Delhi District Court
Krbl Ltd vs Tricon Polyfabs Pvts Lts. And Ors on 10 January, 2025
IN THE COURT OF MR. ANIL KUMAR SISODIA:
DISTRICT JUDGE (COMMERCIAL COURT)-04,
CENTRAL, TIS HAZARI COURTS, DELHI
CS (COMM)1702/2020
KRBL LIMITED
5190, Lahori Gate,
Delhi-110006
Also Corporate Office at:
C-32, 5th & 6th Floor,
Sector-62, Noida-201301, UP
...PLAINTIFF
Versus
1.TRICON POLYFABS PVT. LTD.
10 Clive Row, 2nd Floor, Room No. 7/11, Kolkata, West Bengal-700001
2. DAILY SOUQ ONLINE SUPERMARKET Near Karuvattu Kavu Temple, South Annara, Tirur, Kerala-676101
3. My Shopping Basket, Online Hypermarket Door No. 34/214 (1) EMS Nagar, Vennakkara Palakkad, Kerala-678004
4. NIVEDITA CHOWDHURY Proprietor of M/s Nivedita Exports 10, Madhab Halder Road, Kolkata-700034, West Bengal, India ....DEFENDANTS Date of filing of the suit : 10.11.2020 Date of reserving judgment : 18.12.2024 Date of judgment : 10.01.2025 CS (COMM) No. 1702/2020 KRBL Limited Vs Tricon Polyfabs Pvt. Ltd. & Ors. Page No.1/43 Judgment
1. This is a suit under Section 134 & 135 of Trade Marks Act, 1999 for permanent injunction restraining infringement of trademark and passing off, delivery up and rendition of accounts etc.
2. Briefly stated, facts of the case are that the Plaintiff KRBL Limited, is a company duly incorporated under the provisions of the Indian Companies Act, 1956. Earlier the Plaintiff was incorporated as Khushi Ram Behari Lal Ltd. in the year 1993 and the name was changed to KRBL Ltd. in the year 2000. The Plaintiff is engaged in the business of manufacturing, processing, marketing, selling and exporting of rice of various kinds (including Basmati Rice) (hereinafter be referred to as "the said goods and business"). The Plaintiff is the world's largest rice miller and a leading exporter from India. The Plaintiff is also a market leader and is one of the largest companies in India having major market share in manufacturing, distribution, and sale/export of rice. The Plaintiff's products are known for their superior quality and reliability. The Plaintiff's products are extremely popular and in great demand in India and Overseas.
3. The Plaintiff, in the year 1999, Bonafide and honestly adopted and started using, in relation to their goods and business, the trademarks NOORJAHAN and NUR JAHAN (in word / device / label form) (hereinafter CS (COMM) No. 1702/2020 KRBL Limited Vs Tricon Polyfabs Pvt. Ltd. & Ors. Page No.2/43 severally or collectively referred to as 'the Plaintiff's trademark'). It is stated that since the year 1999, the trademark NUR JAHAN (in word / device / label form) has been in honest and continuous use in relation to its said goods and business. The Plaintiff has built up a valuable trade, goodwill, and reputation under the aforesaid trademark both in India and Overseas. The Plaintiff filed various applications before the Registrar of Trademark and obtained trademark registrations as detailed in para 7 of the plaint.
4. It is further stated that the copyright involved in the original artistic work; i.e. NUR JAHAN / is duly registered in India under No. A-71508/2005 in favor of the Plaintiff under the Copyright Act. It is pertinent to mention that the said original artistic work forms a prominent part of the Plaintiff's packaging labels. The Plaintiff has been dealing with its copyright in the course of trade in relation to its goods and business inter alia within the meaning of Section 14 of the Copyright Act. The Plaintiff's original artistic work / packaging label NUR JAHAN PREMIUM Label is also registered in India under the Copyright Act. In addition to the aforesaid Indian Copyright Registrations, the Plaintiff has Copyright Registration in Canada for its original artistic work NUR CS (COMM) No. 1702/2020 KRBL Limited Vs Tricon Polyfabs Pvt. Ltd. & Ors. Page No.3/43 JAHAN Label / (under Registration No.1134111).
5. The Plaintiff has been using its trademark in several distinctive packaging labels and representations of the said packaging labels are given below:
The said packaging labels / trade dresses have gained a lot of customer attention. The Plaintiff's packaging labels/ trade dresses (consist of unique color combinations) are, therefore, exclusive and have aesthetic appeal. Among all of the abovementioned packaging/ trade dresses/ labels, CS (COMM) No. 1702/2020 KRBL Limited Vs Tricon Polyfabs Pvt. Ltd. & Ors. Page No.4/43 the Plaintiff has been using the packaging/ trade dress/ label since 1999; i.e. since adoption of the Plaintiff's trademark.
6. It is stated that the Plaintiff has spent enormous time, money, and efforts for creation of the Plaintiff's packaging/ label/ trade dress. The Plaintiff's packaging/ label/ trade dress is one of the oldest, most prominent, and valuable trademark/label/trade dress of the Plaintiff. The Plaintiff's goods are sold and traded/exported in various countries of the world under the Plaintiff's packaging/label. The business of the Plaintiff has expanded over the years and the export sales have increased from USD 34,542 in 2001-02 to USD 11,891,979 in the year 2019-20. Similarly, the domestic sales of the Plaintiff have increased from Rs.13,656,792.50 in the year 1999-2000 to Rs.167,717,038 in the year 2019-
20.
7. It is stated that the Plaintiff also displays its products on its interactive website namely www.krblrice.com which contains extensive information about the products of the Plaintiff and the Plaintiff is using this website to carry out its business.
CS (COMM) No. 1702/2020 KRBL Limited Vs Tricon Polyfabs Pvt. Ltd. & Ors. Page No.5/438. It is further stated that the Plaintiff has been promoting his business through extensive advertisements, promotions and marketing research and has spent huge amounts of money, efforts, skill, and time thereon. The trademark of the Plaintiff has become distinctive and associated with the Plaintiff's good on account of continuous extensive and exclusive use and the trademark of the Plaintiff is eligible to be considered and classified as well-known trademark within the meaning of section 2(1) (zg) and as per section 11 (6) of the Trade Marks Act.
