Delhi District Court
Vrajotsav Goswami vs Devendra Verma And Anr on 4 December, 2023
DLCT010034152021
IN THE COURT OF SH. SANJEEV KUMAR AGGARWAL : DISTRICT
JUDGE (COMM.) 01 : CENTRAL, TIS HAZARI COURTS, DELHI
CS (Com.) No. 796/2021
Vrajotsav Goswami,
S/o Sh. Gokulotsavji Maharaj Goswami,
Occupation : Indian Classical Vocalist,
Poet, Writer, Religious Head,
R/o 1, South Yashwantganj,
Near Malharganj, Indore, M.P.
Through power of attorney holder :
Sh. Karan Yadav, aged 32 years,
Address at : 109, Golden Chambers,
Premises Coop Society Ltd.,
1st Floor, Plot No. B/54 CTS No. 653,
Off New Lnk Road, Opp. Citi Mall,
Andheri West, Mumbai - 400053,
Maharashtra, India. ..... Plaintiff.
Suit (Com.) No. 796/2021 &
Counter Claim No. 14/2022 Page No. 1 of 64
Vrajotsav Goswami Vs. Devendra Verma & Anr.
AND
Devendra Verma "ब्रजररग" Vs. Vrajotsav Goswami
Versus
1. Sh. Devendra Verma,
R/o 353, Surya Nagar,
Phase2, Sector91,
Faridabad, Haryana.
2. M/s. Arjun Publishing House,
Through its proprietor :
Office address : 4831/24,
Govind Lane, Ansari Road,
Darya Ganj, New Delhi. .... Defendants.
Date of institution : 04.03.2021
Date of reserving Judgment : 27.09.2023
Date of decision : 04.12.2023
SUIT FOR PERMANENT INJUNCTION RESTRAINING
INFRINGEMENT OF TRADEMARK & PASSING OFF,
DELIVERY UP, DAMAGES AND RENDITION OF ACCOUNTS.
AND
Suit (Com.) No. 796/2021 &
Counter Claim No. 14/2022 Page No. 2 of 64
Vrajotsav Goswami Vs. Devendra Verma & Anr.
AND
Devendra Verma "ब्रजररग" Vs. Vrajotsav Goswami
Counter Claim No. 14/2022
Devendra Verma ,
S/o Late Sh. Lila Singh Verma,
R/o 353, Surya Nagar,
Phase2, Sector91,
Faridabad, Haryana. .... Counter Claimant.
Versus
Vrajotsav Goswami,
S/o Sh. Gokulotsav Goswami,
R/o 1, South Yashwantganj,
Near Malharganj, Indore, M.P. .... Non Counter Claimant.
Date of institution : 25.04.2022
Date of reserving Judgment : 27.09.2023
Date of decision : 04.12.2023
COUNTER CLAIM FOR DECLARATION, PERMANENT &
MANDATORY INJUNCTION.
Suit (Com.) No. 796/2021 &
Counter Claim No. 14/2022 Page No. 3 of 64
Vrajotsav Goswami Vs. Devendra Verma & Anr.
AND
Devendra Verma "ब्रजररग" Vs. Vrajotsav Goswami
JUDGMENT
Vide this common Judgment, I shall decide the suit filed by the plaintiff seeking permanent injunction, restraining infringement of trademarks & passing off, delivery up, damages and rendition of accounts against the defendants as well as the counter claim for declaration, permanent and mandatory injunction filed by the defendant / counter claimant against the plaintiff / non counter claimant.
PLEADINGS IN MAIN SUIT
2. Brief facts as stated in the plaint are that : The plaintiff is the Acharya of "Jagadguru Vallabh Sampraday" and is Priest at Pushti Margiya Haveli (पपुषष ममागर्गीय हववेलल) Vallabh Sampraday (वललभ सरप्रदमाय) temple for generations. The plaintiff as per the rituals of "Vallabh Sampraday", please the Lord Srinathji [Gowardhan Nath JI (गगोवरर न नमाथ जल)] by creating and singing bhajan, geet, classical & semi classical poetry on various Ragas (रमाग) and during course of worship and reciting of bhajans and geet, the plaintiff and his predecessors have created various styles of singing including a style "Vrajrang". It is further stated that initially, the name was adopted by the plaintiff's father Sh. Gokulotsavji who got inspiration from the name of plaintiff's mother Smt. Suit (Com.) No. 796/2021 & Counter Claim No. 14/2022 Page No. 4 of 64 Vrajotsav Goswami Vs. Devendra Verma & Anr.
AND Devendra Verma "ब्रजररग" Vs. Vrajotsav Goswami Vrajlaxmi, and subsequently the name of plaintiff also starts with work "Vraj" which was coined with the word "Rang" making it "Vrajrang". The plaintiff developed and recited the "Vrajrang (ब्रजररग)" style of singing and was given the nickname of "Vrajrang". It is further stated that the plaintiff is continuously performing music under the name "Vrajrang (ब्रजररग)" since 1983 and some of the places where the plaintiff has performed are as follows : a. Bhartiya Vidya Bhavan - London, b. Music Festival at Dubai, Behrain & France, c. Victoria Hall - London, d. Nehru Centre - London, e. Rashtriya Tansen Sangeet Samaroh - Gwalior, f. Indira Gandhi Manav Sangrahlay - Bhopal, g. Agarniya Gayako Ki Gayan Sabha - Gayan Parva, Bharat Bhavan, Bhopal, h. World Habitat Center - Delhi, i. Triveni Auditorium - Delhi, j. Bhartiya Vidya Bhavan - Mumbai, k. National Program of Music - All India Radio, l. Swami Haridas Sangeet Sammelan, Mumbai, m. Dhrupad Festival, IHC, New Delhi, n. Jawahar Kala Kendra (JKK), Suit (Com.) No. 796/2021 & Counter Claim No. 14/2022 Page No. 5 of 64 Vrajotsav Goswami Vs. Devendra Verma & Anr.
AND Devendra Verma "ब्रजररग" Vs. Vrajotsav Goswami o. Sankalp Music Festival (Saptak) - Ahmedabad, p. Hemu Gadhvi Hall - Rajkot, Gujarat, q. Girnar Mahotsav - Junagadh, Gujarat, r. Abhinav Kala Samaj - Indore, s. Shrota Biradari - Indore, t. National Kalidas Samaroh, Swarn Jayanti, Ujjain, u. Mahakaleshwar Samaroh, Ujjain, v. Rashtriya Sangeet Sangoshthi - Indore.
3. It is further stated that the plaintiff has been felicitated by Padma Bhushan awardee Vidushi Smt. Shano Khurana (Senior Vocalist Disciple of Ustad Mushtak Hussain Khan Sahab) and Vidushi Smt. Malti Gilani (Senior Vocalist, Disciple of Ustad Bade Gulam Ali Khan Sahab), Pandit Abhay Narayn Malik (Senior Dhrupad Vocalist of Darbhanga), Vidushi Smt. Sulochana Brashpati (Disciple and wife of Pandit Acharya Brihaspatiji), Ustad Ikbal Ahmed KhanDelhi, Pandit Sunil Mukharjee (Senior Sarod Maestro), Ustad Mujaheed Hussain KhanDelhi (Rampur Sahasvan) etc.
4. It is further stated that the plaintiff applied for registration of "Vrajrang (ब्रजररग)" in class 41 before the Registrar of Trademark vide application No. 4571864 which is pending for registration and the plaintiff Suit (Com.) No. 796/2021 & Counter Claim No. 14/2022 Page No. 6 of 64 Vrajotsav Goswami Vs. Devendra Verma & Anr.
AND Devendra Verma "ब्रजररग" Vs. Vrajotsav Goswami has applied for device trademark having Vrajrang in style with peacock feather under which "Vrajrang (ब्रजररग)" is also written and it can be seen from the picture that the mark for which the plaintiff has applied in the trademark registry is a Device Mark and the said mark "Vrajrang (ब्रजररग)"
is written clearly which assures that the rights over the mark "Vrajrang (ब्रजररग)" and on account of creativity and originality in "Vrajrang (ब्रजररग)", the plaintiff has acquired the highest level of distinctiveness, formidable goodwill and reputation. It is further stated that by virtue of being the originator of unique style poetry, bandishes and composition of "Vrajrang (ब्रजररग)" the plaintiff has the exclusive right and authority with the word "Vrajrang" also as many devotees also called the plaintiff with the nickname "Vrajrang" because of the style of singing produced by him.
5. It is further stated that the defendant No. 1 was very well aware of the style "Vrajrang (ब्रजररग)" and other various poetry and bandishes composed style developed by the plaintiff and till date are constantly being recited by plaintiff. The defendant No. 1 has several times accompanied the plaintiff's father as a harmonium player and defendant knowing the fact that the plaintiff has created such famous poetry and bandishes and other such compositions which also famous and published in various medias, newspapers etc. The defendant No. 1 with dishonest mind and without prior permission of plaintiff, illegally Suit (Com.) No. 796/2021 & Counter Claim No. 14/2022 Page No. 7 of 64 Vrajotsav Goswami Vs. Devendra Verma & Anr.
AND Devendra Verma "ब्रजररग" Vs. Vrajotsav Goswami copied the name "Vrajrang (ब्रजररग)" and wrote and published the book by defendant No. 2 with the name "Brajrang Geetanjali" and thus, the defendant No. 2 has stolen the plaintiff's name Brajrang. It is further stated that after going through the book, it was painful for the plaintiff when he came to know that the work published by the defendant is related to the singing style of geet and bhajans, bandishes, poem and other compositions etc. The plaintiff's name "Vrajrang (ब्रजररग)" has also been applied by him in class 41 and the same were being published by the defendants which is of the same class would clearly interfere and create a confusion to the people where people would assume that the books have been published by plaintiff.
6. It is further stated that the plaintiff upon knowing about the such publication, tried to confront the defendant No. 1 and asked him to stop such publication and to remove all the promotion done by him using the word "Vrajrang (ब्रजररग)". It is further stated that the publication of books with the name "Brajrang Geetanjali" with the use of word "Vrajrang (ब्रजररग)" which is closely connected with the plaintiff and amounts to infringement of plaintiff's right under the Trademarks Act and therefore, the plaintiff sent legal notice through his lawyer to the defendant asking him to cease and desist from publishing books under the name "Brajrang Geetanjali" and the defendant replied the same on Suit (Com.) No. 796/2021 & Counter Claim No. 14/2022 Page No. 8 of 64 Vrajotsav Goswami Vs. Devendra Verma & Anr.
