Delhi District Court
Anil Kumar Gera vs Anil Food Industries on 9 April, 2025
THE COURT OF MS NEHA PALIWAL SHARMA
DISTRICT JUDGE-03, CENTRAL DISTRICT,
TIS HAZARI COURTS, NEW DELHI
CNR No. DLCT01-000018-1992
TM No. 992/2016
CNR No. DLCT01-000019-2012
TM No. 924/2016
In the matter of :-
Sh. Anil Kumar Gera
Trading as Alka Food Industries
26, S.S.I., Laghu Udyog Nagar,
G.T. Karnal Road,
Delhi-110006
.....Plaintiff/ Non Counter-Claimant
VERSUS
Anil Food Industries
308/5, Shahzada Bagh,
Old Rohtak Road,
Delhi-110035
.....Defendant/ Counter-Claimant
Date of institution of main suit : 20.01.1992
Date of institution of counter claim : 24.02.1992
Reserved for Judgment : 02.04.2025
Date of decision : 09.04.2025
Appearance:
Sh. Prashant Sharma, Sh. Kunal Khanna and Ms. Vandana,
Ld. Counsels for plaintiff/ non counter claimant.
Sh. Shailen Bhatia, Sh. Amit Jain, Ashok Kumar Shukla and
Ms. Ishita Suri, Ld. Counsels for defendant/ counter claimant.
TM 992/2016 & TM 924/2016 Page No. 1 of 106
Digitally signed by NEHA
NEHA PALIWAL PALIWAL SHARMA
SHARMA Date: 2025.04.09 17:11:46
+0530
SUIT FOR PERPETUAL INJUNCTION RESTRAINING
INFRINGEMENT OF COPYRIGHT, TRADE MARK, PASSING OFF,
RENDITION OF ACCOUNTS ETC. & COUNTER CLAIM FOR
PERMANENT INJUNCTION RESTRAINING INFRINGEMENT OF
TRADE MARK, PASSING OFF & RENDITION OF ACCOUNTS ETC.
JUDGMENT
(1) Vide this common judgment, this Court will dispose off two cases viz. suit bearing TM No. 992/2016 filed by plaintiff Anil Kumar Gera (initially Pritam Dass trading as Alka Food Industries) seeking perpetual injunction restraining infringement of copyright, trade mark, passing off, rendition of accounts etc. against the defendant and the Counter Claim bearing TM No. 924/2016 filed by the defendant M/s. Anil Food Industries seeking permanent injunction for restraining infringement of trade mark, passing off and rendition of accounts etc. against the plaintiff/ non-counter claimant.
(2) Succinctly put, the case of the plaintiff, as per the plaint, is that the suit was instituted by Sh. Pritam Dass, in the capacity of Proprietor of firm M/s. Alka Food Industries (after the death of Sh. Pritam Dass, his legal heir Anil Kumar Gera has been duly substituted in his place being his legal representative). It is averred in the plaint that the business of manufacturing and marketing confectionary was started by the plaintiff in the year 1977 and since then the plaintiff firm is engaged in the business of manufacturing and marketing confectionary. The plaintiff has been selling confectionary under various trade marks and is the lawful proprietor of trade marks viz. ALKA, ZIKKY MIKKY, LAL ZEERA, BIBO, FRESHO, NAWABI ZEERA, CHATAR MATAR, ANIL, SONI MONI, TM 992/2016 & TM 924/2016 PageDigitally No. signed 2 ofby106 NEHA NEHA PALIWAL PALIWAL SHARMA SHARMA Date: 2025.04.09 17:11:55 +0530 CHATMOLA, MANGO FUN, GINI MINI, TINI MINI/ TINY MINY, ALKAS etc. (3) It is further averred that the plaintiff was using trade mark TINI MINI/ TINY MINY qua confectionary continuously and extensively since 1977 throughout the country. The plaintiff is also the true owner and lawful proprietor of trade mark CHATMOLA qua confectionary. The said trade mark was honestly and bonafidely adopted by the plaintiff in the year 1990 after making necessary inspection in the records of the Trade Marks Registry and on being satisfied that there was no such trade mark registered or pending registration. Further, no such or similar trade mark was in use or existence in respect of the said goods when the plaintiff adopted the same. He also filed an application bearing no. 539636 for registration of trade mark CHATMOLA in his name on 08.11.1990 claiming use of the mark since 01.11.1990 before the Trade Marks Registry. The plaintiff had used the said trade mark CHATMOLA continuously, extensively and regularly since 01.11.1990 to the knowledge of all concerned with the trade including the defendant herein.
(4) It is further the case of the plaintiff that he has been selling and marketing confectionary under the trade mark TINI MINI/ TINY MINY under various distinctive packagings having various designs and thus, there are different designs of packings under which the confectionary known by the trade mark TINI MINI/ TINY MINY is sold. In the present suit, the plaintiff is concerned with one of such packaging marked as 'Mark A', filed along with the plaint, which is under the copyright ownership of the plaintiff under the provisions of Copyright Act. The colour scheme, TM 992/2016 & TM 924/2016 Page No. 3 of 106 Digitally signed by NEHA NEHA PALIWAL PALIWAL SHARMA SHARMA Date: 2025.04.09 17:12:03 +0530 design, get-up, layout, placement and arrangement of the said packing titled TINI MINI/ TINY MINY is unique and artistic.
(5) It is further the case of the plaintiff that his trade marks CHATMOLA and TINI MINI/ TINY MINY (particular packing) have acquired enviable goodwill and impeccable trade reputation and have become distinctive of the said goods of the plaintiff on account of efforts of the plaintiff to popularize them amongst public and trade via sales promotion propaganda, on account of superior quality of goods coupled with continuous and extensive use and extensive sales of the said goods.
(6) It is further the case of the plaintiff that the defendant is also engaged in the same business of manufacturing and marketing of confectionary and is fully aware of the business activities of the plaintiff under the various trade marks including trade mark CHATMOLA and design of TINI MINI/ TINY MINY. The defendants have started manufacturing or marketing of confectionary under identical and/ or deceptively similar trade mark CHATMOLA, which is in clear violation of the plaintiff's legal and vested rights in the exclusive use of the trade mark CHATMOLA. The defendants have also adopted identical and/ or deceptively similar design, colour scheme, lay-out, design of packing as that of TINI MINI/ TINY MINY of the plaintiff, which amounts to infringement of plaintiff's aforesaid copyright.
(7) It is, thus, the case of the plaintiff that the defendants have acted very cleverly and imitated one trade mark of the plaintiff, that is, CHATMOLA and design of another packing of the plaintiff, that is, TINI MINI/ TINY MINY giving a clear impression to the unwary and innocent TM 992/2016 & TM 924/2016 Page No. 4 of 106 Digitally signed by NEHA NEHA PALIWAL PALIWAL SHARMA SHARMA Date: 2025.04.09 17:12:11 +0530 purchasers that their goods emanate from the plaintiff only. The defendants have no right or justification for adoption and/ or use of the impugned trade mark CHATMOLA and design of TINI MINI/ TINY MINY confectionary of the plaintiff. The adoption and use of the same by the defendant is absolutely dishonest and malafide and is ill motivated to deceive and cheat the unwary and innocent purchasers to purchase the spurious goods of the defendant in place of superior quality goods of the plaintiff. By this, the defendant wants to trade upon and benefit from the hard earned goodwill and reputation of the plaintiff and to earn profits in illegal manner, for which they are not entitled under the law. The confusion and deception among the public and trade is inevitable due to close deceptive similarity of trade marks and packing. The defendants are guilty of passing off their inferior quality confectionary as and for the superior quality confectionary of the plaintiff. On account of defendant's unlawful and unjust trade activities, the plaintiff had suffered damages to his well known established trade and reputation. Further damages to the trade and reputation are inevitable unless the defendants are restrained immediately by an order of injunction from infringing the copyrights of the plaintiff in the packing TINI MINI/ TINY MINY and from violating the vested and legal rights of the plaintiff in the trade mark CHATMOLA. Pecuniary compensation will not afford the plaintiff adequate relief. The defendants being guilty of infringement of copyright and also passing off their inferior and sub-standard confectionary as and for the superior confectionary of the plaintiff, are liable to render their accounts of profits earned by them on the basis of sales of confectionary under the impugned trade mark and pouch CHATMOLA till the time an order/ decree for TM 992/2016 & TM 924/2016 Page No. 5 of 106 Digitally signed by NEHA NEHA PALIWAL PALIWAL SHARMA SHARMA Date: 2025.04.09 17:13:13 +0530 injunction is passed against them. The plaintiff had valued the suit for rendition of accounts to the tune of Rs.50,000/- and had undertaken to pay additional court fee when the exact amount due from the defendant is ascertained on rendition of accounts.
(8) Thus, the plaintiff had prayed that a decree of perpetual injunction be passed in its favour and against the defendant, thereby restraining the defendant, its servants, agents, dealers, distributors, stockists, representatives and all other persons on its behalf from manufacturing, marketing, selling, stocking, offering for sale or otherwise dealing in confectionary under the trade mark CHATMOLA or any other trade mark which may be identical and/ or deceptively similar to the plaintiff's trade mark CHATMOLA and also from infringing the plaintiff's copyright by printing, publishing, using, reproducing or otherwise dealing in the pouches/ packing materials titled CHATMOLA or any other packing materials identical and/ or deceptively similar to the packing material TINI MINI/ TINY MINY of the plaintiff.
(9) It is further prayed that a decree of perpetual injunction be passed in favour of the plaintiff and against the defendant thereby restraining the defendant, its servants, agents, dealers, distributors, stockists, representatives and all other persons on its behalf from passing off its confectionary as and for that of the plaintiff by using the impugned trade mark or packing CHATMOLA or any other trade mark of packing with may be identical and /or deceptively similar to the plaintiffs trade mark CHATMOLA or packing TINI MINI/ TINY MINY.
TM 992/2016 & TM 924/2016 Page No. 6 of 106 Digitally signed by NEHA NEHA PALIWAL PALIWAL SHARMA SHARMA Date: 2025.04.09 17:13:21 +0530 (10) It is further prayed by the plaintiff that decree be passed in his
favour and against the defendant for delivery upon affidavit by the defendant to the plaintiff of all the offending, infringing, counterfeiting labels, pouches, stickers, packing materials, processing cylinders, blocks and other finished and unfinished goods and other incriminating materials bearing the trade mark or label CHATMOLA under the possession and/ or control of the defendant for destruction and/ or erasure purposes. It is also prayed that a decree be passed in favour of the plaintiff and against the defendant for rendition of accounts of profits earned by the defendant on the sales of confectionary under the trade mark or pouch CHATMOLA and a decree for amount so found due on rendition of accounts be passed.
(11) Summons for settlement of issues was sent to the defendant. The defendant had filed written statement along with counter claim before the Court. Thereafter, the defendant was allowed to amend its written statement and counter claim. The case of the defendant, as per the amended written statement, is that at the time of filing of the suit, the defendant was a partnership firm but thereafter since April 1995, it converted into a sole proprietorship firm and Sh. Ramesh Chander is the sole proprietor of the defendant firm. It is further averred that the defendant has been carrying on its business of manufacturing and marketing of confectionary goods since 1972, under the trade mark ANIL. The defendant in the course of its business, during August 1990, adopted trade mark CHATMOLA in respect of confectionary goods for the first time and invented an artistic device of label for the aforesaid trade mark during the same month. It made vigorous efforts to bring the products into TM 992/2016 & TM 924/2016 Page No. 7 of 106 Digitally signed by NEHA NEHA PALIWAL PALIWAL SHARMA SHARMA Date: 2025.04.09 17:13:29 +0530 the market for sale soon, but the entire job of getting proper die, colour- scheme design, label's get-up, lay-out, rotogravier printing etc. took few months time and the defendant was able to bring the actual product for sale in the market only in the month of January 1991 under the trade mark CHATMOLA. The defendant is the exclusive and lawful proprietor of the said trade mark in respect of confectionary goods.
(12) It is further the case of the defendant that in order to popularize the products under the trade mark CHATMOLA, it had advertised the same through various medias viz. newspapers, magazines, stickers, video- cassettes, sign-boards, hoardings, stepny covers and tanglers and had thereby invested substantial amount on advertising. It is further averred that on account of superior quality of the products and due to continuous and extensive use coupled with large scale advertisement and publicity, the said trade mark of the defendant had acquired unique reputation and enviable goodwill in the public and the trade and the said goods of the defendant under the trade mark CHATMOLA are exclusively identified and associated by the trade and public to have emanated from the defendant only throughout India.
(13) It is further averred that in the month of August 1991, both the plaintiff and the defendant got their goods advertised through video cassette of PARTIKAR, wherein the confectionary product of the defendant was shown under the trade mark CHATMOLA and the plaintiff's advertisement was there with respect to their trade mark HANGAMA. Thus, it is evident that plaintiff had full knowledge in respect of the user of trade mark CHATMOLA by the defendant.
TM 992/2016 & TM 924/2016 Page No. 8 of 106 Digitally signed by NEHA NEHA PALIWAL PALIWAL SHARMA SHARMA Date: 2025.04.09 17:13:48 +0530 (14) It is further the case of the defendant that a caution notice dated
11.11.1991 was got issued by it through its counsel, which was published in the newspaper 'Sandhya Times' on 07.12.1991 in respect of its confectionary goods under the trade mark CHATMOLA, of which also the plaintiff had full knowledge. The plaintiff knowing fully well that the defendant is the lawful proprietor of trade mark CHATMOLA since August 1990 for confectionary goods, dishonestly, wrongly, illegally, malafidely applied for registration of the said trade mark CHATMOLA with the Registrar of Trade Marks, New Delhi under the Trade & Merchandise Marks Act, 1958 on 08.11.1990, wrongly claiming the user of the said trade mark since 01.11.1990 and the said action of the plaintiff was with the aim to trade upon the goodwill and reputation of the defendant illegally and with the ulterior motive of earning illegal money through this easy way.
(15) Preliminary objections were raised by the defendant in the written statement to the effect that the suit of the plaintiff is false, vexatious and frivolous and is not properly valued for the purpose of Court fees and jurisdiction. The suit is further bad for mis-joinder of causes of action as the plaintiff had claimed infringement/ passing off of both trade mark and copyright in one suit.
(16) It is further averred that the plaintiff had preferred two applications for registration of trade mark bearing no. 539636 B in class 30 and 540086 B in class 5 and the defendant had filed oppositions against the said applications. Vide order dated 04.03.1999 the Ld. Registrar of Trade Marks allowed the oppositions of the defendant. Further, the defendant also filed an application no. 557320 in class 30 for the trade mark TM 992/2016 & TM 924/2016 Page No. 9 of 106 Digitally signed by NEHA NEHA PALIWAL PALIWAL SHARMA SHARMA Date: 2025.04.09 17:13:56 +0530 CHATMOLA to which the present plaintiff had preferred an opposition. Vide order dated 28.11.2003, the opposition filed by the plaintiff was dismissed by the Ld. Registrar of Trade Marks and the said order had attained finality between the parties. The Registrar of Trade Marks had issued registration certificate to the defendant under no. 557320 in class 30 and now the defendant is the registered proprietor of trade mark CHATMOLA. The said trade mark registration is valid and subsisting in favour of the defendant.
(17) It is further averred by the defendant that the plaintiff had claimed Copyright in the artistic work TINY MINY against which the defendant had preferred a cancellation petition. The Hon'ble Copyright Board had allowed the application for cancellation and had ordered that the artistic work entered in the Register of Copyright under no. A-51887/92 be expunged. An appeal is pending against the said order.
(18) It is further averred that the defendant is holding copyright registration of artistic work CHATMOLA vide registration nos. A-57086/99 and A-65448/2003. The entries in the Register of Copyright are primafacie evidence of the defendant's proprietorship of the artistic work.
(19) In its reply on merits, the defendant had categorically denied each and every contention of the plaintiff. The defendant had further denied the documents filed by the plaintiff along with the plaint. It is specifically averred that the photocopies of the alleged invoices filed by the plaintiff are fabricated. It is alleged that photocopy of invoice bearing no. 2242 dated 14.12.1990 for Rs.4,104.90p issued in favour of M/s. Batra TM 992/2016 & TM 924/2016 Page No. 10 of 106 Digitally signed by NEHA NEHA PALIWAL PALIWAL SHARMA SHARMA Date: 2025.04.09 17:14:02 +0530 Stores is a false and fabricated invoice as the proprietor of M/s. Batra Store, is the relative of the plaintiff. Another invoice relied upon by the plaintiff, issued to M/s. Isher Singh Jeet Singh wherein the plaintiff had shown the sale of confectionary under the trade mark CHATMOLA, is again false and fabricated and product under trade mark CHATMOLA was not sold by the plaintiff to M/s. Isher Singh Jeet Singh and the dealers of M/s. Isher Singh Jeet Singh can depose with respect to the same. It is averred that M/s. Isher Singh Jeet Singh are the dealers of both the plaintiff and the defendant and they have categorically denied having purchased any confectionary items from the plaintiff under the trade mark CHATMOLA. It is averred that the plaintiff had fabricated all the bills and invoices malafidely and dishonestly.
(20) It is further the case of the defendant that earlier the plaintiff was using mark 'CHATAR MATAR' in respect of confectionary goods and thereafter changed the same to CHATMOLA with ulterior object of trading upon the goodwill and reputation of the defendant, which was acquired by the defendant after spending lot of money on advertisement and publicity in respect of their trade mark CHATMOLA and further with the illegal motive of earning easy money and passing off their inferior and sub- standard products for and as of the defendant's quality goods. In fact, the plaintiff is liable to be punished for infringement and passing off of trade mark and infringement of Copyright in respect of mark CHATMOLA of the defendant in respect of confectionary goods adopted by the defendant in August 1990 much earlier to the imitation of the trade mark by the plaintiff. Further, the design and colour-scheme of label TINY MINY of TM 992/2016 & TM 924/2016 Page No. 11 of 106 Digitally signed by NEHA NEHA PALIWAL PALIWAL SHARMA SHARMA Date: 2025.04.09 17:14:11 +0530 the plaintiff is subsequent adoption than adoption of label CHATMOLA by the defendant. It is admitted that purchasers/ intending purchasers of goods are mostly children and unwary class of purchasers who demand and recognize the goods by trade mark CHATMOLA and design of packing of confectionary. Thus, it was prayed that the suit of the plaintiff be dismissed.
(21) The defendant had also filed Counter Claim against the plaintiff under Order VIII Rule 6(A) CPC seeking relief of permanent injunction for restraining infringement of trade mark, passing off and rendition of accounts etc. (22) An amendment application seeking change in the constitution of the defendant/ counter claimant firm from sole proprietorship to partnership, was moved before the Court and the same was allowed vide order dated 02.12.2023 and the amended counter claim was taken on record. It was averred in the amended counter claim that initially defendant firm M/s. Anil Food Industries was a partnership firm consisting of Sh. Ramesh Chander and Smt. Kaushalya Devi. Since 1995 it became the sole proprietorship of Sh. Ramesh Chander and with effect from 23.08.2023 it had again become a partnership firm comprising of Sh. Ramesh Chander Gera and Sh. Rajat Gera as its partners.
(23) In the counter-claim the defendant had reiterated the assertions as stated in the written statement. It is further averred by the defendant that post adoption of trade mark CHATMOLA in the month of August 1990 and thereafter introducing and actually selling the goods in market since January 1991 and on account of continuous, open, extensive and regular TM 992/2016 & TM 924/2016 Page No. 12 of 106 Digitally signed by NEHA NEHA PALIWAL PALIWAL SHARMA SHARMA Date: 2025.04.09 17:14:19 +0530 use of the said trade mark, the goods bearing trade mark CHATMOLA and pouch CHATMOLA having been practically distributed in all parts of country, the trade mark has become distinctive and associated with the aforesaid goods of the defendant and the defendant had built-up a valuable trade under the said trade mark. Post application of defendant seeking registration of trade mark claiming user since 08.01.1991, the Registrar of Trade Marks had issued registration certificate to the defendant under no. 557320 in class 30 and defendant is now the registered proprietor of trade mark 'CHATMOLA' which is valid and subsisting in favour of the defendant. Thus, the defendant has a right to seek remedy of infringement against the plaintiff or any other person who violates the statutory right of the defendant. The defendant's business had acquired goodwill and enviable reputation in the market under the said trade mark 'CHATMOLA' and had used the same exclusively and to the exclusion of others.
(24) It is further the case of the defendant/ counter-claimant that the plaintiff claims to be the proprietor of trade mark 'CHATMOLA' in respect of confectionary goods and further claims user since 01.11.1990. The defendant had come to know from market inquiry that the plaintiff had malafidely copied the trade mark 'CHATMOLA' of the defendant and had substituted the same in place of their mark 'CHATAR MATAR'. The plaintiff had also mischievously copied the artistic design of the label/ pouch 'CHATMOLA' and started using the same in their label/ pouch as 'TINI MINI/ TINY MINY' with a view to take advantage and to trade upon the goodwill and reputation of the defendant and further with a view to cause deception and confusion in the market and to pass of its spurious TM 992/2016 & TM 924/2016 Page No. 13 of 106 Digitally signed by NEHA NEHA PALIWAL PALIWAL SHARMA SHARMA Date: 2025.04.09 17:14:25 +0530 goods as that of the defendant's. The plaintiff is not the proprietor of trade mark 'CHATMOLA' and also pouch 'CHATMOLA' in respect of the confectionary goods and the trade mark adopted and copied by it is identical with and deceptively similar to the goods of the defendant. The unwary purchasers are bound to be deceived in purchasing plaintiff's goods under the impression that they are emanating from the defendant's source. The plaintiff adopted the said trade mark to flourish on the goodwill and enviable reputation of the defendant and had all along known that the defendant was using the said trade mark. Thus, the plaintiff is passing off its spurious goods of sub-standard quality as that of the genuine goods of the defendant and both the public and the defendant are bound to suffer due to activities of the plaintiff. On account of omissions and commissions committed by the plaintiff, an irreparable loss and injury is caused to the defendant in terms of money and reputation and thus, the plaintiff is liable to be restrained from using the trade mark 'CHATMOLA' or any other trade mark which is confusingly similar to the defendant's trade mark 'CHATMOLA'.
