Delhi District Court
Guddu Gupta Trading As Ms Leela ... vs Suraj Gupta Trading As Ms Devi Leela ... on 18 January, 2025
IN THE COURT OF SANJEEV KUMAR MALHOTRA
DISTRICT JUDGE (COMMERCIAL COURT)
NORTH EAST: KARKARDOOMA COURTS:DELHI
CS (Comm) 110/2023
CNR No.DLNE01-003209-2023
Guddu Gupta
Trading as M/s Leela Cosmetics
House No.162, E-Block, Gali no.8,
Khajuri Khas, Delhi-110094.
Also at :-
E-253-A, 12, Khajuri Khas,
North-East Delhi, Delhi-110094 ....Plaintiff
Vs
Suraj Gupta
Trading as M/s Devi Leela Cosmetics
Ground Floor, Old No.946, C-297,
Kh.No.153, Gali no.24, Khajuri Khas,
Delhi-110094.
Also at:-
E-208, Gali no.8, Khajuri Khas,
Delhi-110094.
And at Building No.122, Gali No.1,
2nd Floor, Khajuri Khas, Delhi-110094. ...Defendant no.1
Surender Mehta
B-35/10, G. T. Karnal Road,
Industrial Area, Delhi-110033. ...Defendant no.2
Date of Institution : 20.10.2023
Date of Arguments : 02.12.2024
Date of Judgment : 18.01.2025
JUDGMENT
1. This is a suit under Section 134 & 135 of the Trade Marks Act, 1999 as well as under Section 51 of the Indian CS (Comm) 110/2023 Guddu Gupta vs. Suraj Gupta & Anr. Page 1 of 19 Digitally signed by SANJEEV SANJEEV KUMAR KUMAR MALHOTRA Date: 2025.01.18 MALHOTRA 16:15:33 +0530 Copyright Act, 1957 and under Section 22 of the Design Act, 2000 for the relief of permanent injunction to restrain passing off, infringement of Trademark and Copyright, piracy of design, delivery up, rendition of accounts and damages etc., as filed by the plaintiff against the defendants.
2. In brief, the facts of case as made out in the amended plaint are that the plaintiff is carrying on trade and business in the name and style of M/s Leela Cosmetics which is proprietary concern and Mr. Guddu Gupta, being proprietor is authorized to institute and file the present suit. It is stated that the plaintiff is engaged in the trade and business of manufacturing and marketing of cosmetics including but not limited to sindoor, liquid sindoor, powder sindoor, stick sindoor, liquid kum kum, lipstick, lip gloss, kajal, liquid lipstick, lip balm, eye liner, mascara, eye shadow, lip liner, nail polish remover, nail art, body lotion, foundation, hair oil, hair gel, cold cream, skin powder, hair remover, face wash, rose water, shampoo, beauty creams, make-up creams, skin care products, bleach cream, powders, soap, detergents, perfume, mehandi and hair dye etc., falling in Class 3 of the Trade Marks Act.
3. It is averred that the plaintiff coined, conceived and adopted ROOP LADY as a trademark/label and LEELA COSMETICS as a trade name in the year 2006, which is inherently distinctive and distinguishable to the goods and services of others. It is stated that plaintiff has been carrying on the aforesaid trade and business using the said CS (Comm) 110/2023 Guddu Gupta vs. Suraj Gupta & Anr. Page 2 of 19 Digitally signed by SANJEEV SANJEEV KUMAR KUMAR MALHOTRA MALHOTRA Date: 2025.01.18 16:15:38 +0530 trademark/label/name in a distinctive get up, makeup, colour scheme, colour combination and artistic manner and has also adopted different variants of trademarks/labels ROOP and using the same since year 2006.
4. It is averred that the plaintiff has designed a unique shape and configuration of the bottle/tube of the sindoor stick and got its design registered in year 2019. It is stated that plaintiff is using the said trademark/label/name/design since the year of adoption up to present time continuously, uninterruptedly and is the prior and senior adopter, user and registered proprietor of said trademark/label/name/design in relation to their goods which is very extensive and the goods bearing the said trademark/label/name/design have been practically distributed in major parts of India.