AND Devendra Verma "ब्रजररग" Vs. Vrajotsav Goswami 11.10.2015 which contains baseless contentions. It is further stated that the defendant No. 1 by adopting title so deceptively similar to the plaintiff's "Vrajrang (ब्रजररग)" have caused and is causing immense loss to the reputation of plaintiff which is unquantifiable in terms of money. The plaintiff has a very goods case in his favour and balance of convenience also lies in favour of plaintiff and defendants are to be restrained from carrying on their illegal activities. Thus, the plaintiff prayed as follows : a. To pass a decree of permanent injunction restraining the defendants, his directors / proprietors / partners, principals, employees, agents, distributors, franchises, representatives and assignees from using the impugned registered trademark belonging to plaintiff "Vrajrang (ब्रजररग)"
or any other mark or sign or device which are identical or deceptively or confusingly similar to the plaintiff's registered trademark "Vrajrang (ब्रजररग)" without the permission, consent, licence of the plaintiff thereby infringing the rights of the plaintiff in its registered trademark amounting to infringement thereof;
b. To pass a decree of permanent injunction restraining the defendants, his directors / proprietors / partners, principals, employees, agents, distributors, franchises, Suit (Com.) No. 796/2021 & Counter Claim No. 14/2022 Page No. 9 of 64 Vrajotsav Goswami Vs. Devendra Verma & Anr.
AND Devendra Verma "ब्रजररग" Vs. Vrajotsav Goswami representatives and assignees from using the impugned registered trademark belonging to the plaintiff "Vrajrang (ब्रजररग)" or any other mark of sign or device which are deceptively or confusingly similar to the plaintiff's registered trademark "Vrajrang (ब्रजररग)" amounting to passing off its goodwill and creation in any manner whatsoever and from taking benefit of the reputation and goodwill of the plaintiff in the said mark;
c. An order of passing off be passed restricting the defendants to stop the publication / promotion / selling of the book title "Brajrang Geetanjali" authored by defendant No. 1 Sh. Devendra Verma and published by defendant No. 2;
d. An order of passing off be passed restricting the defendants till the disposal of this suit of selling of published book by any medium and to freeze the bank accounts which are associated with the money earned by the sales of such books;
e. An order of delivery up be passed thereby the defendants, his directors / proprietors / partners, principals, employees, agents, distributors, franchises, representatives and assignees to hand over the plaintiff all the books Suit (Com.) No. 796/2021 & Counter Claim No. 14/2022 Page No. 10 of 64 Vrajotsav Goswami Vs. Devendra Verma & Anr.
AND Devendra Verma "ब्रजररग" Vs. Vrajotsav Goswami including the packaging and promotional material catalogue, stationary and any other material whatsoever including labels signs prints, packages etc. in its possession or under its control bearing the trademarks of plaintiff or which are identical or deceptively similar to the plaintiff's registered trademark "Vrajrang (ब्रजररग)";
f. The defendants be directed to contact all persons and entities to whom defendants have directly or indirectly provided copies of the books and inform them that such material are confidential / IP protected material belonging to plaintiff; and g. An order of rendition of account of profit illegally earned by the defendants on account sale of such published book and grant of a decree in favour of the plaintiff for the amount so ascertained.
7. Summons of the suit were issued to the defendants and the defendants contested the same by filing joint written statement in which they have taken the preliminary objections that the plaintiff in order to succeed in his nefarious desire and to misuse word "ब्रजररग" has infringed the word "ब्रजररग" which was first time used and created by defendant No. 1 on 14.2.1981 in his own authored poem at a program organized by Suit (Com.) No. 796/2021 & Counter Claim No. 14/2022 Page No. 11 of 64 Vrajotsav Goswami Vs. Devendra Verma & Anr.
AND Devendra Verma "ब्रजररग" Vs. Vrajotsav Goswami Bharatiya Sangeetalya, Agra on 14.2.1981 and a letter of honour was given to defendant No. 1 in this regard and Bharatiya Sangeetalya, Agra has given a title of "ब्रजररग" to the defendant No. 1. It is further stated that the word "ब्रजररग" is the creation / invention of defendant No. 1 and while adopting the same, the plaintiff has passing off the word "ब्रजररग" of defendant and has committed offence not only under the Trademarks Act but also under the Copyright Act. It is further stated that the plaintiff has misrepresented word "ब्रज and ररग" by giving space between "ब्रजररग"
and has passing off the word "ब्रज ररग" and identical expression by adding "V" at the place "B" in the word "Brajrang". Defendant No. 1 also added word "Piya" as a prefix and a peacock thereto and applied for the device mark which is the invention / creation of defendant No. 1's word "ब्रजररग".
8. It is further stated that defendant No. 1 has wrote several poems on the same wordings and had started writing the book "ब्रजररग गलतमाञ्जलल" from 29.11.2019 and the same was completed in the month of February 2020 and defendant No. 1 in the month of May / June 2020 had sent pdf copy of his book "ब्रजररग गलतमाञ्जलल" to several persons namely Pro. Ina Shastri, Pro. Ravi Sharma, Dr. Vijay Sharma, Pandit Mani Prasad etc. in the month of June, 2020 and the aforementioned persons sent their respective comments to the defendant No. 1 through email.
Suit (Com.) No. 796/2021 & Counter Claim No. 14/2022 Page No. 12 of 64 Vrajotsav Goswami Vs. Devendra Verma & Anr.
AND Devendra Verma "ब्रजररग" Vs. Vrajotsav Goswami
9. It is further stated that in the month of June 2020, when it came in the light of plaintiff that the defendant No. 1 has written a book "ब्रजररग गलतमाञ्जलल", the plaintiff with his mala fide intention to cause loss to defendant No. 1, has misrepresented and passing off the word "ब्रजररग"
and applied for Device Mark under Trademark Act, 1999 on 16.7.2020. It is further stated that the plaintiff had filed front cover of book "ब्रजररग गलतमाञ्जलल" and screen shot of Amazon to show that the book was published on 30.9.2020 but has concealed the material fact that it is clearly mentioned in the book that the said book was read by Pro. Ravi Sharma on 26.6.2020 and Dr. Vijay Sharma in the month of June, 2020. It is further stated that the plaintiff is neither owner of the word mark "Vrajrang (ब्रजररग)" nor got registered the word mark of "Vrajrang (ब्रजररग)".
It is further stated that ब्रज is a geographical name and गलतमाञ्जलल word was invented by Bengali poet Late Ravindranath Tagore and ररग word is the word of Hindi Dictionary and ब्रजररग word is the invention / creation / idea of the defendant No. 1.
10. It is stated that the word ब्रज is related to the geographical area of Lord Krishna's place and this word is used by Indians more than 1000 years ago and the people who reside in the said area are known as ब्रजवमासल, whereas the word रर ग is also a recognized word of Hindi which Suit (Com.) No. 796/2021 & Counter Claim No. 14/2022 Page No. 13 of 64 Vrajotsav Goswami Vs. Devendra Verma & Anr.
AND Devendra Verma "ब्रजररग" Vs. Vrajotsav Goswami denotes the colours and different mods which has been which has been used by so many authors in earlier times.
11. It is further stated that the defendant No. 1 has learnt classical vocal in Agra from Gurus of Gwalior Tradition namely Pt. Ram Dutt Sharma, Pt. G.L. Gune, Pt. Sitaram Vyavhare, Pt. P. M. Palkhey and Ustad Shabbir Ahmad Khan Sahab of Agra Gharana and he has got tabla training from Professor Lallu Singh Ji. It is further stated that "Braj Bhasha" is the mother tongue of the defendant No. 1 and still his entire family use it. It is submitted that most of his rang and tall poems are in "Braj Bhasha" and composed in suitable rangs. The defendant No. 1 has also maintained his diary regarding compositions of Ragas / Taal in his own handwriting and has composed more than 1000 compositions of Ragas and Taal and all these Ragas and Taal are used to several Artists in India with permission of defendant No. 1.
12. On merits, it is denied all the contents of the plaint except that defendant has several times accompanied father of the plaintiff. It is denied that the plaintiff or his predecessors have created various styles of singing including a style "Vrajrang". It is stated that the defendant No. 1 is not aware about the style "Vrajrang (ब्रजररग)" and other various poetry and bandishes composed style developed by the plaintiff. It is further denied that the plaintiff has written any book and style of Ragas and also Suit (Com.) No. 796/2021 & Counter Claim No. 14/2022 Page No. 14 of 64 Vrajotsav Goswami Vs. Devendra Verma & Anr.
AND Devendra Verma "ब्रजररग" Vs. Vrajotsav Goswami denied that the plaintiff has written bhajans, geet, bandisheh and other compositions etc. or has style Brajrang Ragas or that the plaintiff has registered the word Brajrang with the Trademark. Further, the defendant No. 1 has denied that plaintiff has acquired highest level of distinctiveness, formidable goodwill and reputation. It is further stated that no cause of action arose in favour of the plaintiff within the territorial jurisdiction of this court therefore this court has no territorial jurisdiction to decide the present suit.
13. Plaintiff has filed replication to the said written statement in which he denied the contents of the written statement and reiterated the contents of plaint as true and correct. It is denied by the plaintiff that the defendant No. 1 has created the word ब्रजररग on 14.2.1981 in his poem at a program organized by Bharatiya Sangeetalaya, Agra. It is stated that the document produced by defendant No. 1 is not an authenticated document and might have been created after filing of the suit by the plaintiff. It is further denied that the plaintiff has misrepresented the word "ब्रज and ररग" by giving space between "ब्रजररग" and has passing off the word "ब्रज ररग" and identical expression by adding "V" at the place "B" in the word "Brajrang" and stated that there is no word "Piya" as a prefix and a peacock which is part of trademark of plaintiff. He further denied that the defendant No. 1 is having exclusive right over the word Suit (Com.) No. 796/2021 & Counter Claim No. 14/2022 Page No. 15 of 64 Vrajotsav Goswami Vs. Devendra Verma & Anr.
AND Devendra Verma "ब्रजररग" Vs. Vrajotsav Goswami "Brajrang". It is further stated that the plaintiff is not claiming any right over the individual words "ब्रज" or "ररग", however, he is claiming right over the combined term "ब्रजररग" which was first coined by the father of plaintiff who got inspiration from the name of plaintiff's mother Smt. Vrajlaxmi and subsequently the name of plaintiff also starts with the word "Vraj"
which was combined with the word "Rang" making it "ब्रजररग". It is also denied that the defendant No. 1 is the prior user of word "ब्रजररग" and further stated that merely awarding a degree by Bharatiya Sangeetalaya of "ब्रजररग" does not give defendant No. 1 the right over the word "ब्रजररग".
PLEADINGS IN COUNTER CLAIM.
14. Defendant No. 1 / counter claimant has also filed counter claim stated therein that the word Brajrang "ब्रजररग" which was first time used and created by defendant No. 1. It is stated that he wrote two poems on 14.2.1981 and recited these two poems on 14.2.1981 at a program organized by Bharatiya Sangeetalya, Agra on 14.2.1981 and a letter of honour was given to defendant No. 1 / counter claimant. These poems are as follows : Suit (Com.) No. 796/2021 & Counter Claim No. 14/2022 Page No. 16 of 64 Vrajotsav Goswami Vs. Devendra Verma & Anr.