(25) Thus, the defendant/ counter-claimant had prayed that a decree for perpetual injunction be passed in its favour and against the plaintiff, thereby restraining the plaintiff, its servants, agents, dealers, distributors, stockists, representatives and all other persons on its behalf from manufacturing, marketing, selling, stocking, offering for sale, or otherwise dealing in confectionary goods under the trade mark 'CHATMOLA' or any other trade mark which may be identical and/ or deceptively similar to the defendant's trade mark 'CHATMOLA' and also from infringing the TM 992/2016 & TM 924/2016 Page No. 14 of 106 Digitally signed by NEHA NEHA PALIWAL PALIWAL SHARMA SHARMA Date: 2025.04.09 17:14:33 +0530 defendant's copyrights by printing, publishing, using, reproducing or otherwise dealing in the pouches/ packing materials titled 'CHATMOLA' or any other packing material identical and/ or deceptively similar to the packing material of the defendant.
(26) It is further prayed by the defendant/ counter-claimant that a decree for permanent injunction be passed in its favour and against the plaintiff, thereby restraining the plaintiff, its proprietor/ partners, as the case may be, its servants, agents, dealers, distributors and all others acting for and on its behalf from manufacturing, exporting, selling, offering for sale, advertising, exhibiting, directly or indirectly dealing in confectionary goods under the artistic work CHATMOLA or any other artistic work which is identical or similar to artistic work no. A-57086/99 and A-65448/2003 and also from dealing in confectionary goods under the registered trade mark CHATMOLA or any other identical/ deceptively similar mark resulting in infringement of registered trade mark CHATMOLA under no. 557320 in class 30.
(27) The defendant/ counter-claimant further prayed that a decree for perpetual injunction be passed in its favour and against the plaintiff thereby restraining the plaintiff, its agents, servants, dealers, distributors, stockists, representatives and all other persons on its behalf from passing off their confectionary as that of the defendant by using the impugned trade mark or packing 'CHATMOLA' or any other trade mark or packing which may be identical and/ or deceptively similar to the defendant's trade mark CHATMOLA or packing CHATMOLA.
TM 992/2016 & TM 924/2016 Page No. 15 of 106 Digitally signed by NEHA NEHA PALIWAL PALIWAL SHARMA
SHARMA Date: 2025.04.09 17:14:40
+0530
(28) The defendant/ counter-claimant also prayed that a decree be
passed in its favour and against the plaintiff for delivery upon affidavit by the plaintiff to the defendant of all the offending, infringing, counterfeiting labels, pouches, stickers, packing materials, processing cylinders, blocks and other finished and unfinished goods and other incriminating materials bearing the trade mark or label/ pouch CHATMOLA under the possession and/ or control of the defendants for destruction and/ or erasure purposes. It is also prayed that a decree be passed in favour of the defendant/ counter claimants and against the plaintiff for rendition of accounts of profits earned by the plaintiff on the sales of confectionary under the trade mark or pouch CHATMOLA and a decree for amount so found due on rendition of accounts be passed.
(29) Written statement was filed by the plaintiff/ non counter- claimant to the amended counter claim of the defendant wherein preliminary objections were taken that the counter claim of the defendant is not maintainable as the same is containing false, fabricated and baseless averments, the same is further bad for misjoinder of causes of action, that is, trade mark and copyright infringement, and further the counter claim is not properly valued for the purpose of Court fees and jurisdiction.
(30) In his reply on merits, the plaintiff/ non counter-claimant had specifically denied each and every contention as raised by the counter- claimant. It is the case of the plaintiff/ non counter-claimant that ANIL is not the trade mark of the defendant/ counter claimant and was initially adopted and is the exclusive property of the plaintiff.
TM 992/2016 & TM 924/2016 Page No. 16 of 106 Digitally signed by NEHA NEHA PALIWAL PALIWAL SHARMA SHARMA Date: 2025.04.09 17:14:53 +0530 (31) It is further averred by the plaintiff/ non counter claimant that the
defendant/ counter-claimant has no documentary evidence to prove the alleged adoption of the trade mark CHATMOLA in August 1990 and in order to base the alleged false claim of adoption, the defendant had filed a false affidavit of Sh. Baldev Singh on record and as per the knowledge of plaintiff, there is no such person who is an artist by the name of Sh. Baldev Singh. The plaintiff is the owner of copyright in the artistic carton TINI MINI/ TINY MINY which has been in continuous use since the year 1988 to the knowledge of the defendant. The defendant cannot take any benefit of the registration which is based on fabricated documents and is illegal under the statute. The plaintiff is the first adopter, prior user and true owner of the said trade mark CHATMOLA, which was adopted by the plaintiff in July 1990 and put to use on 01.11.1990. The defendant after coming to know the use of trade mark CHATMOLA by the plaintiff, adopted the same in a clever manner while simultaneously imitating the carton TINI MINI/ TINY MINY of the plaintiff. The very adoption of the trade mark and pouch CHATMOLA by the defendant is dishonest and malafide. The defendant is subsequent in adopting, using or filing counter claim for registration of trade mark CHATMOLA and the plaintiff is prior in all respects. The registration of trade mark CHATMOLA in the name of the defendant is invalid and is in contravention of law and rights of the plaintiff. The usage and sales of the defendant, if any, are subsequent to the plaintiff's adoption and usage of the mark and therefore, are of no consequence.
TM 992/2016 & TM 924/2016 Page No. 17 of 106 Digitally signed by NEHA NEHA PALIWAL PALIWAL SHARMA SHARMA Date: 2025.04.09 17:15:04 +0530 (32) It is further the case of the plaintiff/ non counter-claimant that
trade mark CHATAR MATAR is another reputed trade mark of the plaintiff. Since the pouch CHATAR MATAR had become exclusively associated with the plaintiff by virtue of long and continuous user and had acquired tremendous reputation, the plaintiff introduced the new trade mark CHATMOLA in the same pouch in order to cash upon the goodwill already attached to the pouch of CHATAR MATAR. The defendant had copied the well known design of carton TINI MINI/ TINY MINY of the plaintiff which had been in continuous use since the year 1988. The defendant is guilty of passing off and had caused irreparable loss and injury in terms of money and reputation, to the plaintiff. Thus, it is prayed that the counter-claim be dismissed.
(33) The plaintiff had further filed replication to the amended written statement of the defendant wherein he had denied each and every averment of the defendant as stated in the written statement and had reiterated his averments as stated in the plaint. It is further averred that the trade mark HANGAMA belongs to a sister concern of the plaintiff and was advertised by the said sister concern in video cassette of PRATIKAR but the plaintiff never saw that advertisement in cassette. The plaintiff is not aware if the defendant also advertised trade mark CHATMOLA in the said cassette and came to know about the sale of confectionary of the defendant under the impugned trade mark CHATMOLA in December 1991 only. The plaintiff filed application for registration of his trade mark CHATMOLA on 08.11.1990 honestly much before the alleged application or user of the trade mark by the defendant. Various orders obtained by the defendant on TM 992/2016 & TM 924/2016 Page No. 18 of 106 Digitally signed by NEHA NEHA PALIWAL PALIWAL SHARMA SHARMA Date: 2025.04.09 17:15:12 +0530 the basis of forged documents have not attained finality and hence, are neither binding upon the plaintiff nor upon this Court. The registration of trade mark CHATMOLA in the name of the defendant is invalid and is in contravention of law and rights of the plaintiff. The plaintiff is entitled to file application for cancellation of the said trade mark before the authorities and appeal is also pending. The plaintiff adopted the trade mark CHATMOLA in July 1990 and put the same to use in November 1990 much before the alleged adoption and user of the impugned trade mark by the defendant. He did not launch the same during July to October 1990 as he was advised that November in an auspicious month for launching new product. Bill no. 2242 was issued in favour of Batra Stores which happens to be the firm of the relative of the plaintiff, but the said firm regularly purchases the confectionary of the plaintiff and the bill was issued to them for one such purchase in course of business and therefore, is genuine and is duly entered in the books of account of the plaintiff. Further, the defendant had threatened M/s. Isher Singh Jeet Singh of dire consequences asking them to swear false affidavit to the tune that plaintiff never supplied confectionary to them under the impugned trade mark. CHATAR MATAR and CHATMOLA are two distinct trade marks of the plaintiff. In July 1990 when plaintiff adopted trade mark CHATMOLA he had asked M/s. Vikas Laminator Pvt. Ltd., Noida to print trade mark CHATMOLA in the same design as CHATAR MATAR. The said M/s. Vikas Laminator Pvt. Ltd. in- turn asked Sh. Vidya Bhushan of M/s. Vinny Graphics 1/3, East Patel Nagar, New Delhi to utilize the art work of CHATAR MATAR and insert in it the new trade mark CHATMOLA. It was done and the same was at last introduced in November 1990 in the market by the plaintiff. Thus, it is TM 992/2016 & TM 924/2016 Page No. 19 of 106 Digitally signed by NEHA NEHA PALIWAL PALIWAL SHARMA SHARMA Date: 2025.04.09 17:15:34 +0530 prayed that the suit be decreed.
(34) Vide order dated 20.01.1992, the Ld. Predecessor of this Court on the application of the plaintiff under Order XXXIX Rule 1 and 2 CPC had passed an exparte order restraining the defendant from manufacturing, marketing, selling or offering for sale or otherwise dealing in confectionary under the trade mark CHATMOLA or any other trade mark which may be identical or deceptively similar to the plaintiff's trade mark CHATMOLA. Further, vide the same order the application moved by the plaintiff under Order XXVI CPC for appointment of Local Commissioner was allowed and Sh. Om Prakash Advocate was appointed as Ld. Local Commissioner to conduct the search and inspection of the premises of the defendant and make inventory of the confectionary stock finished and unfinished under the trade mark CHATMOLA and also of empty packing material containing the trade mark with further directions to lift the infringing samples under the trade mark CHATMOLA. It was further directed that the Ld. Local Commissioner may also sign the stock books and bill books of the defendant in that regard.
(35) Vide order dated 24.04.1992, the said exparte injunction order granted on 20.01.1992 was vacated and the application of the defendant under Order XXXIX Rule 4 CPC was allowed. Vide further order dated 08.07.1992 the application of the defendant under Order XXXIX Rule 1 and 2 CPC was allowed and the plaintiff was restrained from using the mark CHATMOLA and marketing the same in pouch C during the pendency of the suit. An appeal was filed before the Hon'ble High Court of Delhi against order dated 24.04.1992 and order dated 08.07.1992, which TM 992/2016 & TM 924/2016 Page No. 20 of 106 Digitally signed by NEHA NEHA PALIWAL PALIWAL SHARMA SHARMA Date: 2025.04.09 17:15:41 +0530 was dismissed vide order dated 11.10.1995.
(36) An application was also filed by the plaintiff seeking amendment in the plaint on 01.12.1995, however, the said amendment application was dismissed vide order dated 16.09.1998. A revision was preferred by the plaintiff before the Hon'ble High Court of Delhi which was dismissed vide order dated 27.04.2004.
(37) Initially the main suit was filed by plaintiff Sh. Pritam Dass, however, he expired on 21.01.2009 and thereafter his legal heirs were impleaded on record as LRs of the plaintiff/ non counter claimant vide order dated 23.07.2009. However, later on an application under Order XXII Rule 10 and Section 151 CPC was moved by one of the legal heirs of original plaintiff, namely, Sh. Anil Kumar, praying that only he may be allowed to prosecute the suit as the plaintiff. The said application was allowed by the Ld. Predecessor of this Court vide order dated 03.03.2011 and Sh. Anil Kumar was allowed to solely prosecute as the plaintiff.
(38) After perusal of the pleadings of both the parties initially issues were framed on 29.09.2004 by the learned Predecessor of this Court for trial, namely:-
1. Whether the plaintiff is owner of the trade mark 'CHATMOLA' having priority of use? OPP
2. Whether the defendants are passing off their goods as that of the plaintiff? OPP
3. Whether the plaintiffs are entitled to the relief of injunction and rendition of accounts? OPP TM 992/2016 & TM 924/2016 Page No. 21 of 106 Digitally signed by NEHA NEHA PALIWAL PALIWAL SHARMA SHARMA Date: 2025.04.09 17:15:48 +0530
4. Whether the defendants are entitled to rendition of accounts as claimed in the counter claim? OPD
5. Relief.
(39) However, later on an application under Order XIV Rule 5 CPC was moved by the plaintiff, which was allowed by the Ld. Predecessor of this Court vide order dated 08.02.2005 and additional issue bearing issue no.1A was framed as under:
1A. Whether the plaintiff is the owner of the design and had copyrights in the artistic cartoon TINI MINI/ TINY MINY since the year 1988? OPP (40) Thereafter, application under Order XIV Rule 5 CPC was moved on behalf of the defendant for striking of the additional issue framed on 08.02.2005 which was dismissed by the Ld. Predecessor of this Court vide order dated 10.11.2005. Another application under Order XIV Rule 5 CPC was moved by the defendant seeking amendment in issues which was allowed vide order dated 28.04.2006 whereby issue no.4 was amended and three more additional issues were framed. Thus, following issues were framed for adjudication vide order dated 28.04.2006:
1. Whether the plaintiff is owner of the trade mark 'CHATMOLA' having priority of use? OPP
2. Whether the defendants are passing off their goods as that of the plaintiff? OPP TM 992/2016 & TM 924/2016 Page No. 22 of 106 Digitally signed by NEHA NEHA PALIWAL PALIWAL SHARMA SHARMA Date: 2025.04.09 17:15:54 +0530
3. Whether the plaintiffs are entitled to the relief of injunction and rendition of accounts? OPP
4. Whether defendants are entitled to relief of injunction and rendition of accounts as claimed in the counter claim? OPD
5. Whether the plaintiff is the owner of the design and has copyright in the artistic cartoon Tini Mini/ Tiny Miny since the year 1988? OPP
6. Whether the defendant is the first and prior adopter/ user of the trade mark 'CHATMOLA' and other trade marks such as 'CHATBOLS'? OPD
7. Whether the plaintiff is passing off their goods as that of defendant? OPD
8. Whether the defendant is holding rights in the label consisting of device of baby elephant and other distinctive features? OPD
9. Relief.
(41) Thereafter an application under Order VI Rule 17 CPC was moved on behalf of the defendants seeking permission to amend the written statement and counter claim, which was allowed by the Ld. Predecessor of this Court vide order dated 05.05.2007. The plaintiff was directed to file the copy of Will of his late father, however, it was stated on his behalf that he was not able to trace out the Will dated 20.12.2007 of his father. It was held by the Court vide order dated 03.03.2012 that non production of Will, will not cast any cloud over order dated 03.03.2011 vide which the application under Order XXII Rule 10 CPC moved on TM 992/2016 & TM 924/2016 Page No. 23 of 106 Digitally signed by NEHA NEHA PALIWAL PALIWAL SHARMA SHARMA Date: 2025.04.09 17:16:03 +0530 behalf of LR Anil Kumar Gera of the plaintiff was allowed.
(42) Further, vide the same order dated 03.03.2012 the Ld. Predecessor of this Court allowed the application of the defendant under Order VI Rule 17 CPC and allowed the defendant to amend the written statement and counter claim whereby the defendant sought to introduce the relief of injunction on the ground of infringement of trade mark CHATMOLA registered under no. 557320 in class 30. Pursuant to the amendments in the written statement and counter claim, vide order dated 20.04.2012, issue no.6 as framed on 28.04.2006 was amended and an additional issue, that is, issue no.10 was framed, as under:
6. Whether the defendant is the first and prior adopter/ user of the trade mark 'CHATMOLA'? OPD
10. Whether the defendant is the registered proprietor of the trade mark 'CHATMOLA' under no. 557320 in class 30 and the registration is valid and subsisting? OPD (43) It was also observed vide order dated 20.04.2012 that though reference has been made to other trade marks in the pleadings by the parties, the said reference except CHATMOLA shall have no bearing on the cases at hand or other cases, if any, pending between the parties.
(44) Further, vide order dated 29.09.2012 of Ld. Predecessor of this Court, the counter claim was directed to be registered separately as a suit but the said counter claim was consolidated with the main suit and it was held that all the proceedings, evidence, order etc. recorded in the main case shall be read in the counter claim as well. An application under Section 151 CPC was also moved on behalf of the plaintiff seeking stay of the TM 992/2016 & TM 924/2016 Page No. 24 of 106 Digitally signed by NEHA NEHA PALIWAL PALIWAL SHARMA SHARMA Date: 2025.04.09 17:16:10 +0530 proceedings in view of the opposition proceedings pending before the Ld. Registrar of Copyright Act under the directions of Hon'ble Division Bench of Hon'ble High Court of Delhi. However, the said application was dismissed vide order dated 27.03.2019.
(45) The copyright registrations no. A65448/2003 dated 20.10.2003 and no. A57086/1999 dated 08.12.1999 registered in favour of the defendant were challenged by the plaintiff before the Hon'ble High Court of Delhi under Section 50 of the Copyright Act. It was held by the Hon'ble High Court of Delhi vide order dated 02.05.2024 that the impugned copyrights registered as no. A65448/2003 dated 20.10.2003 and no. A57086/1999 dated 08.12.1999 in favour of the defendant would be treated as revoked/ canceled. The original applications filed by the defendant seeking registration of the copyright in the afore-noted artistic works/ labels would be treated as revived.
(46) At the stage of plaintiff's evidence, the plaintiff had examined as many as six witnesses. The initial plaintiff, namely, Sh. Pritam Dass had filed his evidence by way of affidavit and had tendered the same in his examination in chief on 27.04.2005. However, he expired and thereafter his LR Sh. Anil Kumar Gera examined himself as PW1.
(47) PW1 had tendered his evidence by way of affidavit, Ex.PW1/A and had reiterated the contents of the plaint in his affidavit. He had further deposed that he is the sole proprietor of firm M/s. Alka Food Industries and as he has been assisting his father late Sh. Pritam Dass since 1984-85, he has complete knowledge of the facts of the case. He had deposed that trade mark TINY MINY is registered under no. 377890 in class-30 in respect of TM 992/2016 & TM 924/2016 Page No. 25 of 106 Digitally signed by NEHA NEHA PALIWAL PALIWAL SHARMA SHARMA Date: 2025.04.09 17:16:23 +0530 confectionery from 02.07.1981 and had placed reliance upon the certificate of registration Ex.PW1/1, however, the plaintiff was not allowed to amend pleadings with respect to the said registration and this averment was not taken on record and therefore, Ex.PW1/1 cannot be looked into at the stage of evidence. Similarly, he had relied as Ex.PW1/2 (colly) the copy of representation sheet and the trade mark journal, however, again the pleadings with respect to advertisement in the trade mark journal were not taken on record and therefore, except copy of representation sheet which is part of Ex.PW1/2 (colly) other documents cannot be considered. He had further deposed with respect to the associated trade mark CHATAR MATAR, however, again the said pleadings were also not taken on record. Similarly, the registration of packing label TINY MINY with Registrar of Copyrights was not taken on record. He had further deposed that the trade mark CHATMOLA was honestly and bonafidely adopted by the plaintiff in July 1990.
(48) Besides the above referred documents, PW1 had relied upon the following documents in his evidence by way of affidavit:
1. Bills dated 13.11.1990, 05.12.1990, 14.12.1990, 22.01.1991 and 25.01.1991, Ex.PW1/3 to Ex.PW1/7.
2. Carbon copies of three bills dated 03.05.1991, Ex.PW1/8 to Ex.PW1/10.
3. Bills dated 26.06.1991, 13.07.1991, 07.08.1991, 19.08.1991 and 19.10.1991, Ex.PW1/11 to Ex.PW1/15.
4. Labels of trade mark TINI MINI/ TINY MINI, Ex.PW1/16 (colly).TM 992/2016 & TM 924/2016 Page No. 26 of 106 Digitally signed by NEHA
NEHA PALIWAL PALIWAL SHARMA SHARMA Date: 2025.04.09 17:16:30 +0530
5. Packing/ label of TINI MINI/ TINY MINY (under dispute in the present matter), Ex.PW1/17.
6. Affidavit of design artist Sh. Vidya Bhushan, Ex.PW1/18.
7. Bills dated 08.09.1990 and 16.12.1991, Ex.PW1/19 and Ex.PW1/20.
8. Bill dated 31.08.1988 of Ankur Advertising and Marketing for designing of trade mark label TINI MINI/ TINY MINY (Ex.PW1/17), Ex.PW1/20-A.
9. Postal receipt, carbon copy of the letter sent by the plaintiff to Vijay Advertisers and the envelope received back, Ex.PW1/21 (it was observed that the plaintiff had not filed the original postal receipt pertaining to letter Ex.PW1/21).
(49) PW1 was cross examined at length by Ld. Counsel for the defendant. He, in his cross-examination, had deposed that firm Alka Food Industries was established in the year 1977 by his father Sh. Pritam Dass. The trade mark TINI MINI/ TINY MINY was used by his father with both the spellings and with various packagings. The trade mark TINI MINI was registered and the registration was of word mark having spelling TINI MINI and not for any label as per Ex.PW1/1. He admitted that there is no copy of search report or cash receipt or its copy on record which can show that inspection of register of trade mark was done in respect of trade mark 'Chatmola' in class 30 by the Counsel for the plaintiff. He further admitted that the plaintiff firm had filed 3-4 applications for the trade mark 'Chatmola' in class 30 and class 5, and the status of those applications are 'withdrawn' and 'abandon'. He admitted that the application no. 540086 in TM 992/2016 & TM 924/2016 Page No. 27 of 106 Digitally signed by NEHA NEHA PALIWAL PALIWAL SHARMA SHARMA Date: 2025.04.09 17:16:38 +0530 class-5 and application no. 539636 in class-30 were opposed by defendant Anil Food Industries. He further admitted that the defendant had filed an application for registration of trade mark 'Chatmola' in class-30 but stated that the same was filed after one year of their (plaintiff's) first application.