5. It is averred that the word mark ROOP LADY under application no.1894845 for Bindi in Class 3 was registered in the name of Mr. Muhamamd Juned trading as M/s Suzuki Fancy, which was taken by the plaintiff through an assignment deed dated 28.01.2020. It is stated that the artistic features, colour scheme, colour combination, placement of words, get up and set up are unique and the plaintiff is the owner and proprietor of artistic feature involved in said trademark/label ROOP LADY and holds its copyright registered vide certificates no.A-123574/2018 and A-143159/2022 under the Copyright Act, 1957. It is averred that in its effort to pander the high expectation of public, plaintiff has designed a unique shape and configuration of CS (Comm) 110/2023 Guddu Gupta vs. Suraj Gupta & Anr. Page 3 of 19 Digitally signed by SANJEEV SANJEEV KUMAR KUMAR MALHOTRA MALHOTRA Date: 2025.01.18 16:15:44 +0530 bottle tube of sindoor stick which makes the design of the aforesaid bottle very new and novel and got the design of bottle registered in the year 2019 vide certificate no.321567-001 in Class 9-01. It is claimed that the business carried on by the plaintiff is very extensive and goods bearing the said trademark/label/name/design have been distributed in major parts of India.
6. It is averred that plaintiff's product Roop Lady are highly demanded in the markets and have acquired a vast reputation thereunder and the plaintiff maintains highest degree of quality control and manufactures excellent quality of products. It is stated that plaintiff's goods/services and business under the said trade name/mark/label have acquired tremendous goodwill and envious reputation in the market and the plaintiff has already built up a handsome and valuable trade thereunder. The plaintiff has widely advertised the said trademark/label/design by prominently displaying the same and circulating pamphlets and catalogues as well as distributing of attractive display boards bearing the said trademark/label. It is averred that the plaintiff has also continuously promoting the sale of its goods and business under the trademark through different media and modes i.e. advertisement in newspaper, trade magazines, social media platforms, distribution of trade literature's, trade novelties, sales promotional schemes as well as through its websites https://leelacosmetics.com, https://www.rooplady.com and third party web portals namely www.justdial.com, www.indiamart.com and flipkart. It is stated that the plaintiff's trademark/label CS (Comm) 110/2023 Guddu Gupta vs. Suraj Gupta & Anr. Page 4 of 19 Digitally signed SANJEEV by SANJEEV KUMAR KUMAR MALHOTRA MALHOTRA Date: 2025.01.18 16:15:50 +0530 ROOP LADY, ROOP LEELA and trade name LEELA COSMETICS, other ROOP variants and design of bottle sticks of sindoor has already become distinctive and well known trademark/label within the meaning of Section 2 (1) (zg) and Section 11 of the Trade Marks Act, 1999 and the purchasing public, trade and worldwide public at large associates, identifies and distinguishes the said trade name/mark/label/design with the plaintiff's goods and business alone.
7. It is further case of the plaintiff that defendant no.1 Suraj Gupta, who is the brother of the plaintiff is trading as M/s Devi Leela Cosmetics and engaged in the same nature of business and had adopted identical/deceptively similar trademark/label/name ROOP LAZARO, ROOP LEKHA and trade name DEVI LEELA COSMETICS as well as design of bottle of sticks of Sindoor in relation to manufacturing and marketing of cosmetics including but not limited to sindoor, liquid sindoor, powder sindoor, stick sindoor, liquid kum kum etc. goods in class 3 of the schedule. It is stated that as per knowledge of plaintiff, defendant no.1 is a sole proprietorship concern and the defendant no.2 is engaged in the business of printing and dyes and as such, involved in manufacturing the impugned bottles of the impugned goods for defendant no.1. It is stated that the defendants have no proprietary right for the impugned trademark/label/name/design ROOP LAZARO, ROOP LEKHA and trade name DEVI LEELA COSMETICS as well as design of bottle of sticks of Sindoor. It is averred that the impugned trademark/label/ CS (Comm) 110/2023 Guddu Gupta vs. Suraj Gupta & Anr. Page 5 of 19 Digitally signed SANJEEV by SANJEEV KUMAR KUMAR MALHOTRA MALHOTRA Date: 2025.01.18 16:15:56 +0530 design is identical with and deceptively similar to the trade name/mark/label/design of the plaintiff and they are identical and deceptively similar in each and every respect including phonetically, visually, structurally in its basic idea and in its essential features. It is stated that defendants are not the proprietor of impugned trade name/mark/label /design and have no right to adopt or use the same in any other manner whatsoever including under law of equity, common law and statutory law in respect of business or allied/cognate thereto. It is further stated that the defendants adopted and started using the impugned trade name/mark/label/design in respect of the impugned goods and business out of positive greed and with a view to take advantage and to trade upon the reputation and goodwill of the plaintiff as well as to calculate confusion and deception in the market as to pass of their impugned goods and business as those of the plaintiff as well as to make easy money at the cost of the plaintiff's goodwill and reputation.
