Delhi District Court
Madhuri Refiners Pvt Ltd And Ors vs Omshree Agro Tech Private Limited And ... on 29 January, 2026
IN THE COURT OF SH. LOKESH KUMAR SHARMA
DISTRICT JUDGE (COMMERCIAL COURTS)-05,
SOUTH DISTRICT, SAKET COURTS, NEW DELHI
In the matter of
CS (COMM) 600/23
CNR No. DLST01-011270-2023
1. Madhuri Refiners Pvt. Ltd.
14/2, Gram Kumerdi
Tehsil Sanver, Indore,
Madhya Pradesh-452010
2. Niranjan Desai
401, Princess Empire,
12, Race Course Road,
Indore, Madhya Pradesh- 452001 ..... Plaintiffs
Versus
1. Omshree Agro-Tech Pvt. Ltd.
G-32, M.I.D.C., Avdhan, Dhule
District- Dhule-424311
Maharashtra, India
2. Omshree Agro Industries Pvt. Ltd.
E-117, MIDC Awadhan, Dhule
District- Dhule-424006
Maharashtra, India ..... Defendants
Institution of the Suit : 03.11.2023
Arguments concluded on : 08.01.2026
Judgment pronounced on : 29.01.2026
JUDGEMENT
1. This suit u/s 134 & 135 of the Trade Marks Act, 1999, & Section 55 of Copyright Act, 1957 for permanent injunction has been filed by the plaintiffs for restraining CS (COMM) 600/23 Madhuri Refiners Pvt. Ltd. And Ors. Vs. OMSHREE AGRO TECH Pvt. Ltd. And Ors.
Page 1 of 54infringement of trade marks and passing off, damages and delivery up, etc. against the defendants.
2. Brief facts:- As per plaintiff no. 1, who is claiming itself to be a Company duly incorporated under the provisions of Companies Act, 1956 having its registered office at 14/2, Gram Kumerdi, Tehsil Sanver Indore, Madhya Pradesh- 452010 and Plaintiff no. 2 was stated to be one of the Directors of the Plaintiff no. 1 and the present suit was filed by one Sh. Anant Tiwari, AR of the Plaintiffs, who was stated to be duly authorized on behalf of the Plaintiffs to sign, verify and file the present lis, vide Board Resolution dated 04.10.2023, as he was fully aware of the facts and circumstances of the present case.
It was stated that Plaintiffs through their predecessors had adopted and started using the trademark "MADHURI" in relation to manufacturing, marketing, selling, supplying of Edible Oils, Vanaspati and pure ghee since 1991 and since then, they had been continuously using its trade mark "MADHURI" in relation to their goods and business and had built up a worldwide goodwill and reputation thereunder and had also acquired proprietary rights therein.
It was stated further that initially the Plaintiff was a Partnership firm incorporated in 1991 under the name and style of M/s Mahduri Refiners with Mr. Babulal Jain, Mr. Tarachand Jain, Mr. Niranjan Desai and Mr. Vikram Desai as partners and was stated to have been registered vide partnership deed dated CS (COMM) 600/23 Madhuri Refiners Pvt. Ltd. And Ors. Vs. OMSHREE AGRO TECH Pvt. Ltd. And Ors.
Page 2 of 5401.04.1994, however, on 20.03.1995, the said partnership firm was converted into a Private Limited Company with its Directors Mr. Niranjan Desai and Mr. Jai Desai. Mr. Babulal Jain, Mr. Tarachand Jain and Mr. Vikram Desai were stated to have given their no objection to Plaintiff No. 2 to use the aforementioned trademark in relation to the goods and business.
Plaintiffs were stated to have offered different types of edible oils to the consumer and to produce best quality oil, Plaintiffs' firm "Madhuri" was using the latest state of art technology and packaging machinery. Plaintiffs were also stated to have world-class storage facility and automatic packing lines and had also owned laboratory and proven processing technology, in which they were using high quality raw materials with low quantity of phospholipids and the entire process was controlled and monitored by their technically qualified staff.
It was also stated that in order to extend their business, Plaintiffs had segregated their business into an extensive range of products and services including Sunflower Oil, Rice Bran Oil, Refined Soyabean Oil, Refined Sunflower Oil.
It was stated that to safeguard their interest and rights, Plaintiffs had got registered the following trademarks in various classes:
Application Trademark & Class User Application Disclaimer No./Status Claimed Date 653297 31.10.1991 27.01.1995 Associated with (Registered) trademark application (Class 29) 95, 653293 CS (COMM) 600/23 Madhuri Refiners Pvt. Ltd. And Ors. Vs. OMSHREE AGRO TECH Pvt. Ltd. And Ors.
Page 3 of 54
2432754 31.10.1991 21.11.2012 This is subject to
(Registered) association with
registered/pending
registration no.
(MADHUR SWAD 653293, 653294,
MADHURI TEL KE 653295, 653296,
SAATH) 653297, 653298,
(Class 29) 653306
2432755 21.10.1991 21.11.2012 None
(Registered)
(Class 35)
Plaintiffs were also stated to have other registered trademarks in class 29 bearing application nos. 653293, 653294, 653295, 653296, 653298, 353305, 353306 and 761684, however, the same were not renewed by the Plaintiffs.
It was averred that Plaintiffs had been continuously using their trade mark in relation to goods and business and had built up a great reputation and enviable goodwill thereunder and had acquired proprietary rights therein.
It was stated that goods of the Plaintiffs were highly demanded in the market on account of the high standard quality and during the past many years, Plaintiffs had established large and extensive sales of their goods under the impugned trademark throughout the country.
It was stated further that plaintiffs had continuously promoted their trademark and related goods and business through extensive advertisements, publicities, promotions and marketing & marketing research and had also been selling, displaying, CS (COMM) 600/23 Madhuri Refiners Pvt. Ltd. And Ors. Vs. OMSHREE AGRO TECH Pvt. Ltd. And Ors.Page 4 of 54
advertising soliciting their goods on various e-commerce websites i.e. www.flipkart.com, www.amazon.in, www.indiamart.com, www.tradeindia.com etc. It was stated that plaintiffs' said trademarks/labels had become distinctive and acquired secondary significance with the plaintiffs' said goods and business.
It was also stated that in 2011, Plaintiffs had adopted the domain name comprising its trade mark http:www.madhurioils.com/products/madhuri/, and had also carried out their business activities through the said domain name.
It was stated that plaintiffs had built up a globally valuable trade under their trademark and had conducted handsome business there and had acquired immense goodwill and reputation under the aforesaid trademark.
Plaintiffs' trademark was stated to be well known trademark within the meaning of Section 2(1)(zg) of the Trademark Act, 1999.
3. Defendant no. 1 was stated to be a Private Limited Company, which was stated to have been incorporated in 2004, having its registered office at G-32, MIDC, Awadhan, Dhule, Maharashtra-424006 and was having four Directors namely Sh.
Sunil Hansraj Agrawal, Sh. Mahendra Onkar Agrawal, Sh. Subhash Onkar Agrawal and Sh. Sachin Mahendra Agrawal. CS (COMM) 600/23 Madhuri Refiners Pvt. Ltd. And Ors. Vs. OMSHREE AGRO TECH Pvt. Ltd. And Ors.
Page 5 of 54Defendant No. 2 was also stated to be a Private Limited Company incorporated in 2000, having its registered office at E-117, MIDC, Awadhan, Dhule, Maharashtra-424006, having three Directors namely Mahendra Onkar Agrawal, Subhash Onkar Agrwal and Sachin Mahendra Agrawal.
Defendants no. 1 and 2 were also stated to be engaged in the business of manufacturing, marketing and selling of edible oil and other allied/cognate/related goods and dishonestly and malafidely had adopted and started using the trademark/label Madhur, Madhur Gold, Shree Madhur Gold, Shri Madhur Gold, in relation to their impugned goods and business.