(50) PW1 further deposed that application no. 540086 in class-5 dated 16.11.1990 was filed by the plaintiff; application no. 888549 in class-5 dated 26.11.1999 was filed by the defendant; application no. 892057 in class-5 dated 15.12.1999 was filed by one Satish Chand Garg; application no. 977899 in class-5 dated 18.12.2000 was filed by one Gulshan Kumar; application no. 1211394 in class-5 dated 03.07.2003 was filed by Bhartiya Agro and application no. 2687191 in class-5 dated 26.02.2014 was filed by Rex Remedies. He further deposed that six applications for trade mark 'CHATMOLA' are on trade mark website, viz. application no. 539636 in class-30 dated 08.11.1990 filed by the plaintiff; application no. 557320 in class-30 dated 28.08.1991 filed by the defendant; application no. 568549 in class-30 dated 28.02.1992 filed by the plaintiff; application no. 728426 in class-30 dated 23.08.1996 filed by a third party Rajeev Bhardwaj; application no. 1131005 in class-30 dated 04.09.2002 filed by the defendant and application no. 5225731 in class-30 dated 27.11.2021 filed by one Anshu Aggarwal.
(51) PW1 further admitted that application no. 557320 in class-30 dated 28.08.1991 filed by the defendant for trade mark 'CHATMOLA' is registered and there is no other registration of trade mark 'CHATMOLA' in class-30 other than the registration no. 557320 in class-30. He further admitted that all the applications mentioned in class-5 are abandoned as per TM 992/2016 & TM 924/2016 Page No. 28 of 106 Digitally signed by NEHA NEHA PALIWAL PALIWAL SHARMA SHARMA Date: 2025.04.09 17:16:46 +0530 search record. He further admitted that he could not find any document/ file which can show that any opposition or appeal was filed against application no. 557320 in class-30 of the defendant. He further deposed that he could not find any file with respect to opposition or appeal and therefore, had not checked that whether any step was taken by the plaintiff in respect of trade mark registration no. 557320 in class-30 post 2012, that is, after filing of replication to the amended written statement. He further deposed that he had not placed on record any invoice pertaining to designing of six labels as mentioned in Ex.PW1/16 collectively.
(52) He further deposed that the proprietorship firm Alka Food Industries was closed in the year 2009 after the demise of his father and he was impleaded in the present matter in his individual capacity and now the name of the company in which he is a Director, is Alka Food Private Limited which was incorporated in the year 1995. He, however, denied that Alka Food Industries, sole proprietorship firm was not in existence in 2010. Trade marks Chatmola, Cardela, Freshla and some other trade marks are still in the name of firm M/s. Alka Food Industries, a sole proprietorship firm and some other trade marks were assigned to M/s. Alka Foods Private Ltd. He admitted that he is not doing any business of confectionary in his personal name. Ex.PW1/22, Ex.PW1/23 and Ex.PW1/24 are the three designs/ label of trade mark CHATAR MATAR. He admitted that M/s. Alka Food Industries had not obtained any GST registration and he further admitted, after seeing the record, that there is no assignment deed on record whereby an assignment was done between Alka Food Industries and company M/s. Alka Food Pvt. Ltd.
TM 992/2016 & TM 924/2016 Page No. 29 of 106 Digitally signed by NEHA NEHA PALIWAL PALIWAL SHARMA SHARMA Date: 2025.04.09 17:16:53 +0530 (53) He further deposed that at the relevant time, sometimes the
plaintiff firm used to take the services of Mr. Vidya Bhushan and M/s. Ankur Advertising for designing and the art work was given to M/s. Vikas Laminator for printing and sometimes M/s. Vikas Laminator directly took the services of the designer Mr. Vidya Bhushan. His father used to sign cheques and give payment to M/s. Vikas Laminator. He further deposed that the receipt of any payment made to Mr. Vidya Bhushan was not filed on the Court record as designing of Chatmola in the Chatar-Matar design was given to M/s. Vikas Laminator Pvt. Ltd. and they had taken the services of Mr. Vidya Bhushan and therefore, M/s. Vikas Laminator must have paid for it. He admitted that the invoice of M/s. Vikas Laminator Pvt. Ltd., which is on record, is not the original bill but is a duplicate bill.
(54) PW1 further admitted that he had not filed the copies of cheques on record which were issued by the plaintiff company for purchasing printed and laminated rolls for making pouches 'Chatmola' with respect to bills Ex.PW1/19 and Ex.PW1/20 and for engaging services of Ankur Advertising and Marketing for design of trade mark label Tiny-Miny Ex.PW1/17 for which bill dated 31.08.1988 Ex.PW1/20-A was raised. In the year 1990-91, the invoices of Alka Food Industries were maintained by sending the original bill to the customer and keeping a copy in the file and the third copy of the invoice was hard bound. He admitted that the second copy was never bound and in the year 1990 and 1991, they used to issue handwritten invoices of the firm Alka Food Industries, at times in his own handwriting and at times in the handwriting of his father. He admitted on confrontation that documents Ex.PW1/9 and Ex.PW1/10 both dated TM 992/2016 & TM 924/2016 Page No. 30 of 106 Digitally signed by NEHA NEHA PALIWAL PALIWAL SHARMA SHARMA Date: 2025.04.09 17:17:01 +0530 03.05.1991 are typed and not handwritten. The document Ex.PW1/9 is the second copy and contains details written by pen as when the bills were made, bilty number was not available and after receiving of bilty number, details were written by hand and that is why the second copy had details written in pen. He further admitted that the invoice Ex.PW1/12 dated 26.06.1991 is a typed document. He was confronted with Ex.PW1/11 dated 03.05.1991 and was asked that why out of three invoices issued on the same date, two were typed and one was handwritten, to which it was replied that at times typewriters were not working and therefore the bills were raised by hand. Ex.PW1/9 and Ex.PW1/10 are the second copy and not carbon copy. He had not filed the bilty receipt or transport receipt of invoices which were issued to parties outside Delhi but bilty number was mentioned on the respective bills. The owner of Batra Stores, Geeta Colony, Delhi is his mausaji.
(55) PW1 further deposed that the documents Ex.PW1/4, Ex.PW1/5 and Ex.PW1/7 are in his handwriting whereas Ex.PW1/11 dated 03.05.1991 (actually Ex.PW1/10) is in the handwriting of some staff, though the initials put on behalf of firm are his initials. He and his father used to put their initials on all the bills/ invoices issued by the plaintiff firm. His initials are there on Ex.PW1/4, Ex.PW1/5 and Ex.PW1/7 whereas Ex.PW1/6 bear the initials of his father. He was unable to tell as to whose initials were there on Ex.PW1/8. He admitted that the documents Ex.PW1/9 and Ex.PW1/10 do not bear any initials. He deposed that Ex.PW1/11 was in the handwriting of some staff and bear his (witness's) initials and Ex.PW1/12 also bear his initials. When asked that invoice TM 992/2016 & TM 924/2016 Page No. 31 of 106 Digitally signed by NEHA NEHA PALIWAL PALIWAL SHARMA SHARMA Date: 2025.04.09 17:17:08 +0530 Ex.PW1/15 had two handwriting with name of the customer written by one person and other details written by another, the witness explained that both are in same handwriting and the items were in caps font and address in mixed font, the address was in small and caps font and the items were in only caps font and the same is in his handwriting. When confronted with Ex.PW1/4 bearing invoice no. 2229 while Ex.PW1/5 dated 5.12.1990 bear invoice no. 2237 and asked why they had not filed the intervening invoices, the witness explained that they were asked by their then Advocate that some sample bills were required for the case containing sale of Chatmola so they filed only sample bills. He admitted that between 13.11.1990 till 05.12.1990 their firm issued only eight invoices, between 05.12.1990 till 14.12.1990 their firm issued only four invoices and from 14.12.1990 to 22.01.1991 their firm issued only 18 invoices.
(56) PW1 further deposed that between 22.01.1991 and 25.01.1991 three bills were raised including 2261 and 2263. He further admitted that from 03.05.1991 to 26.06.1991 only 31 bills were said to have been raised by the firm as per serial number; between 26.06.1991 to 13.07.1991 only eight invoices were raised as per serial number; between 13.07.1991 to 07.08.1991 only eleven bills were raised; between 07.08.1991 to 19.08.1991 only four bills were raised and between 19.08.1991 to 19.10.1991 only 16 bills issued by the plaintiff firm as per serial number. He further deposed that it was not mandatory prior to GST to get the invoice number printed on the cash memo, though after GST the same is mandatory. The documents Mark X1 (Ex.DW1/40 which is a price list) and Mark X2 (Ex.DW1/39 which is a greeting card) are not issued by his TM 992/2016 & TM 924/2016 Page No. 32 of 106 Digitally signed by NEHA NEHA PALIWAL PALIWAL SHARMA SHARMA Date: 2025.04.09 17:17:14 +0530 firm and are fabricated documents.
(57) PW1 further stated that he had come to know about TM-1 and additional representation in TM application no. 1131005 and 888549 after closure of plaintiff's evidence in the present matter. The legal proceedings certificates were applied on 12.12.2023 and received on 23/24.01.2024.
(58) PW2 Ms. Isha Choudhary summoned witness from trade mark Registry had brought the certified copy of applications no. 377890 (for mark TINI MINI), 499813 (for mark CHATAR MATAR) and 539636 (for mark CHATMOLA), all in Class 30, Ex.PW2/A (Colly), Ex.PW2/B (Colly) and Ex.PW2/C (Colly) respectively before the Court. Perusal of Ex.PW2/C reveals that the application was in Class 30 dated 08.11.1990 and its status was 'abandoned'. The witness was duly cross-examined by the Ld. Counsel for the defendant.
(59) PW3 Mr. Pragya Nand Shukla summoned witness from Copyright Office had brought the certificate of registration No. A-51887/1992, copy of work and application for exemption to produce the summoned documents, Ex.PW3/1 (Colly). Perusal of Ex.PW3/1 reveals that as per the noting therein, the same was removed from Board on 05.02.2010. The date of the application was 16.06.1992 and the date of registration was 23.06.1992.
(60) He was cross-examined by the Ld. Counsel for the defendant. He, in his cross-examination, deposed that certificate of registration produced by him was not found in the records of the department and was found from the Archives of the department where old official records were kept. He could not answer the suggestion that whether remark removed TM 992/2016 & TM 924/2016 Page No. 33 of 106 Digitally signed by NEHA NEHA PALIWAL PALIWAL SHARMA SHARMA Date: 2025.04.09 17:17:27 +0530 from board on 05.02.2010 pertains to removal of the registration and also was unable to tell whether the registration was alive as on the date of his cross-examination. He was not aware whether their office received copy of the order dated 25.08.2005 passed by the Ld. Copyright Board and copy of the order dated 05.11.2008 passed by the Hon'ble High Court of Delhi.
(61) PW4 Yogeshwar Singh, authorized representative of Ankur Media Pvt. Ltd., formerly known as Ankur Advertising and Marketing, had tendered his evidence by way of affidavit, Ex.PW4/A wherein he had stated that the above company is carrying on the business of designing of labels and advertising since 1975-1976. He is employed in the company since 1987-88. He was authorized by the Director of the company, namely, Sh. Balraj Malhotra to depose before the Court after they had received summons from the Court. He had brought the records viz. bill no. 218/A/88-89/Aug dated 31.08.1988; artwork of label Tiny Miny; negative positive films of label Tiny Miny and the final label. He stated that they had received their professional charges of Rs.750/- through cheque no. 602985 dated 06.10.1988 drawn on State Bank of India from Alka Food Industries. The tendering of the documents was objected to by the Ld. Counsel for the defendant on the ground that the said documents were not earlier on judicial record and no permission was sought from the Court to produce them on record. The affidavit of the witness was not filed by the plaintiff along with his affidavit but was filed later on to fill the lacuna. Thus, objections were on the ground of stage of filing, mode of proof, relevancy and admissibility.
TM 992/2016 & TM 924/2016 Page No. 34 of 106 Digitally signed by NEHA NEHA PALIWAL PALIWAL SHARMA SHARMA Date: 2025.04.09 17:17:34 +0530 (62) PW4 was cross-examined by the Ld. Counsel for the defendant
at length. He, in his cross-examination, had deposed that he joined M/s. Ankur Media Pvt. Ltd. in 1987-1988 as a learning Executive when it was a firm by the name M/s. Ankur Advertising and Marketing and in 2002, it became a company by the name of Ankur Media Pvt. Ltd. No power of attorney was given by the Board of Directors of M/s. Ankur Media Pvt. Ltd in his favour to appear in the matter nor any board resolution was passed and only an authorization letter was given to him. There are four directors in Ankur Media Pvt. Ltd. and only one of the Director, namely, Mr. Balraj Malhotra had signed the authorization letter in his favour and Mr. Balraj Malhotra is also Head of the Company.
(63) He further deposed that he worked as an Advertising Executive in the firm. The company had kept the records for 30-40 years. He could not answer the suggestion whether the firm maintained invoices in bound form books for each year. When asked whether he can produce bill nos. 217 or 219, preceding or succeeding the bill which he had brought before the Court, it was deposed by him that he has no knowledge about the same. He further deposed that his firm used to issue two copies of bill and one was kept with the client and other was kept by the firm. He had no personal knowledge with respect to the invoice or the payment qua the said invoice.
(64) He further deposed that his firm deals with approximately 40 clients, has huge advertisement budget and carry huge advertisements in various medias throughout the year. He was unable to answer whether the company kept record of all the 40 clients for the last 30-40 years for the entire advertisement activities or the documents were given to those TM 992/2016 & TM 924/2016 Page No. 35 of 106 Digitally signed by NEHA NEHA PALIWAL PALIWAL SHARMA SHARMA Date: 2025.04.09 17:17:42 +0530 organizations and deposed that the records were kept for financial purpose only. He could not answer the question whether he can bring the records of any other client of the year 1990, namely, Steel Bird. He further admitted that he had received the summons issued by the Court and on specific question that there was no specific instruction to bring any other document other than invoice No. 218/A/88/89/August, the witness stated that he had only submitted the invoice, designs, negative and one art work. He could not answer the question that how the copy of bill dated 31.08.1988 was preserved and stated that it is for the management to decide.
(65) He further admitted that the negatives, Mark A4, annexed with his affidavit were not prepared in his presence, however, again deposed that he was present when the negatives were created. He further deposed that he was present when the document Mark A5, that is, art work was created by Mr. Devender Malhotra and his team. He could not answer the questions that whether dabbis Ex.PW1/21 to Ex.PW1/24, Ex.PW1/19 and the six dabbis part of Ex.PW1/6 (colly) were designed by his firm or not. He, however, deposed that Ex.PW1/20 was not designed by his firm and again deposed that labels Ex.PW1/23 and Ex.PW1/24 were not designed by his firm and the design of box Mark A6 was not created by his firm.
(66) PW5 Sh. Mahesh Rustagi Ex Director of M/s. Vikas Laminator Pvt. Ltd. had tendered his evidence by way of affidavit, Ex.PW5/A, wherein he had deposed that his company had received the summons from the Court. His company was carrying on the business of printing of polyester poly packing materials in the shape of rolls and pouches since its inception. He had been into the printing of various designs for Alka Food TM 992/2016 & TM 924/2016 Page No. 36 of 106 Digitally signed by NEHA NEHA PALIWAL PALIWAL SHARMA SHARMA Date: 2025.04.09 17:17:48 +0530 Industries since 1989-1990 such as CHATAR MATAR, LAL JEERA, BIBO, NAWABI JEERA, FRESHO etc. and in July 1990, he was asked by Sh. Anil Kumar to insert CHATMOLA in place of CHATAR MATAR label. The said label was prepared by Sh. Vidya Bhushan who was a Designer and the said artwork was given to him after 10-15 days and thereafter he got prepared the Cylinders from Gravure Cills which took 20- 30 days in preparation. After receiving the cylinders the job of printing was done and the printed materials, that is, rolls of CHATMOLA were delivered vide bill dated 08.09.1990 and bill dated 16.12.1991. The bill no. 145 dated 08.09.1990 (already Ex.PW1/31 and also Ex.PW1/19) and bill no. 345 dated 16.12.1991 (Ex.PW1/32 and also Ex.PW1/20) were issued by the company and the same bear his signatures as well as signatures of his brother.
(67) PW5 was cross-examined by the Ld. Counsel for the defendant. He, in his cross-examination, deposed that he remained the Director of Vikas Laminator Pvt. Ltd. till 2007-2008. The company was closed due to heavy losses and he ceased to be the Director because of the closure. He admitted that the company had faced litigations under Section 138 of Negotiable Instrument Act. He had received summons on behalf of the company on his residential address and in his affidavit had stated his residential address to be the address of the company. He admitted that he is not in possession of any records of M/s. Vikas Laminator as on date of his cross-examination nor can produce the office copy of bills exhibited in his examination-in-chief. He had no document to show that Sh. Anil Kumar had asked him to insert Chatmola in place of Chatar Matar. The label of TM 992/2016 & TM 924/2016 Page No. 37 of 106 Digitally signed by NEHA NEHA PALIWAL PALIWAL SHARMA SHARMA Date: 2025.04.09 17:17:54 +0530 Chatar Matar was designed by Sh. Vidya Bhushan whereas he (witness) did the lamination, though there is no document to prove the same. He further deposed that apart from the two words, nothing was changed in the label. The Chatar Matar label was in yellow colour but he was not sure. He did not remember the cost of preparing cylinder in 1990 and Vikas Laminator Pvt. Ltd. made the payment of the alleged cylinder for the alleged changed label, though he had not filed any such document. He had not received the refund of making charges of the alleged cylinder from Alka Food Industries nor he had not placed any such document on record of the Court file.
(68) PW5 further deposed that only one cylinder was made at that time for the alleged changed label but he was not sure. The witness further deposed that he told Sh. Vidya Bhushan to change the label of Chatar Matar and he would have made the change in the label but it was not made in his presence. He deposed that Vikas Laminator used to do printing of the rolls in 1990 at F-43, Sector 11, NOIDA. He did not remember why the alleged bill Ex.PW1/31 and Ex.PW1/19 does not mention party CST number. He admitted that he had not submitted any proof of any payment of any bill. He further deposed that the bills were made by hand. He also deposed that he had not placed on record of the Court file the alleged label which he had received from Vidya Bhushan.
(69) PW6 Sh. Vidya Bhushan had tendered his evidence by way of affidavit, Ex.PW6/A, and had deposed that he was the Proprietor of M/s. Vinny Graphics and was doing business since 1986 till 2010. He further stated that he had prepared various designs for Alka Food Industries since TM 992/2016 & TM 924/2016 Page No. 38 of 106 Digitally signed by NEHA NEHA PALIWAL PALIWAL SHARMA SHARMA Date: 2025.04.09 17:18:01 +0530 1989-1990 such as CHATAR MATAR, LAL JEERA, BIBO, NAWABI JEERA, FRESCO etc. at the instance of Sh. Mahesh Rustagi, Director of Vikas Laminator. The witness further stated that in July 1990 he was asked by Sh. Mahesh Rustagi to insert CHATMOLA in place of CHATAR MATAR pouch label. The said label/ pouch was prepared by him (Ex.PW6/1) and the said artwork was also given to Sh. Mahesh Rustagi in July1990. He had also earlier sworn an affidavit in this regard (already Ex.PW1/18) which bear his signatures.
(70) PW6 was duly cross-examined by the Ld. Counsel for the defendant. He, in his cross-examination, admitted that the label, Ex.PW6/1, was printed/ produced by mechanical process and not original artwork. Mr. Anil Gera and Mr. Pritam Dass had come to him for the affidavit Ex.PW1/8. He deposed that he did not go to any Court premises to sign the affidavit nor did he went to Oath Commissioner or Notary to get the affidavit attested but signed the same in his office. He further deposed that from 1986 he had been designing label for Alka Food Industries through laminator and Mr. Anil used to come to check the labels. Sh. Anil Gera used to come at various time to get some corrections made from 1988 onwards and Sh. Pritam Dass never came to get the corrections made. He had not placed on record any original artwork made by him for trade mark Chatar Matar because it goes to the printer.
(71) PW6 further deposed that he had not filed any artwork pertaining to trade mark label Chatmola as he did not keep any record of the same. He further deposed that no order form was given to him by Mr. Mahesh Rastogi to design the label Chatmola and volunteered that Mr. Mahesh TM 992/2016 & TM 924/2016 Page No. 39 of 106 Digitally signed by NEHA NEHA PALIWAL PALIWAL SHARMA SHARMA Date: 2025.04.09 17:18:08 +0530 Rastogi used to come and give instructions as to how a label was to be devised or made. Mr. Anil Gera had come to him for checking the label of Chatmola and after understanding the same, he approved it. He did not remember whether he had given the original artwork to Mr. Anil Gera or to the Laminator. When asked why payments were not made by Alka Food Industries to him directly, the witness deposed that he never used to visit them instead they used to come to him and used to check the labels and they never used to make payments to him because he used to work for Vikas Laminator and he was being paid by Vikas Laminator. PW6 further deposed that he had many other customers like Ayur Cosmetics who used to make payment directly to him and maximum printer used to make payments to him through whom he used to get work. He could not answer the suggestion that whether label of Chatmola was designed by Sh. Devender Malhotra and his team.
(72) Vide separate statement of the Ld. Counsel for the plaintiff, the plaintiff's evidence was closed vide order dated 19.07.2023 and the matter was fixed for defendant's evidence.
(73) At the stage of defendant's evidence, the defendant had examined as many as eight witnesses. The proprietor of defendant, namely Sh. Ramesh Chander had examined himself as DW1. DW1 had tendered his evidence by way of affidavit Ex.DW1/A and had reiterated the contents of the written statement and counter claim in his affidavit. He had relied upon the following documents in his evidence by way of affidavit:
1. The pouch of the defendant/ counter claimant, Ex.DW1/1.
2. Original art work of the label, Ex.DW1/2.TM 992/2016 & TM 924/2016 Page No. 40 of 106 Digitally signed by NEHA
NEHA PALIWAL PALIWAL SHARMA SHARMA Date: 2025.04.09 17:18:15 +0530
3. Affidavit of Sh. Baldev Singh containing the replica of the label, Ex.DW1/3 (Collectively, comprising of 2 pages).
4. Originals of bills of M/s. Rapidex Offset dated 21.12.1991, Ex.DW1/4 and M/s. Eskay Enterprises dated 20.01.1992 and dated 03.01.1992, Ex.DW1/5 and Ex.DW1/6 respectively.