9. It is further stated that in the second week of August, 2020, the Plaintiff came across a deceptively similar trademark "NOOR JAHAN" of the Defendants under different labels visualized as under:
(hereinafter referred to as "the impugned trademarks") being used by the Defendants from their websites/online CS (COMM) No. 1702/2020 KRBL Limited Vs Tricon Polyfabs Pvt. Ltd. & Ors. Page No.6/43 trade portal displaying the impugned trademarks. It is stated that activities of the defendants relating to impugned trademarks are in the utter violation and infringement of the Plaintiff's registered trademark "NOOR JAHAN"/ "NUR JAHAN." The Plaintiff launched an enquiry into the markets to ascertain the details of illegal use of impugned trademarks by the defendants from various online platforms. The enquiry revealed that defendants are engaged in the business of manufacturing, processing, selling, soliciting, and trading of rice under the impugned trademark. On further enquiry from the website/online records of trademark registry, it was also revealed that the Defendant no. 4 had applied for registration of the trademark/label on 13.07.2015 under the Application No. 3008309 in Class 30 for the goods "Rice" and claimed user dated 28/05/2014. The impugned trademark of the Defendant no. 4 was refused. The Plaintiff has all reasons to believe that the defendants are carrying on its illegal business activities through itself and also through online platform namely Daily Souq Online Supermarket and My Shopping Basket, Online Hypermarket respectively in connivance with them. The defendants are fraudulently, dishonestly, wrongfully, in a mala-fide manner, acting in collusion and conspiracy with each other and infringing the trademarks/labels of the Plaintiff.CS (COMM) No. 1702/2020 KRBL Limited Vs Tricon Polyfabs Pvt. Ltd. & Ors. Page No.7/43
10. It is stated that the impugned adoption of the Defendants of the impugned trademarks/labels "NOOR JAHAN" under the aforesaid labels is dishonest, mala-fide and tainted since its inception. It is submitted that the Defendants' trademark/label has been inspired and adopted from the Plaintiff's trademark/label. The impugned and dishonest adoption and illegal act of the defendants violates the statutory rights of the Plaintiff as conferred to the Plaintiff for their registered trademark "NOOR JAHAN" and "NUR JAHAN" under Nos. 852155, 4097611, 857522 & 1352966 in Class 30 & 35 respectively of the Plaintiff.
11. It is stated that the defendants have copied the broad, essential, and prominent features of the Plaintiff registered trademark "NOOR JAHAN" and "NUR JAHAN" without any permission/leave of the Plaintiff. The defendants' adoption and use of impugned trademark is dishonest, mala-fide and only with a view to create confusion and deception in the minds of the customers and to cause financial loss as well as loss of goodwill and reputation to the Plaintiff for the reason that goods of the Plaintiff and defendants are identical and of the same description. The defendants are diluting the trademark of the Plaintiff and passing off their goods as that of Plaintiff. It is also stated that defendants are carrying on their illegal activities through online platforms/websites namely CS (COMM) No. 1702/2020 KRBL Limited Vs Tricon Polyfabs Pvt. Ltd. & Ors. Page No.8/43 www.dailysouq.in/ and www.myshoppingbasket.in and www.triconpolyfabs.com which are accessible all over the India. It has been stated that Plaintiff is maintaining its website having accessibility within the jurisdiction of this court.
12. The Plaintiff has prayed for decree of permanent injunction for restraining the defendants from using the impugned trademark or any other deceptively similar trademark in relation to rice or any other related/allied/cognate products online as well as offline and thus infringing the registered trademarks of the Plaintiff and from passing off and violation of the Plaintiff's rights in the Plaintiff's trademarks/labels and dilution of the Plaintiff's distinctive trademark/label "NOOR JAHAN" and "NUR JAHAN." The Plaintiff also prayed for restraining the defendants from disposing of or dealing with their assets in their premises and their stocks- in-trade or any other assets and to deliver up all the impugned finished and unfinished material bearing the impugned trademark or any other trademark/label identical or deceptively similar to the Plaintiffs logo/device/labels/trade dresses. The Plaintiff also sought an order for rendition of accounts of profits earned by the defendants by their impugned illegal trade activities and a decree for the amount so found in favour of the Plaintiff on such rendition of accounts.
CS (COMM) No. 1702/2020 KRBL Limited Vs Tricon Polyfabs Pvt. Ltd. & Ors. Page No.9/4313. Summons of the suit were issued to the defendants. The Defendant nos. 1 & 2 were duly served with the summons of the suit and they have contested the suit by filing the written statement. Defendant no. 4 was served on 13.09.2021 but he did not appear and contest the suit and was accordingly proceeded ex-parte on 28.05.2022. Defendant no. 3 was served by way of publication in Newspaper "The Hindu" dated 29.04.2023 but none appeared on behalf of Defendant no. 3 to contest the suit and Defendant no. 3 was proceeded ex-parte vide order dated 17.08.2023.
WS of Defendant no.1
14. Defendant no. 1 has filed WS raising preliminary objections that Defendant no. 1 is engaged in the supply and manufacturing of PP/HDPE woven bags, BOPP bags, Flexo bags, PP Woven fabric and Leno bags which are used for packaging of various products. Defendant no.1 is not engaged in the business of manufacturing/processing/marketing, selling, and exporting of basmati rice and therefore, the suit is not maintainable. It was further stated that the business of the Defendant no. 1 is entirely different/distinct in nature as that of Plaintiff and there are no grounds on which the claim of the Plaintiff can be sustained. Defendant no. 1 has never used or misused the trademark of the Plaintiff in its business and made any profit out of the same. The CS (COMM) No. 1702/2020 KRBL Limited Vs Tricon Polyfabs Pvt. Ltd. & Ors. Page No.10/43 allegation of the Plaintiff that the impugned trademark used by the defendant on different packaging/labels are similar or identical to the trademark of the Plaintiff is false as there is complete structural and visual dissimilarity. It is stated that Plaintiff is not registered owner of the brand 'NUR JAHAN.' It is stated that the term 'NUR JAHAN' is a name of a person and hence it is generic term over which no trademark can be sustained or claimed. The Defendant no. 1 has no dealing or business with Defendant no. 2 to 4 and parties are stranger to the Defendant no. 1. The suit filed by the Plaintiff is based on cooked-up story and is full of concoctions with a view to harass the Defendant under illegal demand of money and thereby the suit is filed with mala-fide and mischievous intentions. The suit of the Plaintiff is based on false and fabricated ground and documents are self-contradictory, baseless, and unreliable. The Plaintiff has not approached the court with clean hands and has suppressed various material facts. The Defendant no. 1 resides and works for gain at Kolkata and has no business in Delhi and therefore, this court does not have territorial jurisdiction to try and entertain the suit. The suit has not been filed by the Plaintiff through duly authorized person.
On merits, the contents of the plaint have been denied and it has been reiterated that the business of Plaintiff and Defendant no. 1 is entirely different. Defendant no. 1 has no business relation with Defendant nos. 2 to 4. Defendant no. 1 has not misused the CS (COMM) No. 1702/2020 KRBL Limited Vs Tricon Polyfabs Pvt. Ltd. & Ors. Page No.11/43 trademarks of the Plaintiff and has not gained any profit out of the same and a prayer has been made for dismissal of the suit.