8. It is averred that by their impugned adoption and user of the impugned trademark/label/name/design, the defendants are disseminating confusion and deception in the markets with the result that the substandard goods of the defendants are being passed off as the genuine goods of the plaintiff. It is stated that in the first week of August, 2023, plaintiff came to know that the defendant no.1 has filed two trademark applications no.5587298 and 5587297 in class 3 for registration of impugned trademark ROOP LEKHA and ROOP LAZARO respectively on "proposed to be used"
basis and thereafter plaintiff immediately filed notice of CS (Comm) 110/2023 Guddu Gupta vs. Suraj Gupta & Anr. Page 6 of 19 Digitally signed SANJEEV by SANJEEV KUMAR KUMAR MALHOTRA MALHOTRA Date: 2025.01.18 16:16:01 +0530 oppositions on 18.08.2023 against impugned applications. It is averred that due to defendants impugned activities, the plaintiff is suffering tremendously in trade and business and also in terms of goodwill and reputation. Hence, the present suit is filed.
9. Defendant no.1 contested the present suit by filing written statement while taking preliminary objections that plaintiff has not exhausted the remedy of pre-institution mediation in accordance with Section 12A of the Commercial Courts Act, 2015; the plaintiff has filed the present suit on the basis of false, frivolous, fabricated & manipulated documents; the defendant no.1 neither adopted identical/deceptively similar trademark/label/name of plaintiff nor selling the impugned trademarks in market without valid license; the plaintiff is guilty of concealment, misstatement and misrepresentation of true and correct facts; the defendant no.1 neither received any legal notice nor pre-mediation notice; that suit of plaintiff is liable to be dismissed under Order VII Rule 11 CPC as no cause of action arose in favour of plaintiff and against defendant no.1.
10. It is submitted that plaintiff is the real brother of defendant no.1 and about 20-22 years ago, their father himself started business of manufacturing and marketing of cosmetics including sindoor, liquir sindoor, powder sindoor, stick sindoo, liquid kum kum, lipstick, lip gloss, kajal, liquid lipstick, lip balm, eye liner, mascara, eye shadow, lip liner, nail polish remover, nail art, body lotion, foundation, CS (Comm) 110/2023 Guddu Gupta vs. Suraj Gupta & Anr. Page 7 of 19 Digitally signed SANJEEV by SANJEEV KUMAR KUMAR MALHOTRA MALHOTRA Date: 2025.01.18 16:16:05 +0530 hair oil, hair gel, cold cream, skin powder, hair remover, face wash, rose water, shampoo, beauty creams, make-up, creams, skin care products, bleach cream and powders, soap and detergents, perfume, mehandi, hair dye etc. and after some time, father of parties started involving his elder son i.e. plaintiff in his aforesaid business just only to learn and look after the business. It is further submitted that their father started handing over his entire business in the hands of plaintiff and gradually, plaintiff become dishonest and slowly-slowly transferred the entire business in his own name and also registered the entire trade marks in his own name fraudulently. It is further submitted that when father of plaintiff started involving defendant no.1 in the business, plaintiff kicked out his father as well as defendant no.1 from the business, due to which, the source of income of defendant no.1 and his father has been stopped and thereafter, the defendant no.1 decided to start his own business and applied and got his own trademark in the name and style as DEVI LEELA COSMETICS from the Labour Department of GNCT vide certificate no.2022195940. Defendant no.1 also got the trademark certificate from MCD vide license no.EGTL0523292632 dated 19.05.2023 and also having the trademark no.5701624 dated 29.11.2022 issued by the Trademark Registry, Govt. of India. It is submitted that there is big difference in the logo of products of plaintiff and defendant no.1 as the logo of plaintiff is having four leafs while the logo of defendant no.1 is having five leafs.