5. Original of the invoice no.036 of M/s. Pranshu Packaging and the passbook, Ex.DW1/7 and Ex.DW1/8 (passbook) respectively.
6. Original of the newspaper cutting, Sandhya Times dated 07.12.1991 and the invoice No. 4532, Ex.DW1/9 and Ex.DW1/10 respectively.
7. Original of the letter dated 12.12.1991, Ex.DW1/11.
8. Original postal envelope in which the letter dated 12.12.1991 received via post by the defendant/ counter claimant from M/s. Veena Sales Corporation, Ex.DW1/12.
9. Original of the letter dated 06.12.1991 to the defendant/ counter claimant from M/s. V.K. Sales at Rohtak requesting for terms of distributorship of CHATMOLA with original postal envelope, Ex.DW1/13 and Ex.DW1/14 respectively.
10. Original of the letter dated 09.11.1991 to the defendant/ counter claimant from M/s. Trimurti Agency requesting for allotment of agency in respect of Chatmola along with original postal envelope, Ex.DW1/15 and Ex.DW1/16 respectively.
11. Original letter dated 05.12.1991 of M/s. Birdhichand Mahavir Prasad addressed to defendant / counter claimant asking sample of Chatmola alongwith the original postal envelope, Ex.DW1/17 and Ex.DW1/18 respectively.
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12. Original of the letter dated 18.12.1991 addressed to defendant/ counter claimant from M/s. Sudershan Perfumers of NOIDA making inquiries of the product Chatmola alongwith the original postal envelope, Ex.DW1/19 and Ex.DW1/20 respectively.
13. Original letter dated 30.01.1992 received by defendant/ counter claimant from M/s. Unitek, New Delhi alongwith the original envelope, Ex.PW1/21 and Ex.PW1/22 respectively.
14. Original letter dated 30.01.1992 received from M/s. Rajinder Singh Bhupinder Singh, Ludhiana by defendant/ counter claimant alongwith the original envelope, Ex.DW1/23 and Ex.DW1/24 respectively.
15. Original of the invoice dated 06.12.1991 of Rs.6,000/- raised to the defendant/ counter claimant from the advertiser M/s. Reach Video Advertising and Ad Films Pvt. Ltd., Ex.DW1/25.
16. Original of invoice dated 17.01.1992 raised from the advertiser M/s. Reach Video Advertising and Ad Films Pvt. Ltd to the defendant/ counter claimant, Ex.DW1/26.
17. Original of invoice dated 22.06.1991 from M/s. Vijay Advertisers of Delhi to the defendant/ counter claimant, Ex.DW1/27.
18. Original of invoice dated 04.01.1992 from M/s. Sunita Printers raised to defendant/ counter claimant regarding advertising the trade mark Chatmola across calenders, stepney covers etc., Ex.DW1/28.
19. Original invoices pertaining to the trade mark Chatmola filed by the defendant/ counter claimant Ex.DW1/29 (Collectively), TM 992/2016 & TM 924/2016 Page No. 42 of 106 Digitally signed by NEHA NEHA PALIWAL PALIWAL SHARMA SHARMA Date: 2025.04.09 17:18:28 +0530 details of which are as under:-
Bill Book No. 1 Bill No. Bill Date Customer name
1477 08.01.1991 Anju Sweet Products Nawab Ganj Delhi
1481 18.01.1991 Neha Enterprises, Jhilmil Colony Shahadra
1482 19.01.1991 Ishar Singh Jeet Singh, Gali Batasha, Khari Baoli,
Delhi
1483 19.01.1991 Delhi Sales Agency, Shivaji Road, Delhi-06
Bill Book No. 2
1554 10.01.1992 R. L. Dogra Cash Payment
1555 16.01.1992 Taneja Confectioners & Bakers, Library Road,
Azad Mkt
1556 20.01.1992 Neha Enterprises, Jhilmil Colony Shahadra
1557 23.01.1992 Ishar Singh Jeet Singh, Gali Batasha, Khari Baoli,
Delhi
1561 01.02.1992 Chiman Lal Surinder Kumar Gali Batasha Khari
Baoli
1562 01.02.1992 B.L. Trading Co. Gali Batasha Khari Baoli
20. Copies of invoice nos. 1957 dated 26.04.1991, 1962 dated 21.05.1991, 1970 dated 21.06.1991, 1972 dated 21.06.1991, 1974 dated 28.06.1991, 1982 dated 29.07.1991, 1984 dated 09.08.1991, 1985 dated 09.08.1991, 1997 dated 20.09.1991, 2000 dated 28.09.1991, 1503 dated 04.10.1991, 1504 dated 04.10.1991, 1505 dated 09.10.1991, 1517 dated 01.11.1991, 1523 dated 12.11.1991, 1525 dated 16.11.1991, 1530 dated 02.12.1991, 1532 dated 05.12.1991, 1538 dated 12.12.1991, 1544 dated 21.12.1991 and 1548 dated 02.01.1992, Mark DW1/A (collectively). Later on carbon copies of invoices No. TM 992/2016 & TM 924/2016 Page No. 43 of 106 Digitally signed by NEHA NEHA PALIWAL PALIWAL SHARMA SHARMA Date: 2025.04.09 17:18:34 +0530 1957 dated 26.04.1991, 1962 dated 21.05.1991, 1972 dated 21.06.1991, 1974 dated 28.06.1991, 1984 dated 09.08.1991, 1985 dated 09.08.1991, 1517 dated 01.11.1991, 1525 dated 16.11.1991, 1530 dated 02.12.1991, 1544 dated 21.12.1991 and 1548 dated 02.01.1992, invoices No. 1997 dated 20.09.1991, 2000 dated 28.09.1991 and 1532 dated 05.12.1991, were produced and were exhibited as part of Ex.DW1/29 (colly).
21. Original brochure of Lions Club Delhi Model Town dated 22.09.1991 containing the advertisement of the trade mark Chatmola of the defendant / counter claimant, Ex.DW1/30.
22. Copy of the order dated 28.11.2003 passed by the Ld. Registrar of Trade Marks dismissing the opposition filed by plaintiff against the application no. 557320 in class 30 of the defendant/ counter claimant, Mark DW1/B.
23. Original of the trade mark registration certificate under No. 557320 in Class 30 of the defendant/ counter claimant, Ex.DW1/32.
24. The original Legal Proceedings Certificate pertaining to the trade mark registration no. 557320 in class 30 of the defendant/ counter claimant, Ex.DW1/33.
25. Certified copy of the order dated 04.03.1999 passed by the Ld. Registrar of Trade Mark, New Delhi allowing the oppositions filed by the defendant/ counter claimant to the applications no. 539636B in class 30 and another under no. 540086B in class 5 of the plaintiff, Ex.DW1/34.
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26. Certified copy of the extract of the Register of Copyrights pertaining to copyright registration no. A57086/99 of the defendant/ counter claimant, Ex.DW1/35.
27. Certified copy of the extract of the Register of Copyrights pertaining to copyright registration no. A65448/2003 of the defendant/ counter claimant, Ex.DW1/36.
28. Certified copy of the order passed by the Ld. Copyright Board expunging the copyright registration no. A51887/1992 of the plaintiff on cancellation filed by the defendant/ counter claimant, Ex.DW1/37.
29. Copy of the order dated 05.11.2008 passed by the Hon'ble High Court of the Delhi in RFA 15/2006 titled as 'Pritam Dass v. Anil Food Industries' filed alongwith the application of the plaintiff dated 19.05.2015, Ex.DW1/38.
30. Original Diwali gift pack of the plaintiff, Ex.DW1/X.
31. The original Diwali Greeting card of the plaintiff Ex.DW1/39 (earlier marked as Mark X2 during cross examination of PW1 dated 15.04.2023).
32. The original price list of the plaintiff, Ex.DW1/40 (earlier marked as Mark X1 during cross examination of PW1 dated 15.04.2023).
33. Certified copy of the exparte order dated 25.05.1999 and the compromise decree dated 08.03.2000 in favour of defendant/ counter claimant in suit no. 1154/1999 before Hon'ble High Court of Delhi titled as 'Ramesh Chander vs. Vikram Confectioners & Anr.', Ex.DW1/41.
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PALIWAL SHARMA
PALIWAL Date: 2025.04.09
SHARMA 17:18:48 +0530
34. Certified copy of the exparte order dated 17.09.1999 and the compromise decree dated 26.08.2004 in favour of defendant/ counter claimant in suit no. 2074/2000 before Hon'ble High Court of Delhi titled as 'Ramesh Chander v. H. K. Industries & Anr.', Ex.DW1/42.
35. Certified copy of the exparte order, judgment, and exparte decree dated 29.03.2023 in favour of defendant/ counter claimant in TM no. 972/16 in the court of Ld. ADJ-08 Central, Tis Hazari Courts, titled as 'Ramesh Chander v. A. K. Products', Ex.DW1/43.
(74) The exhibition of documents was objected to by the Ld. Counsel for the plaintiff on the ground that Ex.DW1/2 is a coloured label only and not an art-work; Ex.DW1/3, Ex.DW1/7 to Ex.DW1/11 were objected to on the ground of mode and manner of proof; Ex.DW1/12, Ex.DW1/14, Ex.DW1/16, Ex.DW1/18, Ex.DW1/20, Ex.DW1/22, Ex.DW1/24 were objected to on the ground that they were beyond pleadings and Ex.DW1/29 (colly) were objected to on the ground that the originals were not produced and Ex.DW1/X, DW1/39 and Ex.DW1/40 were objected to on the ground of mode of proof and that source of documents was not proved.
(75) DW1 was duly cross-examined by the Ld. Counsel for the plaintiff at length. He, in his cross-examination, deposed that Anil Food Industries was established as a proprietorship firm in the year 1972 by Smt. Kaushalya Devi (his mother). He was inducted as a partner in the firm in the year 1982 and had not infused any capital at the time of becoming partner. At that time, the firm was using only 'Anil' trade mark. He further deposed that on the date of cross-examination, his firm was using "Anil", TM 992/2016 & TM 924/2016 Page No. 46 of 106 Digitally signed by NEHA NEHA PALIWAL PALIWAL SHARMA SHARMA Date: 2025.04.09 17:19:01 +0530 "Chatmola", "Rinkas", "Chatmoli" etc. as its trade marks. From the years 1970 to 1990 the firm was using trade marks "Anil", "Lajawab", "Rinkas", "Chatballs", "Chatpata Jeera", "Fruit Balls" etc. and also used to make sugar coated Saunf and churan balls etc. at that time. They also used to make product with the name "Tambola" during the year 1970 to 1990 and the products were being manufactured at 308/5, Shahzada Bagh, Old Rohtak Road, Delhi-35. He admitted that they never manufactured Lal Jeera but stated that they were making Chatpata Jeera. He deposed that at that time, Chatmola was being made in coating pans and now a days, they are also making candy of Chatmola. He admitted that same machinery was being used in packing of Tambola and Chatmola.
(76) DW1 further deposed that the designer used to take idea from him while making art work. The designer used to provide him copy of art work after completion of design and usually 2-3 copies were provided to him. Only he used to provide the art work to the printer. During 1982 to 1995, he had only one designer namely Baldev Singh and the first design made by Baldev Singh was of Chatmola. He met Baldev Singh for the first time in May 1988 at Ashok Vihar at the residence of his friend, namely, Kapil Anand. Baldev Singh had made designs of Chatmola, Tambola and Chatpata Jeera. He had filed only one art work of Chatmola in the present suit as the case pertains to only Chatmola and had not filed any other art work made by Baldev Singh. He had not filed any bill issued by Baldev Singh since the payment was made in cash.
(77) DW1 further deposed that he and the plaintiff are real brothers, have same business and same market for their products. They generally TM 992/2016 & TM 924/2016 Page No. 47 of 106 Digitally signed by NEHA NEHA PALIWAL PALIWAL SHARMA SHARMA Date: 2025.04.09 17:19:10 +0530 have knowledge of the products made by the plaintiff. He admitted that plaintiffs are manufacturing Tini Mini since year 1977, however, deposed that no design of elephant, which is there in Chatmola, was present on the dibbi of Tini Mini and there were different designs on different cartons of Tini Mini, which have been filed on record. He admitted that 6-7 designs were being used by the plaintiffs on the dibbis for Tini Mini. He denied that art-work/ design on Ex.DW1/1 and Ex.DW1/2 are similar to those printed on Tini Mini pouch and carton.
(78) DW1 further deposed that the idea behind the art work of 'Chatmola' was his and Baldev Singh's combined idea. Baldev Singh prepared the art-work first and thereafter he (witness) modified the same by making minor changes and suggesting colours. Same machinery was being used first for making 'Lajawab', then 'Chatballs', then 'Chatmola' and then 'Tambola' and all of these were balls (Goli) of the same size with different tastes. The process of roto-gravier can be done in one month in case of urgency, however, in case of a lazy printer it could take 5-6 months or one year. The said process of roto-gravier is complete if the packaging/ pouch is printed. He admitted that the proceedings for cancellation of copyright of 'Chatmola' is pending before the Hon'ble Delhi High Court and made a volunteer statement that copyright registration of the plaintiff in respect of 'Tiny-Miny' having same design, has already been expunged by the Copyright Board.
(79) He further deposed that author of Chatmola was Baldev Singh. He had filed two applications for registration of copyright of 'Chatmola' but he does not remember the exact timings of filing the said applications.
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He further deposed that Baldev Singh was the author in both copyright applications and deposed that in the first application the agent wrongly mentioned his (witness) name as the author and when it came to his knowledge, he filed second application through another agent wherein the name of the author was mentioned as Baldev Singh correctly. He admitted that he never applied for correction in the first application.
(80) He further deposed that he was selling 'Chatmola' to several customers and he had filed the bills in respect of the same. He used to visit dealers for marketing of 'Chatmola' and some people also used to visit his factory for purchase of 'Chatmola'. He was unable to tell the sales figures of 'Chatmola' of the last financial year and the total sales of Anil Food Industries of the last financial year. He admitted that roto-gravier printing was not possible without cylinders and deposed that cylinders were got made by the printer and were not made on urgent basis. He further deposed that packaging is must before selling the product. He had filed printing bills for roto-gravier printing. The printing on box is offset printing press.
(81) DW1 had further deposed that they had first introduced 'Chatmola' pouch with MRP of 50 paisa and within 2-3 days only, another pouch of 'Chatmola' was introduced for MRP of one rupee. He deposed that he had filed the first art work of 'Chatmola' in the present case. He admitted that the bank account in UCO Bank was opened by him and Smt. Kaushalya Devi. He denied that the art-work of Ex.DW1/1 cannot be made without reference to art work of Ex.PW1/3 and Ex.PW6/1 filed on 27.04.2005 and made a voluntary statement that Ex.PW1/3 is the copy of his pouch 'Chatmola' and in Ex.PW6/1 the name 'Chatmola' was taken TM 992/2016 & TM 924/2016 Page No. 49 of 106 Digitally signed by NEHA NEHA PALIWAL PALIWAL SHARMA SHARMA Date: 2025.04.09 17:19:24 +0530 from his pouch. He further deposed that 3-4 days prior to his deposition, his Copyright in 'Chatmola' was revoked by the Hon'ble Delhi High Court on technical grounds with directions to the Ld. Registrar of Copyrights to re-decide the same within one month.
(82) He further admitted that he had filed an affidavit of Sh. Baldev Singh dated 24.02.1992, Ex.DW1/3, on record which was prepared on the asking of Sh. Baldev Singh and was attested before the Oath Commissioner. He deposed that he had paid Rs.150/- in cash to Sh. Baldev Singh as his fees of the art work made by him regarding Chatmola pouch. He admitted that there is no payment proof/ receipt available on court record with respect to payment qua bill Ex.DW1/4 dated 21.12.1991. Bill Ex.DW1/7 was the last dealing of the defendant firm with Pranshu Packaging and it was admitted that there is no order number mentioned on Ex.DW1/7 and deposed that it was a verbal order. He further admitted that the newspaper/ caution notice Ex.DW1/9 is dated 07.12.1991 while its bill Ex.DW1/10 is dated 10.12.1991. He further deposed that the said caution notice was got published through Kamal Mahajan and Co. for which payment was made through cheque and though the date of order is not on record but the bill Ex.DW1/10 of Kamal Mahajan and Co. dated 10.12.1991 is on record.
(83) DW1 deposed that he had received the letters Ex.DW1/15, Ex.DW1/16, Ex.DW1/17, Ex.DW1/18, Ex.DW1/19, Ex.DW1/20, Ex.DW1/21, Ex.DW1/22, Ex.DW1/23 and Ex.DW1/24 from the respective customers and had filed the same as it is before the Court. He further deposed that he had not purchased any machinery from Unitek TM 992/2016 & TM 924/2016 Page No. 50 of 106 Digitally signed by NEHA NEHA PALIWAL PALIWAL SHARMA SHARMA Date: 2025.04.09 17:19:31 +0530 Packaging Systems which had sent the letter Ex.DW1/21.
(84) He further deposed that apart from Mr. Baldev Singh, one Mr. Verma was also designing art works for him during the period 1985-95. He could not tell the exact years of making of art-work of the three to four designs of trade mark Chatball and deposed that the the first design of Chatball was made between 1988-1990 and after four to five years another designs were made, but he cannot tell the exact year. He stated that he does not remember in which years the art work of Chatmoli, Chocobite and Chatpata Anardana were made. He further deposed that they used to purchase printed, laminated rolls from Pranshu Packaging. After seeing the document Ex.DW1/7 the witness deposed that it is a bill of Chatmola pouch of 50 paise and one rupee. He further deposed that in the bill Ex.DW1/7 it has been written Rinka's Chatmola 110 mm and 150 mm and Rinka's Chatmola is written on the bill only because of printed rolls. He further deposed that alongwith the Bill Ex.DW1/25, the video cassette was also given in which their advertisement of Chatmola used to be played.
(85) DW1 was unable to tell when the movies Partikar, Akayla and Baharon Ki Manzil were released in theaters and when the same were released on video cassettes. He deposed that he had filed the video cassettes of the above movies in the Court of Sh. Mahender Pal, Ld. ADJ in the year 1992 in the present suit when the directions were given to both the parties to file the originals. It was put to the witness that the movie 'Partikar' was released in theaters on 16.08.1991 and its video cassette was released on 16.02.1992, movie 'Akayla' was released on 08.11.1991 and its video cassette was released on 08.05.1992 while movie ' Baharon Ki TM 992/2016 & TM 924/2016 Page No. 51 of 106 Digitally signed by NEHA NEHA PALIWAL PALIWAL SHARMA SHARMA Date: 2025.04.09 17:19:37 +0530 Manzil' was released in year 1968 in theaters, the witness replied that generally the advertising agencies give advertisement after release of the film and if they had given the advertisement before the release they had committed a crime and the cassette was given to him with the bill Ex.DW1/25. He is not aware if any time period is mentioned in Ex.DW1/26 when his advertisement of Chatmola was played in the video cassette and stated that the video cassette was given to him by the advertising agency alongwith the bill Ex.DW1/26. He further deposed that in Ex.DW1/27 the product is mentioned as Chatmola and volunteered that since the item is of only six rupees it may be a sticker. When put to the witness that Ex.DW1/27 is a fake bill as the address mentioned in the same is non existing, the witness deposed that the advertiser, namely, Vijay Advertisers came to his factory and gave him the product and took payment from him. DW1 admitted that there is no stamp, sign, name or marking on the bills Ex.DW1/29 (Colly) which are carbon copies but again stated that the same bear his signatures in the form of initials and they are his bills. He deposed that he had not produced the originals of Ex.DW1/29 (Colly) as the originals are with the customers. He further admitted that bills Ex.DW1/29 (colly) do not bear the signatures and stamp of the customers. He does not remember whether he had filed any receipt of the advertisement Ex.DW1/30, which was got published and stated that the entire printed book is on record, though the same is not numbered/ paginated yet the same contains the advertisement Ex.DW1/30.
(86) He further deposed that he had not filed any bill for the purchase of Diwali gift pack Ex.DW1/X and the same was provided to him by one of TM 992/2016 & TM 924/2016 Page No. 52 of 106 Digitally signed by NEHA NEHA PALIWAL PALIWAL SHARMA SHARMA Date: 2025.04.09 17:19:44 +0530 his well-wisher who is also a customer of both the parties. He admitted that he had not filed any envelope for greeting card Ex.DW1/39 and that the name of the addressee is not written in Ex.DW1/39 nor it bear the signature of plaintiffs. He further admitted that Ex.DW1/40 does not bear any seal or signatures of plaintiffs and deposed that this document was provided to him by a well wisher who is also a common customer and had asked him to keep his identity secret. He admitted that he is not the author of documents viz. Ex.DW1/X, Ex.DW1/39 and Ex.DW1/40. He deposed that Ex.DW1/41 and Ex.DW1/42 are compromise decrees and Ex.DW1/43 was a contested matter as the defendant was appearing and later on proceeded with exparte. He admitted that the cases Ex.DW1/41, Ex.DW1/42 and Ex.DW1/43 were filed after the proceedings in present suit had started.
(87) DW1 further deposed that he launched his product Chatmola in market on 08.01.1991 and had not applied for its registration as trade mark or copyright prior to the launch of the said product. He admitted that there is no possibility of people knowing about his product before its launch and again stated that he received the pouch paper in the middle of October 1990 and after 15-days to one month he sent samples in the market and started asking people for orders and started the supplies as soon as his product was ready. He further deposed that he came to know that the plaintiffs are also making Chatmola and had filed application for registration of trade mark 'Chatmola' when he received summons of this case and had no knowledge prior to giving Caution Notice in Sandhya Times that plaintiffs were also making Chatmola. He deposed that he had not issued any legal notice to the plaintiffs when he came to know about the same but had filed the TM 992/2016 & TM 924/2016 Page No. 53 of 106 Digitally signed by NEHA NEHA PALIWAL PALIWAL SHARMA SHARMA Date: 2025.04.09 17:19:52 +0530 counter claim in the present matter. He admitted that all the letters filed by him are of parties/ persons located outside Delhi and that he had not filed any bill for any outstation party.