WS of Defendant no. 2
15. Defendant no. 2 has filed the written statement raising preliminary objections and submissions that the suit of the Plaintiff is baseless and not maintainable. It has been stated that Defendant no. 2 is conducting business of online marketing of house-hold items and office utensils on an online platform in the name and style of Daily Souq Online Super Market. The Defendant no. 2 is not a manufacturer of any of those items sold out by them through the online platform. Defendant no. 2 is conducting business in the local area of Tirur Town, within a radius of 15 km from the office. The website of online platform of the firm is loaded with different brands of consumable items with its labels and product name which is available in local market. The photographs of different brands of consumables shown on the websites of the Defendant no. 2 are mainly taken from the distributors of those brands. The Defendant mainly purchases those items through the local market of Tirur, Malappuram and from local distributors. The business of defendant has nothing to do with the Trade Marks Act or any other business as alleged in the plaint. The defendant is purchasing all the items from local traders and distributors. The defendant is not having any connection with the production, distribution, supply of any CS (COMM) No. 1702/2020 KRBL Limited Vs Tricon Polyfabs Pvt. Ltd. & Ors. Page No.12/43 of those items which are sold out by them through online platform. The Defendant no. 2 is not having any type of control over the purchase and sale of those traders.
On merits, the contents of the plaint have been denied and it has been stated that Defendant no. 2 has nothing to do with the trademark and business of the Plaintiff and Defendant no. 2 has never violated any provisions of The Copyright or Trade Marks Act. Defendant no. 2 has not used, copied, or imitated the brand name of the Plaintiff including "NOOR JAHAN" nor it has used the goodwill and reputation of the Plaintiff. Defendant no. 2 does not have any connection with other Defendants. Other contents of the plaint have been denied and a prayer has been made for dismissal of the suit.
16. Plaintiff has filed replications to the written statement of the Defendant nos. 1 and 2 and has reiterated the contents of the plaint and denied the contents contrary to it.
17. On the basis of pleadings of the parties, following issues were framed on 17.08.2023: -
1. Whether there is no cause of action with the Plaintiff against Defendant nos. 1 & 2? (OPD)
2. Whether the suit has not been CS (COMM) No. 1702/2020 KRBL Limited Vs Tricon Polyfabs Pvt. Ltd. & Ors. Page No.13/43 filed by a duly authorized person?
(OPD-1)
3. Whether the Plaintiff is using trademarks "NOOR JAHAN" (in word/device/label form) since 1999 and is the registered owner of the trade marks '"NOOR JAHAN"' and 'Nur Jahan'? (OPP)
4. Whether the trade marks being used by defendants are not identical or similar to that of Plaintiff in a manner which is likely to lead to deception or confusion? (OPD)
5. Whether the use of the impugned trademarks '"NOOR JAHAN"/Nur Jahan' by the defendants amounts to infringement of the Plaintiff's registered trademarks? (OPP)
6.Whether the Plaintiff is entitled for permanent injunction as prayed for? (OPP) CS (COMM) No. 1702/2020 KRBL Limited Vs Tricon Polyfabs Pvt. Ltd. & Ors. Page No.14/43
7. Whether the Plaintiff is entitled to delivery up of all impugned finished and unfinished material bearing impugned trademarks or any other trademark identical or deceptively/ confusingly similar to the Plaintiff's trade mark in any manner whatsoever? (OPP)
8. Whether Plaintiff is entitled for decree of rendition of accounts of profits earned by illegal trade activities? (OPP)
9. Relief.
18. The Plaintiff examined Sh. Himalaya Koul as PW-1, who has tendered his affidavit as Ex PW1/A and proved the following documents: -
Sr. No. Documents Exhibits
1. Representation of the Trade Mark/ Ex. PW-1/1.
Label/ Packaging of the plaintiff. (Colly 1-8)
2. Representation of the Trade Mark Ex. PW-1/2.
/Label/Packaging of the (Colly 9-10)
Defendant.
3. Status of plaintiff's registered Ex. PW-1/3.
trademarks, registrations (Colly 11-27)
certificates and related
documents.
CS (COMM) No. 1702/2020 KRBL Limited Vs Tricon Polyfabs Pvt. Ltd. & Ors. Page No.15/43
4. Details of Copyright Registration Ex. PW-1/4
in India, (Colly 28-28A)
(OSR)
5. Details of Copyright Registration Ex. PW-1/4A.
via online display of the plaintiff's (Colly 28B-29)
copyright (International)
6. Documents related to Ex. PW-1/5.
advertisements of plaintiff's (Colly 33-52)
products under the subject matter
trademark/ label.
7. Documents/ trade magazines Ex. PW-1/6.
showing the plaintiff's products (Colly 53-66)
under the subject matter (OSR)
trademark
8. Sale invoices (domestic) related Ex. PW-1/7.
to the plaintiff under the subject (Colly 114-206)
matter trademark / label. (OSR)
9. Invoices (exports) related to the Ex. PW-1/8.
plaintiff under the subject matter (Colly 207-361)
trademark / label. (OSR)
10. Invoices in respect to Ex. PW-1/9.
advertisement of the plaintiff's (Colly 363-454)
trademark / label.
11. CA Certified sales and Ex. PW-1/10.
advertisement expenses of the (Colly 459-460)
plaintiff. (OSR)
12. Screenshots/ print outs of the Ex. PW-1/11.
website being (Colly 461-480)
www.triconpolyfabs.com/,
www.dailysouq.in and
www.myshoppingbasket.in
showing availability of the
Defendants' products
13. Status of the Defendant no. 4 Ex. PW-1/12.
trademarks, application bearing (Colly 481-482)
no. 3008309 in class 30 for the
mark NOOR JAHAN LABEL
14. Authorisation letter in favour of Mark 'A'
Mr. Saumya Kumar Sharma
15. Authorisation letter in favour of Ex. PW-1/14.
Mr. Himalaya Koul executed by (OSR)
the plaintiff company.
16. Copy of the legal proceedings Ex. PW-1/15.
CS (COMM) No. 1702/2020 KRBL Limited Vs Tricon Polyfabs Pvt. Ltd. & Ors. Page No.16/43
certificate (Colly 5-10)
(OSR)
17. Affidavit in compliance of order Ex. PW-1/B.
XI Rule 6 (3) of Commercial
Courts Act 2018
19. PW-1 was cross-examined by counsel for the defendant and thereafter, PE was closed.
20. Defendant no. 1 examined Sh. Surendra Agarwal, Director/AR of the Defendant no. 1 company as DW-1 who has tendered his affidavit as Ex DW-1/A and relied upon the board resolution dated 12.03.2021 which has been exhibited as DW-1/1. DW-1 was cross-examined by counsel for Plaintiff and thereafter, DE was closed.
