Application under Order XI Rule 1, 3 and 5 of CPC read with Section 151 CPC seeking discovery, production and inspection of the defendant's documents)
17. The present application has been filed under Order XI Rule 1, 3 and 5 (as amended by the Commercial Courts, Commercial Division and Commercial Appellate Divisions) read with Section 151 CPC seeking discovery, production and inspection of the defendant's documents.
18. Issue notice to the defendant.
19. Let reply be filed by the defendant within a period of four weeks. Rejoinder thereto, if any, be filed within a period of two weeks, thereafter. CS(COMM) 620/2024
20. Let the plaint be registered as suit.
21. Upon filing of the process fee, issue summons to the defendant by all permissible modes. Summons shall state that the written statement be filed by the defendant within thirty days from the date of receipt of summons.
CS(COMM) 620/2024 Page 3 of 14This 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 16/08/2024 at 21:28:11 Along with the written statement, the defendant shall also file affidavit of admission/denial of the plaintiff's documents, without which, the written statement shall not be taken on record.
22. Liberty is given to the plaintiff to file replication within thirty days from the date of receipt of the written statement. Further, along with the replication, if any, filed by the plaintiff, an affidavit of admission/denial of documents of the defendant, be filed by the plaintiff, without which, the replication shall not be taken on record. If any of the parties wish to seek inspection of the documents, the same shall be sought and given within the timelines.
23. List before the Joint Registrar (Judicial) for marking of exhibits, on 17th September, 2024.
24. List before the Court, on 02nd December, 2024.
I.A. No. 34619/2024 (Application under Order XXXIX Rules 1 and 2 read with Section 151 CPC seeking ex-parte ad-interim injunction)
25. The present suit has been filed for permanent injunction restraining infringement of copyright, passing off, unfair competition, tarnishment and dilution, damages or rendition of accounts of profits, delivery up, etc.
26. It is submitted that the plaintiff's parent company, i.e., IS EG Halal Certified Inc. is the sole entity authorised by the Government of Egypt to certify Halal exports (meat packing, agro foods, food additives, nutritional foods, pharmaceuticals, cosmetics and personal care products) to Egypt. The plaintiff is the only entity in India authorised by the Government of Egypt to certify Halal buffalo meat being exported to Egypt.
27. Learned counsel for the plaintiff submits that the plaintiff started its operations in India in 2019 and in five years, the plaintiff has successfully CS(COMM) 620/2024 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 16/08/2024 at 21:28:13 increased the percentage of Halal buffalo meat export from India to Egypt from 25% to 80%. Therefore, 80% of the buffalo meat imported into Egypt comes from India. It is submitted that India is the largest supplier of Halal buffalo meat in Egypt. Further, presently, the plaintiff has 46 approved slaughter houses in India.
28. He further submits that the plaintiff has been continuously, extensively and widely using the trademark IS EG Halal, not only as a trademark but also as a trade name and domain name, i.e., www.iseghalal.com. It is further submitted that the trademark IS EG Halal is also conspicuously displayed on the plaintiff's official website as . Thus, it is submitted that every visitor on the website comes across the mark, even if they are not availing the plaintiff's services.
29. It is submitted that the subject matter of the present suit concerns the mark IS EG Halal of the plaintiff, which is extensively used by the plaintiff. Additionally, it is also submitted that the uniquely conceptualised logo is purely an innovative, creative, fanciful device mark, which consists of Arabic letters in gold over the words IS EG HALAL in white on a gold rectangle all within a gold crown-shaped outline, a light grey geometric pattern inscribed above the Arabic letters and within the gold CS(COMM) 620/2024 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 16/08/2024 at 21:28:13 outline. The is exclusively and effortlessly associated by the members of trade and public with the plaintiff alone.
30. It is further submitted that the artistic work, in the device mark also constitutes an original artistic work, within the meaning of Section 2 (c) of the Copyright Act, 1957, which entitles the plaintiff the exclusive copyright ownership and use of it. Accordingly, the plaintiff has exclusive rights to the adoption, use and registration of IS EG Halal logo represented as to the exclusion of all others. It is submitted that the plaintiff has also taken steps to seek a formal copyright registration before the Indian Copyright office.
