Delhi District Court
Sunil Mittal vs M/S Firangi on 29 April, 2022
IN THE COURT OF SHRI RAJ KUMAR CHAUHAN:
DISTRICT JUDGE (COMMERCIAL COURT)-01:
SOUTH-EAST, SAKET : NEW DELHI
CS (Comm) no. 343/2019
in the matter of:-
Sunil Mittal
Trading as M/s Studio Firang,
A-6, Rajouri Garden,
New Delhi
.....Plaintiff
VERSUS
M/s Firangi
7, Sunder Gopal Complex
Nr. Ambwadi Cross Road,
Opposite Central Mall,
Ambavadi, Ahmedabad-380015.
.....Defendant
Date of institution : 30.08.2018
Arguments heard on : 22.03.2022
Date of decision : 29.04.2022
Suit for permanent injunction
restraining infringement, passing of,
damages, rendition of accounts etc
JUDGMENT
1. The case of the Plaintiff as set out in the plaint in nutshell is that the plaintiff started his trade and business in respect of rendering CS (Comm) No. 343/2019 Sunil Mittal vs. M/s Firangi Page 1 o f23 (RAJ KUMAR CHAUHAN) District Judge (Commercial Court01) /SE/Saket/ND/29.04.2022 services relating to distribution, marketing, exporting, wholesale and retail services relating to all kinds of clothing and wearing apparels, ready-made garments including leisure, casual wear, hosiery and accessories.
2. That the plaintiff honestly and bona-fidely coined, conceived and adopted a fanciful word FIRANGI and STUDIO FIRANG as a trade mark/ label trade name in the year 2001. The plaintiff has been using the trade mark/ label FIRANGI and STUDIO FIRANG in the course of Trade and business in isolation or in conjunction with each other. After a few years the said trade mark has craved a niche in the respective area of business.
3. That the plaintiff to acquire the statutory rights over the said trade mark filed the trade mark application for registration of said trade mark in class-25 and the same are registered and valid and existing on account of its being renewed from time to time. The registration certificates, status as well as additional representation of the trademarks of the plaintiff are mentioned in para-5 of the plaint.
4. That the business carried on by the plaintiff is very extensive and the goods/services bearing the said trade name/ trademark/ label FIRANGI and STUDIO FIRANG are known throughout India. It is pertinent to mention here that plaintiff is owner of domain CS (Comm) No. 343/2019 Sunil Mittal vs. M/s Firangi Page 2 o f23 (RAJ KUMAR CHAUHAN) District Judge (Commercial Court01) /SE/Saket/ND/29.04.2022 name/website thedrazingroup.com by which he is selling its products and providing services under the trade mark/ label trade name/ trademark/ label FIRANGI and STUDIO FIRANG.
5. That the plaintiff's goods/services and business under its said trade name/ trademark/ label has acquired tremendous goodwill and envious reputation in the market and the plaintiff has already built up a handsome and valuable trade thereunder. The details of the year wise sales of last ten years of the plaintiff is extracted in para- 13 of the plaint.
6. That the defendant is engaged in the same nature of goods/ services as that of the plaintiff. The defendant has adopted an identical and/ or deceptively similar trade name/ trademark FIRANGI in a manner which cannot be differentiated and distinguished from the plaintiff's trade name/ trademark. The term FIRANGI is the pivotal and cardinal in the trade name/ trademark of both the plaintiff and the defendant. The defendant has adopted the trade name/ trademark in respect of same goods/ services i.e ready-made garments.
7. The plaintiff is not aware of the exact and complete details and particulars of the constitution of the defendant. Defendant is called upon to disclose the same, upon causing appearance before this court.
CS (Comm) No. 343/2019 Sunil Mittal vs. M/s Firangi Page 3 o f23 (RAJ KUMAR CHAUHAN) District Judge (Commercial Court01) /SE/Saket/ND/29.04.2022
8. That the defendant is not the proprietor of the impugned trade name/ trademark and has no right to adopt or use the same and are doing so without the leave and license of the plaintiff. The impugned trade name/ trademark is identical and deceptively similar to the said trade name/trademark of the plaintiff. They are identical with the deceptively similar in each and every respect including phonetically, visually, structurally, in its basic idea and in its essential features.