21. I have heard Ld. Counsel for Plaintiffs and Ld. Counsel for Defendants. I have also perused the record carefully. I have also gone through the written submissions filed by the counsels for the parties. Counsel for the Plaintiff has also placed reliance on the following judgments in support of his arguments: -
i. American Home Products Corporation Vs. Mac Laboratories Pvt. Ltd., AIR 1986 SC 137. ii. Century Traders Vs. Roshan Lal Duggar AIR 1978 Delhi 250 iii. Midas Hygiene Pvt. Ltd. vs. Sudhir Bhatia 2004 (73) PTC DRJ 647 SC iv. Hitaichi Ltd. Vs. Ajay Kumar Agarwal & Ors MANU/DE/06981995 (DB) v. Renaissance Hotel Holdings Inc. Vs. B Vijaya Sai, 2022 SCC Online SC 61 vi. Anchor Health & Beauty Care Pvt. Ltd. Vs. Shivam CS (COMM) No. 1702/2020 KRBL Limited Vs Tricon Polyfabs Pvt. Ltd. & Ors. Page No.17/43 Hygienes India Pvt. Ltd. 2013 (56) PTC 441 (Del) vii. Lalli Enterprises Vs. Dharam Chand & Sons 2002 SCC OnLine Del 1082 viii. Ikea Systems B.V. and Ors Vs. Sham Murari and Ors. 2018 (76) PTC 121 (Del) ix. Puma Se Vs. Indiamart Intermesh Ltd.
MANU/DE/0012/2024.
x. M/s. Luxottica Group S.P.A & Anr Vs. M/s. Mify
Solutions Pvt. Ltd. Neutral citation
2018:DHC:7130
22. Issue wise findings on the basis of evidence and arguments are as under: -
ISSUE NO. 1:
Whether there is no cause of action with the Plaintiff against Defendant nos. 1 & 2? (OPD)'
23. The onus of proving this issue was placed on the Defendant nos. 1 and 2.
Counsel for the Defendant no. 1 has argued that Defendant no. 1 is not in the business of manufacture, processing or trade or rice. It was argued that Defendant no. 1 is in the business of supplying and manufacturing of PP/HDPE Woven bags, BOPP bags, Flexo bags etc. which are used for packaging of various products. It was argued that since Defendant no. 1 is not dealing in any of the products manufactured, processed, or sold by the Plaintiff, therefore, there are no grounds for the alleged claim of the Plaintiff against Defendant no. 1 for using similar trade mark on different packaging/labels. It was submitted that PW-1 in his cross examination dated 15.02.2024 has admitted that Defendant no. 1 is not in business of CS (COMM) No. 1702/2020 KRBL Limited Vs Tricon Polyfabs Pvt. Ltd. & Ors. Page No.18/43 processing, selling, soliciting, and trading of rice and volunteered that Defendant no. 1 is in the business of packaging material which is used for packaging rice. It has also been argued by the counsel for Defendant no.1 that Plaintiff failed to prove that Defendant no. 1 has ever used or misused the trademark of the Plaintiff. It was argued that PW-1 in his cross-examination dated 15.02.2024 admitted that products of Defendant no. 1 are not available on online portal and volunteered that Defendant no. 1 is marketing its product through its website. It was further submitted that Plaintiff has failed to prove that online website belongs to Defendant no. 1 or Defendant no. 1 is using the same for online business. It was also argued that the printouts Ex.PW-1/11 filed by the Plaintiff do not bear the date of printing and name of the website/IP address and this fact has also been admitted by the PW-1 in his cross-examination.
24. Per contra, counsel for the Plaintiff has argued that the Plaintiff is the registered owner of the trademarks "NUR JAHAN"/ "NOOR JAHAN." It was argued that the trademarks of the Plaintiff have been registered in Class 30, Class 35 as a word mark as well as device mark/label mark. Hence, the use of the word "NUR JAHAN" by Defendant no. 1 in the packaging bags amounts to a violation of trademark of the Plaintiff.
25. Perusal of the testimony of witness would show that CS (COMM) No. 1702/2020 KRBL Limited Vs Tricon Polyfabs Pvt. Ltd. & Ors. Page No.19/43 there is no dispute to the fact that Defendant no. 1 is dealing in manufacture and supply of polybags used for the packaging of various products including rice. DW-1 Surendra Agarwal in his cross-examination has admitted that the products manufactured by Defendant no. 1 are used in rice mills, flour mills, paddy packaging and vegetable packaging. However, Defendant no. 1 failed to produce any invoices or sale documents to whom the products manufactured by Defendant no. 1 were sold. DW- 1 has also admitted in his cross-examination that Defendant no. 1 is running its business since 2016 and has submitted that plastic bags were manufactured as per the orders of the customers. DW-1 also admitted that triconpolyfabs.com is the website of Defendant no. 1 company. He also admitted that the address mentioned on the printout Ex.PW-1/11 at page 468 is the address of the Defendant no. 1 company. He further admitted that website of the Defendant no. 1 company is accessible throughout India and any one can place orders on the website. However, he denied that his website displays the packaging with trademark, packaging/labeling "NOOR JAHAN"/ "NUR JAHAN." Although DW-1 denied the printout Ex.PW-1/11 to be the web-page of Defendant no. 1 company but admission by the Defendant no. 1 that it bears the correct address of Defendant no. 1 at page no. 468 raises a presumption that the said printouts are from the website of Defendant no. 1 company. It is also pertinent to mention here that Defendant no. 1 has not CS (COMM) No. 1702/2020 KRBL Limited Vs Tricon Polyfabs Pvt. Ltd. & Ors. Page No.20/43 placed on record web-pages of the website of the Defendant no. 1 company to contradict the documents (Ex.PW-1/11) filed by the Plaintiff.
26. A bare perusal of the printouts of the web-pages Ex.PW-1/11 shows that Defendant no. 1 is manufacturing poly bags bearing the brand name "NOOR JAHAN"
besides other trademarks which are similar to the registered trademark of the Plaintiff. Hence, it cannot be said that the suit of the Plaintiff is without any cause of action qua Defendant no. 1.
27. Counsel for Defendant no. 2 has argued that Defendant no. 2 is not in the business of manufacturing, processing, and sale of the rice. It has been argued that Defendant no. 2 is running an online trading platform which is selling the house-hold items and utensils. It has been argued that Defendant no. 2 is only displaying the consumable items which are available with the local traders/distributors of Tirur. It has been argued that the Defendant no. 2 is working as last ring in between the chain of producer and ultimate consumer and has no control over the articles sold by those traders.
28. Counsel for the Plaintiff has argued that the Defendant no. 2 has not placed on record any documentary evidence to show that the products were purchased by Defendant no. 2 from the local traders/distributors, who CS (COMM) No. 1702/2020 KRBL Limited Vs Tricon Polyfabs Pvt. Ltd. & Ors. Page No.21/43 were authorized to sell the products of the Plaintiff. It was argued that the website of the Defendant no. 2 i.e. www.dailysouq.in is displaying the products of the Plaintiff. It has also been argued that the said website of the Defendant no. 2 is interactive in nature and consumers can place orders on the said website. He has submitted that the printouts of the website show the product of the Plaintiff bearing "NOOR JAHAN" brand rice being offered for sale from the said website.
29. I have heard the counsels for the Plaintiff as well as the counsel for Defendant no. 2 and have perused the printouts of the web-pages from the online platform of Defendant no. 2, the same shows that Defendant no. 2 was selling rice under the brand name of "NOOR JAHAN"
which is similar to the registered trademark of the Plaintiff. The Defendant no. 2 has not led any evidence to show that he was duly authorized to use/display the products mentioning the registered trademark of the Plaintiff. Hence, it cannot be said that the suit filed against Defendant no. 2 is without any cause of action.