Defendant No. 1 was stated to have applied for the registration of the trademark "Shree Madhur Gold" as a word mark as "Proposed to be used" in class 29 for Edible Oils on 21.07.2023. Plaintiffs were stated to have come to know about the impugned goods of the Defendant no. 2, bearing the impugned trademark/label "Madhur Gold", in the month of July 2023. In order to safeguard their rights, on 24.07.2023, Plaintiffs had sent a legal notice to Defendant no. 2, however the reply to the legal notice was sent by Defendant no. 1, hence, it was amply clear that both the defendants were working in collusion and connivance with each other while carrying out the impugned business under the impugned trademark/label.
It was stated that Defendants were also dealing in the business of manufacturing, marketing and selling of soya CS (COMM) 600/23 Madhuri Refiners Pvt. Ltd. And Ors. Vs. OMSHREE AGRO TECH Pvt. Ltd. And Ors.
Page 6 of 54chunk, which were allied/cognate goods as that of the Plaintiffs' goods It was stated that the impugned trademarks "MADHUR, Madhur Gold, Shree Madhur Gold, Shri Madhur Gold" in relation to their impugned goods and business with the word "MADHUR" was adopted and being used by the defendants in relation to their impugned goods and business, was identical with and deceptively similar to the Plaintiffs' aforesaid trademark and trade name in each and every aspect including phonetically, visually, structurally, in its basic idea and in its essential features.
It was stated that Defendants had adopted and started using the impugned trademark in relation to their impugned goods and business without the plaintiffs' permission, thereby using and adopting the impugned trade mark of the Plaintiffs, the defendants were violating the Plaintiffs' trade rights, passing off and enabling others to pass off their impugned goods and business as that of the Plaintiffs as well as diluting the Plaintiffs' proprietary rights therein.
It was averred further that Defendant no. 1 was also operating through its website https://omshreeagrotech.linker.store and also through interactive e-commerce websites like www.indiamart.com.
Defendants had been passing off their goods as those of plaintiff's goods and were getting the benefits from the CS (COMM) 600/23 Madhuri Refiners Pvt. Ltd. And Ors. Vs. OMSHREE AGRO TECH Pvt. Ltd. And Ors.
Page 7 of 54goodwill and reputation of plaintiff.
It was averred further that defendants' marketing and advertising of their products were deceiving and misleading the public at large as buyers believed that those products were of the Plaintiffs due to which Plaintiffs had suffered significant losses and injury in their business, goodwill and reputation.
It was stated that the loss of money or injury sustained or likely to be sustained by the Plaintiffs due to erroneous actions and conduct of defendants could not have been calculated in terms of money.
4. The cause of action was stated to have arisen firstly in the 3rd week of July, 2023, when plaintiffs had come to know about the impugned goods of the Defendants under the impugned trademark/lable "Madhur, Madhur Gold, Shree Madhur Gold, Shri Madhur Gold" in the market of South Delhi and cause of action had again arisen when Plaintiffs had come to know, through enquiry, that the defendants had recently started the impugned activity under the impugned trademark/label. The cause of action had again arisen on 24.07.2023, when Plaintiffs had sent a legal notice to defendant no. 2 and had again arisen when reply to the said legal notice was received by Plaintiff no. 1 from Defendant no. 1. The cause of action had also arisen when Plaintiffs were informed that the representatives/concerned persons of defendants had started marketing, soliciting, displaying, offering for sale and selling the impugned goods under the impugned Trade Marks/Labels in the markets of South CS (COMM) 600/23 Madhuri Refiners Pvt. Ltd. And Ors. Vs. OMSHREE AGRO TECH Pvt. Ltd. And Ors.
Page 8 of 54Delhi including Ambedkar Nagar, Hauz Khas, Malviya Nagar, Safdarjung Enclave, INA, Saket, Sangam Vihar etc. and the cause of action was stated to be still continuing and subsisting in favor of the Plaintiffs and against the Defendants.
5. Since the defendants were marketing, displaying, soliciting, offering for sale, selling and networking and had intended to sell their impugned goods and business under the impugned trademark/label in the markets of South Delhi viz. Saket, Malviya Nagar, Mehrauli, Hauz Khas. etc. which were situated within the jurisdiction of this Court, and since the Plaintiffs were also selling goods to consumers through various e-commerce websites, which could have been accessed from all over India including the territory of South Delhi, hence this court was stated to have territorial jurisdiction to try and decide the present lis by virtue of Section 134(2) of the Trade Marks act, 1999 and also u/s 62(2) of the Copyright Act of 1957.
6. In the light of the aforesaid facts and circumstances, the plaintiffs had prayed for passing off a decree in favour of Plaintiffs and against the defendants detailed as hereunder:-
(a) A decree of permanent injunction restraining the defendants by themselves as also through their individual proprietors/partners, agents, representatives, distributors, assigns, heirs, successors, stockists and all others acting for and on their behalf from soliciting, exporting, manufacturing, using, selling, displaying, advertising, through audio, print, visual/social or CS (COMM) 600/23 Madhuri Refiners Pvt. Ltd. And Ors. Vs. OMSHREE AGRO TECH Pvt. Ltd. And Ors.Page 9 of 54
electronic media including on internet or by any other mode or manner dealing in or using the impugned trademark/label Madhur, Madhur Gold, Shree Mahdur Gold, Shri Madhur Gold, in relation to their impugned goods and business of "edible oils" and other allied/cognate/related goods or any other trademark/label which might be identical with and/or deceptively similar to the plaintiffs' registered trademark/label MADHURI , in relation to their impugned goods and business of "edible oils" and other allied and cognate goods and from doing any other acts or deeds amounting to or likely to:-
i. Infringement of plaintiffs' aforesaid registered trademark.
ii. Passing off and enabling others to pass off their goods and business as that of the Plaintiffs. Passing off and violation of the plaintiffs' rights in the plaintiffs' said trade mark/labels. iii. Diluting the Plaintiff's goodwill and reputation to well-known trademark/label iv. Falsification, unfair and unethical trade practices.
(b) Restraining the defendants from disposing off or dealing with their assets including their CS (COMM) 600/23 Madhuri Refiners Pvt. Ltd. And Ors. Vs. OMSHREE AGRO TECH Pvt. Ltd. And Ors.Page 10 of 54
premises at the addresses mentioned in the Memo of Parties and their stocks-in- trade or any other assets as may be brought to the notice of the Court during the course of the proceedings and on the defendants' disclosure thereof and which the defendants would be called upon to disclose and/or on their ascertainment by the plaintiffs as the plaintiffs were not aware of the same as per Section 135(2)(c) of the Trade Marks Act, 1999, as it could have adversely effected the plaintiffs' ability to recover the costs and pecuniary reliefs thereon.
(c) For an order for delivery up of all the impugned finished and unfinished materials bearing the impugned and violative trade mark/label "Madhur, Madhur Gold, Shree Madhur Gold, Shri Madhur Gold or any other word/mark which might be identical with or deceptively similar to the plaintiffs' said trade mark/label "MADHURI" including its blocks, labels, display boards, sign boards, trade literatures and goods etc. to the plaintiffs for the purposes of destruction and erasure.
(d) For an order for rendition of accounts of profits earned by the defendants by their impugned illegal trade activities and a decree for CS (COMM) 600/23 Madhuri Refiners Pvt. Ltd. And Ors. Vs. OMSHREE AGRO TECH Pvt. Ltd. And Ors.
Page 11 of 54the amount so found in favour of the plaintiffs on such rendition of accounts.
(e) for the decree of grant of damages to the tune of Rs. 3,50,000/-.
(f) for an order for cost of proceedings.
7. Upon service of notice upon them, the defendants had also appeared to contest the case of plaintiffs on its merits and filed their written statement on record, wherein they had taken a preliminary objection that plaintiffs were guilty of concealment of material facts as well as for not approaching the court with clean hands. No cause of action was stated to have arisen in favour of the plaintiffs and against the defendants.
