Delhi District Court
Future Retail Limited vs M/S M Food Bazaar And Anr on 29 April, 2025
IN THE COURT OF Sh. NIKHIL CHOPRA, DISTRICT JUDGE
(COMMERCIAL COURT)-06, CENTRAL DISTRICT,
TIS HAZARI COURT, DELHI
CS (COMM) 139/2020
CNR No. DL-CT01- 000795-2020
FUTURE RETAIL LIMITED
Knowledge House, Shyam Nagar,
Off Jogeshwari-Vikhroli Link Road,
Jogeshwari (East),
Mumbai 400060
......Plaintiff
Versus
1. M/S. M FOOD BAZAAR AND ANR.
1375/13 (Basement), Degree Colleg Chauraha,
Rae-Bareli, Uttar Pradesh.
.... Defendant No. 1
2. LAXMI TRADERS,
1375/13 (Basement), Degree Colleg Chauraha,
Rae-Bareli, Uttar Pradesh.
.... Defendant No. 2
3. PANKAJ DWIVEDI,
3, Subhash Nagar, Kunda,
Pratapgarh.
.... Defendant No. 3
Date of Institution : 02.01.2020
Final arguments : 26.04.2025
Date of decision : 29.04.2025
JUDGMENT
1. Judgment disposes off a suit under Section 134, 135, 27 and 29 of the Trademarks Act, 1999 and Section 51 and CS (COMM) 139/2020 Future Retail Ltd.Vs. Page No. 1 of 21 M/s. M Food Bazaar & Anr.
55 of Copyright Act, 1957, for permanent injunction restraining infringement of Trademark & Copyright, Passing off, Delivery up, rendition of accounts etc.
2. The Plaintiff is engaged in the business of hypermarket retail store under the Trademark/Trade name "BIG BAZAAR", which includes grocery products, fashion, general merchandise, including home furnishings, Utensils, crockery, cutlery, sports goods and much more and related/cognate goods (hereinafter referred to as the "said goods and businesses").
3. The Plaintiff has also adopted the trademark FOOD BAZAAR with respect to its sale of grocery products. Sometime in the year 2001, the Plaintiff conceptualized the idea of a supermarket and opened India's first hypermarket retail store under the trademark "BIG BAZAAR". With the view to tap the maximum potential of the goods/ and or services offered under the said trademarks in the Indian market, the Plaintiff introduced the concept of "BIG BAZAAR" discount stores/ Hyper Market Stores in several major cities across the country.
4. It is averred that Plaintiff has formulated in April, 2002, Food Bazaar- a chain of large supermarkets with an intention to ensure customer's satisfaction and comfort while shopping. The Plaintiff has also obtained a domain name as CS (COMM) 139/2020 Future Retail Ltd.Vs. Page No. 2 of 21 M/s. M Food Bazaar & Anr.
www.foodbazaar.co.in in 2005 for promotion and business of "Food Bazaar" chain.
5. It is averred that the plaintiff's business under the said Trademark/Trade name/label/trade-dress/color-combination has seen a consistent growth and has become a household name that is synonymous with "retail" in India. The Plaintiff, as averred in the plaint, holds a significant prominence in the Indian retail and fashion sectors. It is claimed that as of now, Plaintiff operates more than 292 BIG BAZAAR stores spread over the length and breadth of the country and has a customer base that transcends all geographical boundaries and has shattered barriers of age, gender, economic class as well as social strata.
6. It is averred that plaintiff had a turnover of Rs.18,478 Crores during the financial year 2017-2018 in respect of the retail stores. It is further averred that the plaintiff has trademark registration in India under the Trademarks Act, 1999 as explained in the plaint. In addition to the aforementioned registrations, the plaintiff is also having various trademark registrations bearing no. 1247766, 1375256 and 1247767 registered on 05.11.2023, 03.08.2025 and 05.11.2003 respectively, each in Class 35 & 42, and bearing registration bearing no. 3747201 and 2999623 registered on 07.02.2018 and 02.07.2015 respectively, both in Class 35.