30. In view of the aforesaid discussion, I am of the considered opinion that Defendant nos. 1 and 2 have failed to discharge the onus cast on them. The issue is accordingly decided in favour of the Plaintiff and against the defendants.
CS (COMM) No. 1702/2020 KRBL Limited Vs Tricon Polyfabs Pvt. Ltd. & Ors. Page No.22/43ISSUE NO.2:
Whether the suit has not been filed by duly authorized person? (OPD-1)
31. The onus for proving this issue was cast on the Defendant no.1. In the WS, Defendant no. 1 has taken a preliminary objection that the suit has not been filed by a duly authorized person on behalf of the Plaintiff.
32. Counsel for the Plaintiff has argued that the suit was filed by Mr. Saumya Kumar Sharma, who was duly authorized by the directors of the Plaintiff company vide Board Resolution dated 11.08.2020. It was submitted that PW-1 Himalaya Kaul has proved the certified true copy of the Board Resolution as mark 'A.' Defendants in their cross-examination have not put any questions to the witness regarding the aforesaid Board Resolution.
33. Counsel for the Defendant no. 1 has also not pressed this objection at the time of final arguments nor any such objections have been raised in the written submissions filed on behalf of Defendant no.1.
34. Law in this regard is well settled. In M/s Sangat Printers Pvt. Ltd. Vs. M/s. Wimpy International Ltd. 2012 SCC OnLine Del 299 Hon'ble High Court while relying upon the judgment of Hon'ble Supreme Court in the case of United Bank of India Vs. Naresh Kumar, 1996 (6) SCC 660 held that the cases filed by the companies should CS (COMM) No. 1702/2020 KRBL Limited Vs Tricon Polyfabs Pvt. Ltd. & Ors. Page No.23/43 not be dismissed on technical ground with respect to validity of institution as long as the suit is contested to the hilt and held that it ought to be held that the suit was validly instituted and filed.
35. In the present case also, the suit has been instituted and vigorously contested by the Plaintiff against the defendants. Perusal of the record also shows that the Plaintiff company also moved an application for substitution of the AR and in the said application, it has been reiterated that the suit was instituted by Sh. Soumya Kumar Sharma. The defendants have not raised any objection to the said substitution and the application was allowed by this court vide order dated 25.08.2022. This clearly indicates that the suit has been instituted by a duly authorized person. Accordingly, the issue is decided in favour of the Plaintiff and against the Defendant no.1.
ISSUE NO. 3:
Whether the Plaintiff is using trademarks "NOOR JAHAN" (in word/device/label form) since 1999 and is the registered owner of the trade marks "NOOR JAHAN" and "NUR JAHAN?" (OPP)
36. The onus of proving this issue has been cast upon the Plaintiff. In the plaint it has been claimed that the Plaintiff company has been the Bonafide user of the trademark "NOOR JAHAN" and "NUR JAHAN" (in word/device/label form) since 1999. It has also been CS (COMM) No. 1702/2020 KRBL Limited Vs Tricon Polyfabs Pvt. Ltd. & Ors. Page No.24/43 averred that Plaintiff has got the aforesaid trademark registered with the registry of trademark and the said trademarks are renewed and valid as per section 29, 134 and 135 of the Trade Marks Act. It has also been claimed that Plaintiff has been granted Copyright registration for "NUR JAHAN" original artistic work/packaging label "NUR JAHAN PREMIUM" Label.
37. Counsel for the Plaintiff has argued that PW-1 Himalaya Kaul in his affidavit by way of examination in chief Ex.PW-1/A has reiterated these facts and has proved on record the registration certificates and the legal proceedings certificates of the trademarks of the Plaintiff as Ex.PW-1/3 (colly) and the details of copyright registration as Ex.PW-1/4 (colly). He has also argued that in order to prove the use of the trademark by the Plaintiff, Plaintiff has placed on record domestic sales invoices Ex.PW-1/7 (colly).
38. Perusal of the trademark certificates Ex.PW-1/3 (colly) would show that the Plaintiff has got the trademark "NOOR JAHAN" and "NUR JAHAN" registered as word mark vide application dated 20.04.1999 and 23.02.1999 in Class 30 and the said trademarks are valid up to 20.04.2029 and 23.02.2029 respectively. The Plaintiff has also got registered the trademark NUR JAHAN as device mark and NUR JAHAN with lady picture device in the year 1999 and 2005 respectively under Class 35 which are CS (COMM) No. 1702/2020 KRBL Limited Vs Tricon Polyfabs Pvt. Ltd. & Ors. Page No.25/43 still valid and enforceable. The Plaintiff has also got registered the title work NUR JAHAN under Copyright Act which is Ex.PW-1/4. The trademarks of the Plaintiff are also registered with other countries.
39. The Plaintiff has also proved on record the domestic sales invoices Ex.PW-1/7 (colly). Perusal of these invoices would show that these invoices pertained to the year 1999 till 2019 which clearly established that the Plaintiff has been using the trademark NUR JAHAN/ "NOOR JAHAN" since 1999. It is also pertinent to note here that defendants have not raised any question on these trademark certificates, copyright certificates and the sales invoices during the cross-examination of PW-1. No evidence has also been led by the defendants to dispute that the Plaintiff is not the registered owner of the aforesaid trademarks or that he is not using the same since 1999.
40. Hence, in view of the aforesaid discussion, I am of the considered opinion that Plaintiff has discharged the onus. The issue is accordingly decided in favour of the Plaintiff and against the defendant.
ISSUE NO. 4:
Whether trademarks being used by defendants are not identical or similar to that of Plaintiff in a manner which is likely to lead to CS (COMM) No. 1702/2020 KRBL Limited Vs Tricon Polyfabs Pvt. Ltd. & Ors. Page No.26/43 deception or confusion? (OPD)
41. The onus of proving this issue has been cast upon the defendants. Defendant no. 1 in its WS has taken a stand that the trademarks alleged to be used by the answering defendants are neither identical nor similar to that of the Plaintiff which is likely to lead to deception or confusion. It has been stated that the Plaintiff's trademark is "NUR JAHAN" while the mark alleged to be used by defendant is "NOOR JAHAN" which have complete visual and structural dissimilarity.