8. On merits, it was stated that in 1975, Late Shri Hansraj Agrawal had established a firm under the name and style of M/s Prakashchand Subhashchand & Company, which traded in oil seeds, cereals, etc. and had also developed business of high goodwill and reputation.
It was stated further that in 1979, family concern of the defendants had adopted the mark "MADHUR" and in 1980, they had established a firm under the name of "Shree Gajanan Oil Mills", which had produced Pure Groundnut Oil (Edible Oil) & Groundnut Oil Cakes under the mark "MADHUR" and its formatives and the aforesaid firm had comprised of family members of Agrawal family including Sh. Mahendrakumar CS (COMM) 600/23 Madhuri Refiners Pvt. Ltd. And Ors. Vs. OMSHREE AGRO TECH Pvt. Ltd. And Ors.
Page 12 of 54Onkarmal Agarwal and Sh. Subhash Onkarmal Agrawal, who also happened to be the founding directors in the subsequent family concerns.
It was stated further that in 1986, Shri Hansraj Onkarmal Agrawal had established a firm under the name of "Madhur Food Products", who used to deal with the Cottonseed Oil Cake under the mark "MADHUR". In 1992, Shri Sandeep Hansraj Agrawal s/o Shri Hansraj Onkarmal Agrawal, was stated to have introduced the proprietorship firm under the name of "Agarwal Dal and Besan Mill" and in the same year, Sh. Hansraj Onkarmal Agarwal, Sh. Mahendra Onkarmal Agarwal and Sh. Subhash Onkarmal had established the company M/s Shri Madhur Food Products Pvt. Ltd. and the land of "Agarwal Dal and Besan Mill and Madhur Food Products" was transferred to "M/s Shri Madhur Food Products Pvt. Ltd", which was situated in Dhule, Maharashtra, MIDC on 80,000 sq. ft of land and 25,000 sq. ft for further expansion.
It was stated that in 2000, partners of Shree Gajanan Oil Mills had formed the defendant no. 2 company i.e. M/s Omshree Agro Industries Pvt. Ltd. at Dhule, Maharashtra, for the purpose of production and sale of Refined Soyabean Oil under the mark "SHREE MADHUR" and its formatives, and the same was used since the year 2001 till 2021 by defendant no. 2. Sh. Mahendra Onkarmal Agrawal, Subhash Onkarmal Agrawal and Sachin Mahendra Agrawal were stated to be the present Directors of said company and in 2004, they had also established the firm M/s Omshree Agro Tech Limited, which later became Omshree CS (COMM) 600/23 Madhuri Refiners Pvt. Ltd. And Ors. Vs. OMSHREE AGRO TECH Pvt. Ltd. And Ors.
Page 13 of 54Agro Tech Private Ltd., i.e. Defendant No. 1, situated in G-32, M.I.D.C., Dhule, Maharashtra on 2,50,000 sq. ft of land and 1,00,000 sq. ft for further expansion and defendant No. 1. Sh. Sunil Hansraj Agrawal, Mahendra Onkarmal Agrawal, Subhash Onkarmal Agrawal and Sachin Mahendra Agrawal were stated to be the present Directors of Defendant no. 1.
It was stated that in 2021, Agrawal family had decided to use the mark "SHREE MADHUR" in defendant no. 1, and "GOLD" was added as suffix considering the marketing trend for premium quality products.
It was stated that Late Shri Hansraj Onkarmal Agarwal, founder member of the Omshree Group, inspired by the principles of Lord Ram and concept of his Madhur Vani (Extremely polite and humble tone) had suggested the name "MADHUR" and their group companies were established under his mentorship and almost all the companies operating in various business activities being run by the Agarwal Family had used the mark "MADHUR" in respect of their respective products/services.
It was stated further that defendants were the prior adopters and users of the Trade Mark "MADHUR" and it's formatives in respect of edible oils much prior to that of the Plaintiffs as Plaintiffs had adopted the Trademark "MADHURI" in 1991. The Small Scales Industries registration dated 13.07.1982, had also validated that Defendants' firm Shree CS (COMM) 600/23 Madhuri Refiners Pvt. Ltd. And Ors. Vs. OMSHREE AGRO TECH Pvt. Ltd. And Ors.
Page 14 of 54Gajanan Oil Mills had adopted the Trade Mark "MADHUR" in respect of edible oils in 1982.
It was stated further that the Trademark application bearing no. 1040956 for the Trade Mark "SHREE MADHUR"
used by Shree Gajanan Oil Mills, since the year 1979, in respect of groundnut oil, was registered on 13.12.2005, but the same could not be renewed due to non-payment of timely renewal fee, however, the trademark application bearing no. 1483236 for the Trade mark "MADHUR" by Shree Madhur Food Products Private Limited, Dhule, Maharashtra was registered, valid and renewed till 31.08.2026.
The remaining contents except those which were either expressly admitted or constituted the matter of record, were denied by the defendants for want of knowledge and also being patently false and incorrect.
9. To this written statement of the defendants, plaintiffs had also filed their replication, wherein all the preliminary objections taken by the defendants were denied by them and the contents of plaint were reiterated on merits.
10. On the pleadings of the parties, this court vide order dated 04.06.2024, had framed following issues for determination:
i. Whether the Plaintiff is entitled to a decree for permanent injunction, as prayed? OPP.
CS (COMM) 600/23 Madhuri Refiners Pvt. Ltd. And Ors. Vs. OMSHREE AGRO TECH Pvt. Ltd. And Ors.Page 15 of 54
ii. Whether the Plaintiff is entitled to decree for rendition of accounts, as prayed? OPP. iii. Whether the plaintiff is entitled for damages, if any, as prayed? If so, to what extent? OPP iv. Whether this court has no territorial jurisdiction to try and entertain the present suit? OPD.
v. Whether the Plaintiff is guilty of suppression and concealment of material facts? OPD vi. Relief.
11. In order to prove its case by preponderance of probabilities, plaintiff had examined one Sh. Gaurav Mehta S/o Sh. Ramchandra Mehta aged about 41 yrs, R/o Plot No. 25, E Shailputri Shelter, Flat No. 301, Scheme No. 71, Sector- C, Indore, Sudama Nagar, Indore, MP-452009, working as Sales Executive with the Plaintiff Company having its registered office at 14/2, Gram Kumerdi, Tehsil Sanver Indore, Madhya Pradesh-
452010, who had placed on record, affidavit PW1/A in his examination-in-chief reiterating the factual averments of plaint on solemn affirmation. Besides this he had also placed on record the following documents:-
(i) Ex.PW1/1- Representation of the Plaintiffs' Trademark/label "MADHURI".
(ii) Ex. PW1/2 (colly)- Representation of the Plaintiffs' products under the trademark/label "MADHURI".
CS (COMM) 600/23 Madhuri Refiners Pvt. Ltd. And Ors. Vs. OMSHREE AGRO TECH Pvt. Ltd. And Ors.
Page 16 of 54(iii) Ex. PW1/3- Representation of the impugned Trademark/label of the Defendant, "Madhur".
(iv) Ex. PW1/4 (Colly) - Representation of the Defendants' goods under the impugned trademark/label.
(v) Ex. PW1/5- Comparison chart between the Plaintiffs' trademark/label "MADHURI" and the Defendants' impugned trademark/label "MADHUR".
(vi) Ex. PW1/6- Printout of the Plaintiff No. 1's company master data.
(vii) Ex. PW1/7 (Colly) - Status page, and registration certificate of the Plaintiffs' trademark under Application no. 653297 in Class 29.
(viii) Ex. PW1/7A (Colly) - Status page, registration certificate and Journal Copy of the Plaintiffs' trademark under Application no. 2432754 in Class 29.
(ix) Ex. PW1/7B (Colly) - Status page, registration certificate and journal copy of the Plaintiffs' trademark under Application no. 2432755 in Class 35.