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The plaintiff is also stated to be carrying on its business activities under the said trademark on the internet through its websites namely www.bigbazaar.com since 30th July, 2002 (hereinafter referred to as ' said domain names/ website" . The said domain website of the plaintiff contains extensive information about the goods and business provided by the plaintiff under its said Trademark/ Trade name. It is further averred that the plaintiff has acquired immense goodwill and reputation and has also built up a valuable trade under the said Trademark/ Trade name.
7. The hypermarket under the said Trademark/Trade name/label/trade-dress/color-combination is stated to be present in 144 cities and drawing millions of people into its stores.
8. It is further averred that the plaintiff has 1511 retail stores in multiple retail formats, under its brand BIG BAZAAR, FOOD BAZAAR, FBB, FOODHALL, EASYDAY, HERITAGE FRESH, WH SMITH including hypermarkets, supermarkets and home solutions segment, catering to over 351 million customers across 428 cities with products and services supplied by over 30,000 small, medium and large entrepreneurs and manufactures from across India. The residual effect of the aforesaid endeavors of the plaintiff has rendered them to have a turnover of Rs.20,165 Crores during the financial year 2018-2019 in CS (COMM) 139/2020 Future Retail Ltd.Vs. Page No. 4 of 21 M/s. M Food Bazaar & Anr.
respect of the retail stores.
9. The plaintiff has claimed the ownership of the trademark/ trade name, asserting it as original artistic work protected under Indian Law. It is averred that the plaintiff have built significant goodwill and reputation through extensive use and advertising. The plaintiff's said trademark/ trade name are claimed to be well known trademarks within the meaning of Section 2 (1) (zg) of the Act.
10. The defendants are also stated to be engaged in services and business of retailing in grocery products, fashion, general merchandise including home furnishings, utensils, crockery, cutlery, sports goods etc. and related/ cognate services (hereinafter referred to as the impugned services/ goods and impugned business). Defendant no. 1 is stated to be the unit of Defendant no. 2, and defendant no. 3 is the partner of defendant no. 2.
It is averred that the defendants are engaged in said business under the Trade Name 'M FOOD BAZAAR and are stated to be using e-mail - 'laxmitradersmfoodbazar@ gmail.com' (hereinafter referred to as said impugned Trademark/ Trade name/ Label/ Trade- Dress/ Colour- combination/ e-mail). The defendant's impugned Trademark/ Trade name/ Label/ Trade dress/ colour- combination/e-mail are identical and similar to plaintiff's CS (COMM) 139/2020 Future Retail Ltd.Vs. Page No. 5 of 21 M/s. M Food Bazaar & Anr.
said impugned Trademark/ Trade name/ Label/ Trade- Dress/ Colour-combination/ e-mail, which they have adopted and started using in relation to their impugned services and businesses, without the leave and license of the plaintiff.
11. It is averred that in the last week of December, 2019, the plaintiff came to know about the impugned services and business under the impugned Trademark/ Trade name/ Label/ Trade- Dress/ Colour-combination/ e-mail. The defendants are using the impugned Trademark/ Trade name/ Label/ Trade- Dress/ Colour-combination/ e-mail and they have no right to use it in any manner in relation to their goods and business or for any other specification of goods and business whatsoever being in violation of the Plaintiff's rights therein.
It is further averred that the defendant no. 3 had filed a trademark application for the word mark M FOOD BAZAAR in Class 30 under application no. 4397643 on 'proposed to be used' basis and the impugned trademark is not only infringing in nature but the aforesaid application is not maintainable in law, and that it reserves rights to file opposition to the said mark.