(88) He further deposed that it is not necessary to get voucher signed while giving cash to any person however entries are made in the Day Books/ Cash Books. He had not filed the said Day Books/Cash Books for that period. He was unable to tell how much money he had earned by the sale of Chatmola. He admitted that plaintiffs have suffered huge losses because of making of Chatmola by him (witness) and had volunteered that the same was because the sale of the products of the plaintiff, namely, Chatar Matar and Khatmola substantially decreased because of his making Chatmola.
(89) DW1 further deposed that at the time when he issued caution notice, nobody was making 'Chatmola' including the plaintiff and had volunteered that 2-3 manufacturers had taken his sample from the market stating that they will make the same. He admitted that he had not mentioned in any of his pleadings including his written statement, amended written statements made from time to time, counter claim/ amended counter claims that he had provided samples to anyone in October 1990 of 'Chatmola'.
(90) He further deposed that he had not filed any catalog or price list before the Court of the products of defendant firm. He further deposed that during the period in between 1982-1986 the majority of art works were designed by Mr. Verma, however, he does not remember what art works were prepared by Mr. Verma for him. He has no knowledge regarding the TM 992/2016 & TM 924/2016 Page No. 54 of 106 Digitally signed by NEHA NEHA PALIWAL PALIWAL SHARMA SHARMA Date: 2025.04.09 17:19:59 +0530 number of cylinders which will be required for printing the art work wherein the entire colour combination is the same, however, only the name is changed and therefore, he cannot admit or deny if only one cylinder is required. He further deposed that as far as 'Chatball' is concerned, it was manufactured without designing and wrappers, as at times he had prepared the same and put them in the PVC jar with the name slip of 'Chatball' in the same and various times, its designing had changed. DW1 further deposed that he does not remember who had designed the art work of 'Chocobite'. He further deposed that 'Tambola' was prepared first and thereafter 'Chocobite' was prepared. He admitted that he was not having any copyright over mark 'Tiny-Miny/ Tini-Mini'.
(91) DW1 further deposed that as the witness from the trade mark Registry was not producing the documents on the ground that the same were not traceable, therefore, he sent an e-mail along with copy of documents to the trade mark Registry with a request to reconstruct the documents, if the said documents are not traceable. He deposed that thereafter he received e-mail from trade mark Registry to file these documents along with affidavit and he filed the documents along with affidavit, electronically as well as gave them the hard-copy thereof. He denied that he had provided false and fabricated documents before the trade mark Registry. The witness admitted that order dated 02.05.2024 Ex.DW1/P-Z was passed by Hon'ble High Court of Delhi in CO (COMM IPD CR) 750/2022. He admitted that he had the machinery to manufacture and pack Chatmola and that there was no need to buy new machinery for the same.
TM 992/2016 & TM 924/2016 Page No. 55 of 106 Digitally signed by NEHA NEHA PALIWAL PALIWAL SHARMA SHARMA Date: 2025.04.09 17:20:06 +0530 (92) DW2 Sh. Pragya Nand Shukla, summoned witness from
Copyright Office, had brought the summoned record, that is, certified copy of the extract of the Register of Copyrights of the copyright registrations no. A-57086/99 and A-65448/2003 in favour of defendant/ counter claimant containing artwork, Ex.DW2/A and Ex.DW2/B respectively.
(93) DW2 was cross-examined by the Ld. Counsel for the plaintiff. He, in his cross-examination, deposed that he had brought the authority letter Ex.DW2/P-1. He deposed that the certified copies of extracts from the register of copyrights for the above copyright registrations are in respect of title 'Chatmola'. He further deposed that Ex.DW2/A was applied on 10.04.1999 and registered on 08.12.1999. He admitted that in Ex.DW2/A the date of first publication is year 1991 and name of author is Ramesh Chander as written in column no. 9 and 7 respectively of Ex.DW2/A. He further admitted that in Ex.DW2/B the name of author is Baldev Singh as written in column no.7 and the date of first publication is written in column no.9. He is not aware whether there can be or cannot be two different authors for the same title of copyright. He was not sure if the artwork of Ex.DW2/B is abridged version of the artwork of Ex.DW2/A. (94) The witness also brought before the Court the record pertaining to the extract of the copyright registration no. A-57086/99 and A-65448/2003 respectively. The pages pertaining to copyright registration no. A-65448/2003 are Ex.DW2/C (colly - running into 2 pages) and the pages pertaining to copyright registration no. A-57086/99 are Ex.DW2/D (colly - running into 8 pages).
TM 992/2016 & TM 924/2016 Page No. 56 of 106 Digitally signed by NEHA NEHA PALIWAL PALIWAL SHARMA SHARMA Date: 2025.04.09 17:20:14 +0530 (95) DW3 Sh. Inderpreet Singh Sahney, summoned witness from
UCO Bank, Lawrence Road Branch, New Delhi, had brought the letter dated 08.01.2024 issued by the Senior Manager, UCO Bank along with the record of current account opening form of the defendant firm M/s. Anil Food Industries opened in the above branch on 03.06.1982. He deposed that the account number of the defendant firm in the above bank is 271 which is mentioned on the first page of current account opening form, Ex.DW3/1 (colly - running into 11 pages). The witness further deposed that the statement of the above account for the financial year 1990-1991 is not traceable as the account is very old.
(96) DW3 was duly cross-examined by the Ld. Counsel for the plaintiff. He, in his cross-examination, admitted that no separate authority letter was issued to him by the Bank to appear and depose before the Court except the letter dated 08.01.2024. He admitted that the record which he had brought was not summoned. He deposed that the current account number 271 has already been closed but he is not aware when it was closed. He was not aware whether the current account number 271 was closed before 1990-91.
(97) DW4 Sh. Nitish Kumar, summoned witness from trade mark Registry, was repeatedly examined, cross-examined and re-examined. He in his initial examination-in-chief brought before the Court the following documents:
1. Legal Proceeding Certificate of trade mark registration no.
557320 in class 30 in favour of the defendant/ counter claimant along with the certified copy of the registration certificate TM 992/2016 & TM 924/2016 Page No. 57 of 106 Digitally signed by NEHA NEHA PALIWAL PALIWAL SHARMA SHARMA Date: 2025.04.09 17:20:21 +0530 pertaining to the said trade mark registration and other correspondences issued by the defendant to the trade mark registry in relation to the above registration which included renewal certificate of the said trade mark registration indexed and certified by the Registrar of trade marks, Ex.DW4/A (colly - running into 71 pages).
He, however, deposed that the entire record such as application form (TM-1), additional representation and other documents pertaining to the trade mark registration no. 557320 in class 30 are not traceable being very old record and Ex.DW4/A (colly) is the only available record with the office of Registrar of trade mark, Dwarka, Delhi.
(98) He, in his cross-examination, admitted that user date is not mentioned in Legal Proceeding Certificate of TM no. 557320, in the TM certificate or any document which is part of Ex.DW4/A (colly). He deposed that Ex.DW4/A (colly) were downloaded from the government website Ipindia.nic.in of the trade mark Registry, Government of India.
(99) DW4, in his cross-examination, was confronted with four certified copies of TM-1 and additional representation in TM applications no. 1131005 and 888549, Ex.DW4/P-1 to Ex.DW4/P-4. He, thereafter on the next date, brought the additional representation sheet, examination report, hearing notice, note sheet and TM-1 with respect to application no. 1131005 in class 30 and also the additional representation sheet, registration certificate, examination report, note sheet, TM-1 and other TM 992/2016 & TM 924/2016 Page No. 58 of 106 Digitally signed by NEHA NEHA PALIWAL PALIWAL SHARMA SHARMA Date: 2025.04.09 17:20:31 +0530 documents with respect to the application no. 888549 in class 5, Ex.DW4/P-5 (collectively, running into 42 pages). He deposed that the documents were prepared by the Examiner of trade marks and are the downloaded printouts from the website of trade marks Registry ipindia.nic.in.
(100) He was re-examined by the Ld. Counsel for the defendant wherein he deposed that the records Ex.DW4/P-5 (colly) were checked and verified by the Examiner of trade marks. He admitted that the date of trade mark application under number 888549 in class 5 is 26.11.1999 and that of application number 01131005 in class 30 is 04.09.2002. He further admitted that the user mentioned in both the application numbers 01131005 in class 30 and 888549 in class 5 is from the year 1991, which is mentioned at Point 'X' in the additional representation document of application no. 01131005 and at Point 'Y' in the additional representation document of application no. 888549 respectively.
(101) His further re-examination was deferred for want of certain documents. He, on the next date of examination, brought the certified copy of trade mark Journal No. 1207 dated 21.09.1999 (pages 112 and 113) issued by the trade mark Registry, Government of India containing the advertisement of the trade mark Application No. 557320 in Class 30 dated 28.08.1991 filed by Anil Food Industries, Ex.DW4/P-6. He also brought on a further date, the certified copy of the Legal Proceeding Certificate (LPC) in respect of trade mark No. 557320 issued to Anil Food Industries in Class 30, Ex.DW4/P-7 and deposed that documents such as TM-1, examination report and the order dated 28.11.2003 passed by the Ld. TM 992/2016 & TM 924/2016 Page No. 59 of 106 Digitally signed by NEHA NEHA PALIWAL PALIWAL SHARMA SHARMA Date: 2025.04.09 17:20:39 +0530 Registrar of trade mark (Mark DW1/B) were still not traceable despite efforts.
(102) He was cross-examined on the re-examination wherein he admitted that document Ex.DW4/P-7 was available online and the same was also available online on 06.04.2024 when his previous re-examination was conducted. He deposed that the changes have been made by the Registry in the records as in earlier certificate "proposed to be used" was written which was changed to "Used since 08.01.1991".
(103) He was recalled for further re-examination for untraceable documents. On 28.05.2024 when he was re-examined, he brought the Legal Proceeding Certificate (LPC) Ex.DW4/P-8 (colly) of the order dated 28.11.2003 (already Mark DW1/B) issued by Assistant Registrar of trade marks in the matter of application no. 557320 in Class 30 of the defendant and opposition no. DEL-T-1534/54736 filed by the plaintiff to the said application before the trade mark Registry. He deposed that the said documents also contain the affidavit filed by the defendant before the trade mark Registry in response to the request of the trade mark Registry vide e- mail dated 13.05.2024 to provide the copy of TM-1, examination report and the copy of order dated 28.11.2003 passed by Ld. Assistant Registrar of trade marks in the application no. 557320 in class 30 of the defendant. The filing of the said document was objected to by the Ld. Counsel for the plaintiff on the ground that the LPC filed was a mere copy of the photocopy provided by the defendant to the trade mark Registry.
(104) He was further cross-examined by the Ld. Counsel for the plaintiff wherein he deposed that the documents brought before the Court TM 992/2016 & TM 924/2016 Page No. 60 of 106 Digitally signed by NEHA NEHA PALIWAL PALIWAL SHARMA SHARMA Date: 2025.04.09 17:20:48 +0530 after 31.01.2024 were obtained from Bombay (journal copy). He had no idea how many e-mails were sent to the trade mark Registry by the defendant or vice-versa and deposed that the documents uploaded by the defendant were verified by the Legal Section before filing the same in the Court. He could not admit or deny whether the order dated 28.11.2003 was a copy of the photocopy filed by the defendant before the Registry and he further could not depose that on what day the document Ex.DW4/P-8 was filed by the defendant before the Registry. He admitted that there is no reference of any order dated 28.11.2003 in letter dated 15.04.2008 issued by the defendant in Ex.DW4/A (colly).
(105) He, on the next date, brought the record showing the e-mails between the trade mark Registry and Anil Food Industries/ defendant, Ex.DW4/P-9 (colly. running into 4 pages), Ex.DW4/P-10 (colly. running into 3 pages) and the report by trade mark Registry along with internal e- mails of the trade mark department running into eight pages, Ex.DW4/P-11 (colly). He deposed that report Ex.DW4/P-11 was prepared by Senior Examiner of trade marks/ Legal Head, though the same was signed by the witness and not by the Senior Examiner. He admitted that the documents filed by him were the copies of the photocopies submitted by the defendant to the department and stated that he is not aware when these documents were provided by the defendant and the dates on which the same were uploaded on the website. He deposed that he had no knowledge whether the copies filed by the defendant were verified by the department with their internal records. He admitted that report Ex.DW4/P-11 shows that the documents filed by him are copies of copies filed by the defendant with TM 992/2016 & TM 924/2016 Page No. 61 of 106 Digitally signed by NEHA NEHA PALIWAL PALIWAL SHARMA SHARMA Date: 2025.04.09 17:20:55 +0530 affidavit and the same were accepted by the department on the basis of said affidavit. He further admitted that the documents mentioned in para 1 of report Ex.DW4/P-11 were not traceable in trade mark registry records and hence, the same were sought from the defendant and were not verified from any other previous record. He could not depose whether notice or communication was sent to the plaintiff to provide documents available with him. He deposed that he cannot vouch for the veracity of the documents and only the concerned section personnel can tell about the same.
(106) The witness was re-examined by the Ld. Counsel for the defendant after seeking permission of the Court wherein he admitted that his deposition regarding the documents furnished by the defendant is only with respect to three documents mentioned in his report Ex.DW4/P-11 and none else and the said three documents are TM-1 of the defendant with respect to application no. 557320 in class 30, examination report in the said application issued by trade mark registry and order dated 28.11.2003 passed by Sh. Ramji Lal, Assistant Registrar of trade marks. He deposed that order dated 28.11.2003 which was part of Ex.DW4/P-8 (colly) was verified by the Legal Cell and then LPC dated 14.05.2024 was submitted before the Court.
(107) He was further cross-examined by the Ld. Counsel for the plaintiff wherein he admitted that the documents were provided to him by the Legal Cell, the documents Ex.DW4/P-9 to Ex.DW4/P-11 were provided to him on 01.07.2024 at 4:30 to 5:00 PM. He admitted that he had no personal knowledge whether the documents were verified by the Legal TM 992/2016 & TM 924/2016 Page No. 62 of 106 Digitally signed by NEHA NEHA PALIWAL PALIWAL SHARMA SHARMA Date: 2025.04.09 17:21:02 +0530 Cell or not. He admitted that in the document Ex.DW4/P-11 it is nowhere mentioned that these documents were verified by the legal cell of the trade mark registry.
(108) DW5 Sh. Sri Bhagwan, summoned witness from Sandhya Times, had brought before the Court his authorization letter dated 15.03.2024 from The Times Group Ex.DW5/A and also brought the certified copy of page no.4 from the Delhi Edition of newspaper publication Sandhya Times dated 07.12.1991, Ex.DW5/B, retrieved from the Archives Department of the newspaper publication Sandhya Times. He admitted in his cross-examination that records are available in their office in digital form only and the document Ex.DW5/B was given to him by the Library Incharge but no certificate under Section 65-B of Evidence Act or affidavit was provided to him with Ex.DW5/B. He admitted in his re- examination that Ex.DW1/9 is the original copy of Ex.DW5/B. He admitted in his cross-examination that there is no record available with them in respect of any payment that may have been made to them for publication of public notice.
(109) DW6 Sh. Baldev Singh had tendered his evidence by way of affidavit, Ex.DW6/A wherein he had deposed that he is an Artist/ Designer by occupation and was engaged in the occupation of designing of labels, cartons, wrappers etc. from the year 1982 to 1997 and had done various designing jobs for M/s. Anil Food Industries/ defendant from the year 1990 and had prepared the design of the carton pouch packing bearing the trade mark CHATMOLA for the first time in August 1990 for defendant firm/ M/s. Anil Food Industries. He had handed over the said design TM 992/2016 & TM 924/2016 Page No. 63 of 106 Digitally signed by NEHA NEHA PALIWAL PALIWAL SHARMA SHARMA Date: 2025.04.09 17:21:11 +0530 Ex.DW1/2 to Sh. Ramesh Chander, partner of the defendant, on 16.08.1990. The specimen of the pouch designed by him bearing the trade mark CHATMOLA was also filed along with his earlier affidavit dated 24.02.1992, Ex.DW1/3, bearing his signatures at points A and B and he reiterated and reaffirmed the contents of the said affidavit. He further deposed that he had charged a sum of Rs.150/- from defendant/ M/s. Anil Food Industries in cash through their partner Sh. Ramesh Chander to whom he had handed over the design/ artistic carton CHATMOLA in respect of their confectionery goods on 16.08.1990.
(110) He was duly cross-examined by the Ld. Counsel for the plaintiff. He, in his cross-examination, admitted that he had been in continuous employment since 1982 till his retirement in the year 2019 and had retired from a school. He had changed various jobs. He had met partner of the defendant Sh. Ramesh Chander at a common friend's house in the year 1988. He never used to issue any bill for any work done by him and also did not maintain any account of payments made to him or received. He had never issued any certificate in respect of any art-work to Sh. Ramesh Chander. He had no document to show that he was running a small studio from his residence nor had he obtained any service tax number. The printed pouch attached by him as artistic work with affidavit Ex.DW1/3 was provided to him by Sh. Ramesh Chander.
(111) DW7 Sh. Prince Jaiswal had tendered his evidence by way of affidavit, Ex.DW7/A wherein he deposed that he was the proprietor of the erstwhile firm M/s. Rapidex Offset situated at A-22, Naraina Industrial Area, Phase-2, New Delhi which functioned from the year 1990 to 2000.
TM 992/2016 & TM 924/2016 Page No. 64 of 106 Digitally signed by NEHA NEHA PALIWAL PALIWAL SHARMA SHARMA Date: 2025.04.09 17:21:17 +0530
The firm was engaged in the business of Offset printing and packing of cartons, stickers, labels, posters, packaging material etc. He further deposed that his firm used to make CHATMOLA empty boxes/ cartons for defendant firm and for the first time his firm made empty box/ carton for the defendant firm in the month of November 1990 when Sh. Ramesh Chander, partner of defendant firm came with the pouch to be printed on the empty boxes/ cartons. He further deposed that his firm continued to make the empty boxes/ cartons for the defendant firm from November 1990 till the year 2000, when his firm was closed.
(112) He further deposed that the invoice bearing no. 118 dated 21.12.1991, Ex.DW1/4, was issued by his firm to M/s. Anil Food Industries against the supply of 2100 boxes/ cartons of CHATMOLA. He deposed that the details mentioned in the above invoice such as description of goods, quantity and amount mentioned in the invoice are correct to the best of his knowledge.
(113) He was duly cross-examined by the Ld. Counsel for the plaintiff. He, in his cross-examination, was confronted with an invoice dated 24.12.1997 of Jaiswal Art Press Pvt. Ltd. Ex.DW7/P-1 and he admitted the said invoice bears his signatures at points Y and Z. He further deposed that his firm started printing work printing work in the month of June 1990 and in the same month he had obtained the sales tax number. He cannot produce any record to show that he was doing the printing work prior to October 1991. The pouches reflected/ printed in page 2 of his affidavit Ex.DW7/A were provided by Sh. Ramesh Chander (DW1) and he admitted that he has no record of physical samples to refresh his memory as to what TM 992/2016 & TM 924/2016 Page No. 65 of 106 Digitally signed by NEHA NEHA PALIWAL PALIWAL SHARMA SHARMA Date: 2025.04.09 17:21:23 +0530 was being manufactured by him in the relevant period. He does not have record of bill no.118 dated 21.12.1991, Ex.DW1/4.
(114) He further deposed that usually one month time was consumed after a customer provided them the design to print its boxes but the same depends upon speed of work after receiving the order. He also used to print for M/s. Alka Food Industries (plaintiff) since 1980-1985, again said at the time of signing the deposition that since 1990, till the date of his cross- examination. He deposed that M/s. Rapidex Offset used to print for Alka Food Industries since 1980-1985 till its closing by him in 2000 and they used to print 'Chatar Matar' and 'Lal Jeera' under the firm Rapidex Offset for Alka Food Industries. He admitted that the bills Ex.DW7/P-2 and Ex.DW7/P-3 were issued by his firm Rapidex Offset and Jaiswal Art Press Pvt. Ltd. and also bear his signatures at point A respectively.
(115) DW8 Sh. Jaspal Singh Mutneja had tendered his evidence by way of affidavit, Ex.DW8/A wherein he had deposed that he was one of the partners in erstwhile partnership firm M/s. Ishar Singh Jeet Singh situated earlier at Gali Batashan, Khari Baoli, Delhi and later on shifted to 10109, Library Road, Azad Market, Delhi. Apart from him, his father, namely, Sh. Balraj Mutneja was also a partner in the said partnership firm. The said partnership firm was dissolved subsequent to death of his father and the copy of status of the partnership firm M/s. Ishar Singh Jeet Singh downloaded from the website of Department of Trade and Taxes, GNCT of Delhi is Ex.DW8/1 and the affidavit under Section 63 of Bhartiya Sakshya Adhiniyam, 2023 in support of Ex.DW8/1 is Ex.DW8/2. He deposed that his firm was engaged in the business of trading the confectionery items and TM 992/2016 & TM 924/2016 Page No. 66 of 106 Digitally signed by NEHA NEHA PALIWAL PALIWAL SHARMA SHARMA Date: 2025.04.09 17:21:31 +0530 had business dealings with defendant firm since long which continued till 2017 when the said partnership firm was dissolved.
(116) He further deposed that his firm had regularly purchased goods bearing trade mark CHATMOLA from the defendant firm since January 1991 and the various bills viz. bill no. 1482 dated 19.01.1991, bill no. 1557 dated 23.01.1992 placed in bill book no.1 and bill book no.2 respectively and carbon copies of bill no. 1530 dated 02.12.1991, bill no. 1548 dated 02.1.1992, bill no. 1962 dated 21.05.1991, bill no. 1974 dated 28.06.1991 and bill no. 1985 dated 09.08.1991 (part of Ex.DW1/29 collectively) were issued by M/s. Anil Food Industries/ defendant to the firm M/s. Ishar Singh Jeet Singh against the purchase of the goods as mentioned in the said bills/ invoices. He deposed that the second copy of the above invoices (except invoice no. 1482 dated 19.01.1991 and invoice no. 1557 dated 23.01.1992) were received by his firm against the delivery of goods as mentioned in the particular invoice from M/s. Anil Food Industries/ defendant. The said copies were further returned to the defendant firm after the delivery of above goods under the signatures of one of the partner of their firm.
