Delhi District Court
Ariba Saeed vs Aarna Sales Corporation on 27 May, 2025
IN THE COURT OF GORAKH NATH PANDEY
DISTRICT JUDGE (COMMERCIAL COURT-08),
CENTRAL DISTRICT, TIS HAZARI COURTS: DELHI.
CS (COMM.) 1837/2020
CNR NO.DLCT01-009261-2020
MS. ARIBA SAEED,
PROP. EASY HEALTH,
HAVING ITS OFFICE AT
2112, 1st FLOOR,
NAHAR KHAN STREET, KUCHA CHELAN,
DARYA GANJ, NEW DELHI - 110002.
........ Plaintiff.
VERSUS
AARNA SALES CORPORATION
THROUGH ITS PROPRIETOR
1195, WARD NO.23, GUR MANDI,
SONIPAT, HARYANA - 131001.
.............. Defendant
Date of Institution : 17.12.2020
Date of decision : 27.05.2025
Decision : Decreed.
JUDGMENT:-
1. This suit has been filed by the plaintiff against the defendant seeking reliefs of permanent injunction restraining the defendant from infringing and passing off Trademark; rendition of accounts & recovery of damages of Rs.3 lacs.
BRIEF FACTS OF THE CASE:
2. As contended, the plaintiff is engaged in the business of on-line trading activities in respect of health and gym products CS (Comm) 1837/2020 Page No. 1 of 11 ARIBA SAEED VS. AARNA SALES CORPORATION since 2016. The plaintiff is a legal and lawful Proprietor of the trade mark 'Easy Health' under the Trademark Application no.3286096 in Class - 28 under the Trade Marks Act in respect of the said business which is still valid.
It is further contended that the plaintiff has given the extensive publicity to popularize its trademark through various modes of publicity and has spent lot of money and time on it. The plaintiff is the first adopted and prior user of the trade mark 'Easy Health'.
It is alleged that in the month of March, 2020, it has come to the notice of the plaintiff that the defendant listed offers on the plaintiff product namely 'single spring tummy trimmer' and 'Tummy Trimmer Pro' Asin no.BOIN7E3E21, BO7XG33H8L at Amazon.in. Online selling portal in a wrongful and deceitful manner knowing that the plaintiff is the lawful owner of the Trade Mark 'Easy Health' and by way of using the similar trademark the defendant is deceiving the public at large. Further, the aforesaid activities of the defendant constitute passing off/infringement of the plaintiff prior user/registered trade mark of the plaintiff. It is submitted that there are several you-tube subscribers and facebook followers of the plaintiff and the unauthorized use of the trademark of the plaintiff will adversely effect the goodwill of the plaintiff. Therefore, the plaintiff issued legal notice dated 07.03.2020 to the defendant calling upon the defendant to cease and desist from using the infringing trademark and/or other similar trademark in respect of 'Easy Health'. Upon receipt of the legal notice, the defendant CS (Comm) 1837/2020 Page No. 2 of 11 ARIBA SAEED VS. AARNA SALES CORPORATION stopped listing the products but again in the month of May, 2020 he started listing offers mapping three of the Asins of plaintiff namely BO7XG33H8L BO1E4TXD31 and BOIN7E3E21 causing huge financial losses and loss of goodwill and reputation to the plaintiff. The defendant is still infringing and passing of the plaintiff's trade mark 'Easy Health' and due to the said act of the defendant, the plaintiff is suffering huge losses as well as goodwill in the market. Hence the present suit is filed with the following prayers:
(a) pass a decree of permanent injunction restraining the defendant its proprietor, agents, servants, representatives, distributors, stockiest etc. and all other acting for and on behalf of the defendant from infringing trademark and copyright and/or other similar trademark and copyright in respect of "Easy Health" in any manner being similar and deceptive to the trade mark of the plaintiff namely "Easy Health";
(b) for rendition of accounts of the defendant for ascertainment of the profits illegally earned by the defendant by his impugned activities and for a money decree for such profits being so ascertained by this Hon'ble Court; (bb) pass a money decree of Rs.3,00,000/- towards damages in favour of the plaintiff and against the defendant alongwith interest @ 18% p.a. from the date of suit till payment;
(c) award exemplary cost of the suit in favour of the plaintiff and against the defendant.