12. It is the case of the plaintiff that the defendants, by the very impugned adoption use of the mark in question, is passing off all its goods as well as diluting the plaintiff's proprietary rights besides infringing the plaintiff's trademarks. It is also averred that the defendants are fully CS (COMM) 139/2020 Future Retail Ltd.Vs. Page No. 6 of 21 M/s. M Food Bazaar & Anr.
aware of the plaintiff's rights, goodwill, reputation and they have adopted and started using impugned trademarks/ Trade name/ label/ Trade dress/colour-combination and e-mail dishonestly and fraudulently with a view to take an unfair advantage over the established goodwill and reputation of the proprietary rights of the plaintiff. The plaintiff, resultantly, is stated to be suffering huge losses in business and reputation on account of the said misuse. It is averred that the plaintiff came to know about the infringing activities by the defendants in the last week of December, 2019. As regards jurisdiction, it is stated that the defendants are soliciting, networking in order to expand their business and have intention to retail/ solicit their impugned services and business under the impugned trademark, in Central Delhi area. Besides, it is averred that the plaintiff is also carrying on its business using its marks, trade name, lable, trade-dress and color-combination through its hypermarket located at E-34, Bunglow Road, Kamla Nagar, Delhi as well as maintains e-commerce website portal www.bigbazaar.com, which is interactive in nature.
13. While claiming cause of action to have accrued in December, 2019, and that the cause of action is a continuing one, plaintiff has prayed for a decree of permanent injunction, restraining the defendants from using "M FOODBAZAAR" and domain 'laxmitradersmfoodbazar @ gmail.com', rendition of accounts, delivery and damages etc. CS (COMM) 139/2020 Future Retail Ltd.Vs. Page No. 7 of 21 M/s. M Food Bazaar & Anr.
14. As transpires from the record, the defendants were served and appeared through Counsel on 05.03.2020. Written Statement was subsequently filed.
The defendants raised several objections to the suit, claiming it to be misconceived, abuse of process of law and not maintainable. The defendants have also claimed that mark any registration or the status applied for would be of no avail as the plaintiff has failed to disclose actual use. It is also averred that the plaintiff had not been using 'FOOD BAZAAR' and the mark being used by the defendants is an honest adoption of bonafide and concurrent user.
Besides, defendants have also stated that there are other users of such mark and no cause of action accrued with the plaintiff to file the present suit. The territorial jurisdiction of this Court is also challenged. It is stated that the trademark/ label being used by the defendants is neither identical nor similar.
15. It is averred that the 'M FOODBAZAAR' is composite mark composed of artistic and distinctive presentation, exhibiting structural dissimilarities.
16. In terms of the order dated 27.05.2022, the defendants were proceeded Ex-Parte.
17. Subsequently, in terms of order dated 13.09.2022 of CS (COMM) 139/2020 Future Retail Ltd.Vs. Page No. 8 of 21 M/s. M Food Bazaar & Anr.
the Ld. Predecessor following issues were framed for Ex- parte evidence of the plaintiff:-
(i) Whether the plaintiff is entitled for the decree of permanent injunction, as prayed for? OPP
(ii) Whether the plaintiff is entitled for the restraining order as prayed for in prayer clause (b) of the plaint? OPP
(iii) Whether the plaintiff is entitled for relief as prayed for in prayer clause (c) of the plaint? OPP
(iv) Whether the plaintiff is entitled for the relief as prayed for in prayer clause (d) of the plaint? OPP
(v) Relief.
18. As transpires from the record, the plaintiff company was subsequently declared insolvent by NCLT, Mumbai.
19. In terms of the order dated 23.04.2024 of the Ld. Predecessor, the suit was held to be maintainable despite plaintiff having being declared insolvent and the plaintiff was called upon to lead evidence.
20. Since an official liquidator stood appointed, Sh. J.S. Khurana, Ld. Counsel representing the official liquidator had participated in the proceedings for an on behalf of the plaintiff.
21. Although number of opportunities were given, the plaintiff did not examine any witness.
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22. While relying upon a few precedents, Ld. Counsel appearing for the official liquidator has submitted that the examination of witnesses would not be necessary in Ex-Parte proceedings, and the matter can be decided on the basis of the material placed on record.
23. I have heard Sh. J.S. Khurana, Ld. Counsel for the official liquidator appointed in respect of the plaintiff company, and have also gone through the record.
24. Main contentions of the Ld. Counsel for the plaintiff are:-
"(i) The plaintiff company is the registered owner of the trademark BIG BAZAAR as well as FOOD BAZAAR and had been in hyper retail business since a considerably long time.