(x) Ex. PW1/7C (Colly) - Status page of the Plaintiffs' non-renewed trademark application no. 653293.
(xi) Ex. PW1/8- Extract of the Trademark journal no. 1885, dated 21.01.2019 showing the list of Plaintiff's non- renewed trademark applications.
CS (COMM) 600/23 Madhuri Refiners Pvt. Ltd. And Ors. Vs. OMSHREE AGRO TECH Pvt. Ltd. And Ors.
Page 17 of 54(xii) Ex. PW1/9 (Colly) - Copyright Registration Certificates in favour of the Plaintiff.
(xiii) Ex. PW1/10 (Colly)- Legal Proceeding Certificates for the Plaintiff's trademarks.
(xiv) Ex. PW1/11 (Colly) - Partnership deed of the Plaintiffs' predecessor M/s Madhuri Refiners dated 01.04.1994.
(xv) Ex. PW1/12 (Colly) - Copy of the resignation letter dated 29.06.1998 of Mr. Babulal Jain from the Plaintiff Company.
(xvi) Ex. PW1/13 (Colly) - Copy of the resignation letter dated 09.01.1999 of Mr. Ashok Doshi from the Plaintiff Company.
(xvii) Ex. PW1/14 (colly)- Copy of the resignation letter dated 09.09.1999 of Mr. Vikram Desai from the Plaintiff Company.
(xviii) Ex. PW1/15- Copy of the resignation letter dated 30.07.2012 of Mr. Tarachand Jain from the Plaintiff Company.
(xix) Ex. PW1/16- CA certified sales figures of the Plaintiff Company from 1994-2023.
(xx) Ex. PW1/17 (Colly)- Copies of Sales invoices of the Plaintiff Company from 2013- 2023.
(xxi) Ex. PW1/18 (Colly) - Copies of promotional and advertisement invoices of the Plaintiffs Company from 2014-2023.
(xxii) Ex. PW1/19 (Colly) - Screenshot of the Plaintiff's website www.madhurioils.com. CS (COMM) 600/23 Madhuri Refiners Pvt. Ltd. And Ors. Vs. OMSHREE AGRO TECH Pvt. Ltd. And Ors.
Page 18 of 54(xxiii) Ex. PW1/20 (colly) - Screenshots of the E- commerce websites showing availability of the Plaintiff's goods under the said trademark/label/trade dress www.madhurioils.com www.flipkart.com; www.amazon.in; and www.tradeindia.com.
(xxiv) Ex. PW1/21-Screenshot of the Defendant No.1 website https://omshreeagrotech.linker.store. (xxv) Ex. PW1/22- Screenshot of the Defendant No. 1's presence on www.indiamart.com. (xxvi) Ex. PW1/23 (colly)- Copy of the Legal Notice Dated 24.07.2023 from the Plaintiff No. 1 to the Defendant No. 2.
(xxvii) Ex. PW1/24 (colly)- Reply dated nil to the legal notice Sent by Defendant No.1 to Plaintiff no. 1.
(xxviii) Ex. PW1/25- Printout of the Status Page of the Defendant No. 1's trademark application bearing number 6032538.
(xxix) Ex. PW1/26- Printout of the Company master data of the Defendant No.1 company (xxx) Ex. PW1/27- Printout of the Company master data of the Defendant No.2 company. (xxxi) Ex. PW1/28 (colly) - Authorisation Letter from Mr. Niranjan Desai to Mr. Anant Tiwari. (xxxii) Ex. PW1/29- Copy of Board Resolution dated 04.10.2023 passed in favour of Mr. Anant Tiwari.
CS (COMM) 600/23 Madhuri Refiners Pvt. Ltd. And Ors. Vs. OMSHREE AGRO TECH Pvt. Ltd. And Ors.
Page 19 of 54During his cross-examination conducted by Ld. Counsel for the defendant on 25.11.2024, PW1 had stated that he was working as a sales executive with the Plaintiff company since 2007. He had denied the suggestion that he had no personal knowledge about the incidents and facts of his affidavit Ex. PW1/A, as the same pertained to the dates prior to his joining the Plaintiff. The present suit was stated to have been filed in respect of Plaintiffs' trademark "Madhuri". He had denied the suggestion that there was a difference between "Madhur" and "Madhuri". However, he had admitted that Madhur represented masculine gender and Madhuri represented feminine gender. He had denied the suggestion that words "Madhur" and "Madhuri" were not phonetically similar.
Plaintiff no. 1 was stated to have been registered as a company in 1991, having its registered office at Pitampur, Indore Industrial Area, MP and its another office was stated to be situated in village Sindhe Gaon, Nasik, Maharashtra and except that they had no other office.
He had admitted that the major consumption of Plaintiffs' products was in the state of MP and Maharashtra. However, he had again stated that they had sales in Allahabad and Delhi as well. However, he could not tell the volume of business of Plaintiffs in Delhi. No other concern of Plaintiffs was stated to be in existence prior to 1991.
The trademark "Madhuri" was stated to have been adopted and registered by Plaintiff in the year 1994. However, a CS (COMM) 600/23 Madhuri Refiners Pvt. Ltd. And Ors. Vs. OMSHREE AGRO TECH Pvt. Ltd. And Ors.
Page 20 of 54suggestion contrary to it was denied by him that the Plaintiff no. 1 had not adopted and used the mark "Madhuri" for edible oil since 1994 and that is why, he had not placed any document in that respect on record. He had again denied the suggestion that since Plaintiff had no sales within the territorial limits of Delhi, hence, no such invoice had been placed on record by him. He had again denied the suggestion that since the plaintiff was not having any business in the name of Madhuri from 1994 till 2013, hence, he had not placed any advertisements of said period on record. Since, he could not read English, hence, he was not able to read and explain his affidavit Ex. PW1/A.
12. Thereafter Plaintiff's evidence was closed.
13. In rebuttal, Defendants had examined their AR Sh. Sandeep Hansraj Agrawal S/o Sh. Hansraj Onkarmal Agrawal aged about 54 yrs, R/o 3087/B, Jamnalal Bajaj Road, Dhule, Maharashtra-424001, presently at Delhi, having their registered office at G-32, MIDC, Awadhan, Dhule, Maharashtra, who had filed in evidence, his examination-in-chief by way of affidavit Ex. DW1/A, reiterating the contents of written statement on solemn affirmation. He had also placed on record, the following documents:-
1. Ex.DW1/1- Copy of Sales Tax Registration dated 22.10.1980 of Shree Gajanan Oil Mills.
2. Ex.DW1/2- Copy of Certificate of Entitlement of the year 1980 of Shree CS (COMM) 600/23 Madhuri Refiners Pvt. Ltd. And Ors. Vs. OMSHREE AGRO TECH Pvt. Ltd. And Ors.Page 21 of 54
Gajanan Oil Mills valid from 01.12.1981 till 30.11.1990
3. Ex.DW1/3- Copy of Registration of Small Scale Industries issued by Directorate of Industries, Maharashtra dated 13.07.1982 in favour of Shree Gajanan Oil Mill in respect of its product/brand "Madhur".
4. Ex.DW1/4- Copies of Register of Partnership with partnership deeds dated 20.11.1987 and 24.01.2009 of Shree Gajanan Oil Mills along with registration certificate dated 15.09.1980 issued by Registrar of firms.
5. Ex.DW1/5- Copy of Agmark License No. AW-24248 dated 06.05.1994 and records of Shree Gajanan Oil Mills.
6. Ex.DW1/6- Copies of Photographs of Shree Gajanan Oil Mills products under the mark MADHUR since 10.12.1988 till 23.09.1999.
7. Ex.DW1/7- Copies of few Sale Bills/Invoices issued by Shree Gajanan Oil Mills since 1982 till 2016.
8. Ex.DW1/8- Copies of few Old newspaper advertisements in Daily Aapla Maharashtra from 08.07.1991 till 19.09.1993 of Shree Gajanan Oil Mills.