3. The defendant filed written statement contending that CS (Comm) 1837/2020 Page No. 3 of 11 ARIBA SAEED VS. AARNA SALES CORPORATION
- the plaintiff has suppressed the material facts that the alleged registration of the trademark of the plaintiff 'Easy Health' pertains to the 'devicemark' and not of the 'wordmark'; the alleged registration of device mark does not confer any exclusivity in favour of the plaintiff to use said trademark as wordmark in accordance with Section 17(2) of the Trade Mark Act; the present suit is bad for non-joinder of necessary parties; the instant suit has been filed against the Proprietorship Firm is not a legal entity. The defendant denied the material contents of the plaint and lastly prayed to dismiss the suit.
4. The plaintiff filed the replication to the written statement of the defendant reiterating the contents of the plaint and denying the averments made in the written statement.
5. In view of the pleadings of the parties, the following issues were framed vide order dated 15.02.2025 for adjudication of the case:
(1) Whether the plaintiff is entitled for decree of permanent injunction as prayed for? ...OPP (2) Whether the plaintiff is entitled to rendition of accounts? ...OPP (3) Whether the plaintiff is entitled to damages as prayed? ...OPP (4) Relief.
6. The evidence in this case was recorded before the CS (Comm) 1837/2020 Page No. 4 of 11 ARIBA SAEED VS. AARNA SALES CORPORATION Local Commissioner appointed vide order dated 15.02.2025. The plaintiff examined his SPA Holder Mr. Ateeb Saeed as PW1 vide his affidavit Ex.PW1/A who deposed as per the averments in the plaint and also relied upon the following documents:
(i) Copy of trademark application of the plaintiff as Ex.PW1/1.
(ii) Copy of form TM-1 alongwith additional representation as Ex.PW1/2.
(iii) Copy of form TM-48 as Ex.PW1/3. (iv) Certificate of registration under Delhi Value Added Tax Act, 2004 as Ex.PW1/4. (v) Certificate of the registration of the plaintiff firm as Ex.PW1/5. (vi) GST registration certificate as Ex.PW1/6. (vii) Copy of invoice of Aarna Sales Corporation as Ex.PW1/7. (viii) Copy of legal notice dated 07.03.2020 with postal receipts as Mark A. (ix) Copy of SPA as Ex.PW1/9. (x) Certificate u/s 63 of BSA as Ex.PW1/10. CS (Comm) 1837/2020 Page No. 5 of 11 ARIBA SAEED VS. AARNA SALES CORPORATION
7. In rebuttal, the defendant examined himself as DW1 and deposed as per the written statement vide his affidavit Ex.DW1/A.
8. I have heard the final arguments addressed by the counsel for the parties and gone through the records as well. My issue-wise findings are as under:
Issue no.1 to 3 :
(1) Whether the plaintiff is entitled for decree of permanent injunction as prayed for? ...OPP" (2) Whether the plaintiff is entitled to rendition of accounts? ...OPP (3) Whether the plaintiff is entitled to damages as prayed?
...OPP
9. It is now well settled / laid down by our own Hon'ble High Court in case titled as Shaw Wallace & Co. Ltd. & Anr. v. Superior Industries Ltd. 2003 (27) PTC 63 (Del) as to how infringement of trade mark is to be seen, to quote:-
12.It is well settled that in an action for alleged infringement of a registered trade mark, if the impugned marked used by the defendant is identical with the registered trade mark of the plaintiffs, no further questions have been to be addressed and it has to be held that there is indeed an infringement. If the mark is not identical, the matter has to be further considered and it has to be seen whether the mark of the defendant is deceptively similar to that of the plaintiff. Deceptive similarity means that the mark is likely to deceive or cause confusion in relation to goods in respect of which the plaintiff got its mark registered.