9. That the Plaintiff in the month of November 2017 came across the defendant's products. Plaintiff immediately addressed the defendant a cease and desist notice dated 14.11.2017 and thereafter plaintiff did not found defendant illegal activities and violation of proprietary right of the plaintiff. However, in the month of July 2018 plaintiff again received information from the market that defendant has again started to use the impugned mark and supplying the impugned product under the impugned mark FIRANGI upon receiving payment in his account. The impugned adoption and user by the defendant is dishonest, tainted, mala-fide and fraudulent. The defendant adopted and started using the impugned trademark/trade name in respect of the impugned goods/ services and business out of positive greed.
10. In the written statement, defendant has alleged that not a CS (Comm) No. 343/2019 Sunil Mittal vs. M/s Firangi Page 4 o f23 (RAJ KUMAR CHAUHAN) District Judge (Commercial Court01) /SE/Saket/ND/29.04.2022 single document has been provided by the plaintiff to the effect that plaintiff is using the word mark FIRANGI since the year 2001; that it is the trademark STUDIO FIRANG device label being used as trademark and not the word mark FIRANGI. It is further stated that the plaintiff is not registered proprietor of the Trademark FIRANGI in class 35 which is specifically for providing of the service category class; that the plaintiff is owner of thedrazingroup.com and it has no nexus about the trademark FIRANGI. It is further alleged that it is the case of the plaintiff before Trademark Registry that their mark FIRANGI written as specific design and in a distinguish style of Mr. Sunil Mittal Proprietor of the said mark ; that the trademark being pictorial design cannot be said to be visually or in any other manner deceptively similar to each other. It is further stated that plaintiff is not prior user of mark FIRANGI nor has adopted the trademark FIRANGI prior of the defendant; that there is difference between the trademark and label STUDIO FIRANG and trademark FIRANGI; that the trademark FIRANGI is never used by the plaintiff as except only applied for the registration of the Trademark and also plaintiff has failed to prove that the Trademark FIRANGI is being used since 2001 or prior to that the defendant. It is further alleged that the plaintiff's trademark is not a well known trademark as per section 2 (zf) of the Trademarks Act 1999. It is further alleged that the defendant has adopted the trademark FIRANGI since 2012 and plaintiff has purposely applied for the Trademark in the year 2015 falsely claiming CS (Comm) No. 343/2019 Sunil Mittal vs. M/s Firangi Page 5 o f23 (RAJ KUMAR CHAUHAN) District Judge (Commercial Court01) /SE/Saket/ND/29.04.2022 the using the same since the year 2001 because not a single document has been proved by the plaintiff that he is using the trademark since 2001.
11. It is further alleged that the defendant has not copied the features of the plaintiff's mark and defendant has never received any cease and desist notice allegedly sent by the plaintiff. Further, plaintiff have concealed the material fact regarding voluntary submission before the Deputy Registrar stating that they may be granted registration and agreed to sue pictorial design of the label STUDIO FIRANG to be read as a whole; from the very beginning the plaintiff have concealed this very relevant and material fact which amounts to an admission of the generic and descriptive nature of the words STUDIO and FIRANG. It is further alleged that plaintiff have suppressed this vital fact that they while replying to the Examination Report issued by the Trademark Registry in respect of their mark 'STUDIO FIRANG' and 'FIRANGI' under application no.2913654 and 2913656 interalia stated that the conflicting mark FIRANGI is visually, structurally and phonetically dissimilar to their mark FIRANGI AND STUDIO FIRANG. The explanation given by the plaintiff when the mark FIRANGI was being cited against their mark STUDIO FIRANG is an admission of the plaintiff that mere use of the word FIRANGI does not make the competing mark similar to their mark.
CS (Comm) No. 343/2019 Sunil Mittal vs. M/s Firangi Page 6 o f23 (RAJ KUMAR CHAUHAN) District Judge (Commercial Court01) /SE/Saket/ND/29.04.2022
12. It is further alleged that there are various other third parties apart from the defendants who have adopted and are using the trademark FIRANGI/HEERFIRANGI/ WHITE FIRANGI/ FIRANGI WESTERN OUTFIT- formative marks in relation to different goods and services including western outfits and garments. Further, there are numerous companies for which FIRANGI forms a conspicuous and integral part of their trade name. Therefore, defendants adoption of their mark FIRANGI is bona-fide. It is further alleged that FIRANGI used by the defendant does not in any manner cause confusion or creates misrepresentation with that a plaintiff's mark STUDIO FIRANG.