AND Devendra Verma "ब्रजररग" Vs. Vrajotsav Goswami ब्रजररग कमा ररग ब्रजररग कगो सलखि कहमा कषहयवे, ररगवे गगोपल गगोप रवेनपु समारल।।
मदममात षफिरत ककपु जन ककपु जन, बरसत ब्रजररग चहह क षदषशि भमारल।
ब्रज वषनतमा ढढ रढत ब्रजररग कमान्ह, पमावत ववृन्दमावन नर नमारल।।1।।
रवेनपु चरमाय बमारसपुरल बजमाय और रचमाय दवे दवे तमारल।
तमा लरलमारग तकतक लरलमारग, तकतक लरलमारग नमाचत हमारल।। 2।।
ब्रजररग ब्रज मम बसत ररग बरसत हहै सपुखि चहह क षदषशि भमारल।
करगो कवृपमा ब्रजररग पर रलसयमा नमत चरन हगो बललहमारल।।3।।
ब्रजररग ककी अद त पु छषव ब्रजररग कहैसवे बरननौ जमाय?
यमा ब्रज नन्द लमाल प्रभपु प्रकटगो, सकल जगत गपुन गमाय।
सपुन सपुन कथमा श्यमाम सपुन्दर ककी, ब्रजजन नहहीं अघमाय।।1।।
दषपु दलन कर कष हरत जग, जन ककी करत सहमाय।
गगोकपुल, नरदगमारव, ववृन्दमावन, बरसमाननों मन भमाय।।2।।
अदत पु ररग बस्यगो ब्रजररग मम, ररगत चहह क षदषशि छमाय।
यमा ब्रजररग मम ररगगो कमान्ह प्रभपु, जलवन रन्य हह वहै जमाय।।3।।
Suit (Com.) No. 796/2021 & Counter Claim No. 14/2022 Page No. 17 of 64 Vrajotsav Goswami Vs. Devendra Verma & Anr.
AND Devendra Verma "ब्रजररग" Vs. Vrajotsav Goswami
15. He further stated that he learnt classical vocal in Agra from Gurus of Gwalior Tradition namely Pt. Ram Dutt Sharma, Pt. G.L. Gune, Pt. Sitaram Vyavhare, Pt. P. M. Palkhey and Ustad Shabbir Ahmad Khan Sahab of Agra Gharana and he has got tabla training from Professor Lallu Singh Ji. It is further stated that "Braj Bhasha" is the mother tongue of the defendant No. 1 / counter claimant and still his entire family use it. It is stated that most of his rang and tall poems are in "Braj Bhasha" and composed in suitable rangs. Defendant No. 1 / counter claimant further stated that he has been working for the promotion of Indian Classical Music and has been writing books for more than last 40 years and making vocal and tabla compositions regularly. He has written following books :
a. Sangeet Gyan Sudha;
b. Sangeet Gyan Ganga;
c. Bhakti Geet Mala (Under publication);
d. Kavitt Paran Sagar (Under publication).
16. It is further stated that the defendant No. 1 / counter claimant has also maintained his diary regarding compositions of Ragas / Taal in his own handwriting and has composed more than 1000 compositions of Ragas and Taal and all these Ragas and Taal are used to several Artists in India with permission of defendant No. 1 / counter Suit (Com.) No. 796/2021 & Counter Claim No. 14/2022 Page No. 18 of 64 Vrajotsav Goswami Vs. Devendra Verma & Anr.
AND Devendra Verma "ब्रजररग" Vs. Vrajotsav Goswami claimant. It is further stated that the plaintiff / non counter claimant has misrepresented word "ब्रज and ररग" by giving space between "ब्रजररग" and has passing off the word "ब्रज ररग" and identical expression by adding "V"
at the place "B" in the word "Brajrang". It is stated that the defendant No. 1 / counter claimant has also added word "Piya" as a prefix and a peacock thereto and applied for the device mark which is the invention / creation of defendant No. 1's word "ब्रजररग".
17. It is further stated that defendant No. 1 / counter claimant has wrote several poems on the same wordings and had started writing the book "ब्रजररग गलतमाञ्जलल" from 29.11.2019 and the same was completed in the month of February 2020 and defendant No. 1 / counter claimant in the month of May / June 2020 had sent pdf copy of his book "ब्रजररग गलतमाञ्जलल" to several persons namely Pro. Ina Shastri, Pro. Ravi Sharma, Dr. Vijay Sharma, Pandit Mani Prasad etc. in the month of June, 2020 and the aforementioned persons sent their respective comments to the defendant No. 1 through email.
18. It is further stated that in the month of June 2020, when it came in the light of plaintiff that the defendant No. 1 has written a book "ब्रजररग गलतमाञ्जलल", the plaintiff / non counter claimant with his mala fide intention to cause loss to defendant No. 1 / counter claimant, has Suit (Com.) No. 796/2021 & Counter Claim No. 14/2022 Page No. 19 of 64 Vrajotsav Goswami Vs. Devendra Verma & Anr.
AND Devendra Verma "ब्रजररग" Vs. Vrajotsav Goswami misrepresented and passing off the word "ब्रजररग" and applied for Device Mark under Trademark Act, 1999 on 16.7.2020. It is further stated that the plaintiff / counter claimant had filed front cover of book "ब्रजररग गलतमाञ्जलल" and screen sot of Amazon to show that the book was published on 30.9.2020 but has concealed the material fact that it is clearly mentioned in the book that the said book was read by Pro. Ravi Sharma on 26.6.2020 and Dr. Vijay Sharma in the month of June, 2020. It is further stated that the plaintiff / counter claimant is neither owner of the word mark "Vrajrang (ब्रजररग)" nor got registered the word mark of "Vrajrang (ब्रजररग)". It is further stated that ब्रज is a geographical name and गलतमाञ्जलल word was invented by Bengali poet Late Ravindranath Tagore and ररग word is the word of Hindi Dictionary and ब्रजररग word is the invention / creation / idea of the defendant No. 1 / counter claimant.
19. It is stated that the word ब्रज is related to the geographical area of Lord Krishna's place and this word is used by Indians more than 1000 years ago and the people who reside in the said area are known as ब्रजवमासल, whereas the word ररग is also a recognized word of Hindi which denotes the colours and different mods which has been which has been used by so many authors in earlier times. Therefore, he prays as follows : Suit (Com.) No. 796/2021 & Counter Claim No. 14/2022 Page No. 20 of 64 Vrajotsav Goswami Vs. Devendra Verma & Anr.
AND Devendra Verma "ब्रजररग" Vs. Vrajotsav Goswami a. Pass order to restrain the plaintiff from passing off the word "ब्रजररग" and "ब्रज ररग";
b. Pass appropriate order under Section 63 of the Copyright Act, 1957;
c. Declare the counter claimant the absolute previous user, creator and owner of the word "ब्रजररग";
d. Pass order for compensation which this court thinks fit and proper as per law in favour of counter claimant.
20. Plaintiff / non counter claimant has filed reply to the said counter claim in which he denied the contents of the counter claim and reiterated the contents as stated in the plaint of main suit. He denied that the defendant No. 1 / counter claimant is the creator of the word "ब्रजररग".
It is also denied that the defendant has performed at Agra in 1981. It is further denied that the defendant No. 1 / counter claimant has been working for working for the promotion of Indian Classical Music and has been writing books for more than last 40 years and making vocal and tabla compositions regularly. Further, it is stated that even it is admitted that the defendant No. 1 / counter claimant after event of Agra became famous with the name "ब्रजररग" in Braj area, he became famous with the nickname "ब्रजररग" in a limited area restricted to Agra alone whereas the Suit (Com.) No. 796/2021 & Counter Claim No. 14/2022 Page No. 21 of 64 Vrajotsav Goswami Vs. Devendra Verma & Anr.
AND Devendra Verma "ब्रजररग" Vs. Vrajotsav Goswami non counter claimant / plaintiff along with his father has performed across the world including various places in Indian and is known as "ब्रजररग" in all the States. He further stated that even if it is presumed that the counter claimant has created a poem in the year 1981 with the word "ब्रजररग", then also the counter claimant has failed to establish the fact that the defendant No. 1 / counter claimant was in continuous use of the term since 1981 till the publishing of book whereas the plaintiff / non counter claimant has been using the term continuously since its creation by him / his predecessors in 1983 and thus, it is prayed that the counter claim is liable to be dismissed.
21. The defendant No. 1 / counter claimant has filed rejoinder to the written statement of counter claim in which he denied the contents of the written statement of counter claim as incorrect and reit the contents of counter claim as true and correct.
22. On the basis of the pleadings of the parties, common issues were framed in both the main suit and counter claim for consideration vide order dated 2.5.2023 :
1. Whether the plaintiff / non counter claimant is prior user of the trademark "Vrajrang" in English or "ब्रजररग " in Hindi or the defendant No. 1 / counter claimant is prior Suit (Com.) No. 796/2021 & Counter Claim No. 14/2022 Page No. 22 of 64 Vrajotsav Goswami Vs. Devendra Verma & Anr.
AND Devendra Verma "ब्रजररग" Vs. Vrajotsav Goswami user of the word "Brajrang"? OP Parties.
2. Whether the plaintiff / non counter claimant is the owner of trademark "Vrajrang" in English or "Brajrang"? OPP.
3. Whether the defendant No. 1 / counter claimant is the owner of the word "Brajrang"? OPD.
4. Whether the plaintiff / non counter claimant is entitled to decree as claimed in prayer clause of plaint i.e. para
(b) to (c)? OPP.
5. Whether the defendant No. 1 / counter claimant is entitled to decree as claimed in prayer clause of counter claim i.e. para (a) and (d)? OPD.
6. Relief.
23. Since facts of both the cases are common therefore, the evidence was led jointly in both the cases and was placed in the main suit.
24. In order to prove its case, the plaintiff / non counter claimant has examined only one witness i.e. his attorney Sh. Karan Yadav as PW1.
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AND Devendra Verma "ब्रजररग" Vs. Vrajotsav Goswami
25. On the other hand, in order to deny the claim of plaintiff, defendant No. 1 / counter claimant has only examined himself as DW1.
26. Arguments were heard from Sh. Aditya Jain, Ld. Counsel for the plaintiff / non counter claimant and Sh. Ajay Kumar, Ld. Counsel for the defendant / counter claimant.
ARGUMENTS
27. It is argued by Ld. Counsel for the plaintiff / non counter claimant that the plaintiff is the registered owner of the trademark "Vrajrang written as Brajrang (ब्रजररग) in Hindi " was registered during pendency of suit as device mark by plaintiff vide application No. 4571864 and thus plaintiff has exclusive right to use said trade mark. He further argued that the defendant No. 1 / counter claimant has violated the said trademark by publishing and selling the book in the name of Brajrang Geetanjali.
28. He further argued that through the testimony of PW1 it is also proved that the plaintiff / non counter claimant is known as "Vrajrang" as the said name was coined by his father from the name of his mother whose name was Vrajlakhmi. He further argued that from the testimony of PW1, it is also evident that the defendant No. 1 / counter claimant Suit (Com.) No. 796/2021 & Counter Claim No. 14/2022 Page No. 24 of 64 Vrajotsav Goswami Vs. Devendra Verma & Anr.