11. On merits, the contents of plaint have been denied as CS (Comm) 110/2023 Guddu Gupta vs. Suraj Gupta & Anr. Page 8 of 19 Digitally signed SANJEEV by SANJEEV KUMAR KUMAR MALHOTRA MALHOTRA Date: 2025.01.18 16:16:10 +0530 wrong by defendant no.1. It is submitted that the defendant no.1 is having valid license and valid trademark to sell their products in the market and he never violated the plaintiff's proprietary rights in the said trade name/mark/label/design in relation to said goods. Thus, it is prayed that suit of plaintiff is liable to be dismissed with heavy cost.
12. Defendant no.2 also contested the present suit by filing written statement while taking preliminary objections that defendant no.2 is not the proprietor of Suraj Gupta, Trading as M/s Devi Leela Cosmetics and he is employed since last 7 years; that defendant no.2 has no concern with the plaintiff; that present suit is filed with malafide intention to extort money from defendant no.2; that no cause of action arose in favour of plaintiff and against defendant no.2; the present suit is liable to be dismissed under Order 7 Rule 11 CPC with heavy/exemplary cost as provided u/s 35A of CPC; that plaintiff has not come before the court with clean hands and has suppressed true, correct and material facts. It is thus prayed that suit of plaintiff is liable to be dismissed with heavy cost.
13. Plaintiff filed replication to the written statement of defendant no.1, wherein he denied the facts as mentioned in written statement of defendant no.1 while re-affirming the facts as mentioned in the plaint. It is submitted that pre- litigation mediation under Section 12A of the Commercial Courts Act 2015 is necessary only when the suit does not contemplate any urgent relief but in the present case, plaintiff had also filed two applications, one under Order 39 CS (Comm) 110/2023 Guddu Gupta vs. Suraj Gupta & Anr. Page 9 of 19 Digitally signed by SANJEEV SANJEEV KUMAR KUMAR MALHOTRA MALHOTRA Date:
2025.01.18 16:16:14 +0530 Rule 1 & 2 CPC for exparte ad-interim injunction and another under Order 26 Rule 9 CPC for appointment of Local Commissioner praying for urgent interim relief.
14. From the pleadings of the parties, following issues were framed vide order dated 30.07.2024:-
1. Whether the plaintiff is entitled for decree of injunction, as prayed ? OPP
2. Whether the defendant is guilty of infringement of plaintiff's registered trademark/label "Roop Lady" ? OPP
3. Whether the defendant is passing off the impugned goods under the impugned/trademark/ label Roop Lazaro, Roop Lekha and trade name Devi Leela Cosmetics as the goods of the plaintiff in violation of the common law rights of the plaintiff in the trademark/label/name/design Roop Lady, Roop Leela and trade name Leela Cosmetics and other Roop variant trademarks which has indomitable goodwill and reputation ? OPP
4. Whether the defendant is guilty of infringement of the copyright involved in the artistic work of the plaintiff's trademark/label Roop Lady by malafidely and dishonestly adopting Roop Lazaro, Roop Lekha ? OPP
5. Whether the defendant is guilty of infringement of the plaintiff registered design bearing registration no.321567-001 in Class 09-01 ? OPP CS (Comm) 110/2023 Guddu Gupta vs. Suraj Gupta & Anr. Page 10 of 19 Digitally signed SANJEEV by SANJEEV KUMAR KUMAR MALHOTRA MALHOTRA Date: 2025.01.18 16:16:19 +0530
6. Whether the defendant is liable to pay damages and rendition of accounts? OPP
7. Relief.
15. In support of his case, plaintiff examined himself as PW-1 and tendered his examination in chief by way of affidavit i.e. Ex.PW1/A. PW-1 has relied upon following documents:-
i) Print out of representation of plaintiff trade mark/label/packaging/trade dress i.e. Ex.PW1/1.
ii) Print out of representation of defendant trade mark/label/packaging/trade dress i.e. Ex.PW1/2.
iii) Computerized print out of GST registration of plaintiff i.e. Ex.PW1/3.
iv) Photocopy of ISO registration certificate of plaintiff i.e. Ex.PW1/4.
v) Trade mark status registration certificate of plaintiff i.e. Ex.PW1/5 (colly).
vi) Photocopy of Assignment Deed i.e. Ex.PW1/6.
vii) Photocopy of Copyright registration certificate of plaintiff i.e. Ex.PW1/7.
viii) Photocopy of Design registration certificate i.e. Ex.PW1/8.
ix) Photocopy of Legal proceedings certificate/ receipt i.e. Mark PW1/9.
x) Copy of registration of declaration of the trade, CS (Comm) 110/2023 Guddu Gupta vs. Suraj Gupta & Anr. Page 11 of 19 Digitally signed SANJEEV by SANJEEV KUMAR KUMAR MALHOTRA MALHOTRA Date: 2025.01.18 16:16:24 +0530 trade name and trade description of M/s Leela Cosmetics i.e. Ex.PW1/10.
xi) Copy of sales bills of plaintiff i.e. Ex.PW1/11 (colly).
xii) Photocopy of plaintiff sales figures (CA certified) i.e. Mark PW1/12.
xiii) Computerized print out of screenshot of third party websites i.e. Ex.PW1/13 (colly).