(ii) The plaintiff had acquired significant reputation and has become a common household name, given the commodities and extensive business being conducted by the plaintiff.
(iii) The marks BIG BAZAAR and FOOD BAZAAR have become well known marks in terms of the Trademark Law. The plaintiff has got several registrations in its favour starting from the year 2003 and it is also registered in several other countries across the world.
(iv) The Trademark FOOD BAZAAR has already been registered in favour of the plaintiff vide application no. 1247767 registered under the Clause 35 and 42 on 05.11.2003. The plaintiff had been using the said mark in connection with its business ever since 31.07.2002.
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(v) The plaintiff has placed on record the acquired printout of its mark BIG BAZAAR as well as FOOD BAZAAR and the impugned mark M FOODBAZAAR being used by the defendants. It would be more than clear that not only the mark being used by the defendants is phonetically similar but also is conceptually similar and has been adopted only for the purpose of encashing upon the established reputation of the plaintiff.
(vi) The defendants have, in their eagerness to copy the mark of the plaintiff, also copied the colour scheme i.e. RED and BLUE being used by the plaintiff in relation with its registered mark FOOD BAZAAR and it is a case of deliberate imitation so as to bring the defendants' owned mark as close to the mark of the plaintiff for the purposes of passing off its goods.
(vii) The plaintiff had been using the mark FOOD BAZAAR ever since 2002 and on account of nature of business and wide spread business, it can easily be inferred that the defendants were clearly aware of the mark FOOD BAZAAR being used by the plaintiff along with its house mark BIG BAZAAR in connection with its business.
(viii) The impugned mark- 'M FOOD BAZAAR' has also been deviced for the purpose of infringement and cannot be claimed to be either honest, bonafide or a concurrent user.
(ix) The defendants are also into similar trade and deals with goods which the plaintiff had been dealing in and as such there is clearly likelihood of general public getting deceived into believing that the defendants business is a part and parcel of the plaintiff group.
(x) The plaintiff has relied upon following judgments in support of his contentions-
1. The Indian Performing Right Society Ltd. Vs. Gauhati Town Club & Anr. CS (OS) no.
559/2010 decided on 30.01.2013.
2. Allied Blenders and Distillers Pvt.Ltd. vs. Ashok Kumar in CS (COMM) 103/2022 CS (COMM) 139/2020 Future Retail Ltd.Vs. Page No. 11 of 21 M/s. M Food Bazaar & Anr.
decided on 13.07.2023.
3. Disney Enterprises Inc. & Anr. Vs. Balraj Muttneja & Ors. CS (OS) 3466/2012 decided on 20.02.2014.
25. In The Indian Performing Right Society Ltd. Vs. Gauhati Town Club & Anr., the Hon'ble Court held that there is no necessity for recording of Ex-Parte evidence as the same would be a repetition of the contentions of the plaintiff.
A similar observation has been made by the Hon'ble High Court of Delhi in The Coca Cola Company & Anr. Vs. Narsingh Rao & Ors. 2014 (4) R.A.J.: 442 (Del). In view of the above, the physical examination of witnesses can be dispensed with.
26. Time now to deal with the issues.
27. Issue no. 1 to 4 are taken up together being inter-
connected.
Issue no. 1 : Whether the plaintiff is entitled for the decree of permanent injunction, as prayed for? OPP Issue no. 2 : Whether the plaintiff is entitled for the restraining order as prayed for in prayer clause (b) of the plaint? OPP Issue no. 3: Whether the plaintiff is entitled for relief as prayed for in prayer clause (c) of the plaint? OPP Issue no. 4 : Whether the plaintiff is entitled for the CS (COMM) 139/2020 Future Retail Ltd.Vs. Page No. 12 of 21 M/s. M Food Bazaar & Anr.
relief as prayed for in prayer clause (d) of the plaint? OPP
28. In order to prove its right in the trademarks- BIG BAZAAR and FOOD BAZAAR, the plaintiff has placed certificates of registration on record. The record placed shows that the Trademark BIG BAZAAR along with its devices stands registered under Class 35 vide application no. 299623 registered on 02.07.2015.