AND Devendra Verma "ब्रजररग" Vs. Vrajotsav Goswami used to play harmonium with the father of plaintiff and was very well aware of the said fact but despite this, the defendant No. 1 / counter claimant has published the book with the name Brajrang Geetanjali which was published by defendant No. 2 and thus, they have violated the trademark of plaintiff. He further argued that the plaintiff is the registered owner of said trademark therefore he has the exclusive right to use the same and defendant No. 1, is selling the book in the name of Brajrang Geetanjali, therefore plaintiff is entitled to decree of injunction, rendition of accounts and damages etc. He further argued that in such circumstances, the counter claim of the defendant No. 1 / counter claimant is also liable to be dismissed. In support of his arguments, he relied upon Judgments passed in the matter of M/s. Avis International Ltd. Vs. M/s. Avis Footwear Industries & Anr., 18/1990 dated 10.8.1990 Law Finder Doc ID 148201; Central Park Estates Pvt. Ltd. & Anr. Vs. CHD Developers Ltd., I.A. No. 9462 of 2014 and I.A. No. 13669 of 2014 in CS (OS) No. 1435 of 2014 dated 13.10.2014, Law Finder Doc. No. 646303; Max Healthcare Institute Ltd. Vs. Sahrudya Health Care Pvt. Ltd., I.A. No. 8439 of 2016 dated 4.7.2019; Shambhu Nath & Brothers & Ors. Vs. Imran Khan, GA No. 1267 of 2018 passed by the Hon'ble Calcutta High Court; HiTech Pipes Ltd. vs. Asian Mills Pvt. Ltd., IA No. 6198/2002 and 8461/2002 in CS (OS) No. 1175/2002 dated 4.1.2006 passed by the Hon'ble Delhi High Court; Geepee Ceval Proteins and Investment Pvt. Ltd. Vs. Sarol Oil Industry, IA No. 4735/2003 in S. No. 922/2003 dated 29.5.2003 passed by the Hon'ble Delhi High Court.
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AND Devendra Verma "ब्रजररग" Vs. Vrajotsav Goswami
29. On the other hand, Ld. Counsel for the defendant No. 1 / counter claimant has argued that from the testimony of PW1, it is evident that the plaintiff has not specified what kind of style of singing he is doing differently than others. He argued that no kind of singing style is known as Brajrang style. He argued that the defendant No. 1 / counter claimant is using Brajrang word since 1981 when he first time recited the poems in Agra. He further argued that the defendant was also conferred the title "ब्रजररग" by Bharatiya Sangeetalaya and thereafter also, he is using the said word continuously. He argued that the defendant has published the book but he has sent the same to Pro. Ina Shastri, Pro. Ravi Sharma, Dr. Vijay Sharma, Pandit Mani Prasad etc. in the month of June, 2020 and the aforementioned persons sent their respective comments to the defendant No. 1 through email which proves that the defendant No. 1 / counter claimant has written the book much prior to the plaintiff applying for registration of said trademark. Therefore in these circumstances, defendant No. 1 / counter claimant being prior user is entitled to use the word "ब्रजररग"
and further it is the plaintiff / non counter claimant who is violating the trademark of defendant No. 1 therefore, the plaintiff / non counter claimant is liable to be injuncted from the trademark "ब्रजररग" and therefore the suit of the plaintiff may be dismissed and counter claim may be allowed.
30. I have considered the submissions and have carefully gone through the record. My issuewise findings are as follows : Suit (Com.) No. 796/2021 & Counter Claim No. 14/2022 Page No. 26 of 64 Vrajotsav Goswami Vs. Devendra Verma & Anr.
AND Devendra Verma "ब्रजररग" Vs. Vrajotsav Goswami
31. ISSUE NO. 1.
Whether the plaintiff / non counter claimant is prior user of the trademark "Vrajrang" in English or "ब्रजररग " in Hindi or the defendant No. / counter claimant is prior user of the word "Brajrang"? OP Parties.
32. In order to prove that plaintiff is prior user of trade mark "Vraj rang", the plaintiff / non counter claimant has examine his AR Sh. Karan Yadav as PW1, who in his evidence by way of affidavit Ex. PW1/A has deposed that he is the special power of attorney of plaintiff and authorized vide GPA dated 10.11.2020. He further deposed that Sh. Vrajotsav Goswami is Acharya of "Jagadguru Vallabh Sampraday" and is Priest at Pushti Margiya Haveli (पपुषष ममागर्गीय हववेलल) Vallabh Sampraday (वललभ सरप्रदमाय) temple for generations. The plaintiff as per the rituals of "Vallabh Sampraday", please the Lord Srinathji [Gowardhan Nath JI (गगोवरर न नमाथ जल)] by creating and singing bhajan, geet, classical & semi classical poetry on various Ragas (रमाग) and during course of worship and reciting of bhajans and geet, the plaintiff and his predecessors have created various styles of singing including a style "Vrajrang". He further deposed that the said style was adopted by the plaintiff's father Sh. Gokulotsavji who got inspiration from the name of plaintiff's mother Smt. Vrajlaxmi, and subsequently the name of plaintiff also starts with work "Vraj" which was coined with the word "Rang" making it "Vrajrang". The plaintiff developed and recited the "Vrajrang (ब्रजररग)" style of singing and was given the nickname of "Vrajrang".
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AND Devendra Verma "ब्रजररग" Vs. Vrajotsav Goswami It is further deposed that the plaintiff is continuously performing music under the name "Vrajrang (ब्रजररग)" since 1983. He further deposed that the plaintiff has been felicitated by Padma Bhushan awardee Vidushi Smt. Shano Khurana (Senior Vocalist Disciple of Ustad Mushtak Hussain Khan Sahab) and Vidushi Smt. Malti Gilani (Senior Vocalist, Disciple of Ustad Bade Gulam Ali Khan Sahab), Pandit Abhay Narayn Malik (Senior Dhrupad Vocalist of Darbhanga), Vidushi Smt. Sulochana Brashpati (Disciple and wife of Pandit Acharya Brihaspatiji), Ustad Ikbal Ahmed KhanDelhi, Pandit Sunil Mukharjee (Senior Sarod Maestro), Ustad Mujaheed Hussain Khan Delhi (Rampur Sahasvan) etc. He further deposed that the plaintiff applied for registration of "Vrajrang (ब्रजररग)" in class 41 before the Registrar of Trademark vide application No. 4571864. He further deposed that the plaintiff has applied for device trademark having Vrajrang in style with peacock feather under which "Vrajrang (ब्रजररग)" is also written. It is further deposed that on account of creativity and originality in "Vrajrang (ब्रजररग)", the plaintiff has acquired the highest level of distinctiveness, formidable goodwill and reputation. It is further stated that by virtue of being the originator of unique style poetry, bandishes and composition of "Vrajrang (ब्रजररग)" the plaintiff has the exclusive right and authority with the word "Vrajrang" also as many devotees also called the plaintiff with the nickname "Vrajrang" because of the style of singing produced by him.
33. PW1 further deposed that the defendant No. 1 / counter Suit (Com.) No. 796/2021 & Counter Claim No. 14/2022 Page No. 28 of 64 Vrajotsav Goswami Vs. Devendra Verma & Anr.
AND Devendra Verma "ब्रजररग" Vs. Vrajotsav Goswami claimant several times accompanied the plaintiff's father as a harmonium player when his father sung composition, poetry, bandishes of Vrajrang and later on the defendant No. 1 started performing individually and starting reciting songs, poetry against which a book was written by the defendant No. 1 named "Brajrang Geetanjali" and thus, the defendant No. 1 has stolen the plaintiff's name "Vrajrang (ब्रजररग)" which is closely connected with the plaintiff and amounts to infringement of plaintiff's right under the Trademarks Act. PW1 has also relied upon the following documents :
1. Special Power of Attorney dated 10.11.2020 as Ex.
PW1/1.
2. List of some of famous bhajans, geet, classical and semi classical poetry on various Ragas made by Sh. Vrajotsav Goswami as Mark PW1/2.
3. Photocopies of articles published in various newspaper and journals about Sh. Vrajotsav Goswami as Mark PW1/3 (Colly. 61 pages).
4. Photocopies of photographs of awards achieved by Sh. Vrajotsav Goswami as Mark PW1/4.
5. Computerized print out of brief profile of Sh. Vrajotsav Suit (Com.) No. 796/2021 & Counter Claim No. 14/2022 Page No. 29 of 64 Vrajotsav Goswami Vs. Devendra Verma & Anr.
AND Devendra Verma "ब्रजररग" Vs. Vrajotsav Goswami Goswami as Mark PW1/5.
6. Application form along with coloured copy of trademark as Ex. PW1/6 (Colly 4 pages).
7. Photographs of front and back page of book titled as "Brajrang Geetanjali" authored by defendant No. 1 and published by defendant No. 2 as Ex. PW1/7 (Colly. 2 pages) (OSR).
8. Computer print out of book titled as "Brajrang Geetanjali"authored by defendant No. 1 and published by defendant No. 2 being sold on Amazon as Ex.
PW1/8.
9. Legal notice dated 5.10.2020 as Ex. PW1/10.
11. Reply of defendant dated 11.10.2020 as Ex. PW1/11.
12. Copy of registration certificate issued by Controller General of Patent Designs and Trademark, Ministry of Commerce and Industry in favour of Sh. Vrajotsav Goswami under class 41 for the period 1.12.1983 to 16.7.2030 as Ex. PW1/12.
13. Certificate under Section 65B of the Indian Evidence Act dated 9.7.2021 as Ex. PW1/13.
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AND Devendra Verma "ब्रजररग" Vs. Vrajotsav Goswami
14. Certificate under Section 65B of the Indian Evidence Act dated 15.9.2021 as Ex. PW1/14.
34. In his cross examination, he has stated that he is residing in Indore and used to visit Mumbai off an on and that is why he has given the address of Mumbai in his affidavit. He further deposed that he has business related to property, he does not know what is "Voklist of Samved parampara, Voklist of Dhrupad Dhamar". He knows plaintiff Vrajotsav Goswami for last 20 years. He does not remember as to how many books were written by plaintiff. He denied the suggestion that he cannot depose on behalf of plaintiff. He denied the suggestion that the plaintiff is not the prior user of word 'Brajrang'. He further denied the suggestion that the word Brajrang was not created / invented by the plaintiff and further denied that the defendant has not infringed the right of plaintiff over the word Brajrang. He further denied the suggestion that plaintiff has himself infringed the defendant's right over the word Brajrang.
35. On the other hand, in order to proved that defendant no.1 is the originator of word Brajrang, defendant have examined, No. 1 / counter claimant has examined himself as DW1. He in his evidence by way of affidavit Ex. DW1/A has deposed that he has first time used the word "ब्रजररग" in his own authored poem at a program organized by Bharatiya Sangeetalya, Agra on 14.2.1981 and a letter of honour was Suit (Com.) No. 796/2021 & Counter Claim No. 14/2022 Page No. 31 of 64 Vrajotsav Goswami Vs. Devendra Verma & Anr.
