Delhi High Court - Orders
Jmd Enterprises & Anr vs M/S Aggarwal Enterprises Through Mr. ... on 10 October, 2022
Author: Navin Chawla
Bench: Navin Chawla
$~23
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(COMM) 692/2022
JMD ENTERPRISES & ANR. ..... Plaintiffs
Through: Mr.Sai Krishna Rajagopal, Mr.Nitin
Sharma, Ms.Snehima Jauhari &
Mr.Rakesh Kumar, Advs.
versus
M/S AGGARWAL ENTERPRISES THROUGH MR. VISHAL
GUPTA & ANR. ..... Defendants
Through: None.
CORAM:
HON'BLE MR. JUSTICE NAVIN CHAWLA
ORDER
% 10.10.2022
I.A. 16363/2022
1. This is an application filed on behalf of the plaintiffs seeking leave to file additional documents, which are not in the power, possession, control or custody of the plaintiffs at the moment.
2. The plaintiffs may file the additional documents strictly in accordance with the provisions of the law.
3. The application stands disposed of.
I.A. 16364/20224. Allowed, subject to all just exceptions.
5. The plaintiffs shall, however, be bound to produce the original documents if inspection of the same is requested for by the defendants and/or directed by this Court.
Signature Not Verified Digitally Signed By:SHALOO BATRA Signing Date:20.10.2022 17:12:09 I.A. 16365/20226. This is an application seeking exemption from making advance service of the suit paper book to the defendants.
7. Having considered the contents of the application, the same is allowed. The plaintiffs are granted exemption from making advance service of the suit paper book to the defendants.
CS(COMM) 692/2022
8. Let the Plaint be registered as a suit.
9. Issue summons to the defendants, to be served through all permitted modes, including electronically, returnable on 18th January, 2023 before the learned Joint Registrar (Judicial).
10. The summons to the defendants shall indicate that the written statement(s) to the Plaint shall be positively filed within a period of 30 days from the date of receipt of summons. Along with the written statement(s), the defendants shall also file the affidavit(s) of admission/denial of the documents of the plaintiffs, without which the written statement(s) shall not be taken on record.
11. Liberty is given to the plaintiffs to file the replication(s) within a period of 15 days of the receipt of the written statement(s). Along with the replication(s), if any, filed by the plaintiffs, the affidavit(s) of admission/denial of documents of the defendants be filed by the plaintiffs, without which the replication(s) shall not be taken on record. If any of the parties wish to seek inspection of any documents, the same shall be sought and given within the timelines.
I.A. 16361/202212. Issue Notice.
Signature Not Verified Digitally Signed By:SHALOO BATRA Signing Date:20.10.2022 17:12:0913. On the plaintiffs taking steps, let notice be served on the defendants through all permissible modes, including electronically, returnable on 18th January, 2023 before the learned Joint Registrar (Judicial).
14. Let reply(ies) to the application be filed by the defendants within a period of four weeks of receipt of the notice. Rejoinder(s) thereto, if any, be filed within a period of two weeks thereafter.
15. It is the case of the plaintiffs that the plaintiffs are the adopters, owners and proprietors of the trade marks "MOTI", "MOTIGOLD", "TILMOTI", "MOTILITE" and "MOTIPURE (LABEL)" in relation to trading, manufacturing, marketing of all varieties of Edible Oils including Vegetable Oil, Mustard Oil, Palm Oil, Refined Oil, Vanaspati Oil, Peanut Oil, Sunflower Oil, Cooking Oil, Olive Oil, Extra Virgin Oil, Processed Edible Pumpkin Seed Oil, Refined Oil, Coconut Oil, Cottonseeds Oil, cheese, butter, ghee, milk and milk products. The said marks have been used since 1999-2000.
16. The plaintiffs give details of the registrations of the trade marks in paragraph 12 of the Plaint. The plaintiff claims that the above products are being extensively sold in the Indian market. The plaintiffs claim to have spent huge amounts in promoting the trade mark. Details of the sales and advertisement expenditure are given by the plaintiffs in paragraph 24 of the Plaint.
17. The plaintiffs assert that in the month of February 2022, they came to know through TM Journal No. 2039 that the defendant no.1 has adopted the mark "APPMOTI", which is identical to that of the plaintiffs' trade mark "MOTI". Even the packaging, label, get up, etc. is identical to the packaging of the products of the plaintiffs with "APP" written in a minor manner.
Signature Not Verified Digitally Signed By:SHALOO BATRA Signing Date:20.10.2022 17:12:0918. The marks of the plaintiffs and the defendants in form of the packaging are reproduced hereinbelow:-
TRADE MARK OF THE TRADE MARK OF THE
PLAINTIFFS DEFENDANTS
19. The plaintiffs claim that they issued a cease and desist notice dated 06.05.2022 as also filed an opposition against the registration of the trade mark sought by the defendants. In their reply/counter statement, the defendant contended that it has adopted the impugned mark in the year 2021, whereas, in a cease and desist notice dated 14.06.2022 issued by the Signature Not Verified Digitally Signed By:SHALOO BATRA Signing Date:20.10.2022 17:12:09 defendant no. 1, the defendant no. 1 contended that it has adopted the said mark in the year 2015. The learned counsel for the plaintiffs submits that this itself shows the mala fide of the adoption and the claim of the defendants.