13. Further, the alleged plaintiff has no right in law or equity for exclusive use of the word FIRANGI and is also stated that nature of the mark-word FIRANGI/STUDIIO FIRANG is not an invented name and there seems no intellectual property in the said mark of the plaintiff.
14. On 09.10.2018 Sh. Harshvardhan Joshi advocate has appeared on behalf of defendant and sought adjournment to file the written statement and reply to the application under order 39 R 1&2 CPC. Written statement was filed on 19.11.2018 alongwith application under order 39 Rule 4 CPC on behalf of defendant stating that defendant does not wish to reply to the application under order 39 CS (Comm) No. 343/2019 Sunil Mittal vs. M/s Firangi Page 7 o f23 (RAJ KUMAR CHAUHAN) District Judge (Commercial Court01) /SE/Saket/ND/29.04.2022 Rule 1&2 CPC and the Written Statement be read as reply to the said application. Part arguments were heard on the interim application and matter was adjourned for 18.12.2018 for arguments. On 18.12.2018 none appeared for defendant and it was submitted on behalf of plaintiff that settlement talks were going on between the parties and matter would likely to be settled amicably and matter was adjourned for 31.01.2019. On 31.01.2019 none appeared on behalf of defendant and matter was adjourned for awaiting settlement and adjourned for 14.03.2019 and on 14.03.2019 when no one appeared matter was adjourned for 18.04.2019 and on 18.04.2019 again none appeared on behalf of defendant and matter was adjourned for awaiting settlement and matter was adjourned for 24.05.2019. On 24.05.2019 none appeared on behalf of defendant and Ld counsel for the plaintiff stated that defendant was not interested in amicable settlement and accordingly matter was adjourned for admission and denial of the documents and proposed issues and for framing of issues for 17.09.2019 and on 17.09.2019 none appeared on behalf of defendant and Ld Predecessor has framed the following issues as under:-
(i) Whether the plaintiff is registered proprietor of trademarks FIRANGI and STUDIO FIRANG? (OPP)
(ii) Whether the plaintiff is owner of the copyright in relation to artistic work involved in trademarks FIRANGI and STUDIO FIRANG? (OPP) CS (Comm) No. 343/2019 Sunil Mittal vs. M/s Firangi Page 8 o f23 (RAJ KUMAR CHAUHAN) District Judge (Commercial Court01) /SE/Saket/ND/29.04.2022
(iii) Whether the defendant is infringing or passing of trademarks of the plaintiff namely FIRANGI and STUDIO FIRANG? (OPP)
(iv) Whether the plaintiff is entitled to a decree of permanent injunction, as prayed? (OPP)
(v) Relief.
15. Plaintiff has examined PW1 and Plaintiff's Evidence was closed on 07.12.2019 and matter was adjourned for final arguments on 23.01.2020.
16. PW1 Sh. Mukesh Kumar has filed the affidavit in evidence is Ex. PW1/A and relied upon the following documents:-
1.1. Power of attorney is Ex. PW1/1. 1.2. Legal proceeding certificate of registered trademark is Ex. PW1/2.
1.3. Copy of some sales bills is Ex. PW1/3 (colly.). 1.4. Copy of some advertisement material and bills is Ex.PW1/4. 1.5. Office copy of legal notice is Ex. PW1/5. 1.6. Whatsapp printout of document pertaining to payment transfer detail, bill etc is Ex. PW1/6.
1.7. Certified copy of order dated 28.03.2016 of Hon. High Court of Delhi and mediation settlement dated 17.03.2016 is Ex. PW1/7.
CS (Comm) No. 343/2019 Sunil Mittal vs. M/s Firangi Page 9 o f23 (RAJ KUMAR CHAUHAN) District Judge (Commercial Court01) /SE/Saket/ND/29.04.2022
17. The plaintiff has filed written arguments. I have perused the written argument and carefully examined the record. My issue-wise findings are as under:-
18. Issue no.1
(i) Whether the plaintiff is registered proprietor of trademarks FIRANGI and STUDIO FIRANG? (OPP) The onus of this issue was upon the plaintiff. PW1 in his affidavit Ex. PW1/A in para no. 3 deposed that the plaintiff adopted FIRANGI and STUDIO FIRANG as a trade mark/label/trade name in the year 2001 and after few years the said trade mark attained the position in respect of the business of the plaintiff which is being done by the plaintiff in the name and style of " The Darzi" since 1981. The Darzi is the sister concern of the plaintiff and over 3 decades enjoy a status of trusted expert in menswear with specific features of the plaintiff that the each garment is a product of the stringent quality checks, the latest technology and unmatched craftsmanship. It is further deposed that in order to acquire the statutory right over the said trade mark the application for registration of the said trade mark in class-25 which was registered and is existing having been renewed from time to time. The legal proceedings certificate of registered trade mark is exhibited as Ex. PW1/2 (colly). The following table is part of the affidavit as Ex. PW1/A showing the registration and pending registration of the trade make and label of the plaintiff.