42. Counsel for the Plaintiff has argued that defendants have adopted the trademark "NOOR JAHAN" in relation to similar products/services. The impugned trademark of the defendants namely "NOOR JAHAN" is identical and deceptively similar with the registered trademark of the Plaintiff and the same amounts to infringement and passing-off by the defendants. It has been argued that DW- 1 Surender Kumar Agarwal in his cross examination has admitted that the website triconpolyfabs.com is the website of Defendant no. 1 company and address mentioned on page no. 468 of the printout of Ex.PW-1/11 is the address of Defendant no. 1 company. It has been argued that even though DW-1 has denied the printouts to be the web-pages of Defendant no. 1 company but Defendant no. 1 has not placed on record the web-pages of its website to show that the web-pages of Defendant no. 1 CS (COMM) No. 1702/2020 KRBL Limited Vs Tricon Polyfabs Pvt. Ltd. & Ors. Page No.27/43 are different from Ex.PW-1/11 (colly). It has been argued that page nos. 462 and 463 of the printouts of Ex.PW-1/11 shows that Defendant no. 1 is using the impugned trademark "NOOR JAHAN" which is identical and deceptively similar to the trademark of the Plaintiff. Similarly, page no.4 71 of Ex.PW-1/11 (colly) which are printouts of website of Defendant no. 2 shows that Defendant no. 2 is using the impugned trademark "NOOR JAHAN" which is identical and deceptively similar to the registered trademark of the Plaintiff. Page no. 474 of Ex.PW-1/11 (colly) is the printout of the website of Defendant no. 3 which shows that the Defendant no. 3 is using the impugned trademark "NOOR JAHAN" which is identical and deceptively similar to the registered trademark of the Plaintiff.
43. Counsel for the Defendant nos. 1 and 2 have argued that the alleged trademarks used by Defendant nos. 1 and 2 are not similar to the registered trademark of the Plaintiff as the color scheme and getup of the packaging is different and there is no question of customers getting confused between the two trademarks.
44. The question whether there is a similarity between the two trademarks has to be approached from the point of view of an average man with imperfect memory. In the present case, the Plaintiff has the registered owner of the trademarks "NOOR JAHAN" and "NUR JAHAN" as a CS (COMM) No. 1702/2020 KRBL Limited Vs Tricon Polyfabs Pvt. Ltd. & Ors. Page No.28/43 word mark, device mark and label. Hence, the use of the word "NOOR JAHAN" by the defendants in the impugned trademarks is identical to the registered word mark of the Plaintiff "NOOR JAHAN."
45. The courts cannot allow a trader to use a trademark which bears a close or deceptive similarity, affinity and proximity in sound and/or looks with the trademarks belonging to others, whether by prior use or prior registration, in order to maintain, purity and morality in trade and to protect the unwary customer from being misled in buying a product which he did not intend to buy. A mere comparison of the design and packaging /label of the registered trademark of the Plaintiff with the impugned trademarks used by the defendants, as described hereinabove would show that they are deceptively similar and are likely to confuse the customer of ordinary prudence.
46. In Renaissance Hotel Holdings INC Vs. B Vijaya Sai (supra) Hon'ble Supreme Court in para 52 held that:
"The question to be asked in an infringement action is as to whether the defendant is using a mark which is same as, or which is a colorable imitation of Plaintiff's registered trademark. It has further been held that though the getup of the defendant's goods may be so different from the Plaintiff's goods and the prices may also be so different that there would CS (COMM) No. 1702/2020 KRBL Limited Vs Tricon Polyfabs Pvt. Ltd. & Ors. Page No.29/43 be no probability of deception of public, nevertheless even in such cases i.e. in an infringement action and injunction would be issued as soon as it is proved that the defendant is improperly using the Plaintiff's mark."
47. Hon'ble High Court of Delhi in Anchor Health and Beauty Care Pvt. Ltd. Vs. Shivam Hygienes India Pvt. Ltd. (supra), it was held that "The impugned mark adopted by the defendant bears the same word "ANCHOR"
as that of plaintiff. Owing to the fact that the goods of the plaintiff and defendant were in respect of FMCG products, like tea, was likely to mislead the consumer into believing that defendant's product was offered by the plaintiffs. A consumer with imperfect memory was likely to remember the name "Anchor" and associate defendants' goods with those of Plaintiffs even though the logo of the defendant was not identical to the Plaintiff's trademark but bear close resemblance to it. It was further held that there was no doubt that there exists great room for deception as trademarks were identical and logos were confusingly and deceptively similar and were being used by the defendants in respect of cognate goods."
48. In the present case the impugned trademarks used by the defendants not only bears identical name i.e. "NOOR JAHAN" but the packaging also bears a close resemblance with the packaging of the Plaintiff. The products offered CS (COMM) No. 1702/2020 KRBL Limited Vs Tricon Polyfabs Pvt. Ltd. & Ors. Page No.30/43 by the defendants are also identical to that of the Plaintiff i.e. rice and its packaging. Hence, even though there may be some minor differences in the designs/labels, the products of the defendants would be available at the same stores, on the same shelves where the Plaintiff offers for sales its products and there exists a high likelihood of confusions amongst the consumers.
49. Hence, in view of the aforesaid discussion, I am of the considered opinion that defendants have failed to discharge the onus cast on them and had failed to establish that the trademarks being used by them are not identical or similar to that of the Plaintiff in a manner which is likely to lead to deception of confusion. Accordingly, the issue is decided against the defendants and in favour of the Plaintiff.
ISSUE NO. 5 AND 6 :
5. Whether the use of the impugned trademarks '"NOOR JAHAN"/ "Nur Jahan" by the defendants amounts to infringement of the Plaintiff's registered trademarks? (OPP)
6. Whether the Plaintiff is entitled for permanent injunction as prayed for? (OPP)
50. These issues are taken up together as they can be disposed of by common discussion. The onus of proving CS (COMM) No. 1702/2020 KRBL Limited Vs Tricon Polyfabs Pvt. Ltd. & Ors. Page No.31/43 these issues has been cast on the Plaintiff.
51. Counsel for the Plaintiff has argued that PW-1 has proved on record that trademark registration certificates and copyright registration certificate of the Plaintiff as Ex.PW-1/3 and PW-1/4 respectively. PW-1 has also proved the copy of legal proceeding certificates as Ex.PW-1/15. It has been argued that the Plaintiff has also established on record that Plaintiff has been using the trademark "NOOR JAHAN" and "NUR JAHAN" since 1999 and the Plaintiff has established the adoption and use of the aforesaid trademark by producing the sales invoices Ex.PW-1/7 and PW-1/8 respectively and the invoices in respect of advertisements of the Plaintiff's trademark Ex.PW-1/9. It has been argued that the defendants have not placed any material on record to show that they are the prior user of the trademark "NOOR JAHAN." Counsel for Plaintiff submitted that Defendant no. 4 filed an application for registration of the trademark "NOOR JAHAN" which was rejected by the trademark registry. The Plaintiff has proved the status of application of Defendant no. 4 as Ex.PW-1/12, perusal of which shows that the said application was refused as on 17.10.2020. It has been argued that the Plaintiff being the registered owner of the trademark has exclusive right to use the same and use of the impugned trademark "NOOR JAHAN" by the defendants amounts to infringement of the Plaintiff's registered trademark. It was further argued CS (COMM) No. 1702/2020 KRBL Limited Vs Tricon Polyfabs Pvt. Ltd. & Ors. Page No.32/43 that the Plaintiffs are entitled for permanent injunction against the defendants and reliance has been placed by the Plaintiff on the judgments of American Home Products Corporation Vs. Mac Laboratories Pvt. Ltd (supra), Century Traders Vs. Roshan Lal Duggar (supra) and Midas Hygiene Pvt. Ltd. vs. Sudhir Bhatia (supra).