16. Defendant no.1 in support of his case examined himself as DW-1 and his father Sh. Ashok Gupta as DW-2. DW-1 tendered his examination in chief by way of affidavit as Ex.DW1/1. DW-1 has relied upon following document:-
1. Certificate dated 08.06.2022 issued by Labour Department, Govt. of NCT, MCD License dated 19.05.2023 regarding the establishment of Devi Leela Cosmetics, trademark registration certificate dated 29.11.2022 of Mark Devi Leela Cosmetics, tax receipt and trademark certificates i.e. Ex.DW1/A (colly).
2. Computerized print out of other similar products taken out from internet which have been sold out in the market in the same shape, colour, design and similar name as of plaintiff i.e. Ex.DW1/B (colly).
3. Certificate u/s 63 of the Bhartiya Sakshya Adhiniyam i.e. Ex.DW1/C.
17. DW-2 tendered his examination in chief by way of affidavit as Ex.DW2/1. DW-2 has relied upon the CS (Comm) 110/2023 Guddu Gupta vs. Suraj Gupta & Anr. Page 12 of 19 Digitally signed by SANJEEV SANJEEV KUMAR KUMAR MALHOTRA MALHOTRA Date:
2025.01.18 16:16:28 +0530 documents which were relied upon by DW-1 in his evidence i.e. Ex.DW1/A (colly) and Ex.DW1/B (colly).
18. Arguments have been advanced by Mr. Sanjeev Singh, Ld. Counsel for plaintiff and also by Mr. Manoj Kumar, Ld. Counsel for defendant no.1. None has appeared on behalf of defendant no.2 for addressing final arguments. Ld. counsel for plaintiff has relied upon the judgments titled as The Himalaya Drug Company vs. S.B.L. Limited, MANU/DE/5479/2012; K. R. Chinna Krishna Chettiar vs. Shri Ambal & Co. and Ors., MANU/SC/0303/1969; Amritdhara Pharmacy vs. Satyadeo Gupta, AIR 1963 SC 449; Midas Hygiene Industries P. Ltd. & Anr. vs. Sudhir Bhatia & Ors., 2004 (28) PTC 121 (SC); Satyam Infoway Ltd. vs. Sifynet Solutions (P) Ltd., MANU/SC/0462/2004; Century Traders vs. Roshan Lal Duggar & Co., MANU/DE/0153/1977; Laxmikant V. Patel vs. Chetanbhai Shah and Ors. (2002) 3 SCC 65; Societe Des Produits Nestle vs. Continental Coffee Ltd., MANU/DE/6737/2011; Parle Products (P) Ltd. vs. J. P. & Co. Mysore, MANU/SC/0412/1972; N. Ranga Rao & Sons vs. Anil Garg & Ors., MANU/DE/2793/2005; Saboo Sodium Chloro Ltd. vs. Shree Sodium Chloro Pvt. Ltd., MANU/DE/3002/ 2005; Mohan Meakin Ltd. vs. A. B. Sugars Ltd., MANU/DE/3629/2013; Atlantic Industries vs. Simron Food Processors (P) Ltd., MANU/DE/1386/2014; Pramit Sanghavi & Ors. vs. Energy Beverages Private Limited & Anr.; Diageo Brands B. V. and Another vs. Great Galleon Ventures Limited, 2022 SCC Online Del 2350; Jagdish Gopal Kamath and Ors. vs. Lime & Chilli Hospitality CS (Comm) 110/2023 Guddu Gupta vs. Suraj Gupta & Anr. Page 13 of 19 Digitally signed SANJEEV by SANJEEV KUMAR KUMAR MALHOTRA MALHOTRA Date: 2025.01.18 16:16:32 +0530 Services, MANU/MH/0384/2015; Cello Household Products and Ors. vs. Modware India and Ors, MANU/MH/0543/2017; Dr. Reddys Laboratories Limited vs. Smart Laboratories Pvt. Ltd., 2023 SCC Online Del 7276 and Yamini Manohar vs. T. K. D. Keerthi, (2024) 5 SCC 815.