CS (Comm) No. 343/2019 Sunil Mittal vs. M/s Firangi Page 10 o f23
(RAJ KUMAR CHAUHAN)
District Judge (Commercial Court01)
/SE/Saket/ND/29.04.2022
Trade Mark/ Registration/ Class Status
Label Application
number
FIRANGI 1024155 25 Registered
FIRANGI 1024156 24 Registered
STUDIO FIRANG 2913656 25 Registered
LABEL
FIRANGI 2725046 40 Pending
FIRANGI 2913654 35 Pending
FIRANGI 2913655 38 Pending
STUDIO FIRANG 1024151 25 Registered
LABEL
STUDIO FIRANG 1024150 24 Registered
LABEL
STUDIO FIRANG 2913656 35 Pending
LABEL
STUDIO FIRANG 2913657 38 Pending
LABEL
STUDIO FIRANG 2725047 40 Registered
LABEL
19. He further deposed that trade name/trade mark/label FIRANGI and STUDIO FIRANG are well known throughout India and plaintiff is also owner of domain name website thedarzigroup.com by which plaintiff is selling its products and providing service under the trade mark/label FIRANGI and STUDIO FIRANG. Ex. PW1/2 (colly containing page no. 1 to 12) contains the word mark STUDIO CS (Comm) No. 343/2019 Sunil Mittal vs. M/s Firangi Page 11 o f23 (RAJ KUMAR CHAUHAN) District Judge (Commercial Court01) /SE/Saket/ND/29.04.2022 FIRANG registered on 03.03.2015 in favour of plaintiff in class-35 for distribution, marketing, exporting, wholesale & retail services relating to all kinds of clothing and wearing apparels, readymade garments including leisure, casual wears, hosiery & accessories which also contains registration of word mark STUDIO FIRANG with device of F in class-40 in favour of plaintiff registered on 25.04.2014 with the goods and descriptions: Treatment of materials, stitching, cutting, tailoring and alteration, dress making, cloth making, making of school uniforms and fancy dresses etc, it also contains the word FIRANG (LOGO) since 09.07.2021 in class:24 with the goods description as Textile cloth and goods included in class-24, condition & Limitation is as under:-
"REGISTRATION OF THIS TRADE MARK SHALL GIVE NO RIGHT TO THE EXCLUSIVE USE OF "STUDIO" LETTER 'F' ".
20. Ex. PW1/2 also at page 8 contains that the registered mark FIRANG(LOGO) class:25 Readymade Garments with the condition and limitation as under:-
"REGISTRATION OF THIS TRADE MARK SHALL GIVE NO RIGHT TO THE EXCLUSIVE USE OF "STUDIO" LETTER CS (Comm) No. 343/2019 Sunil Mittal vs. M/s Firangi Page 12 o f23 (RAJ KUMAR CHAUHAN) District Judge (Commercial Court01) /SE/Saket/ND/29.04.2022 'F' ".
21. Ex.PW1/2 (colly) also contains at page no.10 that the word mark FIRANGI registered for textile cloth, included in class-24. Ex. PW1/2 (colly) contains registration since 09.07.2001 for textile cloth included in class-24. Ex.PW1/2 (colly) contains registered word mark FIRANGI in class 25 for ready-made garments and also including class-24 since 09.07.2001. The oral and documentary evidence of the plaintiff is unchallenged as no cross-examination is carried out on behalf of defendant.
22. In the written statement defendant has taken preliminary objection that the plaintiff has not filed any single documents to show that the plaintiff is using the work mark FIRANGI since 2001. In view of the discussion and the registered trademarks in favour of plaintiff as mentioned in the preceding paras shows that the preliminary objection no. 2 of the defendant does not seem to be true because plaintiff has placed on record the document which shows the registered word mark FIRANGI in class-25 since 09.07.2001. Plaintiff has also proved the registered word mark STUDIO FIRANG with device of F in class-14 having been used since 01.07.2001 and got registered on 25.04.2014.