For the purpose of this comparison, the two marks have to be compared, not by placing them side by side, but by asking the CS (Comm) 1837/2020 Page No. 6 of 11 ARIBA SAEED VS. AARNA SALES CORPORATION question whether having due regard to relevant surrounding circumstances, defendant's mark is similar to that of the plaintiffs, as would be remembered by persons possessed of an average memory with its usual imperfections. On the touchstone of this query, it is to be determined whether the mark of the defendant is likely to deceive or cause confusion. The sequetur to the aforesaid preposition of law, is that, in an action of infringement, for the success by the plaintiff, he need not prove that the whole of his registered trade mark has been copied, but he can also succeed, if, he shows that the mark used by the defendant is similar to the mark of the plaintiff, as it would be numbered by persons possessed of an average memory with its usual imperfection or with its usual imperfection or that its essential particulars or the distinguishing or essential feature has been copied (ILR 197 (II) Delhi 225 Jagan Nath Prem Nath v. Bhartiya Dhoop Karvalaya Para- 7).
10. The brief and relevant facts for filing of the case has been mentioned at the outset. Section 101 of the Evidence Act, 1872 defines "burden of proof" which is reproduced as below:-
"101. Burden of proof- whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person."
Section 101 of the Evidence Act has clearly laid down that the burden of proving a fact always lying upon the person who asserts the facts. Until such burden is discharged, the other party is not required to be called upon to prove his case. The court has to examine as to whether the person upon whom the burden lies has been liable to discharge his burden. Until he arrives at such conclusion he cannot proceed on the basis of weakness of other party. Further, Section 58 of the Indian Evidence Act contained that no fact need to be proved in any CS (Comm) 1837/2020 Page No. 7 of 11 ARIBA SAEED VS. AARNA SALES CORPORATION proceedings which parties thereto or their agents agree to admit at the herein, or which, before the hearing, they agree to admit by any writing under their hands or which by any rule of pleadings enforce at the time they are deemed to have admitted by their pleadings.
11. It is well settled that a suit has to be tried on the basis of the pleadings of the contesting parties which is filed in the suit in the form of plaint and written statement and the nucleus of the case of the plaintiff and the contesting case of the defendant in the form of issues emerges out of that. Being a civil suit, this suit is to be decided on the basis of preponderance of probabilities.
In the case of Raj Kumar Singh & Anr. Vs. Jagjit Chawla, reported in 183 (2011) DLT 418, the Hon'ble High Court of Delhi was pleased to observe as under:-
"A civil case is decided on balance of probabilities. The balance of probabilities in the present case shows that the Power of Attorney Ex. PW3/1 and the Will Ex. P-1 were duly executed by the deceased Sh. Sohan Singh. The Power of Attorney is after all a registered Power of Attorney, and more importantly, the original title documents of the subject property are in the possession of the respondent No. 1 and which would not have been, if there was not to be any transfer of title in the suit property. Merely because two views are possible, this court would not interfere with one possible and plausible view which is taken by the court below, unless such view causes grave injustice. In my opinion, in fact, grave injustice will be caused not to the objectors/appellants but to the respondent No. 1 her father-in-law Sh. Sewa Singh, if the impugned judgment is set aside."