AND Devendra Verma "ब्रजररग" Vs. Vrajotsav Goswami given to defendant No. 1 in this regard and Bharatiya Sangeetalya, Agra has given a title of "ब्रजररग" to him. He further deposed that the word "ब्रजररग" is the creation / invention of defendant No. 1 and while adopting the same, the plaintiff has passing off the word "ब्रजररग" of defendant No. 1 and has committed offence not only under the Trademarks Act but also under the Copyright Act and the plaintiff has misrepresented word "ब्रज and ररग" by giving space between "ब्रजररग" and has passing off the word "ब्रज ररग" and identical expression by adding "V" at the place "B" in the word "Brajrang". He further deposed that he also added word "Piya" as a prefix and a peacock thereto and applied for the device mark which is the invention / creation of defendant No. 1's word "ब्रजररग". He further deposed that he has wrote several poems on the same wordings and had started writing the book "ब्रजररग गलतमाञ्जलल" from 29.11.2019 and the same was completed in the month of February 2020 and in the month of May / June 2020, he sent pdf copy of his book "ब्रजररग गलतमाञ्जलल" to several persons namely Pro. Ina Shastri, Pro. Ravi Sharma, Dr. Vijay Sharma, Pandit Mani Prasad etc. in the month of June, 2020 and the aforementioned persons sent their respective comments to him through email. DW1 further deposed that in the month of June 2020, when it came in the light of plaintiff that the defendant No. 1 has written a book Suit (Com.) No. 796/2021 & Counter Claim No. 14/2022 Page No. 32 of 64 Vrajotsav Goswami Vs. Devendra Verma & Anr.
AND Devendra Verma "ब्रजररग" Vs. Vrajotsav Goswami "ब्रजररग गलतमाञ्जलल", the plaintiff with his mala fide intention to cause loss to defendant No. 1, has misrepresented and passing off the word "ब्रजररग"
and applied for Device Mark under Trademark Act, 1999 on 16.7.2020.
He further deposed that the plaintiff had filed front cover of book "ब्रजररग गलतमाञ्जलल" and screen shot of Amazon to show that the book was published on 30.9.2020 but has concealed the material fact that it is clearly mentioned in the book that the said book was read by Pro. Ravi Sharma on 26.6.2020 and Dr. Vijay Sharma in the month of June, 2020. He further deposed that the plaintiff is neither owner of the word mark "Vrajrang (ब्रजररग)" nor got registered the word mark of "Vrajrang (ब्रजररग)".
It is further stated that ब्रज is a geographical name and गलतमाञ्जलल word was invented by Bengali poet Late Ravindranath Tagore and ररग word is the word of Hindi Dictionary and ब्रजररग word is the invention / creation / idea of the defendant No. 1. It is further stated that the word ब्रज is related to the geographical area of Lord Krishna's place and this word is used by Indians more than 1000 years ago and the people who reside in the said area are known as ब्रजवमासल, whereas the word रर ग is also a recognized word of Hindi which denotes the colours and different mods which has been which has been used by so many authors in earlier times. DW1 has also relied upon the following documents : Suit (Com.) No. 796/2021 & Counter Claim No. 14/2022 Page No. 33 of 64 Vrajotsav Goswami Vs. Devendra Verma & Anr.
AND Devendra Verma "ब्रजररग" Vs. Vrajotsav Goswami
1. Copy of letter of honour dated 14.2.1981 as Mark DW1/1.
2. Copy of emails sent by Sh. Ravi Sharma and Sh.
Vijay Sharma to defendant No. 1 as Mark DW1/2 (Colly.).
3. Book "Brajrang Geetanjali" written by the defendant No. 1 as Ex. DW1/3.
4. Photocopies of awards as Ex. DW1/4 (Colly. 5 pages).
5. Photocopy of pages of diaries as Ex. DW1/5 (Colly. 22 pages).
36. In his cross examination, DW1 further deposed that he was music teacher and retired from Govt. job in May 2020, he was doing the work of music teacher from past more than 40 years. He is the permanent resident of Agra and write books in relation to classical vocal, tabla / pakhawaj, kathak and Hindi literary poems and songs. He is writing the compositions since more than 40 years. He never seen the plaintiff / non counter claimant but he knows plaintiff's father Sh. Gokulotsav Ji Maharaj. He met plaintiff's father Sh. Gokulotsav Ji Maharaj in a program first time at Delhi perhaps at India Habitat Center or Gandhi Hindustani Sahitya Sabha, Rajghat, Delhi. He does not know about the plaintiff's composition of songs, music, poems bhajans but is aware about plaintiff's father's composition. He admits that plaintiff's Suit (Com.) No. 796/2021 & Counter Claim No. 14/2022 Page No. 34 of 64 Vrajotsav Goswami Vs. Devendra Verma & Anr.
AND Devendra Verma "ब्रजररग" Vs. Vrajotsav Goswami father used to recite songs, music, poems bhajans but is not aware about the person who composed these songs, music, poems bhajans. He stated that he is aware about music institution named "Bhartiya Sangeetalya Agra" which was established in 1944. He never seen any such document regarding to the registration of institution and voluntarily stated that he has only seen the registration number on the letterheads of institution and has not seen any registration certificate of institution. He stated that he was honoured with the title "Brajrang" by Bhartiya Sangeetalya, Agra, he received this honour for the recital of 2 3 songs including song "Brajrang Ko Sakhi Kaha Kahiya..." on 14.2.1981 and the said honour was given to him by Pt. Gopal Lakshman Gune who has established this institution. He stated that the book Brajrang Geetanjali, Ex. DW1/3 was written by him and no other person has any adverse interest in the said book, he has completed the said book in the year 2021 which contains many of his old songs and Ragas compositions but has not applied for copyright of the said book's name or songs / Ragas. He further stated that he has no knowledge prior to filing of this suit that plaintiff has filed an application before trademark registry for registration of the word Brajrang. He has not filed any objection regarding the registration of trademark Brajrang by plaintiff and voluntarily deposed that he is the prior user of the said word and further, trademark of the plaintiff is "Braj Rang Piya".
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AND Devendra Verma "ब्रजररग" Vs. Vrajotsav Goswami
37. Ld. Counsel for the plaintiff / non counter claimant submits that through the testimony of PW1 it is also proved that the plaintiff / non counter claimant is known as "Vrajrang (ब्रजररग)" as the said name was coined by his father from the name of his mother. He further argued that from the testimony of PW1, it is also evident that the defendant No. 1 / counter claimant used to play harmonium with the father of plaintiff and was very well aware of the said fact but despite this, the defendant No. 1 / counter claimant has published the book with the name Brajrang Geetanjali which was published by defendant No. 2 and thus, they have violated the trademark of plaintiff.
38. On the other hand, Ld. Counsel for the defendant has argued that the defendant No. 1 / counter claimant is using Brajrang word since 1981 when he first time recited the poems in Agra. He further argued that the defendant was also conferred the title "ब्रजररग" by Bharatiya Sangeetalaya and thereafter also, he is using the said word continuously. He argued that the defendant has published the book but he has sent the same to Pro. Ina Shastri, Pro. Ravi Sharma, Dr. Vijay Sharma, Pandit Mani Prasad etc. in the month of June, 2020 and the aforementioned persons sent their respective comments to the defendant No. 1 through email which proves that the defendant No. 1 / counter claimant has written the book much prior to the plaintiff applying for registration of said trademark.
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AND Devendra Verma "ब्रजररग" Vs. Vrajotsav Goswami
39. I have considered the submissions and have gone through the record.
40. Section 2 (1) (viii) (b) of Trade Mark Act define the Trade Mark as follows : "trade mark" means a mark capable of being represented graphically and which is capable of distinguishing the goods or services of one person from those of others and may include shape of goods, their packaging and combination of colours; and--
(i) by a registered user of the trade mark in relation to goods or services--
(a) with which he is connected in the course of trade; and
(b) in respect of which the trade mark remains registered for the time being; and
(c) for which he is registered as registered user; and
(d) which complies with any conditions or limitations to which the registration of registered user is subject; or
(ii) in relation to other provisions of this Act, a mark used or proposed to be used in relation to goods or services for the purpose of indicating or so to indicate a connection in the course of trade between the goods or services, as the case may be, and some person having the right, either as proprietor or by way of permitted user, to use the mark whether with or without any indication of the identity of that person, and includes a certification trade mark or collective mark;"
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AND Devendra Verma "ब्रजररग" Vs. Vrajotsav Goswami
41. First of all, in my view word Braj is related with the geographical area which is surrounded near Vrindavan, Mathura, Gokul, Agra in Uttar Pradesh where Lord Shri Krishna has played his Leela (लललमा). The residents of Braj are known as Brajwasi. It is also known that the festival of Holi played in Braj area particularly in Barsana is well known in the world and Holi is a festival of colours therefore, the same word Brajrang is associated with Holi of Braj. Therefore, nobody can claim any exclusive right over the word Brajrang. Hence, in my view, neither the plaintiff nor the defendant is the originator of the word "Brajrang" and in my view word Brajrang is not a coined word.
42. Even otherwise, from the definition of trade mark as given in Section 2 (1)(viii)(b), it is evident that a mark become trade mark when it is used for describe any goods or services. Merely using a word "Vrajrang or Brajrang" unless same is used to describe any goods. Further it also led to conclusion that in my no body can have exclusive right to use any word unless it is used as trade mark to describe for goods or services by any person. The PW1 has proved the application for applying the trade mark as Ex. PW1/6 and trade mark certificate granted by Trademark authority regarding registration of trademark Vrajrang as device mark. Scanned image of device mark of plaintiff is as under:
Suit (Com.) No. 796/2021 & Counter Claim No. 14/2022 Page No. 38 of 64 Vrajotsav Goswami Vs. Devendra Verma & Anr.
AND Devendra Verma "ब्रजररग" Vs. Vrajotsav Goswami
43. PW1 has not deposed that he has used said device mark has been used for manufacturing, selling, marketing any goods or services. PW1's testimony even if taken as gospel truth, only proved that plaintiff father gave plaintiff nick name Vrajrang or that his singing style is known as Vrajrang or Brajrang style. Same cannot be called as dealing in any good or providing services. Mere applying for registration of trade mark or getting registration of trade mark does not prove its user. Therefore I hold that plaintiff has failed to prove that he used the trade mark VrajRang / Brajrang at all.
44. Similarly the case of defendant as stated in the written statement or in testimony of DW1 is that he used the word Brajrang in his poem in 1981 and he was given title "Brajrang" by Bharatiya Sangeetalaya Agra. Same also cannot be called as trade mark because Suit (Com.) No. 796/2021 & Counter Claim No. 14/2022 Page No. 39 of 64 Vrajotsav Goswami Vs. Devendra Verma & Anr.
AND Devendra Verma "ब्रजररग" Vs. Vrajotsav Goswami same is not be distinguished any goods or service. Hence I held that till now both plaintiff and defendant have not used the trade mark Brajrang.
45. Even otherwise, from the testimony of PW1 Sh. Karan Yadav, it is evident that in his entire testimony, he has not deposed when first time word "Vrajrang" or in Hindi "ब्रजररग" was used. According to him, "Vrajrang (ब्रजररग)" was adopted by plaintiff's father Sh. Gokulotsavji who got inspiration from the name of plaintiff's mother Smt. Vrajlaxmi, and subsequently the name of plaintiff also starts with work "Vraj" which was coined with the word "Rang" making it "Vrajrang" but nowhere in his testimony, when said name was given to plaintif by his father. Secondly, if plaintiff father has given the nae Vrajrang after word Varj from plaintiff plaintiff mother name then why plaintiff has also kept his name Braj Rang has not been explain by the plaintiff either in plaint or by PW1 in his testimony.