23. It was alleged in para no. 4 of written statement that defendant can prove that the trademark FIRANG has been adopted by the defendant since the year 2012 and plaintiff has purposefully CS (Comm) No. 343/2019 Sunil Mittal vs. M/s Firangi Page 13 o f23 (RAJ KUMAR CHAUHAN) District Judge (Commercial Court01) /SE/Saket/ND/29.04.2022 applied for trademark in the year 2015 while falsely claiming the same using in the year 2001 is also false. It was also alleged in the written statement in para no. 18 in sub-para no. c that there are numerous third parties, apart from the defendants, who have adopted and are using the trade mark FIRANGI/ HEER FIRANGI/ WHITE FIRANGI/FIRANGI WESTERN OUTFIT- formative marks in relation to different goods and services including western outfits and garments. Ld counsel for the plaintiff in that regard stated that M/s FIRANGI WESTERN OUTFIT has also suffered a civil decree in favour of plaintiff in commercial suit no. CS(Comm) 44/2015 vide order dated 28.03.2016 in the Hon'ble High Court of Delhi wherein defendant has agreed that it shall not use the trademark/ trade name FIRANGI or any other trademark/ name identical with and deceptively similar to the said trade mark/name/label of the plaintiff i.e FIRANGI and/or STUDIO FIRANG.
24. In view of documentary evidence and the oral evidence discussed above, the plaintiff has succeeded in establishing by sufficient evidence that he is registered proprietor of trademark FIRANGI and STUDIO FIRANG. Issue no. 1 is accordingly decided in favour of plaintiff.
25. Issue no. 2 CS (Comm) No. 343/2019 Sunil Mittal vs. M/s Firangi Page 14 o f23 (RAJ KUMAR CHAUHAN) District Judge (Commercial Court01) /SE/Saket/ND/29.04.2022
(ii) Whether the plaintiff is owner of the copyright in relation to artistic work involved in trademarks FIRANGI and STUDIO FIRANG? (OPP) PW-2 in his affidavit Ex. PW1/A para 7 has deposed that the artistic work, placement of words, get up and make up of trademark/label are unique and the plaintiff is the owner and proprietor in the artistic features in the trade name/trademark/label FIRANGI and STUDIO FIRANG. Hence, the copyright involved in the artistic work is original and proprietor of the copyright involved in the artistic work of the trade name/trademark/label FIRANGI and STUDIO FIRANG.
26. It is further deposed in para no. 8 by the witness that by using the said trade name/trademark/label as proprietor thereof continuously exclusively in the course of trade the plaintiff has built up envious and enormous and valuable trade and goodwill and reputation in respect of said trademark.
27. Meaning of copyright is defined in Section 14 of the Copyright Act,1957. The relevant section and sub-section pertaining to the present suit involving artistic work relating to the trademark concerned is reproduced as under :-
"14. Meaning of copyright-- For the purpose CS (Comm) No. 343/2019 Sunil Mittal vs. M/s Firangi Page 15 o f23 (RAJ KUMAR CHAUHAN) District Judge (Commercial Court01) /SE/Saket/ND/29.04.2022 of this Act, "copyright" means the exclusive right, subject to the provisions of this Act, to do or authorise the doing of any of the following acts in respect of a work or any substantial part thereof.
(c) In the case of an artistic work,-
i) to reproduce the work in any material form including depiction in three dimensions of a two dimensional work or in two dimensions of a three dimensional;
ii) to communicate the work to the public;
iii) to issue copies of the work to the public not being copies already in circulations;
iv) to include the work in any cinematography film;
v) to make any adaptation of the work;"
28. It is further deposed in para no. 9 of the affidavit that the plaintiff is very imaginative and innovative in its services, presentation, aesthetics, décor, and presentation of its products. The ideas and innovation as well as quality of services and goods of the plaintiff are highly appreciated by the customers and are in great demand among the public.