19. I have given my thoughtful consideration to the rival submissions made on behalf of plaintiff and defendant no.1 and also gone through the record as well as written submissions, as filed on behalf of plaintiff and defendant no.1. My issue wise findings are as under:-
Issue no.1:-
1. Whether the plaintiff is entitled for decree of injunction as prayed ? OPP
20. Onus to prove this issue was upon the plaintiff. PW-1 in his affidavit of evidence Ex.PW1/A deposed that he is carrying on the trade and business in the name and style of M/s Leela Cosmetics and adopted ROOP LADY as a trade mark/label and Leela Cosmetics as a trade name and design of sticks of sindoor in the year 2006 which is inherently distinctive and distinguishable to the goods and services of others.
21. PW-1 proved the Deed of Assignment of registered and pending trade marks ROOP LADY of the Assigner Mohd. Juned which were registered under Trademark application no.1894845 in Class 3 as Ex.PW1/6 and copy of the legal proceeding certificate of the said trademark as Mark PW1/9. He has further relied upon trademark registration CS (Comm) 110/2023 Guddu Gupta vs. Suraj Gupta & Anr. Page 14 of 19 Digitally signed by SANJEEV SANJEEV KUMAR KUMAR MALHOTRA MALHOTRA Date:
2025.01.18 16:16:39 +0530 certificate for word Roop Lady lipstick and Roop Leela as Ex.PW1/5 (colly). PW-1 has also proved the copyright registration certificate of artistic work of label ROOP LADY as Ex.PW1/7 and certificate of registration of design of sindoor stick bottle as Ex.PW1/8. As per registration certificate i.e. Ex.PW1/3, the plaintiff is the proprietor of M/s Leela Cosmetics. PW-1 was cross examined by Ld. Counsel for defendants, but they have not disputed that plaintiff is the prior user of registered trademark 'ROOP LADY' and that he is also having copyright of the artistic work of label 'ROOP LADY' and registration certificate regarding design of sindoor stick bottle used by the plaintiff for his products.
22. The plea of the defendant no.1 is that he is using trademarks ROOP LAZARO and ROOP LEKHA which are not similar to the plaintiff's registered trademarks. In this regard, perusal of admitted print out of representation of defendant's no.1 trademark/label/packaging/trade dress i.e. Ex.PW1/2 shows that mark of the defendant no.1 'ROOP LEKHA' and 'ROOP LAZARO' & and of herbal liquid sindoor are deceptively similar to plaintiff's registered trade marks 'ROOP LADY' as well as copyright and design of sticks of liquid sindoor bottles. Perusal of the photographs of both the sindoor sticks bottles i.e. as of plaintiff and of defendant no.1 shows that their colour combination and design of the cap is almost similar. The design and colour combination of the label of the defendant no.1 i.e. ROOP LEKHA and ROOP LAZARO is CS (Comm) 110/2023 Guddu Gupta vs. Suraj Gupta & Anr. Page 15 of 19 Digitally signed by SANJEEV SANJEEV KUMAR KUMAR MALHOTRA Date: 2025.01.18 MALHOTRA 16:16:44 +0530 almost similar as of the label i.e. ROOP LADY and ROOP LEELA of the plaintiff's product. Plaintiff has proved that he has copyright certificate regarding artistic work of word ROOP LADY and he is having design certificate of the sindoor sticks bottle i.e. Ex.PW1/7 and Ex.PW1/8. The phonetic as well as visual resemblance in the two marks of defendant no.1 i.e. ROOP LEKHA and ROOP LAZARO appears to cause confusion to the public with regard to the registered trade mark/copyright and design certificate of plaintiff's trademark ROOP LADY and sticks of liquid sindoor bottles. No relief is claimed against defendant no.2 who is only doing the work of printing and dyes for manufacturing of impugned bottles for defendant no.1. Thus, plaintiff is entitled for decree of injunction and accordingly, defendant no.1, his agents, representatives are hereby restrained from violating the plaintiff's trademark/label/name/design ROOP LADY or using deceptively similar mark/label as of the plaintiff's registered mark and copyright as well as the registered design of sticks of sindoor bottles of plaintiff. Accordingly, this issue is decided in favour of the plaintiff and against the defendant no.1.