9. Ex.DW1/9- Copy of Donation receipt of the year 2005 issued by Dhule Education CS (COMM) 600/23 Madhuri Refiners Pvt. Ltd. And Ors. Vs. OMSHREE AGRO TECH Pvt. Ltd. And Ors.
Page 22 of 54Society towards development fund to the Defendants.
10. Ex.DW1/10- Copy of old VAT Registration of the year 2006 and GST of 2017 of Shree Gajanan Oil Mills.
11. Ex.DW1/11- Copies of Trade Mark records pertaining to trade mark Registration No. 1040956 dated 30.08.2001 in Class 29 of Shree Gajanan Oil Mills.
12. Ex.DW1/12- Copies of documents in respect of Trade Mark Application Nos.
2755893 and 2755894 in Class 29 of Shree Gajanan Oil Mills.
13. Ex.DW1/13- Copy of Incorporation details of year 1992 of Shri Madhur Food Products Private Limited.
14. Ex.DW1/14- Copy of Central Sales Tax Registration of the year 1996 of Shri Madhur Food Products Private Limited.
15. Ex.DW1/15- Copy of Building Completion Certificate of the year, 1996 dated 10.12.1996 of Shri Madhur Food Products Private Limited
16. Ex.DW1/16- Copy of Maharashtra Sales Tax Registration of the year 1996 of Shri Madhur Food Products Private Limited
17. Ex.DW1/17- Copy of Factory License dated 07.08.1997 of Shri Madhur Food Products Private Limited.
CS (COMM) 600/23 Madhuri Refiners Pvt. Ltd. And Ors. Vs. OMSHREE AGRO TECH Pvt. Ltd. And Ors.
Page 23 of 5418. Ex.DW1/18- Copies of Possession Receipts dated 10.12.1992 of Shri Madhur Food Products Private Limited.
19. Ex.DW1/19- Copy of MIDC Lease dated 01.10.1996 of Shri Madhur Food Products Private Limited.
20. Ex.DW1/20- Copy of Maharashtra Pollution Control Board documents of the year 1997 of Shri Madhur Food Products Private Limited.
21. Ex.DW1/21- Copy of Tehsildar Report dated 22.02.1999 of Shri Madhur Food Products Private Limited.
22. Ex.DW1/22- Copy of Boiler license dated 15.04.1999 of Shri Madhur Food Products Private Limited.
23. Ex.DW1/23- Copy of Eligibility Certificate dated 22/25.09.2000 of Shri Madhur Food Products Private Limited.
24. Ex.DW1/24- Copy of SCI Registration dated 28.03.2007 of Shri Madhur Food Products Private Limited.
25. Ex.DW1/25- Copies of various Newspaper advertisements/reportings of Shri Madhur Food Products Private Limited.
26. Ex.DW1/26- Copy of GST Registration of Shri Madhur Food Products Private Limited dated 29.07.2018.
CS (COMM) 600/23 Madhuri Refiners Pvt. Ltd. And Ors. Vs. OMSHREE AGRO TECH Pvt. Ltd. And Ors.
Page 24 of 5427. Ex.DW1/27- Copies of Trade Mark records pertaining to trade mark Registration No. 1483236 in Class 31 of Shri Madhur Food Products Private Limited.
28. Ex.DW1/28- Copies of various Sales Bills since the year 1997 till 2023 issued by Shri Madhur Food Products Private Limited.
29. Ex.DW1/29- Copy of Maharashtra Pollution Board Certificate dated 05.03.2001 of Omshree Agro Industries Private Limited.
30. Ex.DW1/30- Copy of Certificate for User of Solvent Extracted Oil dated 07.02.2001 of Omshree Agro Industries Private Limited.
31. Ex.DW1/31- Copy of Sales Tax Registration dated 12.02.2001 of Omshree Agro Industries Private Limited.
32. Ex.DW1/32- Copy of Wholesale Dealer license dated 26.02.2001 of Omshree Agro Industries Private Limited.
33. Ex.DW1/33- Copies of various Awards and Recognitions of Omshree Group.
34. Ex.DW1/34- Copy of Small Scale Industries Registration dated 14.03.2001 of Omshree Agro Industries Private Limited.
35. Ex.DW1/35- Copies of License for possession and use of rectified Spirit dated CS (COMM) 600/23 Madhuri Refiners Pvt. Ltd. And Ors. Vs. OMSHREE AGRO TECH Pvt. Ltd. And Ors.
Page 25 of 5413.09.2002 of Omshree Agro Industries Private Limited.
36. Ex.DW1/36- Copy of ISO Registration of Omshree Agro Industries Private Limited dated 26.03.2003.
37. Ex.DW1/37- Copy of GST Registration of Omshree Agro Industries Private Limited dated 28.07.2018.
38. Ex.DW1/38- Copy of FSSAI Registration of Omshree Agro Industries Private Limited dated 13.12.2023.
39. Ex.DW1/39- Copies of Sales Bills since the year 2005 till 2021 issued by Omshree Agro Industries Private Limited.
40. Ex.DW1/40- Copy of Ledger and invoices of goods sold to Plaintiff by Omshree Agro Industries Private Limited.
41. Ex.DW1/41- Copy of Central Sales Tax Registration of Omshree Agro-tech Private Limited.
42. Ex.DW1/42- Copy of Maharashtra Sales Tax Registration of Omshree Agro-tech Private Limited.
43. Ex.DW1/43- Copy of Factory License dated 27.10.2004 of Omshree Agro-tech Private Limited.
44. Ex.DW1/44- Copy of Import Export Code of Omshree Agro-tech Private Limited dated 13.02.2006.
CS (COMM) 600/23 Madhuri Refiners Pvt. Ltd. And Ors. Vs. OMSHREE AGRO TECH Pvt. Ltd. And Ors.
Page 26 of 5445. Ex.DW1/45- Copy of Certificate of Commencement of Business of the year 2004 Omshree Agro-tech Private Limited dated 27.04.2005.
46. Ex.DW1/46- Copy of Incorporation Certificate of Omshree Agro- tech Private Limited dated 29.06.2004.
47. Ex.DW1/47- Copy of Certificate of Registration as consumer for the year 2007 Omshree Agro-tech Private Limited dated 31.07.2007.
48. Ex.DW1/48- Copy of Certificate of Export Promotion Council for the year 2006, issued to Omshree Agro-tech Private Limited dated 26.09.2008.
49. Ex.DW1/49- Copy of Certificate of Registration for the year 2005 Omshree Agro-tech Private Limited dated 18.11.2005.
50. Ex.DW1/50- Copies of bank letters dated 28.10.2004, to Omshree Agro-tech Private Limited.
51. Ex.DW1/51- Copy of GST Registration of Omshree Agro-tech Private Limited dated 08.02.2021.
52. Ex.DW1/52- Copy of FSSAI License of Omshree Agro-tech Private Limited dated 18.09.2023.
CS (COMM) 600/23 Madhuri Refiners Pvt. Ltd. And Ors. Vs. OMSHREE AGRO TECH Pvt. Ltd. And Ors.
Page 27 of 5453. Ex.DW1/53- Copy of Maharashtra Pollution Control Board consent letter of Omshree Agro-tech Private Limited dated 02.11.2004.
54. Ex.DW1/54- Copy of Commencement of Production of Omshree Agro-tech Private Limited dated 04.04.2012.
55. Ex.DW1/55- Copy of Certificate of Expansion under package scheme for the year 2012 of Omshree Agro-tech Private Limited dated 09.04.2012.
56. Ex.DW1/56- Copy of Factory License of Omshree Agro-tech Private Limited dated 04.10.2023.
57. Ex.DW1/57- Copies of Sales Bills from 2021 till 2023 of Omshree Agro-tech Private Limited.
58. Ex.DW1/58- Copies of Board resolution dated 18.11.2023 passed by defendant companies authorizing Mr. Sandeep Hansraj Agrawal.