(117) He further deposed that the invoices bearing nos. 1530 dated 02.12.1991, 1962 dated 21.05.1991, 1974 dated 28.06.1991 and 1985 dated 09.08.1991 bear the signatures of Sh. Balraj Mutneja and invoice no. 1548 dated 02.01.1992 bears his signature. He deposed that his firm had business dealings with firm M/s. Alka Food Industries (plaintiff) but his firm never purchased any goods bearing trade mark CHATMOLA from the plaintiff firm.
TM 992/2016 & TM 924/2016 Page No. 67 of 106 Digitally signed by NEHA NEHA PALIWAL PALIWAL SHARMA SHARMA Date: 2025.04.09 17:21:38 +0530 (118) He was duly cross-examined by the Ld. Counsel for the plaintiff.
He, in his cross-examination, admitted that he and his father were having good relations with Sh. Pritam Dass but the relations between them and the sons of Sh. Pritam Dass soured because of the behaviour of Sh. Anil Gera and Sh. Rakesh Gera. He admitted that Sh. Anil Kumar Gera had filed two cases against him viz. 'Kunal Food Products through Proprietor Anil Kumar Gera Vs. M/s. Ishwar Singh Jeet Singh' bearing no. CS 02/2012 before Ld. SCJ, Central, Tis Hazari Courts, Delhi and (2) 'Alka Food Pvt. Ltd. through Director Anil Kumar Gera Vs. M/s. Ishwar Singh Jeet Singh' bearing no. CS 27/2012 before Ld. SCJ, Central, Tis Hazari Courts, Delhi.
(119) He deposed that he became partner in the firm in the year 1986 after his uncle Sh. Jeet Singh retired from partnership. Initially he stated that he can bring the records of purchase for the year 1990-92 by his firm, the relevant sale tax records, audited statements, delivery challans etc. of the firm, however, later on stated that he cannot produce the said record being old record. He identified the signatures of his father on two documents pertaining to Sales Tax, Ex.DW8/P-1 (three pages) and Ex.DW8/P-2 (two pages). He admitted that there is no stamp of M/s. Ishar Singh Jeet Singh on the bills/ invoices Ex.DW1/29 and had volunteered that the bills used to be signed only and not stamped. He deposed that the plaintiff was supplying goods to them since their inception till the date they closed their business but he cannot tell the dates or years. The witness was confronted with six bills/ invoices viz. bill no. 1952 dated 01.04.1989, bill no. 1960 dated 12.04.1989, bill no. 1975 dated 16.05.1989, bill no. 1997 dated 30.06.1989 and bill no. 2098 dated 10.02.1990, Ex.DW8/P-3 to TM 992/2016 & TM 924/2016 Page No. 68 of 106 Digitally signed by NEHA NEHA PALIWAL PALIWAL SHARMA SHARMA Date: 2025.04.09 17:21:45 +0530 Ex.DW8/P-7, which were admitted by the witness to be true and correct. He, however, deposed that bill no. 2418 dated 01.04.1992, Mark A, is false and denied the same. He volunteered that the plaintiff never made Chatmola nor sold Chatmola nor they had purchased Chatmola from the plaintiff.
(120) Vide separate statement of Ld. Counsel for the defendant, the defendant's evidence was closed on 08.07.2024 and the matter was fixed for final arguments.
(121) Final arguments were extensively heard by the Court on 26.10.2024, 20.11.2024, 26.11.2024, 30.11.2024, 13.12.2024, 03.01.2025, 25.01.2025, 10.02.2025, 25.03.2025 and 02.04.2025. Ld. Counsels for both the parties also filed their respective written submissions along with judgments/ authorities in support of their respective contentions, which have been duly considered. Considerable time was consumed in final arguments as the file was voluminous containing numerous documents and running into nine parts.
Issue wise findings are as follows:-
Issue No. 10:
Whether the defendant is the registered proprietor of the trade mark 'CHATMOLA' under no. 557320 in class 30 and the registration is valid and subsisting? OPD (122) The onus to prove the above issue was upon the defendant. DW1 in his evidence by way of affidavit had relied upon the original trade mark registration certificate under no. 557320 in class 30, Ex.DW1/32 and the TM 992/2016 & TM 924/2016 Page No. 69 of 106 Digitally signed by NEHA NEHA PALIWAL PALIWAL SHARMA SHARMA Date: 2025.04.09 17:21:52 +0530 original Legal Proceeding Certificate pertaining to trade mark application no. 557320 in Class 30, Ex.DW1/33 in the name of DW1 Ramesh Chander trading as Anil Food Industries. Perusal of Ex.DW1/32 reveals that trade mark CHATMOLA along with pouch image/ device containing the illustration of baby elephant with raised trunk and distinctive bubbles, was registered in the name of the defendant in class 30 under no. 557320 on 28.08.1991 and the certificate was issued in February 2008. Perusal of Ex.DW1/33 reveals that the same is the Legal Proceeding Certificate with respect to word mark CHATMOLA and device of baby elephant with distinctive bubbles in class 30 confectionery goods. The registration date is mentioned as 28.08.1991 whereas the certificate is valid upto 28.08.2031 having been renewed on 28.08.2021 and the certificate date being 29.02.2008. Thus, as per Ex.DW1/32 and Ex.DW1/33 the defendant is having registration of word mark CHATMOLA and device of baby elephant with distinctive bubbles in his favour since the date of application, that is, 28.08.1991. The device of baby elephant along with distinctive bubbles is identical with Ex.DW1/1, which is the pouch of the defendant/ counter claimant in which the defendant/ counter claimant claims to sell its product CHATMOLA since January 1991. Perusal of Ex.DW1/1 further reveals that the same is in yellow, orange and red colour combination having the illustration of baby elephant with distinctive bubbles and name Rinkas CHATMOLA printed on it.
(123) Though the user mentioned in Ex.DW1/33 is 'proposed to be used', however, it is submitted by the Ld. Counsel for the defendant that the same is a typographical error and on their application sent by way of e-
TM 992/2016 & TM 924/2016 Page No. 70 of 106 Digitally signed by NEHA NEHA PALIWAL PALIWAL SHARMA SHARMA Date: 2025.04.09 17:22:04 +0530
mail, the trade mark Registry had rectified the said error and DW4 who was the summoned witness from the trade mark Registry, had brought before the Court the LPC Ex.DW4/P-7 showing user since 08.01.1991. It is submitted by the Ld. Counsel for the plaintiff that the said document Ex.DW4/P-7 cannot be relied upon as the said document was contrary to the document which was earlier brought by the witness in his initial examination-in-chief and which was part of Ex.DW4/A (colly). DW4 had admitted that user date was not mentioned in the LPC which was part of Ex.DW4/A (colly) and changes were made by the Registry in the records and that the later documents filed by him on the dates of subsequent re- examinations were the copies of the photocopies submitted by the defendant to the department, which were accepted by the department on the basis of the affidavit of the defendant.
(124) Be that as it may, all the LPCs Ex.DW1/33, Ex.DW4/P-7 and LPC which is part of Ex.DW4/A (colly running into 71 pages) show that mark CHATMOLA along with device of baby elephant with distinctive bubbles was registered in the name of defendant Anil Food Industries and the registration is valid upto 28.08.2031 and the mark was registered since 28.08.1991. The discrepancy with respect to the user date can be set to rest by looking into the documents which were filed by the plaintiff's counsel before the Court along with list on 16.03.1992, under the signatures of original plaintiff Sh. Pritam Dass. In page no.5 of the list of documents filed by the plaintiff on 16.03.1992, the plaintiff had filed TM-1 of application no. 557320 which reflects that the said copy was the copy of the certified copy obtained by the plaintiff from trade mark Registry and it TM 992/2016 & TM 924/2016 Page No. 71 of 106 Digitally signed by NEHA NEHA PALIWAL PALIWAL SHARMA SHARMA Date: 2025.04.09 17:22:18 +0530 shows that on 28.08.1991 application was moved by Smt. Kaushalya Devi and Sh. Ramesh Chander, trading as Anil Food Industries, in Class 30 in respect of confectionery goods for trade mark CHATMOLA having the device of baby elephant with distinctive bubbles and it was categorically stated in the said application that the trade mark was continuously used since 08.01.1991. As the document was filed under the signatures of the plaintiff and was filed stating that the same is a copy of the certified copy obtained by the plaintiff from the trade mark Registry, therefore, the plaintiff had admitted that the user was claimed of trade mark CHATMOLA with device of baby elephant with distinctive bubbles by defendant since 08.01.1991 and the date of the application was 28.08.1991.
(125) PW1 had also admitted in his cross-examination that application no. 557320 in class 30 dated 28.08.1991 was filed by the defendant for trade mark CHATMOLA and that the same was registered and there is no other registration of trade mark CHATMOLA in class 30 other than registration no. 557320. He further could not state before the Court whether any opposition or appeal was filed by the plaintiff against the registration of the said trade mark CHATMOLA in favour of the defendant. Thus, admittedly no opposition or appeal was filed by the plaintiff against the registration of trade mark CHATMOLA with the device of baby elephant containing distinctive bubbles and therefore, the registration of trade mark CHATMOLA along with the device of baby elephant with distinctive bubbles had attained finality. It was held by the Hon'ble Mysore High Court in the case of K.R. Chinnakrishna Setty & Ors. vs. Sri Ambal & Co. Madras, AIR 1973 Mys 74 that decision of an Assistant TM 992/2016 & TM 924/2016 Page No. 72 of 106 Digitally signed by NEHA NEHA PALIWAL PALIWAL SHARMA SHARMA Date: 2025.04.09 17:22:25 +0530 Registrar on an application filed for registration of the mark will operate as res judicata in the proceeding under Section 105 of the Act in which the same question arises for consideration.
(126) The plaintiff had also filed applications under class 30 and class 5 bearing no. 539636 dated 08.11.1990 (additional representation of the same being Ex.PW1/2) and 540086 dated 16.11.1990 respectively for registration of trade mark CHATMOLA. PW1, however, had admitted that these applications were opposed by the defendant and that the status of these applications was withdrawn and abandoned. DW1 had also tendered alongwith his affidavit the certified copy of the order dated 04.03.1999 passed by the Ld. Registrar of trade marks, Ex.DW1/34, whereby the oppositions filed by the defendant/ counter claimant bearing no. DEL 5770 and DEL 9123 to the above applications of the plaintiff were allowed and the applications no. 539636 in class 30 and 540086 in class 5 were refused for registration. The said order remains undisputed by the plaintiff.
(127) The Trade Marks Act, 1999 came into force w.e.f. 15.09.2003 and the present proceedings were instituted in the year 1992 and therefore, are governed by the Trade and Merchandise Marks Act, 1958. As per Section 111 (3) of the 1958 Act which is pari materia to Section 124 of the 1999 Act, if no plea regarding the invalidity of the registration of the trade mark is raised then the issue as to the validity of the registration of the trade mark concerned shall be deemed to have been abandoned. This section further states that the final order made in rectification proceedings shall be binding upon the parties and the Court shall dispose off the suit conformably to such order in so far as it relates to the issue of validity of the TM 992/2016 & TM 924/2016 Page No. 73 of 106 Digitally signed by NEHA NEHA PALIWAL PALIWAL SHARMA SHARMA Date: 2025.04.09 17:22:32 +0530 registration of the trade mark. Thus, the consolidated reading of the section reveals that the decision in rectification proceedings with respect to the validity or otherwise of the mark, is binding upon the Court and even the proceedings have to be stayed by the Court if the issue of invalidity is raised. Thus, by necessary implication if one party had asserted the registration of the mark in its favour before the Court by the Registrar and the other party had not opposed the same before the Court by raising the issue of invalidity of the mark, the issue of validity is abandoned and therefore, had attained finality. Reliance is placed upon the case law titled as Patel Field Marshal Agency vs. P.M. Diesels Ltd. & Ors., (2018) 2 SCC 112 wherein it was held by the Hon'ble Supreme Court that the decision of the Tribunal on the issue of validity of registration of mark will bind the Civil Court and the Civil Court will dispose off the suit in conformity with such order.
(128) In the present case in hand as well, after the trade mark CHATMOLA was registered in favour of the defendant, which registration dates back to the date of application viz. 28.08.1991, the defendant applied for amendment of written statement, which was allowed and amended written statement was taken on record to which replication was also filed by the plaintiff. Thereafter the above additional issue was framed vide order dated 20.04.2012. However, no issue with respect to the invalidity of the said registration of trade mark CHATMOLA under no. 557320 in class 30 was raised by the plaintiff and no rectification proceedings were instituted before the Ld. IPAB/ Hon'ble High Court of Delhi and therefore, the registration of the said mark in favour of the defendant had attained TM 992/2016 & TM 924/2016 Page No. 74 of 106 Digitally signed by NEHA NEHA PALIWAL PALIWAL SHARMA SHARMA Date: 2025.04.09 17:22:43 +0530 finality.
(129) Further, as per Section 32 of the 1958 Act the original registration of the trade mark shall after the expiration of seven years from the date of such registration be taken to be valid in all respects, unless it is proved that the original registration was obtained by fraud or that the trade mark was registered in contravention of Section 11 or that the trade mark was not at the commencement of the proceedings distinctive of the goods of the registered proprietor. The onus to prove fraud or contravention of the provisions of Section 11 or non-distinctiveness of goods, was on the plaintiff. The plaintiff has failed to prove fraud and in fact, admittedly, the oppositions filed by the defendant to the applications of the plaintiff were allowed and the applications of the plaintiff were abandoned/ withdrawn and that there is registration of trade mark CHATMOLA in favour of the defendant. Though the defendant was unable to conclusively prove the order of Ld. Registrar of trade marks dated 28.11.2003, Mark DW1/B, as the document was not traceable before the trade mark Registry and was reconstructed only on the basis of the documents provided by the defendant on affidavit, however, it is admitted by PW1 that the application of the defendant bearing no. 557320 qua trade mark CHATMOLA was registered and no objection/ rectification proceedings to the said registration have been filed by the plaintiff.
(130) In view of the above discussion and findings, it is held that the defendant is the registered proprietor of trade mark CHATMOLA under no. 557320 in class 30 and that the registration is valid and subsisting.
TM 992/2016 & TM 924/2016 Page No. 75 of 106 Digitally signed by NEHA NEHA PALIWAL PALIWAL SHARMA SHARMA Date: 2025.04.09 17:22:49 +0530 (131) Issue is accordingly decided in favour of the defendant/ counter
claimant and against the plaintiff/ non-counter claimant.
Issues no.5 and 8:
Whether the plaintiff is the owner of the design and has copyrights in the artistic cartoon Tini Mini/ Tiny Miny since the year 1988? OPP Whether the defendant is holding rights in the label consisting of device of baby elephant and other distinctive features? OPD (132) Both these issues are taken up together being interconnected and both the parties were having the respective onus to prove that they were the owners of the design/ had copyright in the device of baby elephant with other distinctive features.
(133) It is the case of the plaintiff that the defendant had imitated trade mark CHATMOLA of the plaintiff, used by the plaintiff since 01.11.1990 and adopted by the plaintiff since July 1990 and the design of the device of baby elephant with other distinctive features, which was used by the plaintiff with its other trade mark Tini Mini/ Tiny Miny since 1988 in packing Ex.PW1/17. Perusal of Ex.PW1/17 reveals that the same is the packing/ label of Tiny Miny having the device of baby elephant with distinctive bubbles containing the same colour combination, illustration of baby elephant with raised trunk and distinctive bubbles similar to Ex.DW1/1.
(134) Though the application seeking amendment of plaint moved by the plaintiff was dismissed whereby the plaintiff wanted to place on record TM 992/2016 & TM 924/2016 Page No. 76 of 106 Digitally signed by NEHA NEHA PALIWAL PALIWAL SHARMA SHARMA Date: 2025.04.09 17:22:55 +0530 the pleadings with respect to registration of trade mark Tini Mini/ Tiny Miny and the registration of packing label of Tini Mini/ Tiny Miny with Registrar of Copy Rights, however, questions were put to PW1 in the cross-examination qua the same. It is not in dispute between the parties that word mark Tini Mini is registered in favour of the plaintiff vide registration certificate Ex.PW1/1 and it is further not in dispute that the said registration certificate is not with respect to any label mark. PW1 had further relied upon various labels, Ex.PW1/16 (colly), of trade mark Tini Mini/ Tiny Miny in his evidence by way of affidavit, which reflect that the plaintiff was selling the product under the trade mark Tini Mini, however, not with one particular packing/ label but with various different packings and labels. Thus, any one packing or label could not be said to be associated and distinctive with respect to trade mark Tini Mini.
(135) It is the case of the plaintiff that it is the owner of copyright of packing Ex.PW1/17 having the device of baby elephant with distinctive bubbles and unique colour combination. It had engaged the services of Ankur Advertising and Marketing, now known as Ankur Media Pvt. Ltd.
for designing of label, Ex.PW1/17, for trade mark Tini Mini, for which bill dated 31.08.1988, Ex.PW1/20-A ,was raised and payment for the same was made by cheque.
(136) Ex.PW1/20-A is the invoice no. 218/A/88-89/Aug. dated 31.08.1988 issued in favour of the plaintiff by Ankur Advertising and Marketing for a total amount of Rs.750/- towards the cost of one carton design for Alka Tiny Miny dibbi. However, along with the said bill, no document was placed on record by the plaintiff in order to indicate that TM 992/2016 & TM 924/2016 Page No. 77 of 106 Digitally signed by NEHA NEHA PALIWAL PALIWAL SHARMA SHARMA Date: 2025.04.09 17:23:02 +0530 towards which design of Tiny Miny dibbi, the said bill was raised by Ankur Advertising. The original art work was not placed by the plaintiff on record before the Court at the time when the pleadings were filed, as is manifest in the interim injunction order dated 24.04.1992. Even in the appeal filed against the said order before the Hon'ble High Court of Delhi, the plaintiff failed to place on record the original art work despite the directions of Hon'ble High Court of Delhi as mentioned in the order of the Hon'ble High Court dated 11.10.1995.
(137) It is argued by the Ld. Counsel for the plaintiff that PW4 is a summoned witness and he had brought before the Court the art work of label Tiny Miny, negative-positive films of label Tiny Miny and the final label along with the record of the bill Ex.PW1/20-A. Perusal of deposition of PW4 shows that the same has been filed by way of affidavit and has been filed before the Court by the Ld. Counsel for the plaintiff under his signatures. PW4 had deposed that he is the authorized representative of Ankur Media Pvt. Ltd. formerly known as Ankur Advertising and Marketing and had been authorized by the Director of the company to appear before the Court. He had brought the records of bill, Ex.PW1/20-A, and had also brought the art work of label Tiny Miny, negative-positive films of Tiny Miny and the final label. The affidavit of PW4 along with all these documents was exhibited as Ex.PW4/A (collectively), however, the exhibition of the documents was objected to by the Ld. Counsel for the defendant on the ground that the additional documents were not on judicial record and the permission of the Court was not obtained for filing the same on record. PW4, in his cross-examination, admitted that there was no TM 992/2016 & TM 924/2016 Page No. 78 of 106 Digitally signed by NEHA NEHA PALIWAL PALIWAL SHARMA SHARMA Date: 2025.04.09 17:23:09 +0530 specific instruction on the summons to bring any other document except the record of Ex.PW1/20-A. Thus, these art works/ negatives were filed by the witness/ PW4 for the first time before the Court during his examination. PW4 was unable to answer that whether his firm/ he can produce the preceding/ subsequent bill of Ex.PW1/20-A. He was unable to depose whether the company kept record of all its clients for the last 30-40 years nor could he tell whether he could bring the record of any other client before the Court of that period. He could not answer the question that how the copy of bill was preserved. He was not able to depose whether all the documents since the year 1987 to 1988 were preserved by its company or whether only the documents which were part of Ex.PW4/A were preserved. Thus, it is clear that these documents were not filed before the Court earlier and were filed along with the affidavit of the witness, which affidavit was filed under the signatures of the Ld. Counsel for the plaintiff though the witness was a summoned witness. No permission of the Court was taken for filing the documents in the year 2023 before the Court whereas the matter is pending between the parties since the year 1992 and therefore, the documents which are part of Ex.PW4/A (colly) except the copy of bill Ex.PW1/20-A, cannot be considered and relied upon.
(138) Ex.PW1/20-A though proved, however, the same cannot conclusively indicate that towards which carton design of Tini Mini dibbi the said bill was issued. No carton of Tini Mini was placed on record by the plaintiff along with its documents. Further, various labels/ pouches of Tini Mini have been placed on record as is deposed by PW1 and also manifest by Ex.PW1/16 (colly). There are various designs of Tini Mini under which TM 992/2016 & TM 924/2016 Page No. 79 of 106 Digitally signed by NEHA NEHA PALIWAL PALIWAL SHARMA SHARMA Date: 2025.04.09 17:23:16 +0530 the product under the mark Tini Mini was sold and therefore, it cannot be said that bill Ex.PW1/20-A was with respect to the label containing the device of baby elephant with distinctive bubbles.
