Delhi District Court
Dabur India Limited vs Deepak And Ors on 7 October, 2024
IN THE COURT OF GORAKH NATH PANDEY
DISTRICT JUDGE (COMMERCIAL COURT),
NORTH DISTRICT, ROHINI COURTS: DELHI.
CS (COMM.) 492/2022
CNR NO.DLNT010072712022
DABUR INDIA LTD.,
HAVING REGISTERED OFFICE AT
8/3, ASAF ALI ROAD,
NEW DELHI - 110002.
........ Plaintiff.
VERSUS
(1) SH. DEEPAK,
109, CHANDGI NUMBERDAR WALI GALI,
PALLA, DELHI - 110036.
(2) SHRI BALAJI BEVERAGES
UPSIDC PLOT NO.B-56,
NIWADA, TEHSIL, BAGHPAT,
U.P.
(3) MANAV TRADERS
CA 107, JANTA FLATS,
HARI NAGAR, SUBHASH NAGAR,
NEW DELHI - 110018.
.............. Defendants
Date of Institution : 16.08.2022
Date of final arguments : 07.10.2024
Date of decision : 07.10.2024
Decision : Decreed
JUDGMENT:-
1. This suit has been filed by the plaintiff against the defendants seeking reliefs of permanent injunction restraining the CS (Comm) 492/2022 Page No. 1 of 12 DABUR INDIA LTD. VS. DEEPAK & ORS.
defendant from infringing and passing off Trademark; delivery and rendition of accounts etc.
2. The case of the plaintiff, as set out in the plaint, is that the plaintiff - Dabur India Ltd. was founded in 1884 by a visionary ayurvedic doctor from Bengal - Dr. S. K. Burman. The trademark 'HAJMOLA' was adopted by the plaintiff in the year 1972. The plaintiff has been granted trademark registrations for its trade mark/label HAJMOLA and the details thereof is mentioned in para no.11 of the plaint. The plaintiff said trademark/label have strong goodwill and reputation in India within the meaning of Section 29 (4) of the Trade Marks At, 1999, the plaintiff proprietary rights both statutory and common law in its said trademark/label HAJMOLA and formative HAJMOLA devices/marks and variants, its worldwide goodwill and reputation. The plaintiff has the exclusive rights to use the trademark HAJMOLA and nobody can be permitted to use the same or any other deceptively similar trade mark/labels in any manner whatsoever in relation to any goods/services without the leave and license of the plaintiff.
As contended, the defendant no.1 applied for the registration of the trademark/label KABULI ZEERA SODA HAJMOLA ZABARDAST i.e. the impugned goods. Defendant no.2 is the manufacturer of the impugned goods under the impugned trademark i.e. KABULI ZEERA SODA HAJMOLA ZABARDAST and the defendant no.3 is the seller, solicitor, distributor of the impugned goods under the impugned CS (Comm) 492/2022 Page No. 2 of 12 DABUR INDIA LTD. VS. DEEPAK & ORS.
trademark/label at the online trade channels like INDIA MART.
It is alleged that the defendants are acting in collusion and connivance with each. The defendants are selling the impugned goods under the impugned trademark/label which is also an infringment of the plaintiff's brand 'Hajmola under Section 29 (8) of the Trade Marks Act, 1999. The plaintiff therefore filed present suit against the defendants praying therein, inter alia, that decree of permanent injunction may be passed restraining the defendant its partners, agents, representative, distributors, assigns, heirs, successors, stockists and all other acting for and on their behalf from manufacturing, soliciting, marketing, importing, using, exporting, selling, displaying, distributing, advertising or in any manner dealing in or selling or using the impugned trade mark/ label and or any other word mark/ logo/ shape which may be identical with and/ or deceptively similar to the plaintiff's trade mark/label and in relation to similar goods, thereby infringing Plaintiff's registered trademarks, copyright and passing off their products as that of the plaintiff.