The Certificate no. 1247766 shows that the trademark BIG BAZAAR was registered w.e.f. 05.11.2003 and its user is stated to be 31.10.2001.
As regards the trademark- FOOD BAZAAR is concerned, the plaintiff is also found to have placed a certificate bearing no. 1247767, applied for on 05.11.2003, under Class 35 and 42 and its status is shown to be registered as per the said document. The user details mentioned in the certificate clearly shows that the plaintiff has claimed its user ever since 31.07.2002.
29. The plaintiff is also found to have placed various promotional material including use of its trademarks BIG BAZAAR and FOOD BAZAAR in relation with its business of retail of household goods and kitchen products. There is nothing on record which could indicate that the said documents are devoid of any credibility or otherwise cannot be relied upon by the Court.
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30. The defendants opted not to participate in the proceedings and have been proceeded Ex-parte on 27.05.2022.
31. It is the categorical case of the plaintiff that the adoption of the impugned mark M FOOD BAZAAR is a deliberate imitation and have been dishonestly done for encashing upon the reputation of the plaintiff business.
32. Ld. Counsel for the plaintiff has invited attention of the Court towards the photographs of the defendants' outlet, placed at Page no. 2 of the plaintiff's documents contending that the Mark/ Trade Name - FOOD BAZAAR is not only identical and similar, but also is designed to lure general people into believing that it is a part and parcel of the plaintiff's group.
33. Plaintiff has also placed on record the photocopy of a receipt issued by the defendant at Rai Barelly, U.P., in the name and style of M FOOD BAZAAR, placed on record at Serial No. 4 of the documents filed by the plaintiff.
34. Coming now to the question of deceptive similarity amongst the marks in question. Insofar as the principles for determination of similarity and grant of injunction are concerned, in Phonepe Private Limited Vs EZY Services & CS (COMM) 139/2020 Future Retail Ltd.Vs. Page No. 14 of 21 M/s. M Food Bazaar & Anr.
Anr. IA 8084/2019 in CS (COMM) 292/2019 decided on 15.04.2021, the Hon'ble High Court of Delhi observed as under:-
20. On the aspect of confusing or deceptive similarity, which is the sine qua non for any successful action for infringement or passing off, this Court has, in its decision in FDC Ltd. v. Faraway Foods Pvt. Ltd.38, Natures Essence Pvt. Ltd. v. Protogreen Retail Solutions Pvt. Ltd.39 and Britannia Industries Ltd. v. ITC Ltd.40, culled out the following principles, from the decisions in Satyam Infoway (P) Ltd. v. Siffynet Solutions (P) Ltd.41, Cadila Health Care Ltd. v. Cadila Pharmaceuticals Ltd.42, Kaviraj Pt. Durga Dutt Sharma1, National Sewing Thread Co. Ltd. v. James Chadwick & Bros Ltd.43, Corn Products Refining Co. v.
Shangrila Food Products Ltd.44, Amritdhara Pharmacy v. Satya Deo Gupta45, K. R. Krishna Chettiar v. Shri Ambal& Co.46, F. Hoffman-La Roche & Co. Ltd. v. Geoffrey Manners & Co. Pvt. Ltd.47, Mahendra & Mahendra Paper Mills Ltd. v. Mahindra & Mahindra Ltd.48, Laxmikant V. Patel v. Chetanbhai Shah49, Khoday Distilleries Ltd. v. Scotch Whisky Association50, Nandhini Deluxe v. Karnataka Co-operative Milk Producers Federation Ltd.51 and Wockhardt Ltd. v. Torrent Pharmaceuticals Ltd.:
(i) In assessing deceptive similarity, the class of the customer who would purchase the product is relevant. The look/appearance, and the sound, of the trade marks, as well as the nature of the goods, are all relevant considerations.
Surrounding circumstances are also relevant.
(ii) The onus of proof is on the plaintiff who alleges passing off. As against this, in an opposition to the registration of a trade mark, the onus to prove deceptive similarity is on the defendant who seeks non-registration, or removal of the trade mark from the register.