20. He further submits that even in the application seeking registration of the trade mark filed by the defendant no. 1 on 10.09.2021, the mark applied for is on a "proposed to be used basis".
21. Having considered the contents of the Plaint, the documents filed therewith, and having heard the learned counsel for the plaintiffs, I am of the opinion, that the plaintiffs have been able to make out a good prima facie case in their favour. The marks in question are identical to each other with "APP" being reflected in a very minor and obscured manner in the packaging of the defendants. In fact, the packaging of the plaintiffs and the defendants also appears to be identical with each other and is, therefore, likely to deceive unwary consumers. The plaintiffs are likely to suffer grave irreparable injury in case an ad interim ex-parte injunction as prayed for is not granted in their favour. Balance of convenience is also in favour of the plaintiffs and against the defendants.
22. Accordingly, by way of an ad interim ex-parte order, the defendants, their principal officers, directors, partners, agents, franchisees, servants, licensees and all others acting for and on their behalf are restrained from making, selling, offering for sale, advertising and in any manner dealing in Edible Oils including Vegetable Oil, Mustard Oil, Palm Oils, Refined Oil, Vanaspati Oil, Peanut Oil, Processed Edible Pumpkin Seed Oil etc. or any goods not originating from the plaintiffs, under the mark "APPMOTI", and/or any other mark/marks, which is/are identical to or deceptively and Signature Not Verified Digitally Signed By:SHALOO BATRA Signing Date:20.10.2022 17:12:09 confusingly similar to the plaintiffs' trade marks.
23. Compliance with Order XXXIX Rule 3 of the Code of Civil Procedure, 1908, be made within a period of one week from today.
I.A. 16362/202224. By this application, the plaintiffs pray for an appointment of a Local Commissioner to visit the following premises of the defendants to carry out the mandate as given hereinbelow:-
"a) Royal House, Janta Road, Saharanpur, UP - 247001
b) Royal House, Janta Road, Chak Hareti, Saharanpur, U.P.- 247001."
25. For the reasons stated hereinabove, I am of the opinion that the plaintiffs have been able to make a case for the appointment of a Local Commissioner.
26. Accordingly, I appoint Mr. Vishal Gohri, Advocate, Address: 8/5, 3rd Floor, Double Storey, Jangpura Extension, New Delhi-110014 Mob. No.9711455398 as a Local Commissioner, who shall visit the abovementioned premises of the defendants and such other premises upon ascertaining the address or acquiring knowledge during the visit to the premises hereinabove from where the defendants, their agents, retailers, stockists and/or anyone acting for or on their behalf are indulging in the illegal acts amounting to infringement and/or passing off, and:-
(a) make an inventory of and take into custody the infringing goods, in the impugned packaging and/or any unfinished products bearing nearly identical/deceptively similar trade marks to the plaintiffs' marks "MOTI", "MOTIGOLD", "TILMOTI", "MOTILITE" and "MOTIPURE (LABEL)" and/or any other deceptively similar variant thereof;Signature Not Verified Digitally Signed By:SHALOO BATRA Signing Date:20.10.2022 17:12:09
(b) make an inventory of and take into custody the machinery, printing and packaging apparatus including packing material, cartons, bags, brochures, pamphlets, signboards, printing, blocks, ink etc., and/or unfinished products bearing nearly identical/deceptively similar trade marks to the plaintiffs' marks "MOTI", "MOTIGOLD", "TILMOTI", "MOTILITE" and "MOTIPURE (LABEL)" and/or any other deceptively similar variant thereof and seize the said infringing material;
(c) hand over the seized material on superdari to the concerned defendants and/or their representatives, on an appropriate undertaking that the sealed materials will be produced before this Court, as and when directed;
(d) the representatives of the plaintiffs shall be entitled to accompany the Local Commissioner in order to assist in bonafidely identifying the impugned products;
(e) seize books of accounts including ledgers, cash books, bill books, and all other relevant documents discovered from any of the premises as mentioned above and/or where the said entity/entities of the defendants, their promoters, directors, officers, servants, agents, retailers, stockists and/ or anyone acting for and on their behalf are indulging in the illegal acts and take copies of the same;
(f) take samples of the impugned products in the terms mentioned above and also to take photographs of the premises and the impugned products;
(g) seek police assistance for carrying out his mandate. The concerned Local Police/Station House Officer (SHO) shall render all assistance Signature Not Verified Digitally Signed By:SHALOO BATRA Signing Date:20.10.2022 17:12:09 required for execution of the Commission;
(h) break open the locks/seals of the premises in case of any resistance;
(i) file his report along with sample copies of the seized material within one week of the execution of the commission.
27. The fee of the Local Commissioner is fixed at Rs. 1,50,000/- (Rupees One Lakh and Fifty Thousand Only) apart from any out of pocket expenses that the Local Commissioner may incur, to be paid by the plaintiffs at the first instance.
28. The application is disposed of.
29. This order may not be uploaded on the website of the Delhi High Court for a period of ten days.
30. Dasti.
NAVIN CHAWLA, J OCTOBER 10, 2022/rv Signature Not Verified Digitally Signed By:SHALOO BATRA Signing Date:20.10.2022 17:12:09