46. Further PW1 has not deposed that he personally knows that plaintiff is also known as Vrajrang or Brajrang or his singing style is known as Vrajrang or Brajrang style. He has not deposed that what is the uniqueness in plaintiff singing style which make it different from another singing style.
47. Further PW1 has deposed that Sh. Vrajotsav Goswami is continuously performing music under the name "Vrajrang (ब्रजररग)" since Suit (Com.) No. 796/2021 & Counter Claim No. 14/2022 Page No. 40 of 64 Vrajotsav Goswami Vs. Devendra Verma & Anr.
AND Devendra Verma "ब्रजररग" Vs. Vrajotsav Goswami 1983 and has relied upon various newspapers but on perusal of newspapers which are Mark PW1/3 (Colly.) though same being copy of the newspaper or book cannot be relied upon as original book and newspaper have not been produced an therefore same were not exhibited in evidence of PW1. Even otherwise on perusal of same which are from page no.56 to 133 of plaintiff documents, I do not find a single newspaper in which his music has been called as Vrajrang "ब्रजररग" music.
Some of the newspapers relied upon by the plaintiff to show that news of his performances was published, I would like to quote what is written in it. One such newspaper is Jansatta dated 28.2.2006 which has written about plaintiff's singing. In the said newspaper, it is mentioned that the plaintiff "महमाप्रभपु वल्लभमाचमायर ककी १७वहीं पलढल गगोकपुलगोत्सव महमारमाज" has sung songs.
Nowhere in the said news article the word Vrajrang or ब्रजररग has been used for his singing or his name as Vrajrang ब्रजररग.
48. The other newspaper is Dainik Bhaskar dated 6.8.2005 which also states that the plaintiff has written 5000 songs with the name "Madhurpriya" and he has been called as Gokulotsav Maharaj. Nowhere in the said article, it is mentioned that plaintiff is known with the name Vrajrang or ब्रजररग. He has been also called as Vrajotsav. In the content published in National Harald dated 20.3.2006 also, he has been named as Goswami Gokulotsav Ji Maharaj and not as Vrajrang or ब्रजररग. It is Suit (Com.) No. 796/2021 & Counter Claim No. 14/2022 Page No. 41 of 64 Vrajotsav Goswami Vs. Devendra Verma & Anr.
AND Devendra Verma "ब्रजररग" Vs. Vrajotsav Goswami also mentioned in the said article that the plaintiff has created new Ragas and a large number of compositions comprising Dhrupads, Khayals, Thumris, Ragmalas etc. under the penname "Madhur Priya". Hence nowhere in the said article it is mentioned that the Ragas etc. are known as Vrajrang or ब्रजररग or he is known as Vrajrang or ब्रजररग. Hence, from these articles and book it is evident that the plaintiff was prima facie known as Vrajotsav Gokulotsav Ji Maharaj and not VRAJRANG or BRAJRANG as contended by plaintiff and his writing as Madhur Priya.
49. Therefore considering aforesaid facts I do not find testimony of PW1 reliable that plaintiff father has given the name Vrajrang to plaintiff or plaintiff singing style is known as Vrajrang or Brajrang style.
50. On the other hand, DW1 has deposed that he is using the word Brajrang since 14.2.1981 when he has recited poem "Brajrang Ka Rang" and "Brajrang Ki Adbhut Chhavi" in the function of Bharatiya Sangeetalya. No suggestion has been given to DW1 that he has not recited the said poems which are hereby reproduced as under : ब्रजररग कमा ररग ब्रजररग कगो सलखि कहमा कषहयवे, ररगवे गगोपल गगोप रवेनपु समारल।।
मदममात षफिरत ककपु जन ककपु जन, बरसत ब्रजररग चहह क षदषशि भमारल।
ब्रज वषनतमा ढढ रढत ब्रजररग कमान्ह, पमावत ववृन्दमावन नर नमारल।।1।।
Suit (Com.) No. 796/2021 & Counter Claim No. 14/2022 Page No. 42 of 64 Vrajotsav Goswami Vs. Devendra Verma & Anr.
AND Devendra Verma "ब्रजररग" Vs. Vrajotsav Goswami रवेनपु चरमाय बमारसपुरल बजमाय और रचमाय दवे दवे तमारल।
तमा लरलमारग तकतक लरलमारग, तकतक लरलमारग नमाचत हमारल।। 2।।
ब्रजररग ब्रज मम बसत ररग बरसत हहै सपुखि चहह क षदषशि भमारल।
करगो कवृपमा ब्रजररग पर रलसयमा नमत चरन हगो बललहमारल।।3।।
ब्रजररग ककी अद त पु छषव ब्रजररग कहैसवे बरननौ जमाय?
यमा ब्रज नन्द लमाल प्रभपु प्रकटगो, सकल जगत गपुन गमाय।
सपुन सपुन कथमा श्यमाम सपुन्दर ककी, ब्रजजन नहहीं अघमाय।।1।।
दषपु दलन कर कष हरत जग, जन ककी करत सहमाय।
गगोकपुल, नरदगमारव, ववृन्दमावन, बरसमाननों मन भमाय।।2।।
अदत पु ररग बस्यगो ब्रजररग मम, ररगत चहह क षदषशि छमाय।
यमा ब्रजररग मम ररगगो कमान्ह प्रभपु, जलवन रन्य हह वहै जमाय।।3।।
51. No suggestion has been given to the DW1 by plaintiff counsel that said poem was not recited by the defendant or that he was not conferred with title Brajrang by Bhartiya Sangeetalya Agra on 14.02.1981/ From the said poem it is evident that the defendant has used the word Brajrang in 1981 thus, from the evidence led by the parties, preponderance of probabilities is in favour of the defendant No. Suit (Com.) No. 796/2021 & Counter Claim No. 14/2022 Page No. 43 of 64 Vrajotsav Goswami Vs. Devendra Verma & Anr.
AND Devendra Verma "ब्रजररग" Vs. Vrajotsav Goswami 1 that the defendant No. 1 is the prior user of the word "Brajrang" between him and plaintiff. But as stated above same cannot be called as trade mark because defendant has not used the said word in relation to any goods or services therefore same is not a trade mark. Issue No. 1 is decided accordingly.
ISSUE NO. 2.
Whether the plaintiff / non counter claimant is the owner of trademark "Vrajrang" in English or "Brajrang"? OPP.
And ISSUE NO. 3.
Whether the defendant No. 1 / counter claimant is the owner of the word "Brajrang"? OPD.
52. Both the issue are interconnected therefore I will decide the same together.
Case of the plaintiff is that he is the owner of Trade Mark Vrajrang ब्रजररग. As stated above in order to proved the same he has relied upon testimony of PW1 Karan. PW1 has deposed that the plaintiff has applied for trademark VRAJRANG ब्रजरर ग before the Registry of Suit (Com.) No. 796/2021 & Counter Claim No. 14/2022 Page No. 44 of 64 Vrajotsav Goswami Vs. Devendra Verma & Anr.
AND Devendra Verma "ब्रजररग" Vs. Vrajotsav Goswami Trademarks, Mumbai. He has proved document of trade mark registeration as Ex. PW1/6. On perusal of PW1/6 (colly) it is evident that is consist of four page. First page is FORM TMA. From this document it is evident that the plaintiff has applied for trademark "Vrajrang" in the category of device as owner/ sole proprietor in class 41 for class of goods. Nowhere in the said application it is mentioned that "Brajrang" is also applied as trademark. Hence, the application Further it give image description as " Vrajrang inn style with peacock feather". Description of goods and services in which plaintiff has applied is as under : "Description : Production of music, Entertainment, Music composition and transcription for others, Providing online music, not downloadable, Provision of information relating to music, Music transcription for others, Music publishing services. Composition of music for others, Music composition services, Music production services, Music video production, Providing an internet website portal in the field of music, Providing an educational website in the fields of music and entertainment, information in the field of music, and commentary and articles about music, all online via a global computer network, Publishing of books, ebooks, audio books, music and illustrations".
Suit (Com.) No. 796/2021 & Counter Claim No. 14/2022 Page No. 45 of 64 Vrajotsav Goswami Vs. Devendra Verma & Anr.
AND Devendra Verma "ब्रजररग" Vs. Vrajotsav Goswami
53. Further, the plaintiff has produced trademark registration certificate Ex. PW1/12 which shows that the plaintiff has registered image Vrajrang Piya and ब्रजररग in Hindi. Scanned image is pasted as under : Therefore, this clearly shows that picture/ image of word Vrajrang written in English and word Brajrang in Hindi and word Piya in English in special style as a whole has been registered as trade mark. Hence the word Vrajrang and Brajrang in isolation cannot be consider as trade mark. Therefore I hold that plaintiff is not the owner of trade mark Vrajrang or brajrang.
54. As far as defendant no.1 is concerned, though the defendant No. 1 has claimed that he is the owner of word Brajrang in the written statement / counter claim but the defendant No. 1 Suit (Com.) No. 796/2021 & Counter Claim No. 14/2022 Page No. 46 of 64 Vrajotsav Goswami Vs. Devendra Verma & Anr.
AND Devendra Verma "ब्रजररग" Vs. Vrajotsav Goswami has himself stated in his written statement and counter claim that Braj is a geographical name and Rang is a name of colours in Hindi dictionary. Further, the defendant No. 1 himself stated that the word ब्रज is used by Indians since more than 1000 years ago and the people who reside in the said area are known as ब्रजवमासल, whereas the word ररग is also a recognized word of Hindi which denotes the colours and different mods which has been which has been used by so many authors in earlier times. Therefore in my view, the combination of word ब्रज and ररग is not invented by defendant No. 1. Through his own admission, he is not the inventor of the word ब्रजररग.
55. Moreover since it is not the case of defendant that it uses the word Brajrang as trade mark for any goods or services and merely using the said word in his poem or as part of title of his book Brajrang Geetanjali does not make him owner of the said word, therefore I held that both plaintiff and defendant no.1 are not the owner of trademark Brajrang ब्रजररग. Issue No. 2 & 3 is decided accordingly.
ISSUE NO. 4.
Whether the plaintiff / non counter claimant is entitled to decree as claimed in prayer clause of plaint i.e. para (b) to (c)?
Suit (Com.) No. 796/2021 & Counter Claim No. 14/2022 Page No. 47 of 64 Vrajotsav Goswami Vs. Devendra Verma & Anr.
AND Devendra Verma "ब्रजररग" Vs. Vrajotsav Goswami OPP.