(iii) "Confusion" refers to the state of mind of the customer who, on seeing the mark, thinks that it differs from the mark on the goods which he has previously bought, but is doubtful whether that impression is not due to imperfect recollection. The question is one of first impression.
(iv) This is especially true in the matter of phonetic similarity. A meticulous comparison of the words, syllable by syllable, is CS (COMM) 139/2020 Future Retail Ltd.Vs. Page No. 15 of 21 M/s. M Food Bazaar & Anr.
to be avoided. The possibility of careless pronunciation and speech, both on the part of the buyer walking into the shop, as well as the shop assistant, is also required to be factored into consideration.
(v) The matter has to be examined from the point of view of a person of average intelligence and imperfect recollection. It has to be seen as to how such a purchaser would react to the trade mark, the association which he would form and how he would connect the trade marks with the goods he would be purchasing.
(vi) The Pianotist test, postulated over a century ago, has repeatedly been endorsed by the Supreme Court, as the definitive test to be adopted while comparing rival trade marks. According to this test, the Court is required to judge the rival trade marks by their look and sound, and consider,
(a) the goods to which they are to be applied
(b) the nature and kind of customer who would be likely to buy those goods
(c) all surrounding circumstances and
(d) the consequences which would follow if each of the marks is used in the normal way as the trade mark for the goods of the respective owners.
While doing so, the common part of the words forming the competing marks may not be decisive. The overall similarity of the composite words is required to be seen, having regard to the circumstance (if applicable) that both are on like goods of similar description. The test to be applied is whether, if the two marks are used in a normal and fair manner, there is likelihood of confusion or deception.
(vii) The whole word/mark is to be considered. An ordinary man would not split a word or name, in a trade mark, into its components, but would go by the overall structural and phonetic similarity of the marks at the nature of the goods previously purchased, or of which he has been told and which he wants to purchase. It has to be examined whether the totality of the trademark of the defendants is likely to cause deception/confusion or mistake in the minds of the persons accustomed to the existing trade mark of the plaintiff.
(viii) The resemblance may be phonetic, visual or in the basic idea represented by the plaintiff's mark. The Court is, CS (COMM) 139/2020 Future Retail Ltd.Vs. Page No. 16 of 21 M/s. M Food Bazaar & Anr.
however, required to apply both the phonetic and the visual tests. At times, ocular similarity may be sufficient to find possibility of confusion/deception, even if the marks are visually dissimilar, though ocular similarity, by itself, may not, generally, be the decisive test. Where, however, (i) in all other respects, the marks of the plaintiff and defendants are different, (ii) the word/words, in the marks, which are phonetically similar, cannot be regarded as the dominant word, or essential feature, in the marks, and (iii) the surrounding circumstances also belie any possibility of confusion, it has been held that deceptive similarity cannot be found to exist merely on the basis of phonetic similarity or even identity. The matter, apparently, is always one of fact. The Court would have to decide, on a comparison of the two marks, and the parts thereof which are phonetically similar, as to whether such phonetic similarity is likely, considering all other circumstances, to confuse or deceive a purchaser of average intelligence and imperfect recollection, always bearing in mind the nature of the goods, and the degree of circumspection which would be expected of the purchasers who would purchase such goods.
(ix) The Court is required to examine whether the essential features of the plaintiff's mark are to be found in the mark of the defendants. Identification of the essential features is a question of fact, left to the discretion of the Court.
(x) No objective standards are possible, regarding the degree of similarity which is likely to cause deception. It has to be seen from the viewpoint of the purchasers of the goods.
(xi) The test to be applied would depend on the facts of the case. Precedents are valuable only to the extent they specify tests for application, and not on facts.
(xii) On the issue of deceptive similarity, and especially with respect to the aspect of phonetic similarity, English cases are not of relevance. English cases are useful only to the extent they aid in understanding the essential features of trade mark law. The tests for deceptive similarity, which apply in other jurisdictions, may not always apply in India. ....."