52. Counsel for Defendant no. 1 has argued that the Defendant no. 1 is engaged in a completely different business from the Plaintiff and that there are no grounds on which the claim of the Plaintiff against Defendant no. 1 for using similar trademark on different packaging/labels can be sustained. It was further argued that Defendant no. 1 is not indulging in any kind of infringement of the trademark/copyright of the Plaintiff and never displays the products of the Plaintiff through its website namely www.triconpolyfabs.com and in the absence of the same, there is no infringement of copyright. It was further argued that Plaintiff has failed to prove the details of the enquiry conducted by it to ascertain the details of illegal/impugned use of trademark by the defendants and PW-1 in his cross-examination has admitted that Defendant no. 1 is not in the business of processing, selling, and trading of rice. PW-1 further admitted that he had not personally launched the enquiry in the market and further admitted that no report of said enquiry has been placed on record by the Plaintiff CS (COMM) No. 1702/2020 KRBL Limited Vs Tricon Polyfabs Pvt. Ltd. & Ors. Page No.33/43 company. It was further argued that Plaintiff has not been able to prove any collusion between defendants and there is no documentary evidence to show that Defendant no. 1 had business dealings with the Defendant nos. 2 to 4. It was argued that Plaintiff has failed to prove the document Ex.PW-1/11 on the basis of which Plaintiff has alleging about infringement of trademark of its product by Defendant no. 1. It was further argued that Plaintiff has not given any notice or intimation to Defendant no. 1 prior to instituting the present suit. It was also argued that this court does not have territorial jurisdiction as Defendant no. 1 resides and works for gain at Kolkata and has no business dealings in Delhi.
53. Counsel for Defendant no. 2 has taken a defence that Defendant no. 2 was conducting a business of online marketing of house hold items and office utensils on an online platform in the name and style of Daily Souq Online Super Market. Defendant no. 2 is a registered partnership firm and is conducting its business in the local area of Tirur Town within a radius of 15 km from its office. It was further submitted that the defendant is doing the business of making availability of consumable items to the customers residing within the said radius through online platform and defendant purchases all the items through local traders and distributors of different brands. It was submitted that the defendant is merely working as last ring in the chain of producer and ultimate customer CS (COMM) No. 1702/2020 KRBL Limited Vs Tricon Polyfabs Pvt. Ltd. & Ors. Page No.34/43 and has no control of any type over the purchase and sale of those traders. Defendant no. 2 is not the manufacturer of any of the items sold by it through online platform and is not related to other defendants. Defendant no. 2 has not committed any infringement or passing off the trademarks of the Plaintiff as it is just an intermediary and as such falls within the protection of Section 79 of Information and Technology Act and is exempted from the liability of the intermediary. It was further stated that after Defendant no. 2 came to know about the infringement, it has completely removed Plaintiff's products and has also sold the firm and is not doing any kind of business. Counsel for the Defendant no. 2 also placed reliance on the judgment of Christian Louboutin Sas Vs. Nakul Bajaj & Ors, 2018 SCC OnLine Del 12215 to argue that unless the Plaintiff proves that there is an abetment, aiding or conspiracy and intermediary cannot be expected to exercise any vigilance. It was further argued that in India intermediaries in general have been given exemption in various facts situation including in the case of uploading of contents by the user, copyright infringement and violation of design rights. It was argued that the Plaintiff has failed to establish that Defendant no. 2 had conspired, abetted or aided or induced the commission of an unlawful act.
54. Counsel for the Plaintiff has argued that Defendant no. 2 is not protected under Section 79 of the IT Act. It CS (COMM) No. 1702/2020 KRBL Limited Vs Tricon Polyfabs Pvt. Ltd. & Ors. Page No.35/43 was argued that Defendant no. 2 has infringed the trademark and copyright of the Plaintiff by advertising and offering for sale of rice under the impugned trademark of the Plaintiff. Counsel for the Plaintiff has relied upon the judgment of Puma Se Vs. Indiamart Intermesh Ltd (supra) to argue that Defendant no. 2 has failed to put in place sufficient regulatory and protective measures to render the abuse of its platform impossible by the counterfeiters. It was argued that Defendant no. 2 has not led any evidence to show as to what measures it had taken to prevent the counterfeiters from misusing its online platform. Defendant no. 2 has also failed to disclose the name of the third party/sellers, who had advertised their products using impugned trademark on its websites, hence, it cannot escape its liability.
55. From the perusal of the evidence of the Plaintiff as well as documents placed and proved on record, there is not an iota of doubt that Plaintiff adopted and started using the trademark "NOOR JAHAN" and "NUR JAHAN" since 1999. The Plaintiff has also proved on record its trademark and copyright registration certificates in respect of the aforesaid trademarks. On the other hand, defendants have failed to establish that they were prior user of the impugned trademarks or even that the impugned trademarks were registered in their names.
56. It is well settled that under Section 28 of the Trade CS (COMM) No. 1702/2020 KRBL Limited Vs Tricon Polyfabs Pvt. Ltd. & Ors. Page No.36/43 Marks Act, the registration of trademark confers on the proprietor thereof exclusive right to use the same in relation to the goods in respect of which he has secured registration. Hence, the Plaintiff has the exclusive right to use its registered trademark "NOOR JAHAN" and "NUR JAHAN" and the use of the identical or deceptively similar trademarks by the defendants were clearly amount to infringement of the Plaintiff's registered trademarks.
57. Defendant no. 1 in his WS has also taken a plea that the trademark "NOOR JAHAN" and "NUR JAHAN" is a generic term over which no trademark can be sustained or claimed. This defence of Defendant no. 1 is without any merits. Section 9 of the Trade Marks Act provides for absolute grounds for refusal of registration. However, Section 32 of the Trade Marks Act protects the registration on the ground of distinctiveness in certain cases. It provides that where a trademark is registered in breach of Sub-Section (1) of Section 9, it shall not be declared invalid if in consequence of the use of which has been made of it, it has after registration and before commencement of any legal proceeding challenging the validity of such registration, acquired a distinctive character in relation to the goods for services for which it is registered. In the present case, even though the trademark "NOOR JAHAN"/ "NUR JAHAN" may be a generic term but it has been registered as a trademark in the year 1999 and has acquired a distinctive character in CS (COMM) No. 1702/2020 KRBL Limited Vs Tricon Polyfabs Pvt. Ltd. & Ors. Page No.37/43 relation to the goods and services (rice) for which it had been registered due to its continuous use by the Plaintiff over the last almost 25 years.