31. Learned counsel for the plaintiff submits that by virtue of the coined nature, priority in adoption, extensive, continuous and widespread use and promotion of the 'IS EG HALAL' trademark, the same has come to be exclusively identified and associated with the plaintiff. The plaintiff's certifications under the 'IS EG HALAL' trademark have acquired CS(COMM) 620/2024 Page 6 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 16/08/2024 at 21:28:13 considerable reputation and command a tremendous market in India. The plaintiff is, thus, the proprietor of the said prior used 'IS EG HALAL' trademark and, is exclusively entitled to use the said mark to the exclusion of all others.
32. Attention of this Court has been drawn to Section 2(2)(a) of the Trade Marks Act, 1999, to submit that 'certification trademark' is also a trademark. Further, attention of this Court has also been drawn to Section 2(1)(zb), to submit that trademark also includes certification of trademark. Learned counsel for the plaintiff also relies upon Section 27(3) of the Trade Marks Act, 1999 to submit that passing off action in such a case is also saved by the Act.
33. Learned counsel for the plaintiff submits that the defendant, i.e., Standard Frozen Foods Exports Pvt. Ltd. is a private limited company based in Unnao, Uttar Pradesh. The defendant is engaged in the business of meat processing and exporting to various countries.
34. He further submits that till the end of the year 2023, the defendant was an approved slaughterhouse by the plaintiff. However, due to inadequate hygiene and technical standards, the plaintiff withdrew its certification/approval earlier accredited to the defendant entity. However, when the plaintiff conducted a search at the premises of the defendant in the month of May 2024, it was found that despite the withdrawal of the plaintiff's approval, the defendant adopted a deceptively similar mark CS(COMM) 620/2024 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 16/08/2024 at 21:28:15 , wholly incorporating the plaintiff's 'IS EG HALAL' mark and misrepresented that it continued to be a slaughterhouse approved by the plaintiff.
35. Attention of this Court has been drawn to the document folder, wherein, the product of the defendant has been shown, wherein, it is shown that the defendant is still using the plaintiff's mark and representing to be certified by the plaintiff herein.
36. It is submitted that the defendant has adopted a nearly identical mark i.e., as that of the plaintiff, by making minor cosmetic changes to it. It is submitted that the defendant is also in the business of slaughter, production and export of 'halal' buffalo meat meant for export to inter alia Egypt.
37. It is further submitted that the plaintiff also found out through the Facebook profile of one of the importers of halal buffalo meat from Egypt, i.e., Elesely Import and Export, that the defendant is engaged in providing its services (i.e., manufacture, processing and export of halal buffalo meat) CS(COMM) 620/2024 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 16/08/2024 at 21:28:17 using the infringing mark for the purpose of certifying that the meat slaughtered, produced and exported by it, has been done under the supervision of the plaintiff and has been duly approved by the plaintiff. The table showing the comparison between the plaintiff's and the defendant's mark, is reproduced as below:-
38. It is submitted that the plaintiff's 'IS EG HALAL' trademark and device mark has acquired distinctiveness and secondary CS(COMM) 620/2024 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 16/08/2024 at 21:28:18 meaning through a variety of factors including extensive and uninterrupted use of the mark in relation to its services, extensive promotion and advertising, substantial certifications and significant sales turnover of the plaintiff Company. Thus, it is submitted that the plaintiff is suffering and is likely to suffer incalculable loss to its goodwill, business and reputation on account of the defendant's usage of the plaintiff's 'IS EG HALAL' trademark and the device mark on its products.
39. Considering the submissions made before this Court, the plaintiff has established a prima facie case in its favour. The balance of convenience also lies in favour of the plaintiff and against the defendant. This Court is of the view that irreparable loss and damage shall be caused to the plaintiff, if interim order is not passed in favour of the plaintiff.
40. Accordingly, it is directed that till the next date of hearing, the defendant, its proprietors, partners, franchisees, officers, servants, agents, distributors, stockists and representatives are restrained from infringing the Plaintiff's Trademark and copyright/artistic work in by using an identical or deceptively similar artistic work i.e., , in relation to its business of manufacture, processing and export of meat (including buffalo CS(COMM) 620/2024 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 16/08/2024 at 21:28:20 meat).
41. It is clarified that the defendant can continue with its business using some other mark/label, which is distinct and not deceptively similar to the plaintiff's mark/label.