In the case of Vishnu Dutt Sharma Vs. Daya Sapra, reported in (2009) 13 SCC 729, the Hon'ble Supreme Court was CS (Comm) 1837/2020 Page No. 8 of 11 ARIBA SAEED VS. AARNA SALES CORPORATION pleased to observe as under:
''8. There cannot be any doubt or dispute that a creditor can maintain a civil and criminal proceedings at the same time. Both the proceedings, thus, can run parallel. The fact required to be proved for obtaining a decree in the civil suit and a judgment of conviction in the criminal proceedings may be overlapping but the standard of proof in a criminal case vis-a- vis a civil suit, indisputably is different. Whereas in a criminal case the prosecution is bound to prove the commission of the offence on the part of the accused beyond any reasonable doubt, in a civil suit "preponderance of probability" would serve the purpose for obtaining a decree".
12. The relevant Section 103 Indian Evidence Act, 1872 which cast onus on the parties to prove their contention is also reproduced for ready reference as under:
Section 103 Evidence Act, 1872: Burden of Proof as to particular fact The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence unless it is provided by any law that the proof of that fact shall lie on any particular person. Illustration:
(a) A prosecutes B for theft, and wishes the Court to believe that B admitted the theft to C. A must prove the admission.
B wishes the Court to believe that, at the time in question, he was elsewhere. He must prove it.
13. The onus to prove the above issues was on the plaintiff. The brief and relevant facts for filing the present suit alongwith defence of the defendant have been mentioned at the outset. The plaintiff alleged that its trademark was infringed by the defendant and hence this suit was filed.
During the course of arguments, it is submitted by the counsel for the defendant that the defendant have used "Easy CS (Comm) 1837/2020 Page No. 9 of 11 ARIBA SAEED VS. AARNA SALES CORPORATION Health' as a word mark only during the period March, 2020 and has discontinued thereafter its use in any business. It is further submitted by him that presently the defendant is not using the mark 'Easy Health' as a trademark nor proposed to use the same in future for any trade and commerce. The statement of the counsel for the defendant has already been recorded separately with regard to the undertaking for not using the trademark 'Easy Health' by the defendant. In view of the undertaking given on behalf of the defendant, the plaintiff is entitled for decree of permanent injunction qua the trademark 'Easy Health'.
I have gone through all the documents filed and proved by PW1. The PW1 filed his affidavit by way of evidence and reiterated the averments made in the plaint. He was cross- examined by the counsel for the defendant at length and during cross-examination PW1 deposed that - "It is correct that I have not filed any document which shows that I am suffered losses but I have filed only an invoice". Nothing has been placed on record any document to prove any damages suffered by the plaintiff. In view of the absence of empirical data, the claim of the plaintiff regarding rendition of accounts and damages appears to be without any basis. In view of the above, the issue no.1 is decided in favour of the plaintiff and against the defendant. As the plaintiff failed to prove anything on record in respect of rendition of accounts as well as damages suffered by the plaintiff as prayed in the plaint, the issues no.2 & 3 are decided against the plaintiff.
CS (Comm) 1837/2020 Page No. 10 of 11ARIBA SAEED VS. AARNA SALES CORPORATION Relief:
14. In the light of the aforesaid discussions, the suit of the plaintiff is decreed and decree of permanent injunction is passed in favour of the plaintiff and against the defendant thereby restraining the defendant, its proprietor, agents, servants, representatives, distributors, stockiest etc. all other acting for and on behalf of the defendant from infringing trademark and copyright and/or other similar trademark and copyright in respect of "Easy Health" in any manner being similar and deceptive to the trademark of the plaintiff "Easy Health".
15. Decree sheet be drawn accordingly.
16. The copies of the judgment be issued to all the parties to the dispute through Electronic Mail. Judgment be also uploaded on the server.
17. File be consigned to Record Room after necessary compliance. GORAKH Digitally signed by GORAKH NATH NATH PANDEY Date: 2025.05.28 PANDEY 16:11:11 +0530 Announced in the open court (GORAKH NATH PANDEY) th on 27 May, 2025 District Judge (Commercial Court-08), Central: Tis Hazari Courts, Delhi.
CS (Comm) 1837/2020 Page No. 11 of 11ARIBA SAEED VS. AARNA SALES CORPORATION