Issue no.2 to 5:-
2. Whether the defendant is guilty of infringement of plaintiff's registered trademark/label "Roop Lady" ? OPP
3. Whether the defendant is passing off the impugned goods under the impugned/trademark/label Roop Lazaro, Roop CS (Comm) 110/2023 Guddu Gupta vs. Suraj Gupta & Anr. Page 16 of 19 Digitally signed SANJEEV by SANJEEV KUMAR KUMAR MALHOTRA MALHOTRA Date: 2025.01.18 16:16:49 +0530 Lekha and trade name Devi Leela Cosmetics as the goods of the plaintiff in violation of the common law rights of the plaintiff in the trademark/label/name/design Roop Lady, Roop Leela and trade name Leela Cosmetics and other Roop variant trademarks which has indomitable goodwill and reputation ? OPP
4. Whether the defendant is guilty of infringement of the copyright involved in the artistic work of the plaintiff's trademark/label Roop Lady by malafidely and dishonestly adopting Roop Lazaro, Roop Lekha ? OPP
5. Whether the defendant is guilty of infringement of the plaintiff registered design bearing registration no.321567-001 in Class 09-01 ? OPP
23. These issues are taken up together being inter connected. Onus to prove these issues was upon the plaintiff. The plea of defendant no. 1 is that plaintiff is his elder brother and he is running the family business started by his father and that the other persons are already doing the business in the similar names as of the trade mark of the plaintiff and relied upon computerized print out of other similar products taken out from the Internet i.e. Ex.DW1/B. It has already been observed while deciding issue no.1 that the phonetic as well as visual resemblance in the two marks of defendant no.1 i.e. ROOP LEKHA and ROOP LAZARO appears to cause confusion to the public with regard to the registered trade mark/copyright and design certificate of CS (Comm) 110/2023 Guddu Gupta vs. Suraj Gupta & Anr. Page 17 of 19 Digitally signed SANJEEV by SANJEEV KUMAR KUMAR MALHOTRA MALHOTRA Date: 2025.01.18 16:16:54 +0530 plaintiff's trademark ROOP LADY and sticks of sindoor bottles. Defendant no.1 cannot infringe the trade mark of plaintiff on the plea that so many other persons are doing the same. The use of mark ROOP LAZARO and ROOP LEKHA by defendant no.1 amounts to passing off the goods as of the plaintiff's trademark ROOP LADY. Further, the use of mark ROOP LAZARO and ROOP LEKHA in the manner as being reflected in admitted document Ex.PW1/2 amounts to violation of the copyright and registered design of the plaintiff's sindoor stick bottles. Accordingly, these issues are also decided in favour of the plaintiff and against the defendant no.1.
Issue no.6.:-
Whether the defendant is liable to pay damages and rendition of accounts? OPP
24. Onus to prove this issue was upon the plaintiff.
However, plaintiff has filed his affidavit that he is not claiming any damages or rendition of account from the defendants. In view thereof, plaintiff is not entitled for any damages or rendition of accounts from the defendants. Accordingly, this issue is decided against the plaintiff and in favour of the defendants.
Relief
25. In view of my findings on abovementioned issues, the suit of plaintiff is partly decreed qua relief of injunction and accordingly, defendant no.1, his agents, representatives are hereby restrained from violating the plaintiff's trademark/label/name/design ROOP LADY or using deceptively similar mark/label as of the plaintiff's CS (Comm) 110/2023 Guddu Gupta vs. Suraj Gupta & Anr. Page 18 of 19 Digitally signed by SANJEEV SANJEEV KUMAR KUMAR MALHOTRA Date: 2025.01.18 MALHOTRA 16:16:58 +0530 registered mark and copyright as well as the registered design of sticks of sindoor bottles of plaintiff. Decree sheet be prepared accordingly. Digitally signed by SANJEEV KUMAR File be consigned to Record Room.
SANJEEV
KUMAR MALHOTRA
MALHOTRA Date:
2025.01.18
16:17:02
+0530
Announced in the open court
on 18th January, 2025 (Sanjeev Kumar Malhotra)
District Judge (Commercial Court)
North-East District
Karkardooma Courts, Delhi
CS (Comm) 110/2023 Guddu Gupta vs. Suraj Gupta & Anr. Page 19 of 19