56. In the plaint plaintiff has made following prayer : a. To pass a decree of permanent injunction restraining the defendants, his directors / proprietors / partners, principals, employees, agents, distributors, franchises, representatives and assignees from using the impugned registered trademark belonging to plaintiff "Vrajrang (ब्रजररग)"
or any other mark or sign or device which are identical or deceptively or confusingly similar to the plaintiff's registered trademark "Vrajrang (ब्रजररग)" without the permission, consent, licence of the plaintiff thereby infringing the rights of the plaintiff in its registered trademark amounting to infringement thereof;
b. To pass a decree of permanent injunction restraining the defendants, his directors / proprietors / partners, principals, employees, agents, distributors, franchises, representatives and assignees from using the impugned registered trademark belonging to the plaintiff "Vrajrang (ब्रजररग)" or any other mark of sign or device which are deceptively or confusingly similar to the plaintiff's registered Suit (Com.) No. 796/2021 & Counter Claim No. 14/2022 Page No. 48 of 64 Vrajotsav Goswami Vs. Devendra Verma & Anr.
AND Devendra Verma "ब्रजररग" Vs. Vrajotsav Goswami trademark "Vrajrang (ब्रजररग)" amounting to passing off its goodwill and creation in any manner whatsoever and from taking benefit of the reputation and goodwill of the plaintiff in the said mark;
c. An order of passing off be passed restricting the defendants to stop the publication / promotion / selling of the book title "Brajrang Geetanjali" authored by defendant No. 1 Sh. Devendra Verma and published by defendant No. 2;
d. An order of passing off be passed restricting the defendants till the disposal of this suit of selling of published book by any medium and to freeze the bank accounts which are associated with the money earned by the sales of such books;
e. An order of delivery up be passed thereby the defendants, his directors / proprietors / partners, principals, employees, agents, distributors, franchises, representatives and assignees to hand over the plaintiff all the books including the packaging and promotional material catalogue, stationary and any other material whatsoever including labels signs prints, packages etc. in its possession or under its control bearing the trademarks of plaintiff or which are Suit (Com.) No. 796/2021 & Counter Claim No. 14/2022 Page No. 49 of 64 Vrajotsav Goswami Vs. Devendra Verma & Anr.
AND Devendra Verma "ब्रजररग" Vs. Vrajotsav Goswami identical or deceptively similar to the plaintiff's registered trademark "Vrajrang (ब्रजररग)".
57. First of all, it is undisputed fact that the defendant No. 1 / counter claimant has published the book in the name of Brajrang Geetanjali and keeping the title of book as "ब्रजररग".
58. As mentioned above, a mark become trademark when it is used by a person for the purpose to distinguish its goods or service can be considered as trademark. The title of a book cannot be called as trade mark as neither it relates to distinguish any goods nor it can be called as service unless the series of books are published with the same title such as "Harry Potter" series or "Chandrakanta Santati" series. Where in that title of books itself led to the public to assume the contents in the book and public purchase the same. Admittedly, it is not the case of plaintiff that the defendant is producing any goods with the name "Vrajrang ब्रजररग". The book of a book written by an aurhor is part of his artistic work. The defendant book Brajrang Geetanjali which the defendant has published is consists of Ragas, Bhajans, Geets etc and he has given a title to the same as Brajrang Geetanjali "ब्रजररग गलतमाञ्जलल"
therefore, in my view it is a literary / artistic work of a author and therefore an infringement of a literary / artistic work would fall under the infringement of copyright as provided under The Copyright Act, 1957 and Suit (Com.) No. 796/2021 & Counter Claim No. 14/2022 Page No. 50 of 64 Vrajotsav Goswami Vs. Devendra Verma & Anr.
AND Devendra Verma "ब्रजररग" Vs. Vrajotsav Goswami not infringement of trade mark, therefore, the plaintiff would not be entitled to the decree of permanent injunction on this ground alone.
59. Further, as stated above, the defendant No. 1 is using word Brajrang in the year 1981 in his poems. Moreover, the defendant No. 1 is being the prior user of said word, between the plaintiff and defendant No. 1, is entitled to use the word Brajrang as title of his book and thus, the plaintiff is not entitled for decree of injunction restraining the defendant No. 1 from using the word Brajrang Geetanjali. Furthermore, the defendant No. 1 has not only used the word Brajrang but also used the word Geetanjali as title of his book is Brajrang Geetanjali and further the image of defendant book Brajrang Geetanjali as shown in scanned picture pasted below is also quite different than the image what plaintiff has got registered as trademark. Scanned image of said picture is pasted as under :
60. Further, as stated above, the defendant No. 1 is using word Brajrang in the year 1981 in his poems. Moreover, the defendant No. 1 is being the prior user of said word, between the plaintiff and defendant No. Suit (Com.) No. 796/2021 & Counter Claim No. 14/2022 Page No. 51 of 64 Vrajotsav Goswami Vs. Devendra Verma & Anr.
AND Devendra Verma "ब्रजररग" Vs. Vrajotsav Goswami 1, is entitled to use the word Brajrang as title of his book and thus, the plaintiff is not entitled for decree of injunction restraining the defendant No. 1 from using the word Brajrang Geetanjali.
61. Even otherwise from perusal of picture of plaintiff trade mark is Vrajrang / Brajrang Piya, it is evident that the trademark consists of three words i.e. Vrajrang and Piya in English and Brajrang (ब्रजररग) in Hindi and out of these three words, word "Vrajrang" is the main word as according to plaintiff, said word comes from his name "Vrajotsav". Hence mere using of the word "Brajrang" by defendant out of above three words does not make it identical mark with plaintiff's trademark. Hence no case for infringement of trade mark is made out.
62. As far as passing off is concerned, the Hon'ble Supreme Court in Cadila Health Care Ltd Vs. Cadila Pharmaceuticals Ltd., 2001 (5) SCC 73 has laid down the test for passing off: "35. Broadly stated, in an action for passingoff on the basis of unregistered trade mark generally for deciding the question of deceptive similarity the following factors are to be considered: (a) The nature of the marks i.e. whether the marks are word marks or label marks or composite marks i.e. both words and label works.
(b) The degree of resembleness between the marks, phonetically similar and hence similar in idea.
Suit (Com.) No. 796/2021 & Counter Claim No. 14/2022 Page No. 52 of 64 Vrajotsav Goswami Vs. Devendra Verma & Anr.
AND Devendra Verma "ब्रजररग" Vs. Vrajotsav Goswami
(c) The nature of the goods in respect of which they are used as trade marks.
(d) The similarity in the nature, character and performance of the goods of the rival traders.
(e) The class of purchasers who are likely to buy the goods bearing the marks they require, on their education and intelligence and a degree of care they are likely to exercise in purchasing and/or using the goods.
(f) The mode of purchasing the goods or placing orders for the goods.
(g) Any other surrounding circumstances which may be relevant in the extent of dissimilarity between the competing marks."
The principles relating to passing off have also been crystalised by the Supreme Court in Satyam Infoway v. Siffynet Solution Pvt. Ltd., (2004) 6 SCC 145 in the following manner:
"13. The next question is, would the principles of trade mark law and in particular those relating to passing off apply? An action for passing off, as the phrase "passing off" itself suggests, is to restrain the defendant from passing off its goods or services to the public as that of the plaintiff's. It is an action not only to preserve the reputation of the plaintiff but also to safeguard the public. The defendant must have sold its goods or offered its services in a manner which has deceived or would be likely to deceive the public into thinking that the defendant's goods or services are the plaintiff's. The action is normally available to the owner of a distinctive trade mark and the person who, if the word or name is an invented one, invents and uses it. If two trade rivals claim to have individually invented the same mark, Suit (Com.) No. 796/2021 & Counter Claim No. 14/2022 Page No. 53 of 64 Vrajotsav Goswami Vs. Devendra Verma & Anr.
AND Devendra Verma "ब्रजररग" Vs. Vrajotsav Goswami then the trader who is able to establish prior user will succeed. The question is, as has been aptly put, who gets these first? It is not essential for the plaintiff to prove long user to establish reputation in a passing off action. It would depend upon the volume of sales and extent of advertisement.
14. The second element that must be established by a plaintiff in a passingoff action is misrepresentation by the defendant to the public. The word misrepresentation does not mean that the plaintiff has to prove any mala fide intention on the part of the defendant. Of course, if the misrepresentation is intentional, it might lead to an inference that the reputation of the plaintiff is such that it is worth the defendant's while to cash in on it. An innocent misrepresentation would be relevant only on the question of the ultimate relief which would be granted to the plaintiff [Cadbury Schweppes v. Pub Squash, 1981 RPC 429 :
(1981) 1 All ER 213 : (1981) 1 WLR 193 (PC); Erven Warnink v. Townend, 1980 RPC 31 : (1979) 2 All ER 927 :
1979 AC 731 (HL)] . What has to be established is the likelihood of confusion in the minds of the public (the word "public" being understood to mean actual or potential customers or users) that the goods or services offered by the defendant are the goods or the services of the plaintiff. In assessing the likelihood of such confusion the courts must allow for the "imperfect recollection of a person of ordinary memory" [Aristoc v. Rysta, 1945 AC 68 : (1945) 1 All ER 34 (HL)] .
15. The third element of a passingoff action is loss or the likelihood of it."
(Emphasis Supplied). In VGuard (supra), relied upon by the defendant, while holding that infringement under Section Suit (Com.) No. 796/2021 & Counter Claim No. 14/2022 Page No. 54 of 64 Vrajotsav Goswami Vs. Devendra Verma & Anr.
AND Devendra Verma "ब्रजररग" Vs. Vrajotsav Goswami 29(2) is not made out as the competing goods are not similar, the Court, nevertheless, held that the defendants therein were passing off their goods as those of the plaintiff. The relevant extracts from the judgment are set out below:
" 56. In the context of passing off, once again a crucial question arises as to why and with what intent the Defendant adopted the word PEBBLE as a part of its mark and the answer in my prima facie view could only be to confuse an unwary purchaser and create an impression that the purchaser is buying the goods of the Plaintiff. Learned counsel for the Plaintiff rightly contended that in the absence of any plausible reason for the Defendant to adopt the word PEBBLE, the only inference that can be drawn is that the intent was to pass off its goods as those of the Plaintiff. Defendant, as claimed in the reply, has an enviable and formidable reputation and does not need to ride over the goodwill of the Plaintiff. If that be so, it intrigues the Court as to why the Defendant adopted the word PEBBLE in addition to its house mark CROMPTON. In this context, I may refer to a few lines from the passage in the case of Thomas Bear and Sons (India) Ltd. v. Prayag Narain, (1941) 58 RPC 25, wherein Lord Langdale observed:
"A man is not to sell his own goods under the pretence that they are the goods of another man; he cannot be permitted to practise such a deception nor to use the means which contribute to that end. He cannot, therefore, be allowed to use names, marks, letters or other indicia, by which he may induce purchasers to believe that the goods which he is selling are the manufacture of another person."
A reference in this regard may also be made to the judgment of the Gujarat High Court in Good Life Industries Suit (Com.) No. 796/2021 & Counter Claim No. 14/2022 Page No. 55 of 64 Vrajotsav Goswami Vs. Devendra Verma & Anr.