29. In his written statement, it replies to para no. 7 and 8 of the CS (Comm) No. 343/2019 Sunil Mittal vs. M/s Firangi Page 16 o f23 (RAJ KUMAR CHAUHAN) District Judge (Commercial Court01) /SE/Saket/ND/29.04.2022 plaint, the defendant has alleged that in para no 7 and 8 of the written statement as under:-
"7. That the contents of the para 7 and para 8 of the plaint partially true and partially false and the defendant submits that plaintiff himself has agreed and accepted that he artistic work, placement of words, get up and make up of trademark/lable are unique and the plaintiff is the owner and proprietor in the artistic features in the trade name/trademark/label FIRANGI and STUDIO FIRANG hence the copyright involved in the artistic work is original and the plaintiff is the proprietor of the copyright involved in the artistic work of the trade name /trademark/ label FIRANGI and STUDIO FIRANG.
8. And the defendant submits for the false statement of the plaintiff in para 7 of the plaint that the plaintiff is using it as an artistic feature and a device label as a whole as his trademark and the plaintiff CS (Comm) No. 343/2019 Sunil Mittal vs. M/s Firangi Page 17 o f23 (RAJ KUMAR CHAUHAN) District Judge (Commercial Court01) /SE/Saket/ND/29.04.2022 has also submitted the copies of the bills and invoices all in the name and style of STUDIO FIRANG."
30. The evidence led by plaintiff in that regard remained unchallenged as no cross-examination has been carried out on behalf of defendants. The contents of written statement has not been proved by leading evidence by the defendant.
31. Copyright is an architectural work, will subsists only if the work is located in India irrespective of the nationality of the authors. Ownership of original work is only protected through the statute and common law in India does not offer any remedy for the same. The Copyright subsists in the original work, the reproduction of the adaptation will be possible only with the consent or license of the copyright owner of the original work.
32. In his affidavit PW1/A para 2, it is deposed that the plaintiff honestly and bonafidely coined, conceived and adopted and fanciful word FIRANGI and STUDIO FIRANG as a trademark/'label/trade name in the year 2001, in the course of trade and business of goods and services relating to distribution, marketing, exporting, wholesale and retail services relating to all kinds of clothing and wearing apparels, ready-made garments including leisure, casual wears, CS (Comm) No. 343/2019 Sunil Mittal vs. M/s Firangi Page 18 o f23 (RAJ KUMAR CHAUHAN) District Judge (Commercial Court01) /SE/Saket/ND/29.04.2022 hosiery & accessories.
33. Since the year 2001 and plaintiff has been continuously using the same set up. Thus, the evidence of the plaintiff which is unchallenged has sufficiently established that the artistic work, placement of words, get up and make up of trademark/label/FIRANGI and STUDIO FIRANG A are unique and plaintiff is the owner and proprietor in the artistic features in the said trade name/trademark/label.
34. It is also established that the copyright involved in the said artistic work is original and thus plaintiff is the proprietor of the copyright involved in the artistic work of the trade name/trademark/label FIRANGI and STUDIO FIRANG. Issue no. 2 is accordingly decided in favour of plaintiff in above terms.
35. Issue no. 3
(iii) Whether the defendant is infringing or passing of trademarks of the plaintiff namely FIRANGI and STUDIO FIRANG? (OPP) Onus of this issue are upon the plaintiff. In para 17,18 &19 of affidavit Ex. PW1/A, the plaintiff has alleged as under:-
"17. That the defendant is engaged in the same nature of CS (Comm) No. 343/2019 Sunil Mittal vs. M/s Firangi Page 19 o f23 (RAJ KUMAR CHAUHAN) District Judge (Commercial Court01) /SE/Saket/ND/29.04.2022 good/services as that of the plaintiff. The defendant has adopted an identical and /or deceptively similar trade name/trademark FIRANGI in a matter which cannot be differentiated and distinguished from the plaintiff's trade name/trademark. The defendant has adopted the identical trade name/trademark thereby causing confusion among the people of average intelligence and imperfect recollection. The term FIRANGI is the pivotal and cardinal in the trade name/trademark of both the plaintiff and defendant. The defendant has adopted the trade name/trademark in respect of same goods/services that is ready-made garments.
18. That the defendant is not the proprietor of the impugned trade name/trademark and has no right to adopt or use the same and are doing so without the leave and license of the plaintiff. The defendant has no propriety rights for the impugned trade name/trademark.