(139) The work containing the device of baby elephant with distinctive bubbles, Ex.PW1/17, was got registered with the Registrar of Copyrights by the plaintiff and PW3 had brought before the Court the certificate of registration no. A51887/92 along with copy of the work, Ex.PW3/1 (colly). However, the said certificate of registration was canceled by the order of Hon'ble Copyright Board dated 25.08.2005, Ex.DW1/37, and the Ld. Registrar was directed to expunge the artistic work entered in the register of Copyright as A51887/92. Appeal was filed by the plaintiff against the said order before the Hon'ble High Court of Delhi which was disposed off vide order dated 05.11.2008, Ex.DW1/38, and it was held in appeal that though registration granted in favour of the plaintiff would be treated as revoked, however, the original application filed by the plaintiff would be treated as revived and would be re-decided. The defendant had also applied for registration of Copyright of label CHATMOLA with the device of baby elephant with distinctive bubbles and the same was registered in favour of the defendant as registration no. A57086/99 dated 08.12.1999 Ex.DW1/35 and registration no. A65448/2003 dated 20.10.2003 Ex.DW1/36, however, the said registration certificates/ Copyrights registered under no. A57086/99 dated 08.12.1999 Ex.DW1/35 and registration no. A65448/2003 dated 20.10.2003 Ex.DW1/36, were revoked/ canceled by the Hon'ble High Court of Delhi vide order dated 02.05.2024 Ex.DW1/PZ on the petitions filed by the plaintiff herein, with TM 992/2016 & TM 924/2016 Page No. 80 of 106 Digitally signed by NEHA NEHA PALIWAL PALIWAL SHARMA SHARMA Date: 2025.04.09 17:23:22 +0530 directions to the Ld. Registrar of Copyrights to revive the original applications filed by the respondent/ defendant herein, seeking registration of Copyright and to re-decide them.
(140) Thus, as on date there is no copyright registration of the device of baby elephant with distinctive bubbles in favour of any of the party, however, the applications filed by the parties can be looked into. As per Ex.PW3/1 the author of the artistic work in the application of the plaintiff was mentioned as 'M/s. Ankur Advertising and Marketing', the year of publication was mentioned as 1988, the plaintiff was mentioned as its owner and the date of application was mentioned as 16.06.1992. Thus, the date of the application is post the institution of the present suit and counter claim. As per the first application of the defendant for which registration certificate Ex.DW1/35 was issued, the name of the author was mentioned as DW1 and the year of publication was mentioned as 1991 and as per the second application of the defendant for which registration certificate Ex.DW1/36 was issued, the name of the author was mentioned as Sh. Baldev Singh, the year of publication was mentioned as 1990 and the date of the application was 16.11.2002. It was deposed by DW1 in his cross- examination that the art-work was prepared and designed by Mr. Baldev Singh but the art work was his and Baldev Singh's combined idea as after the preparation of the same by Baldev Singh, DW1 had modified the same by making minor changes and suggesting colours. He admitted that he had filed two applications for registration of copyright and admitted that though Baldev Singh was the author in the first application also, the agent wrongly mentioned the name of DW1 as author and therefore, DW1 filed TM 992/2016 & TM 924/2016 Page No. 81 of 106 Digitally signed by NEHA NEHA PALIWAL PALIWAL SHARMA SHARMA Date: 2025.04.09 17:23:31 +0530 the second application through another agent wherein the name of the author was mentioned as Baldev Singh.
(141) In the present case, the defendant had filed along with the written statement and counter claim, the affidavit of Baldev Singh dated 24.02.1992, Ex.DW1/3, before the Court. Perusal of the said affidavit reveals that the same also contains the carton pouch packing titled CHATMOLA having the device of baby elephant with distinctive bubbles over it. In the said affidavit, Ex.DW1/3, Mr. Baldev Singh had further deposed that he had prepared the said carton pouch in August 1990, had handed over the same to DW1 on 16.08.1990 and had charged Rs.150/- in cash for the same. Mr. Baldev Singh had also appeared before the Court as defendant's witness, DW6, and had affirmed his earlier affidavit dated 24.02.1992 Ex.DW1/3 before the Court. DW6 had deposed before the Court on the same lines as that of his earlier affidavit, Ex.DW1/3, and had deposed that he had prepared the design of carton pouch in August 1990 for defendant and had handed over the design, Ex.DW1/2, which is the design of baby elephant with distinctive bubbles with trade mark CHATMOLA written therein to DW1 on 16.08.1990 and had charged Rs.150/- for the same. Thus, the defendant has been able to examine the author of the artistic work, Ex.DW1/2, before the Court, who had deposed that he had created the said work in August 1990 and had handed over the same to DW1. The defendant has also filed the copy of the said original art-work, Ex.DW1/2, before the Court along with the written statement and had also shown the original art-work before the Court during arguments on the application under Order XXXIX Rule 1 and 2 CPC and thereafter had filed TM 992/2016 & TM 924/2016 Page No. 82 of 106 NEHA PALIWAL Digitally signed by NEHA PALIWAL SHARMA SHARMA Date: 2025.04.09 17:23:37 +0530 the same before the Court in the deposition of DW1. Per contra, as discussed above, the plaintiff had failed to file the original art-work before the Court at the time of arguments on the application under Order XXXIX Rule 1 and 2 CPC and also even before the Hon'ble High Court of Delhi during arguments on appeal against the order under Order XXXIX Rule 1 and 2 CPC despite being given opportunity for the same, as is manifest in the order of the Hon'ble High Court of Delhi dated 11.10.1995. The plaintiff by way of deposition of PW4 wants to place on record the art-work of label Tiny Miny, negative-positive films of label Tiny Miny and the final label, however, as discussed above, no permission of the Court was taken by the plaintiff to place them on record and these documents cannot be considered and relied upon as doubt arises regarding the credibility of these documents.
(142) In view of the above discussions and findings, it is held that the defendant has been able to establish to the extent of preponderance of probabilities that the defendant is holding rights in the label consisting of device of baby elephant with other distinctive features and that the plaintiff is unable to establish even to the extent of preponderance of probabilities that the plaintiff is the owner of design and has copyright in the artistic cartoon Tiny Miny, Ex.PW1/17, since 1988.
(143) Both the issues are accordingly decided in favour of the defendant/ counter claimant and against the plaintiff/ non-counter claimant.
TM 992/2016 & TM 924/2016 Page No. 83 of 106 Digitally signed by NEHA NEHA PALIWAL PALIWAL SHARMA SHARMA Date: 2025.04.09 17:23:45 +0530 Issues No.1 and 6:
Whether the plaintiff is owner of the trade mark 'CHATMOLA' having priority of use? OPP Whether the defendant is the first and prior adopter/ user of the trade mark 'CHATMOLA'? OPD (144) Both these issues are taken up together being interconnected and both the parties were having the respective onus to prove that they were the prior user/ adopter of trade mark CHATMOLA.
(145) It is averred by the plaintiff that they had adopted trade mark CHATMOLA in July 1990 and had launched the same in the market on 01.11.1990. Per contra, it is averred by the defendant that they had first adopted the trade mark CHATMOLA in August 1990 and had launched the same in the market in January 1991.
(146) The defendant in order to prove its user since January 1991 and adoption of the mark since August 1990, had examined its partner/ proprietor as DW1, witness from newspaper Sandhya Times as DW5, designer Sh. Baldev Singh as DW6, proprietor of printers Rapidex Offset as DW7 and one of the partner of partnership firm M/s. Ishar Singh Jeet Singh as DW8.
(147) DW1 had deposed that Mr. Baldev Singh/ DW6 had created/ devised the label/ artistic work CHATMOLA containing the device of baby elephant with distinctive bubbles, Ex.DW1/2, and that DW6 had also given his affidavit dated 24.02.1992, Ex.DW1/3, to the said effect containing replica of label, Ex.DW1/2, which was filed by the defendant along with its TM 992/2016 & TM 924/2016 Page No. 84 of 106 Digitally signed by NEHA NEHA PALIWAL PALIWAL SHARMA SHARMA Date: 2025.04.09 17:23:54 +0530 pleadings on 24.02.1992. As discussed in the preceding issue, the affidavit, Ex.DW1/3, was affirmed by DW6 in his deposition before the Court. DW6 had deposed that he had prepared the design of carton pouch packing titled 'CHATMOLA' with the device of baby elephant with distinctive bubbles for the first time in August 1990 for the defendant, had handed over the same to the defendant on 16.08.1990 and had charged a sum of Rs.150/- in cash from DW1 for the same. The artistic design of CHATMOLA containing the device of baby elephant along with distinctive bubbles annexed along with the affidavit is identical with the art-work, Ex.DW1/2. DW6 had further identified the design, Ex.DW1/2, before the Court. He had remained consistent in his cross-examination that he had not maintained any book of account nor issued any bill nor had issued any certificate in respect of any art work to DW1. Nothing has come in his cross-examination which could assail his credibility and considering that his initial affidavit was filed along with pleadings way back on 24.02.1992 and he had deposed before the Court on 02.07.2024 on the very same lines, his testimony is believed. Thus, it is held that the defendant had adopted the mark CHATMOLA containing the device of baby elephant with distinctive bubbles in August 1990.
(148) DW1 had further deposed by way of his affidavit that he had got the product CHATMOLA packed from various parties namely M/s. Pranshu Packaging, M/s. Rapidex Offset and M/s. S.K. Enterprises. He had made payment of Rs.15,130/- to M/s. Pranshu Packaging on bill no. 036 dated 17.10.1990, Ex.DW1/7, and the same is clear from the copy of passbook of UCO Bank of DW1, Ex.DW1/8. Perusal of Ex.DW1/7 shows TM 992/2016 & TM 924/2016 Page No. 85 of 106 Digitally signed by NEHA NEHA PALIWAL PALIWAL SHARMA SHARMA Date: 2025.04.09 17:24:02 +0530 that the same is a bill issued by Pranshu Packaging in favour of defendant firm dated 17.10.1990 for 110 mm and 150 mm Rinkas Chatmola for Rs.15,130/- and the corresponding amount was deducted by way of cheque no. 878 vide entry dated 12.01.1991 from the bank account of the defendant firm as manifest from passbook Ex.DW1/8. Thus, from the said testimony it is shown that preparations were made by the defendant to get the material packed under the mark Rinkas CHATMOLA in October 1990.
(149) It is further deposed by DW1 that they had got issued caution notice in newspaper Sandhya Times dated 07.12.1991, Ex.DW1/9, against invoice number 4532 dated 10.12.1991, Ex.DW1/10, and had made payment of Rs.2,100/- to advertiser M/s. Kamal Mahajan & Company and the same is also clear from the entry in the passbook of UCO Bank of the defendant. Perusal of Ex.DW1/9 reveals that the same is part of newspaper Sandhya Times printed on 07.12.1991 containing the caution notice issued by the defendant dated 11.11.1991. Ex.DW1/10 is the bill issued by Kamal Mahajan & Company in favour of the defendant dated 10.12.1991 towards publication in Sandhya Times on dated 07.12.1991 for a total amount of Rs.2,100/-. It is further mentioned in the bill that the said amount of Rs.2,100/- had been received by the advertiser from the defendant by way of cheque no. 549737 dated 16.12.1991. The entry in passbook, Ex.DW1/8, also reveals that Rs.2,100/- were debited from the account of the defendant on 18.12.1991 by way of cheque no. 737. DW5, who is the summoned witness from Sandhya Times, had also brought before the Court the certified copy of page no.4 from the Delhi edition of newspaper Sandhya Times dated 07.12.1991, Ex.DW5/B, and had deposed in re-
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examination that Ex.DW1/9 is the original copy of Ex.DW5/B. Therefore, the passbook, Ex.DW1/8, along with the invoice, Ex.DW1/10, and the newspaper, Ex.DW1/9/ Ex.DW5/B, establish that the defendant had got issued caution notice on 07.12.1991 with respect to trade mark CHATMOLA qua confectionery in class 30.
(150) It is further deposed by DW1 that he had got the trade mark CHATMOLA advertised in video cassettes of Hindi films Pratikar, Akayla and Baharon Ki Manzil through advertiser M/s. Reach Video Advertising & Ad Films Pvt. Ltd. and qua the same, invoice of Rs.6,000/- was issued by advertiser dated 06.12.1991, Ex.DW1/25 and the same is also corroborated from the copy of passbook, Ex.DW1/8. He had further deposed that he had again got trade mark CHATMOLA advertised in video cassettes of Hindi films Rupay Dus Karod and Karam Yodha through advertiser M/s. Reach Video Advertising & Ad Films Pvt. Ltd. and qua the same, invoice of Rs.4,000/- was issued by advertiser dated 17.01.1992, Ex.DW1/26.
(151) Perusal of Ex.DW1/25 reveals that the same is invoice dated 06.12.1991 issued by M/s. Reach Video Advertising & Ad Films Pvt. Ltd. in favour of the defendant for Rs.6,000/- for advertisement of the product Rinkas CHATMOLA in Hindi films Pratikar, Akayla and Baharon Ki Manzil. Perusal of Ex.DW1/8 which is the passbook, also reveals that Rs.6,000/- were debited from the account of the defendant on 06.02.1992 vide cheque no. 742. The plaintiff in its replication had admitted that trade mark Hangama was advertised by its sister concern in the video cassette of Pratikar though it had further stated that it had never seen the advertisement of the defendant in the said video cassette. The plaintiff is TM 992/2016 & TM 924/2016 Page No. 87 of 106 Digitally signed by NEHA NEHA PALIWAL PALIWAL SHARMA SHARMA Date: 2025.04.09 17:24:36 +0530 not able to explain that trade mark Hangama belongs to which of its sister concern. It had admitted that there was in fact a video cassette of film Pratikar in which advertisements were there. The defendant is able to show from the deposition of DW1 that it had got its product advertised through advertising agency M/s. Reach Video Advertising & Ad Films Pvt. Ltd. vide bills/ invoices Ex.DW1/25 and Ex.DW1/26 on 06.12.1991 and 17.01.1992 respectively and thereby had made investments for advertisement of trade mark CHATMOLA. DW1 had further relied upon bill of Sunita Printers dated 04.01.1992, Ex.DW1/28, whereby it had got published pocket calenders duly printed with the trade mark CHATMOLA and stepney cover printed in five colours with trade mark CHATMOLA and had spent Rs.2,400/- for the same. He had also relied upon Ex.DW1/27 which is the bill of one Vijay Advertisers for CHATMOLA stickers of Rs.1,200/- dated 22.06.1991. He had also relied upon the booklet of Lions Club, Delhi Model Town wherein his advertisement has been published as Ex.DW1/30. The booklet is dated 22.09.1991. From these documents, the defendant is able to establish at-least to the extent of preponderance of probabilities that it had incurred expenditure for advertisement of trade mark CHATMOLA during the period commencing from June 1991 till January 1992 when the present suit was filed.
(152) DW1 had also produced before the Court the original bill book having bills from serial no. 1451 to 1500 from the period 22.10.1990 till 28.03.1991 and the original bill book having bills from serial no. 1551 to 1594 from the period 09.01.1992 till 28.03.1992, all collectively exhibited as Ex.DW1/29 (colly). The said bill books contain the carbon copy of bills TM 992/2016 & TM 924/2016 Page No. 88 of 106 Digitally signed by NEHA NEHA PALIWAL PALIWAL SHARMA SHARMA Date: 2025.04.09 17:24:43 +0530 and are in seriatim. The same further reveals that for the first time on 08.01.1991 the defendant had sold product by the name of Rinkas CHATMOLA to Anju Sweet Products, Nawab Ganj vide bill no. 1477 dated 08.01.1991 and thereafter had sold the same vide bill no. 1481 to Neha Enterprises, Jhilmil Colony on 18.01.1991, thereafter had sold the same vide bill no. 1482 to Ishar Singh Jeet Singh, Gali Batasha, Khari Baoli on 19.01.1991, thereafter had sold the same vide bill no. 1483 to Delhi Sales Agency, Shivaji Road on 19.01.1991. The second bill book also shows that on 10.01.1992 vide bill no. 1554 product Rinkas CHATMOLA was sold by the defendant to one R.L. Dogra vide cash payment, thereafter on 16.01.1992 vide bill no. 1555 product Rinkas CHATMOLA was sold by the defendant to Taneja Confectioners and Bakers, thereafter on 23.01.1992 vide bill no. 1557 product Rinkas CHATMOLA was sold by the defendant to Ishar Singh Jeet Singh and so on.
(153) The defendant/ DW1 in his subsequent examination-in-chief had also filed before the Court the carbon copy of bills which were earlier marked as Mark DW1/A (colly) and thereafter the same were exhibited as part of Ex.DW1/29 (colly) and the same are carbon copy of bills for the period of April 1991 till December 1991 containing invoices no. 1957, 1962, 1972, 1974, 1984, 1985, 1517, 1525, 1530, 1544 and 1548 etc. along with three other cash bills bearing no. 1997, 2000 and 1532.
(154) DW8 Sh. Jaspal Singh Mutneja had deposed that he was the partner of erstwhile partnership firm M/s. Ishar Singh Jeet Singh, which dissolved subsequent to the death of his father. He deposed that the firm TM 992/2016 & TM 924/2016 Page No. 89 of 106 Digitally signed by NEHA NEHA PALIWAL PALIWAL SHARMA SHARMA Date: 2025.04.09 17:24:50 +0530 was engaged in the business of trading confectionary items and the firm regularly purchased goods bearing trade mark CHATMOLA from defendant firm since January 1991. He had affirmed the bill no. 1482 dated 19.01.1991, bill no. 1557 dated 23.01.1992 (which are part of bill books no. 1 and 2 respectively) and had also affirmed carbon copies of bill no. 1530 dated 02.12.1991, bill no.1548 dated 02.01.1992, bill no. 1962 dated 21.05.1991 and bill no. 1974 dated 28.06.1991 and bill no. 1985 dated 09.08.1981 (all part of Ex.DW1/29 colly) and identified either his signatures or the signatures of his father on the said bills. He further deposed that though his firm had business dealings with the plaintiff, however, they had never purchased goods bearing trade mark CHATMOLA from the plaintiff firm.
(155) Perusal of the bill books filed by the defendant shows the carbon copy of bills maintained in the regular course of business. Some of the bills are further affirmed by DW8, who was one of the partner of erstwhile firm M/s. Ishar Singh Jeet Singh. Therefore, from the above discussion it is established, at least to the extent of preponderance of probabilities, that the defendant had launched the product in market and was selling the same to different vendors since 08.01.1991. Thus, the defendant is able to establish its user of the trade mark CHATMOLA since January 1991 and the adoption of the label with the device of baby elephant with distinctive bubbles along with the mark CHATMOLA since August 1990.
(156) Though defendant had relied upon Ex.DW1/X, which is the alleged Diwali gift pack of the plaintiff company; Ex.DW1/39, which is the alleged greeting card issued by the plaintiff company; and Ex.DW1/40, TM 992/2016 & TM 924/2016 Page No. 90 of 106 Digitally signed by NEHA NEHA PALIWAL PALIWAL SHARMA SHARMA Date: 2025.04.09 17:24:58 +0530 which is the alleged price list issued by the plaintiff company, however, had admitted that he is not the author of these documents nor could he disclose before the Court the source from where he obtained those documents. Ex.DW1/39 and Ex.DW1/40 were even confronted to PW1 as Mark X-2 and Mark X-1 respectively, however, he denied issuance of any such price list w.e.f. 01.02.1991 or getting published any such greeting card and therefore, these documents cannot be looked into.
(157) The plaintiff, per contra, had claimed adoption of trade mark CHATMOLA since July 1990 and the launch of product with trade mark CHATMOLA in market since November 1990. PW1 had deposed that he had engaged the service of M/s. Vikas Laminator Pvt. Ltd. for designing of label pouch CHATMOLA, the said company had in-turn engaged services of PW6 Sh. Vidya Bhushan for doing the said job and Sh. Vidya Bhushan had even given his affidavit, Ex.PW1/18, with respect to the same. Ex.PW1/18 is affidavit of Sh. Vidya Bhushan dated 09.03.1992 wherein it was stated by PW6 that he was given job by M/s. Vikas Laminator Pvt. Ltd. Noida on behalf of the plaintiff firm to alter/ adjust trade mark CHATMOLA in place of trade mark CHATAR MATAR in the art-work and he had completed the work and returned the art-work with the name CHATMOLA to M/s. Vikas Laminator during second week of July 1990. PW6 had also tendered his evidence by way of affidavit before the Court wherein also he had deposed that in July 1990 he was asked by Sh. Mahesh Rustagi, Director of Vikas Laminator to insert CHATMOLA in place of CHATAR MATAR pouch label and thereafter he prepared label pouch Ex.PW6/1 and gave the art-work to Sh. Mahesh Rustagi in July 1990. The TM 992/2016 & TM 924/2016 Page No. 91 of 106 Digitally signed by NEHA NEHA PALIWAL PALIWAL SHARMA SHARMA Date: 2025.04.09 17:25:06 +0530 veracity of initial affidavit Ex.PW1/18 of PW6 is doubtful as it is deposed by PW6 during his cross-examination that he had not gone to any Court premises or to any Oath Commissioner or Notary to get the said affidavit attested but had signed the same in his office. Once it is admitted by PW6 that he had not signed the affidavit before the Oath Commissioner or Notary nor had gone to any Court complex and had instead signed the same in his office, Ex.PW1/18 cannot be considered to be an affidavit.
(158) PW6 had also relied upon the pouch of CHATMOLA, Ex.PW6/1. Exhibition of the said pouch was objected to by Ld. Counsel for the defendant on the ground that the same was not referred to in the affidavit of PW6. Perusal of Ex.PW6/1 reveals that the same is a packing by the nomenclature Alkas CHATMOLA, however, no date is mentioned on the said packing that when the same was published. PW6 had also deposed that the original art-work was not placed on record by him as the same was given to printer Mr. Mahesh Rustagi. However, there is no documentary evidence on record to substantiate the testimony of PW6 that he had handed over the art-work to printer M/s. Vikas Laminator in July 1990.
(159) Witness from M/s. Vikas Laminator Pvt. Ltd., PW5 Mr. Mahesh Rustagi, had identified his signatures as well as signatures of his brother on bills Ex.PW1/19 and Ex.PW1/20 respectively. Perusal of bill no. 145 dated 08.09.1990 (Ex.PW1/19) reveals that the same is a duplicate bill issued by Vikas Laminator Pvt. Ltd. in favour of Alka Food Industries (plaintiff), as per which printed and laminated rolls in roll form size 110 mm of CHATMOLA were sold by Vikas Laminator Pvt. Ltd. to the plaintiff.