59. P1- Copy of Incorporation details of Omshree Agro Industries Private Limited showing its incorporation on 04.09.2000.
60. P2- Copy of Trade Mark Application with examination report in respect of 6032538 in Class 29 filed by Omshree Agro-tech Private Limited.
CS (COMM) 600/23 Madhuri Refiners Pvt. Ltd. And Ors. Vs. OMSHREE AGRO TECH Pvt. Ltd. And Ors.
Page 28 of 5461. P3- Copy of the search report for Trade Mark MADHUR in Class 29 obtained from www.ipindia.nic.in.
62. P4- Copy of the search report for Trade Mark MADHUR in Class 29 obtained from www.ipindia.nic.in.
Though, documents Mark P1 to Mark P4 were mentioned in the affidavit Ex. DW1/A, however, same were not tendered during examination of DW1.
During his cross-examination conducted by Ld. Counsel for Plaintiff on 08.05.2025, DW1 had stated that the partnership firm Shree Gajanan Oil Mills was constituted in 1980, with Sh. Shubash Agrawal, Sh. Hansraj Agrawal and Mahendra Agrawal as partners. Sh. Bal Krishan Rameshwar Bhatwal, Sh. Suresh Bhatwal, Ms. Gayatri Bhatwal, Ms. Sarla Bhatwal and Sh. Raghunath Bhatwal were stated to be the partners in the said firm, however they did not belong to Defendants' family. The aforesaid firm was stated to have not been dissolved till the date of deposition of DW1, however, the same was not operational since 2017. The application no. 6032538 Ex. DW1/P1 was stated to have been filed in the name of defendant no. 1 company and not in individual name. It was admitted by him that no entity was in existence with the name of Agrawal group of companies or firms.
He had denied the suggestion that M/s Shree Gajanan Oil Mills, M/s Madhur Food Products, M/s Shree CS (COMM) 600/23 Madhuri Refiners Pvt. Ltd. And Ors. Vs. OMSHREE AGRO TECH Pvt. Ltd. And Ors.
Page 29 of 54Madhur Food Products Pvt. Ltd. and defendants no. 1 and 2 were not family firms, however, he had again stated that though the same were not family firms but they were run by family members.
He had no knowledge as to whether defendants no. 1 and 2 were having their websites as www.omshreeagrotech.linker.store or not. Defendants no. 1 and 2 were stated to have not sold their products online either through India Mart or through any other web portal. Ex. PW1/22 was stated to have not belonged to defendants no. 1 and 2. He did not know the GST no. of defendant no. 1 or whether Ex. PW1/21 belonged to defendants no. 1 and 2 or not.
Defendants' business was stated to be confined only to the state of Maharashtra. He had denied the suggestion that the trademarks/labels of defendants no. 1 and 2 were deceptively similar to that of Plaintiff. He had also denied the suggestion that he was deposing falsely qua GST number or otherwise.
14. Thereafter Defendant's Evidence was also closed.
15. I have heard Sh. Sudharshan Bansal, Sh. Arpit Dudeja and Sh. Devansh Mishra, Ld. Counsels for the Plaintiffs and Sh. N.K Kantawala, Sh. Praver Sharma, Sh. Amaya M Nair and Sh. Ayush Malik, Ld. Counsels for defendants, at length and also perused the material available on record.
CS (COMM) 600/23 Madhuri Refiners Pvt. Ltd. And Ors. Vs. OMSHREE AGRO TECH Pvt. Ltd. And Ors.
Page 30 of 54It has been argued by Sh. N.K Kantawala, Ld. Counsel representing the defendants that suit of the Plaintiffs is liable to be dismissed as the defendants were the prior users and adopters of Trade Mark "MADHUR" and it's formatives in respect of edible oils much prior to that of the Plaintiffs' Trademark "MADHURI". Plaintiffs' claim of prior user was also stated to be false and vague, as evident from the record of Registrar of Trade Marks, one Tungbhadra Industries Ltd. had registered the mark "MADHURI" on 22.08.1953 vide Trade Mark Application No. 160149 in class 29 in its favour.
Ld. Counsel for Defendants had also contended that the Label/packaging/ Colour Schemes/ Artistic Works of the labels of both the parties were entirely different and distinct from each other and apart from its prior used mark "MADHUR", the label/packaging of the Defendants' products were also bearing the house mark .
It was further stated that this court had no territorial jurisdiction to try and entertain the present suit as none of the parties were residing within its jurisdiction nor they were carrying out business in Delhi.
Ld. Counsel for the Defendants had also contended that during the cross-examination, PW1 had failed to explain the contents of his affidavit Ex. PW1/A, which clearly demonstrated that the same was not based upon his own understanding and knowledge of facts and thus his examination-in-chief was a CS (COMM) 600/23 Madhuri Refiners Pvt. Ltd. And Ors. Vs. OMSHREE AGRO TECH Pvt. Ltd. And Ors.
Page 31 of 54nullity, hence, Plaintiffs had failed to substantiate the authenticity and genuineness of the documents placed on record by them.
It was argued further by Ld. Counsel for Defendants that there was no evidence lead on behalf of the Plaintiff showing that any confusion had ever occurred in the minds of people regarding the products of Plaintiff and Defendants about any kind of deception either visual, phonetic and/or related to the quality or brand name of the goods. Further both the trademarks of the Plaintiff and Defendants were stated to be altogether different trademarks having no similarity between them at all.
Further, it was argued that Plaintiff was mainly operational in the State of Madhya Pradesh, whereas Defendants were operating in the State of Maharashtra.
It was also stated and argued by Ld. Counsel for Defendants that as submitted earlier by him, once the PW1, during his cross-examination had categorically admitted that he was not in a position to explain his affidavit, then his entire examination-in-chief had got washed away and thus could not have been read in evidence and therefore the Plaintiff had miserably failed to substantiate his claim by adducing relevant evidence on record.
It was further stated that only predecessors of the Defendants i.e. M/s Shree Gajanan Oil Mills, could have challenged the defendants' user of trademark "MADHUR" as it CS (COMM) 600/23 Madhuri Refiners Pvt. Ltd. And Ors. Vs. OMSHREE AGRO TECH Pvt. Ltd. And Ors.
Page 32 of 54was the original owner of the said trademark having adopted the same in 1979 and not the Plaintiff.
In this regard, it was submitted further that the existence of trademark "MADHUR" in the name of M/s Shree Gajanan Oil Mills since 1979 was neither challenged by the Plaintiff, nor Plaintiff had offered any cross-examination to DW1 in this regard.
Further, it was submitted that once the Plaintiff had already objected to the Defendants' registration of trademark in 2018, therefore, it shows that it came to know about the existence of trademark of Defendants in 2018 itself and not in 2023 as claimed in the present suit amounting to suppression and concealment of material facts.
My attention was further drawn to Ex. DW1/4 at page no. 26 of the paper book of the documents filed on record by the Defendants, which was the certificate of registration of partnership firm of M/s Shree Gajanan Oil Mills issued on 15.09.1980, in which the predecessors of the defendants were shown as partners in the said firm. As per Ex. DW1/3, which was the certificate issued to the said firm, who was predecessor of the defendants, Directorate of industries in its certificate dated 13.07.1982, had acknowledged that the said firm M/s Shree Gajanan Oil Mills was dealing under the brand name of "MADHUR" and as per Ex. DW1/1, the said firm was working since 22.10.1980 i.e. much prior to the Plaintiff's even coming into existence.
CS (COMM) 600/23 Madhuri Refiners Pvt. Ltd. And Ors. Vs. OMSHREE AGRO TECH Pvt. Ltd. And Ors.