42. Issue notice to the defendant by all permissible modes, upon filing of process fees, returnable on the next date of hearing.
43. Reply, if any, be filed within a period of four weeks from the date of service.
44. Rejoinder thereto, if any, be filed within a period of two weeks, thereafter.
45. Compliance of Order XXXIX Rule 3 CPC, be done, within a period of two weeks, from today.
46. List before the Court on 02nd December, 2024.
I.A. 34621/2024 (Application for appointment of Local Commissioner)
47. The present application has been filed on behalf of the plaintiff under Order XXVI Rules 4, 9 and 10 and Order XXXIX Rule 7 read with Section 151 CPC, seeking appointment of a Local Commissioner.
48. Learned counsel appearing for the plaintiff submits that on account of infringement of the plaintiff's trademark, insurmountable loss shall be caused to the plaintiff, since certification of a product not meeting the quality standards of the plaintiff, has the direct effect of diluting the plaintiff's goodwill and reputation. Thus, it is imperative for appointment of a Local Commissioner for the purpose of making an inventory of the infringing goods and other materials.
49. Accordingly, the following directions are issued:
49.1 Mr. Prateek Bhalla, Advocate (Mob. No.9958477909), is appointed as CS(COMM) 620/2024 Page 11 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 16/08/2024 at 21:28:21 a Local Commissioner, in order to visit the premises of the defendant, as under:-
Standard Frozen Foods Exports Pvt. Ltd. Gata No - 84,85,87,95 Vill. Chandpur Near UPSIDC, Unnao Uttar Pradesh, India - 209801 49.2 The learned Local Commissioner, along with a representative of the plaintiff and its counsel, shall be permitted to enter upon the premises of the defendant mentioned above, or any other location/premises, that may be identified during the course of commission, in order to conduct the search and seizure.
49.3 The learned Local Commissioner shall conduct a search at the defendant's premises and make an inventory of all the infringing goods bearing the infringing mark 'IS EG HALAL' and/or the mark of the plaintiff or the mark of the defendant, or any other mark/name/label, which is deceptively similar to the plaintiff's 'IS EG CS(COMM) 620/2024 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 16/08/2024 at 21:28:22 HALAL' and/or the or the marks in any manner.
49.4 The learned Local Commissioner shall take into custody all infringing packaging materials such as literature etc., bearing the infringing mark and/or bearing the words 'IS EG HALAL' deceptively similar to the plaintiff's 'IS EG HALAL' and/or the marks in any manner. After seizing the infringing material, the same shall be inventorized, sealed and signed by the Local Commissioner, in the presence of the parties, and released on superdari to the defendant, on their undertaking to produce the same, as and when further directions are issued in this regard. 49.5 The learned Local Commissioner shall also be permitted to make copies of the books of accounts, including, ledgers, cash books, stock registers, invoices, books, etc., in so far as they pertain to the infringing products.
49.6 Further, the learned Local Commissioner shall be permitted to undertake/arrange for photography/videography of the execution of the commission.
CS(COMM) 620/2024 Page 13 of 14This 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 16/08/2024 at 21:28:22 49.7 Both the parties shall provide assistance to the learned Local Commissioner for carrying out the aforesaid directions. 49.8 In case, any of the premises are found locked, the learned Local Commissioner shall be permitted to break open the lock(s). 49.9 To ensure an unhindered and effective execution of this order, the Station House Officer ("SHO") of the local Police Station, is directed to render all assistance and protection to the Local Commissioner, as and when, sought.
49.10 The fee of the Local Commissioner, to be borne by the plaintiff, is fixed at ₹ 2,00,000/-. The plaintiff shall also bear all the expenses for travel and lodging of the Local Commissioner and other miscellaneous out-of- pocket expenses, for the execution of the commission. The fee of the Local Commissioner shall be paid in advance by the plaintiff. 49.11 The Local Commission shall be executed within a period of two weeks from today. The learned Local Commissioner shall file the report within a period of four weeks from the date, on which the commission is executed.
50. The order passed today, shall not be uploaded for a period of two weeks.
51. The present application stands disposed of, in the aforesaid terms.
52. Dasti under the signatures of the Court Master.
MINI PUSHKARNA, J JULY 29, 2024 c CS(COMM) 620/2024 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 16/08/2024 at 21:28:23