58. The exemption sought by Defendant no. 2 under Section 79 of IT Act being an intermediary is also not available to the Defendant no. 2. At the outset it may be mentioned that Defendant no. 2 has not led any evidence in support of its defence that it is merely a platform providing space to the other sellers. The case of the Defendant no. 2 is that it was running an online hyper market for consumable goods to its local customers after purchasing the same from the local traders and distributors. It is not the case of Defendant no. 2 that the sellers used to upload their products on its website and it was merely providing a space to them for selling their goods. Perusal of the printout of the web-pages of website of Defendant no. 2 (page no. 471 to 472) would show that Defendant no. 2 itself was offering for sale rice bearing the impugned trademark. The web-page does not disclose the name of the seller by whom it was uploaded nor Defendant no. 2 has disclosed the name of the seller by whom it was uploaded if the same was not uploaded by Defendant no. 2. There is also no evidence on record to establish that Defendant no. 2 was unaware or had no knowledge of uploading of the product bearing impugned trademark. Defendant no. 2 has also not placed on record any rules and regulations, privacy policy and user CS (COMM) No. 1702/2020 KRBL Limited Vs Tricon Polyfabs Pvt. Ltd. & Ors. Page No.38/43 agreement to show as to what steps were taken by it to ensure that the use of its consumer resource does not post any infringing listing. Hence, Defendant no. 2 is not entitled for any protection under Section 79 of the IT Act.
59. Once the Plaintiff has established that its registered trademark has been infringed, it is settled law that injunction must follow. In Midas Hygiene Pvt. Ltd. vs. Sudhir Bhatia (supra), Hon'ble Supreme Court has held that "In case of infringement either of trademark or of copyright, normally an injunction must follow and mere delay in bringing the action is not sufficient to defeat grant of injunction in such cases."
60. Hence, in view of the aforesaid discussion, I am of the considered opinion that Plaintiff has discharged the onus cast on it and accordingly, the issues are decided in favour of the Plaintiff and against the defendants.
ISSUE NO.7 :
Whether the Plaintiff is entitled to delivery up of all impugned finished and unfinished material bearing impugned trademarks or any other trademark identical or deceptively/ confusingly similar to the Plaintiff's trade mark in any manner whatsoever? (OPP)
61. The onus to prove this issue was cast on the CS (COMM) No. 1702/2020 KRBL Limited Vs Tricon Polyfabs Pvt. Ltd. & Ors. Page No.39/43 Plaintiff. There is no evidence available on record regarding the quantity of material in possession of the defendants nor the Plaintiff had sought appointment of local commissioner for inspection and seizure of infringing material. In the present suit, the Plaintiff has only produced the screenshots of the websites of the defendants showing the impugned trademarks being used by them. Hence, in the absence of any evidence being adduced in this regard, no order for delivery up can be passed in favour of the Plaintiff and against the defendants. However, the defendants are directed to destroy any infringing material in the form of and bearing the impugned trademark or any other label which is identical with or deceptively similar to the Plaintiff's trademarks/logo/device/labels/trade dresses including its blocks, labels, sign board, literature etc.in the presence of the representative of the Plaintiff. The issue is accordingly decided in favour of the Plaintiff and against the defendants.
ISSUE NO.8:
Whether Plaintiff is entitled for decree of rendition of accounts of profits earned by illegal trade activities? (OPP)
62. The onus to prove this issue was cast upon the Plaintiff. The Plaintiff has prayed for a decree of rendition of accounts by the defendants for the profits received by selling the infringing goods of the Plaintiff CS (COMM) No. 1702/2020 KRBL Limited Vs Tricon Polyfabs Pvt. Ltd. & Ors. Page No.40/43 company and further for grant of damages.
63. Counsel for the Plaintiff has argued that the Plaintiff had suffered substantial losses due to the infringing and illegal activities carried out by the defendant intentionally by falsifying the trademarks "NOOR JAHAN"/ "NUR JAHAN" and its logos to deceive the general public and also diluting the goodwill and reputation of the trademarks of the Plaintiff company. It was further argued that defendants have not produced any documents pertaining to their accounts and therefore, the Plaintiff is claiming the relief of general damages. Counsel for the Plaintiff has relied upon the judgment of Inter Ikea Systems B.V. & Ors. Vs. Sham Murari & Ors. (supra).
A perusal of this judgment shows that Hon'ble High Court of Delhi observed that it is very difficult for the Plaintiff to give proof of actual damages suffered by him as the defendants, who indulged in such activities never maintained proper accounts of their transactions since they know that the same are objectionable and unlawful.
64. In the present case, there has been no seizure of any infringing material from the defendants and as such it is not possible to quantify the loss suffered by the Plaintiff due to the infringing acts of the defendants. However, the use of impugned trademark by the defendants has definitely caused a loss to the goodwill and reputation of the Plaintiff. Hence, I am of the considered opinion that CS (COMM) No. 1702/2020 KRBL Limited Vs Tricon Polyfabs Pvt. Ltd. & Ors. Page No.41/43 the ends of justice would be met if each of the defendants is directed to pay a sum of Rs.1,00,000/- by way of damages to the Plaintiff. The issue stands decided in favour of the Plaintiff and against the defendants.
RELIEF:
65. In view of my findings on the issues herein above, the suit is decreed in favour of the Plaintiff and against the defendants with costs.
A decree of permanent injunction is passed in favour of the Plaintiff and against the defendants and defendants their agents, representatives, distributors, successors etc. are restrained from manufacturing, processing, using, selling, trading, soliciting, exporting, advertising in any manner the registered trademarks "NOOR JAHAN/NUR JAHAN" of the Plaintiff or any other trademark or logo which is similar to that of Plaintiff in relation to 'rice' and any other related/allied/cognate products and from doing any acts amounting to infringement/passing off /dilution off of Plaintiff's registered trademarks and copyrights in "NOOR JAHAN"
and "NUR JAHAN."
Defendants are further directed to destroy all the infringing finished and unfinished material bearing the trademark/logo "NOOR JAHAN"/ "NUR JAHAN" of the Plaintiff or any other deceptively similar trademark/logo including labels, display boards, sign board, packaging material etc. in the presence of the representatives of the CS (COMM) No. 1702/2020 KRBL Limited Vs Tricon Polyfabs Pvt. Ltd. & Ors. Page No.42/43 Plaintiff.
Defendants are directed to pay damages of Rs.1,00,000/- each to the Plaintiff within one month from the passing of this judgment failing which, said amount shall carry simple interest @ 9% p.a. from date of decree, till realization. Plaintiff is also entitled to costs of suit as prayed for.
Decree sheet be prepared accordingly.
File be consigned to record room after due compliance. Digitally signed by ANIL ANIL KUMAR KUMAR SISODIA Date:
SISODIA 2025.01.10 16:15:49 +0530 Announced in the open Court (ANIL KUMAR SISODIA) Dated: - 10.01.2025 District Judge (Commercial Court-04) Central District, Tis Hazari Courts, Delhi CS (COMM) No. 1702/2020 KRBL Limited Vs Tricon Polyfabs Pvt. Ltd. & Ors. Page No.43/43