35. Ld. Counsel for the plaintiff has pressed reliance on Kaviraj Pundit Durga Dutt Sharma versus Navrattan Pharmaceutical Laboratories contending that the essential CS (COMM) 139/2020 Future Retail Ltd.Vs. Page No. 17 of 21 M/s. M Food Bazaar & Anr.
feature of the mark can be looked into for the purpose of determination of similarity. He has also relied upon Anchor Health and Beauty Care Vs. Proctor and Gamble for the purpose of principle relating to determination of similarity and infringement and to say that the even a prominent part of a mark deserves protection.
36. As regards the aspect of similarity, he has also relied upon the judgment of Hon'ble Supreme Court in Parle Products (P) Ltd versus J.P. and Co. Mysore AIR 1972 SC 1359 contending that in order to find out whether a mark is deceptively similar to another, the broad and essential features of the two are to be considered.
37. It cannot be denied that the defendants' mark is phonetically and structurally similar to the registered mark of the plaintiff i.e. FOOD BAZAAR. Besides the the defendants' mark M FOOD BAZAAR' is found to be using the combination of the colour being used by the plaintiff in relation with its registered mark 'FOOD BAZAAR'. Having regard to the fact that the defendants also deal in the same segment/ business of retail products, there is a high probability of confusion as the marks in question depict a very high degree of similarity with regard to the structural and conceptive attributes.
38. Having regard to documents placed and submissions CS (COMM) 139/2020 Future Retail Ltd.Vs. Page No. 18 of 21 M/s. M Food Bazaar & Anr.
of Ld. Counsel for the plaintiff, the adoption of the mark cannot be said to be honest nor can be said to be bonafide or concurrent as is claimed in the Written Statement.
39. The addition of the alphabet- 'M' as a prefix does not alter the position as the mark of the defendants remains fundamentally similar to the mark of the plaintiff and its addition only seems to be an attempt to insulate it from challenges. Regardless the addition of the alphabet- 'M' as a pre-fix, the mark of the defendants- 'M FOOD BAZAAR' appears to be out right immitation of the plaintiff's registered Mark FOOD BAZAAR.
40. As regards the plaintiff's user, the applications for registration and documents placed on record do indicate that the plaintiff had been using the mark BIG BAZAAR and FOOD BAZAAR since a considerable long time, prior to the defendants using the same. Although, the defendants had claimed in Written Statement that its user is bonafide and concurrent, there is hardly anything on record which could substantiate the said stand.
41. There appears to be a clear case of dishonest adoption and resultant infringement of the plaintiff mark- FOOD BAZAAR.
42. On similar lines, the domain named-
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'laxmitradersmfoodbazar@ gmail.com' can be stated to be having elements of imitation and hence, is held violative of the Intellectual Property Rights of the plaintiff.
Issues no. 1 to 4 are decided in favour of the plaintiff and against the defendants.
Issue no. 5: Relief
43. The present suit is, accordingly, decreed in favour of the plaintiff and against the defendants. Defendants by themselves as also through their individual proprietors/ partners, agents, representatives, distributors, assigns, heirs, successors, stockists and all others acting for and on their behalf, are hereby permanently restrained from soliciting, retailing, exporting, importing, displaying, advertising by visual, audio, print mode or by any other mode or manner dealing in or selling/ soliciting business under the impugned Trademark/ Trade name/ Label/ Trade Dress/ Colour Combination, M FOOD BAZAAR, FOOD BAZAAR, [email protected], or any other trademark/trade name/label/ trade dress/ colour-combination which may be identical with and/or deceptively similar to the plaintiff's trademark/trade name/label/ trade dress/ colour- combination.
44. There is no evidence in relation with the monetary damages suffered by the plaintiff. No other arguments have been raised nor any other relief pressed.
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45. Decreed with cost.
46. File be consigned to the Record Room after due Digitally compliance. signed by NIKHIL NIKHIL CHOPRA Announced today CHOPRA Date:
i.e. 29th day of April, 2025 2025.05.01
16:26:50
in the open Court. +0530
(NIKHIL CHOPRA)
District Judge/Commercial Court-06
Tis Hazari Courts, Delhi
29.04.2025
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