19. That the said trade name/trademark is identical with and deceptively similar to the said trade name/trademark of the plaintiff. They are identical with and deceptively similar in each and every respect including phonetically, visually, structurally, in its basic idea and in its essential CS (Comm) No. 343/2019 Sunil Mittal vs. M/s Firangi Page 20 o f23 (RAJ KUMAR CHAUHAN) District Judge (Commercial Court01) /SE/Saket/ND/29.04.2022 features. By the impugned adoption and user, the defendant has infringed and passed off and enabling others to infringe and pass off and also infringing and passing off and enabling others to infringe and pass off and violates the proprietary rights in its said trade name/trademark as also its artistic features."
36. It is further deposed in Para 27 of the affidavit, Ex PW1/A that the goods /services being sold by the plaintiff as well as by the defendants are same or allied/ cognate or are the goods/ services of the same description; that the probability of the confusion is the only conclusion which can be derived from the circumstances mentioned above and the defendant is passing off the substandard goods/services under the impugned trademark/ label as that of the plaintiff.
37. It is further deposed that the defendant must give up the use of the impugned trademark/ label as the plaintiff is suffering loss both in business and goodwill and reputation. It is also stated that the loss of goodwill and reputation is incapable of being assessed in monitory terms. The deposition of PW1 is unchallenged as no cross- examination has been carried out. The defendant has not led any evidence to substantiate its stands in the written statement. The testimony of plaintiff witness is unchallenged. The plaintiff has been succeeded in establishing by preponderance .of probabilities that the CS (Comm) No. 343/2019 Sunil Mittal vs. M/s Firangi Page 21 o f23 (RAJ KUMAR CHAUHAN) District Judge (Commercial Court01) /SE/Saket/ND/29.04.2022 defendant is infringing the trademark of the plaintiff namely FIRANGI and STUDIO FIRANG and is also passing of their goods as those of the plaintiff and thus taking the benefit of the goodwill of the plaintiff. Issue no. 3 is accordingly decided in the favour of plaintiff and against the defendant.
38. Issue no.4
(iv) Whether the plaintiff is entitled to a decree of permanent injunction, as prayed? (OPP) While deciding the Issue no. 1,2 and 3, it has been established by the plaintiff that the plaintiff is the registered proprietor of trademark FIRANGI and STUDIO FIRANG and is also the owner of the copyright in relation to artistic work involved in the world of trademark FIRANGI and STUDIO FIRANG. It is also established by the plaintiff that the defendant is infringing trademark of the plaintiff namely FIRANGI and STUDIO FIRANG and is also passing off their goods as those of the plaintiff. The plaintiff being registered proprietor of trademark FIRANGI and STUDIO FIRANG is therefore entitled to restraining the defendant from infringing the trademark of the plaintiff and also from passing off their goods as those of the plaintiff. The plaintiff, therefore is held entitled to a decree of permanent injunction as prayed for. The issue no. 4 is accordingly decided in favour of the plaintiff and against the defendant.
39. (v) RELIEF CS (Comm) No. 343/2019 Sunil Mittal vs. M/s Firangi Page 22 o f23 (RAJ KUMAR CHAUHAN) District Judge (Commercial Court01) /SE/Saket/ND/29.04.2022 In view of my finding on Issues no 1 to 4, the suit of the plaintiff is decreed and a decree of permanent injunction is passed in favour of plaintiff and against the defendant restraining the defendants by themselves as also through their directors, proprietors, individual proprietor, partners (if any), agents, servants, assigns, representatives, successors, distributors and all other acting for and on their behalf from using, selling, exporting, offering for sale, advertising or displaying directly or indirectly or dealing in any other manner or mode in rendering services of tailoring, draping and selling, marketing clothing, footwear and headgear and all other allied and cognate goods/services under the impugned trade name/ trademark bearing the word FIRANGI or any other word/mark/label identical with or deceptively similar to the mark/word FIRANGI and /or STUDIO FIRANG.
The cost of the suit is also in favour of plaintiff and not against the defendant.
File be consigned to Record Room.
Digitally signed by RAJ RAJ KUMAR
KUMAR CHAUHAN
Pronounced in the open Court Date: 2022.04.29
on this 29th of April, 2022 CHAUHAN 12:00:12 +0200
(RAJ KUMAR CHAUHAN)
District Judge (Commercial Court)
South East/Saket Courts
New Delhi.
The order contains 23 pages all checked and signed by me.
CS (Comm) No. 343/2019 Sunil Mittal vs. M/s Firangi Page 23 o f23 (RAJ KUMAR CHAUHAN) District Judge (Commercial Court01) /SE/Saket/ND/29.04.2022