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Ex.PW1/20 is another bill bearing no. 345 dated 16.12.1991 of printed and laminated rolls of CHATMOLA in favour of the plaintiff, in which PW5 had identified the signatures of his brother. Though PW5 in his cross- examination had deposed that their firm is no longer functioning and he could not produce the record maintained by them with respect to the said bills, however, the witness had identified his signatures over the bill dated 08.09.1990 Ex.PW1/19. In view of the same, it can be said to the extent of preponderance of probabilities that the rolls bearing mark CHATMOLA were printed and laminated by PW5 on the asking of the plaintiff in September 1990. However, again the bill is of September 1990 only. As discussed above, there is no documentary evidence on record to substantiate the deposition of PW5 and PW6 that PW6 on the asking of PW5 had prepared the pouch Ex.PW6/1 and original art-work and handed over the same to PW5 in July 1990. Thus, there is no documentary evidence on record with respect to the averment of July 1990 and the first usage of mark CHATMOLA by the plaintiff is shown by the plaintiff as that of September 1990 only. This usage is also only with respect to getting the rolls printed from a printer and does not show the actual launch of the product in the market for public consumption. Per contra, as discussed earlier, the defendant by way of deposition of DW6 Baldev Singh combined with the deposition of DW1 had proved before the Court that the design of carton pouch packing CHATMOLA was prepared by DW6 on the asking of DW1 in August 1990 and that DW6 had handed over the same to DW1 on 16.08.1990.
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NEHA PALIWAL Digitally signed by NEHA
PALIWAL SHARMA
SHARMA Date: 2025.04.09 17:25:22 +0530
(160) The plaintiff has to show prior market user of the said mark/
availability of the mark in the market, than that of the defendant, in order to show that it had vested rights in the trade mark CHATMOLA which are required to be protected. It is averred by the plaintiff that it had launched the product by the name of CHATMOLA in the market in November 1990 and in order to prove the same had relied upon various bills. The first bill relied upon by the plaintiff is dated 13.11.1990 Ex.PW1/3 bearing no. 2229 in favour of firm M/s. Ishar Singh Jeet Singh. Further, bill no. 2237 dated 05.12.1990 Ex.PW1/4, bill no. 2300 dated 03.05.1991 Ex.PW1/9, bill no. 2322 dated 26.06.1991 Ex.PW1/11, bill no. 2330 dated 13.07.1991 Ex.PW1/12, bill no. 2345 dated 19.08.1991 Ex.PW1/14 and bill no. 2361 dated 19.10.1991 Ex.PW1/15, reveal that the same were allegedly issued by the plaintiff company in favour of M/s. Ishar Singh Jeet Singh. However, the partner of M/s. Ishar Singh Jeet Singh, namely, Sh. Jaspal Singh Mutneja had appeared before the Court as DW8/ defendant's witness and had denied purchasing articles bearing trade mark CHATMOLA from the plaintiff and had denied these bills before the Court. It is the case of the plaintiff that due to personal enmity between them and DW8, DW8 had deposed against them and in favour of the defendant. However, DW8 in his cross-examination had deposed that he was having cordial relations with Sh. Pritam Dass who was the initial plaintiff and had sore relations with the sons of Sh. Pritam Dass due to their behaviour. Suggestion was given that two cases were filed against DW8 by the sons of Sh. Pritam Dass in the year 2011 and the factum of litigation was admitted. However, perusal of the pleadings reveal that the defendant way back in the year 1992, when the pleadings in the form of written statement and counter TM 992/2016 & TM 924/2016 Page No. 94 of 106 Digitally signed by NEHA NEHA PALIWAL PALIWAL SHARMA SHARMA Date: 2025.04.09 17:25:29 +0530 claim were filed before the Court, had taken a specific stand that dealers of firm M/s. Ishar Singh Jeet Singh can depose before the Court that the sales invoices filed by the plaintiff are false and fabricated and product under trade mark CHATMOLA was never sold by the plaintiff to firm M/s. Ishar Singh Jeet Singh. The said specific stand of the defendant had been affirmed by DW8 before the Court via affidavit and it had been categorically deposed by the witness that they had never purchased CHATMOLA from the plaintiff. Therefore, the credibility of the above bills Ex.PW1/3, Ex.PW1/4, Ex.PW1/9, Ex.PW1/11, Ex.PW1/12, Ex.PW1/14 and Ex.PW1/15 are not established before the Court.
(161) Ex.PW1/5 is another bill dated 14.12.1990 of Batra Stores. However, it is admitted by PW1 in his cross-examination that the owner of Batra Stores, Geeta Colony, Delhi is his mausaji (maternal uncle). If the owner was related to the plaintiff, then why the owner was not examined by the plaintiff to prove the bill. The plaintiff has placed on record loose bills before the Court and had not placed on record any bill book. Bill Ex.PW1/3 dated 13.11.1990 and Ex.PW1/4 dated 05.12.1990 are not proved keeping in view the testimony of DW8 and bill Ex.PW1/5 dated 14.12.1990 also pertains to the firm of a relative, who has also not been examined before the Court. Other bills relied upon by the plaintiff viz. Ex.PW1/6 dated 22.01.1991 of Usha Sweets, Ex.PW1/7 dated 25.01.1991 of N.D. Panseria, Ex.PW1/9 dated 03.05.1991 of M/s. Mamta Traders etc. are of 22.01.1991 onwards and not prior to the same and the defendant had already proved by way of Ex.DW1/29 (colly) that it had launched its product by the name of Rinkas Chatmola in market since 08.01.1991.
TM 992/2016 & TM 924/2016 Page No. 95 of 106 Digitally signed by NEHA NEHA PALIWAL PALIWAL SHARMA SHARMA Date: 2025.04.09 17:25:36 +0530 (162) Perusal of the bills Ex.PW1/6, Ex.PW1/7, Ex.PW1/8,
Ex.PW1/10 and Ex.PW1/13 also show that they are loose bills and the firms in whose favour those bills are issued, have not been examined as plaintiff's witnesses. Per contra, the defendant had examined the witness from the firm M/s. Ishar Singh Jeet Singh before the Court as DW8 who had identified various bills issued by the defendant which are part of the bill books produced in original by the defendant before the Court, that is, bill no. 1482 dated 19.01.1991, bill no. 1557 dated 23.01.1992 and carbon copies of bill no. 1530 dated 02.12.1991, bill no. 1548 dated 02.1.1992, bill no. 1962 dated 21.05.1991, bill no. 1974 dated 28.06.1991 and bill no. 1985 dated 09.08.1991 (part of Ex.DW1/29 collectively), which are of January 1991 onwards showing that the defendant had sold the product by the name of CHATMOLA to the said vendor from January 1991. Thus, the defendant had filed the entire bill books containing the carbon copies of bills whereas individual/ loose bills have been filed by the plaintiff. The bills of November 1990 and December 1990 Ex.PW1/3 and Ex.PW1/4, Ex.PW1/5 cannot be relied upon for the reasons discussed above.
(163) The defendant had further been able to establish that they had incurred expenditure in the advertisement of trade mark CHATMOLA and thereby had created goodwill and reputation in the market with respect to the said mark. Per contra, the plaintiff had not led any evidence to show that any expenditure on advertisement etc. was incurred by the plaintiff. The defendant has further relied upon various communications along with their original envelopes, Ex.DW1/11 to Ex.DW1/24, showing that various vendors from all over the country were communicating with the defendant TM 992/2016 & TM 924/2016 Page No. 96 of 106 Digitally signed by NEHA NEHA PALIWAL PALIWAL SHARMA SHARMA Date: 2025.04.09 17:25:44 +0530 asking for distributorship of the product CHATMOLA of the defendant and also for making inquiries about the same. On the contrary, no such correspondence had been placed on record by the plaintiff. The defendant had further placed on record the caution notice in respect of their product CHATMOLA, Ex.DW1/9, given in newspaper Sandhya Times whereas no such effort was undertaken by the plaintiff.
(164) DW1 had further deposed with respect to the sale figures of the defendant firm obtained from the sale of confectionery under the trade mark CHATMOLA whereas the plaintiff/ PW1 had not deposed about any such sale figures of the plaintiff firm with respect to sale of product under the mark CHATMOLA. It was held by the Hon'ble High Court of Delhi in the case of Intex Technologies (India) Ltd. & Ors. v. AZ Tech (India) & Ors., 239 (2017) DLT 99 that in the case of registered trade mark the property exits in the mark but in the case of passing off the property is not in the mark but in the goodwill and the establishment of goodwill is indicated by the extent of sales and advertising expenses etc. The plaintiff herein had neither led any evidence with respect to the extent of sales or with respect to the advertising expenses incurred.
(165) Therefore, in view of the above discussions and findings, it is held that the defendant has been able to establish, to the extent of preponderance of probabilities, that it was the prior user of the trade mark CHATMOLA since January 1991 having launched the same in the market since January 1991 as manifest by bills starting from 08.01.1991 which are part of Ex.DW1/29 (colly) and had adopted the same in August 1990 when the label/ design of CHATMOLA with the device of baby elephant with TM 992/2016 & TM 924/2016 Page No. 97 of 106 Digitally signed by NEHA NEHA PALIWAL PALIWAL SHARMA SHARMA Date: 2025.04.09 17:25:51 +0530 distinctive bubbles was created by DW8 Baldev Singh on the asking of DW1.
(166) Per contra, the plaintiff has not been able to show the adoption of the mark since July 1990, though has been able to show that rolls bearing mark CHATMOLA were printed and laminated by M/s. Vikas Laminator on the asking of the plaintiff in September 1990. The plaintiff is not further able to prove the actual market usage of trade mark CHATMOLA since November 1990 as is unable to prove the bills Ex.PW1/3, Ex.PW1/4 and Ex.PW1/5 and so on.
(167) Accordingly, it is held that the defendant is the first and prior adopter/ user of the trade mark 'CHATMOLA' and the plaintiff cannot claim vested rights in the said trade mark.
(168) Accordingly, both the issues are decided in favour of the defendant/ counter claimant and against the plaintiff/ non-counter claimant.
Issues No.2 and 7:
Whether the defendants are passing off their goods as that of the plaintiff? OPP Whether the plaintiff is passing off their goods as that of defendant? OPD (169) Both these issues are taken up together being interconnected and both the parties were having the respective onus to prove that the other party was passing off their goods.TM 992/2016 & TM 924/2016 Page No. 98 of 106 Digitally signed by NEHA
NEHA PALIWAL PALIWAL SHARMA SHARMA Date: 2025.04.09 17:25:58 +0530 (170) It is held in the preceding issues that the defendant/ counter claimant is the registered proprietor of trade mark CHATMOLA under no. 557320 in class 30 and that the registration is valid and subsisting. It is further held that the defendant/ counter claimant is holding rights in the label consisting the device of baby elephant with other distinctive features. It is further held that the defendant/ counter claimant is the first and prior adopter/ user of the trade mark CHATMOLA than that of the plaintiff.
(171) The defendant/ counter claimant is using trade mark CHATMOLA along with the device of baby elephant with other distinctive features as manifest in Ex.DW1/1 whereas the plaintiff is using the trade mark CHATMOLA as manifest in Ex.PW6/1. The mark CHATMOLA is identical. More so, the device of baby elephant with other distinctive features as manifest in Ex.DW1/1 is similar in material particulars with the device of baby elephant with other distinctive features as manifest in Ex.PW3/1/ Ex.PW1/17. Once it is held that the defendant is the prior user/ adopter of the trade mark and is having rights in the device of baby elephant with other distinctive features and the trade mark used by the parties is identical, it is held that it is the plaintiff which is passing off the goods of the defendant as that of the plaintiff. More so, as the defendant is held to be the registered proprietor of trade mark CHATMOLA, it is further held that plaintiff is guilty of infringement of the registered trade mark of the defendant and that the defendant is entitled for protection of its mark.
(172) Both the issues are accordingly decided in favour of the defendant/ counter claimant and against the plaintiff/ non-counter claimant.
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Whether the plaintiffs are entitled to the relief of injunction and rendition of accounts? OPP Whether defendants are entitled to relief of injunction and rendition of accounts as claimed in the counter claim? OPD (173) Both these issues are taken up together being interconnected and both the parties were having the respective onus to prove that they are entitled to the relief of injunction and rendition of accounts.
(174) The Hon'ble Division Bench of the Hon'ble High Court of Delhi in the case titled as Pioneer Nuts and Bolts Pvt. Ltd. v. Goodwill Enterprises, 169 (2009) DLT 209, had relied upon the judgment of Smith Bartlet and Co. v. The British Pure Oil Grease and Carbide Co. Ltd., (1934) 51 RPC 157, wherein it was held that owner of the mark is entitled to exclusive use of it unless somebody else is able to show, not an occasional user from a date anterior to the user by the owner of the registered trade mark, but a continuous user by him. In the present case in hand, as discussed earlier in the preceding issues, the defendant/ counter claimant is held to be the proprietor of registered trade mark CHATMOLA with the device of baby elephant with other distinctive features, it is further held to be prior user/ adopter of the same from that of the plaintiff and the plaintiff has not been able to show a continuous prior user than that of the defendant. The plaintiff has further not been able to prove vested legal rights in trade mark CHATMOLA. Thus, the defendant is entitled to the exclusive use of the registered trade mark CHATMOLA with device of baby elephant with other distinctive features.
TM 992/2016 & TM 924/2016 Page No. 100 of 106 Digitally signed by NEHA NEHA PALIWAL PALIWAL SHARMA SHARMA Date: 2025.04.09 17:26:15 +0530 (175) It was further held in the case of Himalaya Drug Company Vs.
S.B.L. Limited, 194 (2012) DLT 536, by the Hon'ble Division Bench of Hon'ble High Court of Delhi that under Section 28 of the Act, the registered proprietor of a registered trade mark gets exclusive right to the use of such trade marks in relation to the goods in respect of which the trade mark is registered and to obtain relief in respect of any infringement of such trade mark. The action for infringement is a statutory remedy conferred on the registered proprietor of a registered trade mark for the vindication of the exclusive right to the use of the trade mark in relation to those goods.
(176) It was also held by the Hon'ble Three Judges Bench of Hon'ble Supreme Court of India in the case of Renaissance Hotel Holdings Inc. vs. B. Vijaya Sai and Others, (2022) 5 SCC 1, that when the trade mark of one party is identical with the registered trade mark of the other party and that the goods or services of the party are identical with the goods or services covered by registered trade mark, the Court shall presume that it is likely to cause confusion on the part of the public. It is further held that the action for infringement is a statutory right conferred on the registered proprietor of a registered trade mark for the vindication of the exclusive rights to the use of the trade mark in relation to those goods. The Hon'ble Court further relied upon the judgment in the case of Ruston & Hornsby Ltd. v. Zamindara Engg. Co., (1969) 2 SCC 727, wherein it was held that in an action for infringement, once it is found that one party's trade mark was identical with the other party's registered trade mark, the Court could not have gone into an enquiry whether the infringement is such as is likely to TM 992/2016 & TM 924/2016 Page No. 101 of 106 Digitally signed by NEHA NEHA PALIWAL PALIWAL SHARMA SHARMA Date: 2025.04.09 17:26:27 +0530 deceive or cause confusion. In an infringement action, an injunction would be issued as soon as it is proved that one party is improperly using the trade mark of the other party.
(177) Thus, as it has been held in the preceding issues that the defendant/ counter claimant is the registered proprietor of trade mark CHATMOLA under no. 557320 in class 30 and that the registration is valid and subsisting; that the defendant is holding rights in the label consisting device of baby elephant and other distinctive features and that the defendant is the first and prior adopter/ user of the trade mark 'CHATMOLA' and the plaintiff cannot claim vested legal rights in the said trade mark, it is held that the defendant/ counter claimant is entitled to the relief of injunction, as prayed for in the counter-claim and the plaintiff is not entitled to any relief of injunction and rendition of accounts, as prayed for in the plaint.
(178) Accordingly, the plaintiff, its servants, agents, dealers, distributors, stockists, representatives and all other persons acting on its behalf are hereby retrained from manufacturing, marketing, selling, stocking, offering for sale, or otherwise dealing in confectionary goods under the trade mark 'CHATMOLA' or any other trade mark which may be identical and/ or deceptively similar to the defendant's trade mark 'CHATMOLA' resulting in infringement of registered trade mark CHATMOLA under no. 557320 in class 30.
(179) The plaintiff, its servants, agents, dealers, distributors, stockists, representatives and all other persons acting on its behalf are also retrained from manufacturing, marketing, selling, stocking, offering for sale, or TM 992/2016 & TM 924/2016 Page No. 102 of 106 Digitally signed by NEHA NEHA PALIWAL PALIWAL SHARMA SHARMA Date: 2025.04.09 17:26:36 +0530 otherwise dealing in confectionary goods under the device of baby elephant with other distinctive features as manifest in Ex.DW1/1 as the defendant is also having registration of the said device along with trade mark CHATMOLA and as it is held that the defendant is having rights in the label consisting of device of baby elephant with other distinctive features.
(180) The defendant/ counter-claimant had also prayed for a decree of rendition of accounts and for a decree of delivery upon affidavit by the plaintiff to the defendant of all the offending, infringing, counterfeiting labels, pouches, stickers, packing materials, processing cylinders, blocks and other finished and unfinished goods and other incriminating materials bearing the trade mark or label/ pouch CHATMOLA under the possession and/ or control of the defendants for destruction and/ or erasure purposes. However, in the present case the plaintiff was restrained vide order dated 08.07.1992 from using trade mark CHATMOLA and from marketing the same in the device of baby elephant with distinctive features. More than 32 years have passed since the said restraint order and the plaintiff at present is not dealing with the goods under the trade mark CHATMOLA nor is marketing the goods Tini Mini/ Tiny Miny under the image of baby elephant as deposed by PW1 in his evidence by way of affidavit and no contrary evidence has been led by the defendant with respect to the same. In view of the same, at this juncture there is no possibility of any material available with the plaintiff which can be handed over to the defendant for destruction/ erasure purposes. No sale figures with respect to the sale of CHATMOLA have been filed by the plaintiff/ deposed by the plaintiff's TM 992/2016 & TM 924/2016 Page No. 103 of 106 Digitally signed by NEHA NEHA PALIWAL PALIWAL SHARMA SHARMA Date: 2025.04.09 17:26:45 +0530 witnesses before the Court nor the defendant had led any contrary evidence to show the extent of profits, if any, earned by the plaintiff from the same during the period 1991-92 till the passing of the restraint order on 08.07.1992. In view of the same, at this juncture this Court is not inclined to grant any relief of rendition of accounts.
(181) Both the issues are accordingly decided. Relief: (182) In view of the above discussions and findings, it is held that the
defendant/ counter claimant is the registered proprietor of trade mark CHATMOLA under no. 557320 in class 30 and that the registration is valid and subsisting; that the defendant/ counter claimant is holding rights in the label consisting the device of baby elephant with other distinctive features whereas the plaintiff is unable to establish that it is the owner of design and has copyrights in the artistic cartoon Tiny Miny since 1988; that the defendant/ counter claimant is the first and prior adopter/ user of the trade mark 'CHATMOLA' and the plaintiff cannot claim vested rights in the said trade mark; that the plaintiff is passing off the goods of the defendant as that of the plaintiff.
(183) It is further held that the defendant/ counter claimant is entitled to the relief of injunction, as prayed for in the counter-claim whereas the plaintiff is not entitled to any relief of relief of injunction and rendition of accounts, as prayed for in the plaint.
TM 992/2016 & TM 924/2016 Page No. 104 of 106 Digitally signed by NEHA NEHA PALIWAL PALIWAL SHARMA
SHARMA Date: 2025.04.09 17:26:54
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(184) Accordingly, the plaintiff, its servants, agents, dealers,
distributors, stockists, representatives and all other persons acting on its behalf are hereby retrained from manufacturing, marketing, selling, stocking, offering for sale, or otherwise dealing in confectionary goods under the trade mark 'CHATMOLA' or any other trade mark which may be identical and/ or deceptively similar to the defendant's trade mark 'CHATMOLA' resulting in infringement of registered trade mark CHATMOLA under no. 557320 in class 30.
(185) Further, the plaintiff, its servants, agents, dealers, distributors, stockists, representatives and all other persons acting on its behalf are also retrained from manufacturing, marketing, selling, stocking, offering for sale, or otherwise dealing in confectionary goods under the device of baby elephant with other distinctive features as manifest in Ex.DW1/1 as the defendant is also having registration of the said device along with trade mark CHATMOLA and as it is held that the defendant is having rights in the label consisting of device of baby elephant with other distinctive features.
(186) So far as the relief of rendition of accounts and for a decree of delivery upon affidavit by the plaintiff to the defendant is concerned, this Court is not inclined to grant any relief of rendition of accounts to the defendant/ counter claimant at this juncture.
(187) The counter-claim filed by the defendant/ counter claimant M/s. Anil Food Industries bearing TM No. 924/2016 is accordingly decreed whereas the suit of the plaintiff Anil Kumar Gera trading as Alka Food Industries bearing TM No. 992/2016 is hereby dismissed.
TM 992/2016 & TM 924/2016 Page No. 105 of 106 Digitally signed by NEHA NEHA PALIWAL PALIWAL SHARMA SHARMA Date: 2025.04.09 17:27:02 +0530 (188) Considering the nature of the dispute between the parties, both the parties are directed to bear their own costs. (189) Decree sheet be prepared in the main suit as well as in the counter claim separately. (190) Both the files of TM No. 992/2016& TM No. 924/2016 be consigned to record room, after due compliance. Digitally signed by NEHA NEHA PALIWAL PALIWAL SHARMA Announced in the Open Court SHARMA Date: 2025.04.09 17:27:09 +0530 on 09.04.2025 (Neha Paliwal Sharma) District Judge-03, Central District, Tis Hazari Courts, Delhi
It is certified that this judgment contains 106 pages and each page bears my signatures.
Digitally signed by NEHA NEHA PALIWAL PALIWAL SHARMA
SHARMA Date: 2025.04.09 17:27:15
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(Neha Paliwal Sharma)
District Judge-03, Central District,
Tis Hazari Courts, Delhi
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