3. Defendants failed to appear despite service of the summons nor filed written statement within the stipulated time as per Commercial Courts Act, 2015, hence, their defence was struck off vide order dated 08.02.23, 15.09.23 and 19.01.24 respectively. Following notional issues was framed for adjudication of the case:
(i) Whether the plaintiff is entitled for a decree of CS (Comm) 492/2022 Page No. 3 of 12 DABUR INDIA LTD. VS. DEEPAK & ORS.
permanent injunction against the defendants as prayed for?....OPP
(ii) Whether the defendants have infringed the plaintiff's registered trademark/label KABULI ZEERA SODA HAJMOLA ZABARDAST? ....OPP
(iii) Whether the defendants have passed off its goods and business as those of the plaintiff? ...OPP
(iv) Whether the plaintiff is entitled for the rendition of accounts as prayed for? ....OPP
(v) Relief.
4. The evidence in this case was recorded before the Local Commissioner appointed vide order dated 20.01.2024.
5. The plaintiff examined its AR Sh. Vishesh Kumar as PW1 vide his affidavit Ex.PW1/A who deposed as per the averments in the plaint and also relied upon the following documents:
(1) Photographs of the plaintiff's logo and product under its trademark Hajmola as Ex.PW1/1.
(2) Defendant's impugned product under the impugned trademark as Ex.PW1/2.
(3) Status, Registrations Certificate, Relevant Trade Marks Journal, Related to the plaintiff's registered trademarks and receipt of legal proceedings certificate as Ex.PW1/3 (Colly).CS (Comm) 492/2022 Page No. 4 of 12
DABUR INDIA LTD. VS. DEEPAK & ORS.
(4) Status, Registration Certificate, Relevant Trade Marks Journal, related to the plaintiff's registered trademarks as Ex.PW1/4 (Colly).
(5) Readily available sales figures related to the plaintiff's product under the trademark Hajmola as Ex.PW1/5.
(6) Newspaper reports related to the Hajmola of the plaintiff as Ex.PW1/6.
(7) Advertisements related to the brand Hajmola of the plaintiff as Ex.PW1/7.
(8) Status of the defendant no.1's trademark application under no.4621660 in class 32 as Ex.PW1/8.
(9) FSSAI report showing defendant no.2's address as Ex.PW1/9.
(10) Document related to defendant no.3 as Ex.PW1/10.
(11) Relevant extract of the plaintiff's annual report as Ex.PW1/11.
(12) Affidavit under Order XI Rule 6(3) of CPC as Ex.PW1/12.
(13) Board Resolution dated 18.08.23 as Ex.PW1/13 (OSR).CS (Comm) 492/2022 Page No. 5 of 12
DABUR INDIA LTD. VS. DEEPAK & ORS.
6. I have heard the final arguments addressed by the counsel for the plaintiff and gone through the records as well. My issue-wise findings are as under:
(i) Whether the plaintiff is entitled for a decree of permanent injunction against the defendants as prayed for?....OPP
(ii) Whether the defendants have infringed the plaintiff's registered trademark/label KABULI ZEERA SODA HAJMOLA ZABARDAST? ....OPP
(iii) Whether the defendants have passed off its goods and business as those of the plaintiff? ...OPP
(iv) Whether the plaintiff is entitled for the rendition of accounts as prayed for? ....OPP
7. It is now well settled / laid down by our own Hon'ble High Court in case titled as Shaw Wallace & Co. Ltd. & Anr. v. Superior Industries Ltd. 2003 (27) PTC 63 (Del) as to how infringement of trade mark is to be seen, to quote:-
12.It is well settled that in an action for alleged infringement of a registered trade mark, if the impugned marked used by the defendant is identical with the registered trade mark of the plaintiffs, no further questions have been to be addressed and it has to be held that there is indeed an infringement. If the mark is not identical, the matter has to be further considered and it has to be seen whether the mark of the defendant is deceptively similar to that of the plaintiff. Deceptive similarity means that the mark is likely to deceive or cause confusion in relation to goods in respect of which the plaintiff got its mark registered.