Page 33 of 54Further, Ld. Counsel for Plaintiff had drawn my attention to page no. 105 and 106 of the paper book showing registration in favour of the defendants, placed on record as Ex. DW1/11. Further as per document Ex. DW1/40, which was stated to be a ledger of the Defendant no. 2, reflected that defendant no. 2 was also supplying oil to the Plaintiff firm and thus it had been claimed that once the Plaintiff herein was already purchasing the oil from the defendants since 19.10.2020 itself as also reflected from the invoices Ex. DW1/40 (Colly) placed on record from page no. 381 till page no. 383 of the paper book, hence, it was next to impossible that the Plaintiff was not aware of the Defendants' conducting business under the said trade name "MADHUR".
However, this statement had been duly countered by Sh. Sudharshan Bansal, Ld. Counsel appearing for the Plaintiff while submitting that the said invoices only reflected the product and the quantity purchased by the Plaintiff from the said defendants, which nowhere described that the said quantity was sold to the Plaintiff under the brand name of "MADHUR". This submission of Ld. Counsel also finds force from the contents of invoices as well. However, I find it next to impossible that once the parties were already having business transactions and dealings between them, then the Plaintiff could have claimed that it was not aware of the brand name of the products of the defendants.
Not only this, but also, countering to the said submission of Ld. Counsel for Defendants, Ld. Counsel for the CS (COMM) 600/23 Madhuri Refiners Pvt. Ltd. And Ors. Vs. OMSHREE AGRO TECH Pvt. Ltd. And Ors.
Page 34 of 54Plaintiff had argued that as per para 12 and 13 of the Plaint, the Plaintiff was the prior user as well as registered owner of the trademark "MADHURI" since 1991. Regarding the annual turn overs of the Plaintiff's firm, reliance has been placed upon Ex. PW1/16 at page no. 170 of the paper book of the documents of the Plaintiff, which is the CA certificate issued in favour of Plaintiff firm.
However, a perusal of the said document reflects that only the sales figures of the Plaintiff firm commencing from 1994-1995 have been mentioned in the same and not the sale figures in the year 1991-1992, being the period since when the Plaintiff had claimed itself to be using the said trademark.
It had also been argued by Ld. Counsel for the Plaintiff that essential and distinguishing features of the mark were also required to be seen while comparing the two contesting trademarks and if examined from that perspective, then the trademarks of both the parties namely "MADHURI" and "MADHUR" were found to be visually, phonetically, structurally and conceptually similar for a common man and reliance in this regard was placed on Ex. PW1/7A appearing at page no. 132 of the paper book of Plaintiff's documents, wherein the Plaintiff had claimed itself to be the registered owner and proprietor of the tag line for its products "MADHUR SWAD MADHURI TEL KE SAATH".
Furthermore, reliance has been placed on document Ex. PW1/22 appearing at page no. 337 of the paper book of the CS (COMM) 600/23 Madhuri Refiners Pvt. Ltd. And Ors. Vs. OMSHREE AGRO TECH Pvt. Ltd. And Ors.
Page 35 of 54Plaintiff's documents to show that defendant no. 1 was also dealing in the same products through interactive website of India Mart and as per defendant's own application Ex. PW1/25 placed at page no. 347, Defendant in its application dated 21.07.2023 had claimed that it intended to use the trademark "Shree Madhur Gold" in respect of products in class 29 and was not stated to be an actual user of the said trade mark as on the date of the said application.
Ld. Counsel for Plaintiff had further drawn my attention to the preliminary objections in the written statement filed by the Defendants on record carrying their family history and background, wherein all the firms run by the Aggarwal family were stated to be their family firms, whereas DW1 during his cross-examination had categorically stated and admitted that those firms were not the family firms, though they were run by the members of the same family.
However, I fail to understand the reason behind making this submission by Ld. Counsel for Plaintiff because the Defendants in their written statement had only taken a defence that they had adopted the trademark from their predecessors in interest, who were all the members of the same family and were using the trademark "Madhur" since long, when even the Plaintiff had not come into its existence.
The question, whether the said trademark was being used by the family firms of a particular group or by different firms belonging to the members of the same family becomes CS (COMM) 600/23 Madhuri Refiners Pvt. Ltd. And Ors. Vs. OMSHREE AGRO TECH Pvt. Ltd. And Ors.
Page 36 of 54irrelevant when admittedly the said trademark was in existence and use much prior to that of the Plaintiff's trademark in the present case.
In support of his arguments and contentions Ld. Counsel for Defendants had also relied upon the citation of our own Hon'ble High Court of Delhi, in case titled as "FDC Limited Vs. Docsuggest Healthcare Services Pvt. Ltd. and Ors.", MANU/DE/0011/2017, 237(2017)DLT23 decided on 03.01.2017, wherein Hon'ble High Court had held as infra:
"...49. Now, to determine whether the defendants' services are allied and cognate to plaintiff's goods, it is essential to first discuss the law on similarity in goods/services in trademarks and its development so far. While the Act is silent on the factors to be considered for similarity in goods/services, the Courts in India - relying upon international cases and literature, have consolidated the guiding principles and factors found relevant in ascertaining the similarity between goods/services. They are as follows:
1. In Assam Roofing Ltd. & Ors. Vs. JSB Cement LLP and Ors. MANU/WB/0997/2015, the learned Single Judge in Para 80 observes-
"The test of similarity of goods is looked at from a business and commercial point of view. The nature and composition of the goods, the respective uses of the articles and the trade channels through which they are brought and sold all go into consideration in this context."
(emphasis supplied)
2. In Kerly's Law of Trade Marks and Trade Names, 15th Edition 2011, the learned Author in Para 9-073 has stated as under:-
CS (COMM) 600/23 Madhuri Refiners Pvt. Ltd. And Ors. Vs. OMSHREE AGRO TECH Pvt. Ltd. And Ors.Page 37 of 54
"As para. 23 of the decision in Canon v. MQM (1999) R.P.C. 117 makes clear, all factors relating to the goods or services themselves must be taken into account. These include, inter alia, their nature, their intended purpose, their method of use and whether they are in competition with each other or are complementary. It is clear that goods in different classes may nevertheless be considered similar, and likewise that goods or services within the same class may be found to not be similar."
(emphasis supplied)
3. In Para 9-075, the Learned Author has mentioned some illustrations on similar goods or services including under Para 9-078 " "Services offered by beauty salons; solarium services" similar to "business assistance with beauty preparations, sales" and "beauty preparations, perfumery, cosmetics dietetic substances" ". The said illustration sources from the case of Beauty Shop Application v. Opposition of Evora BV [1999] E.T.M.R. 20, wherein the Office for Harmonization in the Internal Market (Trade Marks and Designs) also known as the Opposition Division held the defendant's services to be similar to the plaintiff's services and goods by observing that "the goods and services of the conflicting marks could be offered together and be intended for the same public."
4. In British Sugar Plc. v. James Robertson & Sons Ltd. [1996] R.P.C. 281 at 294-297, relied upon in Balkrishna Hatcheries vs. Nandos International Ltd. and Anr. MANU/MH/0313/2007 and Advance Magazine Publishers, Inc. and Ors. v. Just Lifestyle Pvt. Ltd. MANU/MH/1892/2016, the court laid down the objective test for similarity of description of goods/services as follows:
(a) "The uses of the respective goods or services;
(b) The users of the respective goods or services;
(c) The physical nature of the goods or acts of service;
(d) The trade channels through which the goods or services reach the market;
(e) In the case of self-serve consumer items, where in practice they are respectively found or likely to CS (COMM) 600/23 Madhuri Refiners Pvt. Ltd. And Ors. Vs. OMSHREE AGRO TECH Pvt. Ltd. And Ors.Page 38 of 54
be found in supermarkets and in particular whether they are, or are likely to be, found on the same or different shelves; and
(f) The extent to which the respective goods and services are in competition with each other: that inquiry may take into account how those in trade classify goods, for instance whether market research companies, who of course act for industry, put goods or services in the same or different sectors."
5. Kerly 15th ed. while relying upon Canon (supra), further observes in Para 9-065 that the element of distinctive character of a trademark and its reputation is also viewed when determining similarity between the goods and services and whether such similarity is sufficient to give rise to the likelihood of confusion.