AND Devendra Verma "ब्रजररग" Vs. Vrajotsav Goswami v. J R J Foods Pvt Ltd., MANU/GJ/3045/2022. In the aforesaid case, an injunction was denied on the basis that the defendant was the registered proprietor of the mark. However, injunction was granted on the basis of passing off. The relevant extracts with regard to the passing off in Good Life Industries (supra) are set out below:
"17. The plaintiff has filed Suit for infringement as well as for passing off action. Even if the defence of the defendant that it being registered owner of the disputed trademark, and therefore, no infringement action would lie against it, is accepted, for the sake of argument, then in that case also, the similarity between the two marks, which is likely to cause confusion in the public at large, can be considered for protecting the right of the plaintiff, under the head of passing off action. Passing of action has its origin, as an action in tort to restrain the wrongful conduct of the defendant in passing off his goods as the goods of the plaintiff. This might be done by using the trade name, trademark or other getup of the plaintiff so as to induce any potential purchaser the belief that his goods or business were those of the plaintiff's. The tort list in the misrepresentation by the defendant. Misrepresentation is aimed at the potential buyers of the goods or the services, who are invited to buy goods believing that the goods are of the plaintiff. This might be done through confusion or deceitful use of the trade name or mark with or other indication used by the plaintiff in respect of such goods or service. The passing off action is to create an actionable wrong based on the border principles of law that nobody has any right to represent his goods or business as the goods or business of somebody else. The principle is that "trading must not only be honest Suit (Com.) No. 796/2021 & Counter Claim No. 14/2022 Page No. 56 of 64 Vrajotsav Goswami Vs. Devendra Verma & Anr.
AND Devendra Verma "ब्रजररग" Vs. Vrajotsav Goswami but must not even unintentionally be dishonest". The purpose of passing off action is to protect commercial goodwill and to ensure that the purchaser are not exploited and dishonest trading is prevented. For that, the plaintiff must establish that his business or goods have acquired the reputation. Whether the defendants goods are marked with the trademark of the plaintiff or madeup or described as calculated to mislead the ordinary purchaser, it is thus tendency to mislead or confuse which forms the gist of passing off action. There is no need to establish fraud or actual deception or actual damages in such cases. In passing off action it is necessary to prove that an ordinary person is likely to buy goods in a belief that the goods are that of plaintiff, though it is not necessary to show that actual sale took place.
18. It is well settled that while considering the likelihood of confusion in the mind of a purchaser, the wisdom of an ordinary person is to be taken into consideration. If an ordinary person exercising ordinary caution is likely to be confusion or is likely to be deceived into buying the product of the defendant, believing the same to be originating from the plaintiff, the injunction must follow. Intention to pass of is neither necessary nor is required to be shown. There is no necessity to prove actual damage to the plaintiff. Of course, the plaintiff has to establish that he has buildup good reputation and goodwill on the trademark. The plaintiff has also to establish deception similar so as to cause confusion in the minds of consumer and also likely suffering of substantial damages either to his business financially or to the reputation and goodwill of his trademark."
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AND Devendra Verma "ब्रजररग" Vs. Vrajotsav Goswami
19.In Mother Sparsh Baby Care v. Aayush Gupta and Others, 2022 SCC OnLine Del 1061, relied upon by the plaintiffs, both the plaintiff and the defendant therein were registered proprietors of the mark 'Plant Powered', though the plaintiff was the prior adopter and user. While granting an interim injunction in favour of the plaintiff, the Court observed that both the plaintiff and the defendant were selling the same kind of products and since the plaintiff was the prior adopter and user of the said mark, the defendant's user of the said mark was not bona fide".
63. Now reverting back to the case, from perusal of both plaintiff trade mark image and defendant book title defendant No. 1 has not only used the word Brajrang but also used the word Geetanjali as title of his book is BrajRang Geetanjali and further the image of defendant book Brajrang Geetanjali as shown in scanned picture pasted below is also quite different than the image what plaintiff has got registered as trademark. Scanned image of said picture is pasted as under : Plaintiff image Suit (Com.) No. 796/2021 & Counter Claim No. 14/2022 Page No. 58 of 64 Vrajotsav Goswami Vs. Devendra Verma & Anr.
AND Devendra Verma "ब्रजररग" Vs. Vrajotsav Goswami Defendant image
64. In my view mere using of the word Brajrang by defendant does not make the same identical or deceptively similar to the plaintiff trade mark DW1/2 which he register as device mark. Further it is not the case of plaintiff that it has written any book with the aforesaid title and due to use of the word Brajrang by defendant public will get confused that they are purchasing the book written by plaintiff. Therefore, in these circumstances I hold that plaintiff's trademark which he registered as device mark, is not identical or deceptively similar. Further it is not the case of plaintiff that it has written any book with the aforesaid title. Hence no case for even passing off the made out.
65. As far as Judgment relied upon by the plaintiff i.e. M/s. Avis International Ltd. Vs. M/s. Avi Footwear Industries & Anr., I.As No. 88 and 2266 of 1990 in Suit No. 18 of 1990 dated 10.8.1990, Law Finder Doc Id No. 148201 is concerned, the said Judgment deals with respect Suit (Com.) No. 796/2021 & Counter Claim No. 14/2022 Page No. 59 of 64 Vrajotsav Goswami Vs. Devendra Verma & Anr.
AND Devendra Verma "ब्रजररग" Vs. Vrajotsav Goswami to the order passed in application under Order 39 Rules 1 & 2 CPC in the plaintiff's trademark Avis whereas the defendant's trademark is Aevis and thus, the Hon'ble Delhi High Court has hold that since both the marks are quite similar as phonetically and in same business i.e. footware therefore, the Hon'ble Court injuncted the defendant from using the said mark whereas in the present case, as stated above, though plaintiff as stated the trademark "Vrajrang" in his style as device mark but the same he has never used for publication of books. Moreover, as stated above, the title of book Brajrang Geetanjali kept by the defendant cannot be called trademark as same is only artistic work therefore the said Judgment is not applicable to the present case.
66. Similarly, the Judgment Central Park Estates Pvt. Ltd. & Anr. Vs. CHD Developers Ltd., I.A. No. 9462 of 2014 and I.A. No. 13669 of 2014 in CS (OS) No. 1435 of 2014 dated 13.10.2014, Law Finder Doc. No. 646303 is also not applicable because in that trademark "BELLEVUE" under dispute was used by the plaintiff which comes in ambit of goods and services whereas defendant's book's title does not come in the category of goods and services but it is an artistic work.
67. Similar is the position in the other case relied upon by the plaintiff i.e. Max Healthcare Institute Ltd. Vs. Sahrudya Health Care Pvt. Ltd., I.A. No. 8439 of 2016 dated 4.7.2019 wherein the plaintiff was using trademark of MAX / MAX HOSPITAL for his health services whereas the Suit (Com.) No. 796/2021 & Counter Claim No. 14/2022 Page No. 60 of 64 Vrajotsav Goswami Vs. Devendra Verma & Anr.
AND Devendra Verma "ब्रजररग" Vs. Vrajotsav Goswami defendant was providing its services in the name MAXCURE HOSPITAL / MAXKURE / MAXCURE MEDICITI and the Hon'ble High Court has held that the hospital of plaintiff are identified with the word MAX and mere mentioning of the word MAX identified it with plaintiff hospitals therefore even though plaintiff has not registered the MAX has word mark but device mark, the injunction is maintainable whereas in the present case, the plaintiff has failed to show any document that his trademark "Vrajrang ब्रजररग" become so popular that it is identified.
Further as stated above, the plaintiff has not led any evidence that plaintiff has provided any goods or services with the said trademark and further the defendant's book's title Brajrang Geetanjali cannot be called as trademark and further as held above, since plaintiff has not written any book with the title Brajrang, there is no scope of confusion in the mind of public that they will purchase the book of defendant considering the same as of plaintiff. Hence, this Judgment is also not helpful to the plaintiff.
68. For the similar reasons, in my view other Judgments relied upon by the plaintiff i.e. Shambhu Nath & Brothers & Ors. Vs. Imran Khan, GA No. 1267 of 2018 passed by the Hon'ble Calcutta High Court; HiTech Pipes Ltd. vs. Asian Mills Pvt. Ltd., IA No. 6198/2002 and 8461/2002 in CS (OS) No. 1175/2002 dated 4.1.2006 passed by the Hon'ble Delhi High Court; Geepee Ceval Proteins and Investment Pvt.
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AND Devendra Verma "ब्रजररग" Vs. Vrajotsav Goswami Ltd. Vs. Sarol Oil Industry, IA No. 4735/2003 in S. No. 922/2003 dated 29.5.2003 passed by the Hon'ble Delhi High Court are not applicable to the facts of present case.
69. Therefore in view of above discussion, I held that plaintiff has failed to prove that defendant No. 1 has violated the trade mark of plaintiff and thus plaintiff is not entitle for relief as claimed in prayer (a) to
(e) of prayer. Issue No. 4 is decided accordingly.
70. ISSUE NO. 5.
Whether the defendant No. 1 / counter claimant is entitled to decree as claimed in prayer clause of counter claim i.e. para (a) and (d)? OPD.
The defendant No. 1 has sought decree as claimed in prayer (a) to (d) in the prayer clause of counter claim which are reproduced as under : a. Pass order to restrain the plaintiff from passing off the word "ब्रजररग" and "ब्रज ररग";
b. Pass appropriate order under Section 63 of the Copyright Act, 1957;
c. Declare the counter claimant the absolute previous Suit (Com.) No. 796/2021 & Counter Claim No. 14/2022 Page No. 62 of 64 Vrajotsav Goswami Vs. Devendra Verma & Anr.
AND Devendra Verma "ब्रजररग" Vs. Vrajotsav Goswami user, creator and owner of the word "ब्रजररग";
d. Pass order for compensation which this court thinks fit and proper as per law in favour of counter claimant.
71. Undoubtedly, as held by me, the defendant is the prior user of word Brajrang between the plaintiff and defendant No. 1 but in view of my findings of issue No. 3 the defendant No. 1 is also not entitled for exclusive use of word Brajrang as it is a common word which can be used by anyone in the world. Moreover, it is not the case of defendant uses the word "Brajrang" for any goods or service or that the plaintiff is providing any goods or service therefore same is not a trademark and thus plaintiff by using the word Brajrang has not violated any right of defendant therefore, the defendant is also not entitled for decree to restrain the plaintiff from passing off the word "ब्रजररग" and "ब्रज ररग" and also not entitle for any compensation for using the said word or any other relief as prayed by him. Issue No. 5 is decided accordingly.
72. RELIEF.
In view of my findings on aforesaid issues, I held that both plaintiff and defendant No. 1 are not entitled to any relief hence, both main suit file by plaintiff and as well as counter claim of the defendant No. 1 are dismissed. Decree sheets be prepared accordingly for both the Suit (Com.) No. 796/2021 & Counter Claim No. 14/2022 Page No. 63 of 64 Vrajotsav Goswami Vs. Devendra Verma & Anr.
AND Devendra Verma "ब्रजररग" Vs. Vrajotsav Goswami cases. Both files be consigned to record room after necessary compliance.
Announced in the open court (Sanjeev Kumar Aggarwal) on 04.12.2023 DJ (Commercial)01, Central, THC/Delhi / 04.12.2023.
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AND Devendra Verma "ब्रजररग" Vs. Vrajotsav Goswami