For the purpose of this comparison, the two marks have to be compared, not by placing them side by side, but by asking the question whether having due regard to relevant surrounding circumstances, defendant's mark is similar to that of the CS (Comm) 492/2022 Page No. 6 of 12 DABUR INDIA LTD. VS. DEEPAK & ORS.
plaintiffs, as would be remembered by persons possessed of an average memory with its usual imperfections. On the touchstone of this query, it is to be determined whether the mark of the defendant is likely to deceive or cause confusion. The sequetur to the aforesaid preposition of law, is that, in an action of infringement, for the success by the plaintiff, he need not prove that the whole of his registered trade mark has been copied, but he can also succeed, if, he shows that the mark used by the defendant is similar to the mark of the plaintiff, as it would be numbered by persons possessed of an average memory with its usual imperfection or with its usual imperfection or that its essential particulars or the distinguishing or essential feature has been copied (ILR 197 (II) Delhi 225 Jagan Nath Prem Nath v. Bhartiya Dhoop Karvalaya Para- 7).
8. The brief and relevant facts for filing of the case has been mentioned at the outset. Section 101 of the Evidence Act, 1872 defines "burden of proof" which is reproduced as below:-
"101. Burden of proof- whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person."
Section 101 of the Evidence Act has clearly laid down that the burden of proving a fact always lying upon the person who asserts the facts. Until such burden is discharged, the other party is not required to be called upon to prove his case. The court has to examine as to whether the person upon whom the burden lies has been liable to discharge his burden. Until he arrives at such conclusion he cannot proceed on the basis of weakness of other party. Further, Section 58 of the Indian Evidence Act contained that no fact need to be proved in any proceedings which parties thereto or their agents agree to admit CS (Comm) 492/2022 Page No. 7 of 12 DABUR INDIA LTD. VS. DEEPAK & ORS.
at the herein, or which, before the hearing, they agree to admit by any writing under their hands or which by any rule of pleadings enforce at the time they are deemed to have admitted by their pleadings.
9. It is well settled that a suit has to be tried on the basis of the pleadings of the contesting parties which is filed in the suit in the form of plaint and written statement and the nucleus of the case of the plaintiff and the contesting case of the defendant in the form of issues emerges out of that. Being a civil suit, this suit is to be decided on the basis of preponderance of probabilities.
In the case of Raj Kumar Singh & Anr. Vs. Jagjit Chawla, reported in 183 (2011) DLT 418, the Hon'ble High Court of Delhi was pleased to observe as under:-
"A civil case is decided on balance of probabilities. The balance of probabilities in the present case shows that the Power of Attorney Ex. PW3/1 and the Will Ex. P-1 were duly executed by the deceased Sh. Sohan Singh. The Power of Attorney is after all a registered Power of Attorney, and more importantly, the original title documents of the subject property are in the possession of the respondent No. 1 and which would not have been, if there was not to be any transfer of title in the suit property. Merely because two views are possible, this court would not interfere with one possible and plausible view which is taken by the court below, unless such view causes grave injustice. In my opinion, in fact, grave injustice will be caused not to the objectors/appellants but to the respondent No. 1 her father-in-law Sh. Sewa Singh, if the impugned judgment is set aside."
In the case of Vishnu Dutt Sharma Vs. Daya Sapra, reported in (2009) 13 SCC 729, the Hon'ble Supreme Court was pleased to observe as under:
CS (Comm) 492/2022 Page No. 8 of 12DABUR INDIA LTD. VS. DEEPAK & ORS.
''8. There cannot be any doubt or dispute that a creditor can maintain a civil and criminal proceedings at the same time. Both the proceedings, thus, can run parallel. The fact required to be proved for obtaining a decree in the civil suit and a judgment of conviction in the criminal proceedings may be overlapping but the standard of proof in a criminal case vis-a- vis a civil suit, indisputably is different. Whereas in a criminal case the prosecution is bound to prove the commission of the offence on the part of the accused beyond any reasonable doubt, in a civil suit "preponderance of probability" would serve the purpose for obtaining a decree".
10. The relevant Section 103 Indian Evidence Act, 1872 which cast onus on the parties to prove their contention is also reproduced for ready reference as under:
Section 103 Evidence Act, 1872: Burden of Proof as to particular fact The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence unless it is provided by any law that the proof of that fact shall lie on any particular person. Illustration:
(a) A prosecutes B for theft, and wishes the Court to believe that B admitted the theft to C. A must prove the admission.
B wishes the Court to believe that, at the time in question, he was elsewhere. He must prove it.
11. I have gone through all the documents filed and proved by PW1. The plaintiff alleged that its trademark/trade dress was infringed by the defendant and hence this suit was filed. The PW1 filed his affidavit by way of evidence and reiterated the averments made in the plaint. The witness was not cross-examined as the defence of the defendants was struck off and his testimony remained unimpeached/uncontroverted. I have also seen the artistic layout of the packaging of both the brands which appear to be deceptively similar to confirm infringement CS (Comm) 492/2022 Page No. 9 of 12 DABUR INDIA LTD. VS. DEEPAK & ORS.
of the product of the plaintiff.
As far as the issue in respect of rendition of account is concerned, nothing has been placed on record to prove any damages suffered by the plaintiff. Even the plaintiff has not filed any data of sale by the defendants. In view of the absence of empirical data, the claim of the plaintiff regarding rendition of account appears to be without any basis.
12. The testimony of the PW1 examined by the plaintiff and the documents on record reaches to the conclusion that the plaintiff proved that the name and photographs of the label (Registered Trademark) of the defendants is deceptively similar to the mark of the plaintiff.
13. In view of the testimony of PW1 examined by the parties and documents on record, aforementioned discussions and examining the case on the basis of preponderance of probabilities, this court is of the considered opinion that the plaintiff has proved the issue (i) to (iii). Issues No.(i) to (iii) are accordingly decided in favour of the plaintiff and against the defendants whereas issue no.(iv) is decided against the plaintiff. Relief:-
14. In the light of the aforesaid discussions, the suit of the plaintiff is decreed in favour of the plaintiff and against the defendants thereby restraining the defendants by themselves, as also through their individual partners/proprietors, directors, CS (Comm) 492/2022 Page No. 10 of 12 DABUR INDIA LTD. VS. DEEPAK & ORS.
agents, representatives, distributors, assigns, stockiest, dealers, retailers and all other acting for and on its behalf from manufacturing, marketing, selling, using, supplying, soliciting, displaying, advertising, importing/exporting directly and indirectly dealing in with the impugned trademark/label KABULI ZEERA SODA HAJMOLA ZABARDAST and/or any other trademark and/or other label/trade-dress/packaging identical with or deceptively similar to the plaintiff's trademark/label/trade-dress/packing HAJMOLA and other formative trademarks/labels and variants of HAJMOLA in relation to for the goods Soda Drinks, Digestive drinks, syrups, preparations etc. and allied and cognate goods in Class 32 of the Scheduled Goods under the Trade Marks Act, 1999, digestive goods and related/allied/cognate goods or from doing any other acts or deeds amounting to infringement of plaintiff's registered label/trade-dress, copyright and passing of their products as that of the plaintiff.
15. The Plaintiff shall be entitled to the costs of the suit also.
16. Decree sheet be drawn accordingly.
17. Judgment be also uploaded on the server.
CS (Comm) 492/2022 Page No. 11 of 12DABUR INDIA LTD. VS. DEEPAK & ORS.
18. File be consigned to Record Room after necessary compliance. GORAKH Digitally signed by GORAKH NATH PANDEY NATH Date: 2024.10.22 PANDEY 16:38:30 +0530 Announced in the open court (GORAKH NATH PANDEY) on 07 October, 2024.
th District Judge (Commercial Court) North: Rohini:Delhi.
CS (Comm) 492/2022 Page No. 12 of 12DABUR INDIA LTD. VS. DEEPAK & ORS.