50. On the application of aforesaid principles, I am of the view that the plaintiff's goods are similar to and associated with the defendants' services. The reasons for the same are:
(i) Respective uses of goods/services: Plaintiff's products are a wide range of medicines used to treat several diseases including typhoid, bronchitis, fever & infection, etc. Defendants' services, inter alia, includes the fixing of appointment of doctors/diagnostics for medical check-ups to be treated for several diseases, including the ones treated by plaintiff's medicinal range, with the mark in question;
(ii) Intended Purpose: Plaintiff's products intend to achieve the cure/ prevention of several diseases.
Defendants' services are meant for booking of appointment of, inter alia, doctors/diagnostic for curing and possibly further prevention of several diseases, including the ones treated by the plaintiff's medicines under the mark in question;
(iii) Respective Users of goods/services: Users of plaintiff's products are patients. Users of defendants' services are also, inter alia, patients. They are health care seekers. The target customer base and CS (COMM) 600/23 Madhuri Refiners Pvt. Ltd. And Ors. Vs. OMSHREE AGRO TECH Pvt. Ltd. And Ors.
Page 39 of 54clientele of the two marks is likely to have an overlap, especially amongst doctors, and consumers/patients availing services of doctors, diagnostic clinics and healthcare services. A consumer of the plaintiffs products (though they are prescription drugs) may visit the defendants' website and is likely to get confused and mislead into thinking that the services offered by the defendants are coming from the same source as the goods/medicines of the plaintiff.;
(iv) Physical Nature of goods/services: Plaintiff's products are medicines which are prescribed by doctors. Defendants' services are online booking services for obtaining appointments, inter alia, with doctors/diagnostic centres, which requires the user of the services to visit the clinic/hospital to get him/her treated and get prescribed medicines by the doctor, if required;
(v) Sector: Both the goods viz. medicines with the mark in question, and services of the defendants under the impugned mark pertain to the healthcare and medicinal sector;
(vi) Trade Channels: The plaintiff's products are medicines which are available at dispensaries; at the chemists, or; at the doctor's clinic. Defendants' services are to provide online appointment of doctors, who may prescribe the user of such service with any of the plaintiff's product. Moreover, since both fall under the same sector of healthcare, it is difficult to negate that there cannot be any overlap in the two. It is also a fact - of which the Court can take notice that organizations who have established themselves in a particular field have the tendency to diversify into related fields. Thus, an unwary customer of the plaintiff is likely to draw an association with the service offered by the defendant
- also in the healthcare sector, which included fixing of Doctors appointments;
(vii) Reputation: The sales figures; promotional expenses; the advancement of the Zifi products for adult and pediatric range of medicines; trademark registrations; the spread of the Zifi products and Zifi CS (COMM) 600/23 Madhuri Refiners Pvt. Ltd. And Ors. Vs. OMSHREE AGRO TECH Pvt. Ltd. And Ors.
Page 40 of 54family of trademarks in India, and to countries outside India, as well as the international and national accreditations and awards received by the plaintiff, prima facie, establish that the plaintiff has built a strong reputation with its distinctive mark "Zifi" within the medicinal and pharmaceutical sector in the past 17 years in India. The mark, by virtue of its prolonged use and arbitrary adoption, has maintained an inherently distinctive character, such that a user is likely to get confused if he were to see the identical/ similar mark being used for related services in the healthcare space, like that of the defendants.
It is, thus, apparent that there is similarity and association between the plaintiff's products and the defendants' services."
Ld. Counsel for the Defendants had also relied upon the citation of Hon'ble High Court of Madras in case titled as "Novartis AG and Ors. Vs. Adarsh Pharma and Ors", MANU/TN/598/2004, 2004(29)PTC108(Mad), decided on 28.04.2004, wherein Hon'ble High Court was pleased to hold as under:
"13. Admittedly, in this case the second plaintiff alone had applied for an import licence/marketing approval. Is he an agent of the first plaintiff or the plaintiffs constitute a single economic unit? Admittedly, the first plaintiff is holding 50.93% shares in the second plaintiff company, the remaining belonging to the Indian public. An affidavit sworn to on 30.3.2004 is on record, which affirms the position that the first plaintiff is the parent company of the second plaintiff and the first plaintiff is the parent company of Novartis Pharmaceuticals Australia Pty. Limited. The affidavit also discloses that the acts of the second plaintiff is entirely under the direction and control of the first plaintiff and that CS (COMM) 600/23 Madhuri Refiners Pvt. Ltd. And Ors. Vs. OMSHREE AGRO TECH Pvt. Ltd. And Ors.Page 41 of 54
the second plaintiff imports the drugs manufactured by the first plaintiff for distribution in India. The case of the plaintiffs is that they constitute a single economic unit. In support of such a plea, Mr. P. Chidambaram learned senior counsel relied on the judgments, MANU/SC/0505/1988: AIR1988SC1737, and Gower on Principles of Modern Company Law 4th Edition Pages 112 and 137. Mr. V. Lakshmi Kumaran learned counsel appearing for the defendants would oppose these submissions by stating that each of the plaintiff is a separate legal entity by themselves and therefore the principle of lifting the corporate veil to treat both the plaintiffs as a single economic unit is not attracted to the case on hand. The facts available in the case laws cited on behalf of the plaintiffs as referred to above are totally different from the facts available in this case and therefore those case laws would not apply. The House of Lords in their judgment Woolfson v. Strathclyde, Regional Council, distinguished DHN Food Distributors' case, 1978 SLT 159, wherein it was held that the subsidiary is different from the holding company. Learned counsel for the defendants relied on the judgment Buckinghamshire County Council v. Secretary of State for the Environment, Transport and Regions and Anr., 2001(1) BLR 38, Kapila Hingorani v. State of Bihar, MANU/SC/0403/2003 :
(2003)IIILLJ31SC, LIC of India v. Escorts MANU/SC/0015/1985 : 1986(8) ECC189 and Skipper Construction Company, MANU/SC/0497/1996 : AIR1996SC2005 to contend that the principle of single economic unit, on facts of this case, does not stand established.
Mr. Arvind P Datar learned senior counsel, supporting the arguments of Mr. V. Lakshmi Kumaran learned counsel, cited the following judgments in the above regard namely, Spencer & Company Limited v. CWT, AIR 1965 Mad 359, CWT v. Spencer & Company Limited, MANU/SC/0308/1972: [1973]88ITR429(SC), Adams v. Cape Industrials Plc, 1990 BCLC 479. CS (COMM) 600/23 Madhuri Refiners Pvt. Ltd. And Ors. Vs. OMSHREE AGRO TECH Pvt. Ltd. And Ors.
Page 42 of 54In Re. Pollypeck International Plc, 1996 (1) BCLC 428. I perused the judgments. The Court of Appeal in Adams' Case held that "there is no general principle that all companies in a group of companies are to be regarded as one. On the contrary, the fundamental principle is that, each company in a group of companies (a relatively modern concept) is a separate legal entity possessed of separate legal rights and liabilities". This judgment of Court of Appeal discusses the entire case laws, including the one rendered in DHN Food Distributors' Limited Case. In the DHN case, the following is stated:
"We all know that in many respects a group of companies are treated together for the purpose of general accounts, balance sheet and profit and loss account. This is especially the case when a parent company owns all the shares of the subsidiaries, so much so, that it can control every movement of the subsidiaries. These subsidiaries are bound hand and foot of the parent company and must do just what the parent company says."
Then the DHN case proceeded to hold that the companies involved in that case are a single economic unit. In DHN case, again the following is found stated on the concept of since economic unit:
"This is a case in which one is entitled to look at the realities of the situation and to pierce the corporate veil. I wish to safeguard myself by saying but so far as this ground is concerned, I am relying on the facts of this particular case. I would not, at this juncture, accept that in every case where one has a group of companies, one is entitled to pierce the veil. But in this case, the two subsidiaries were both wholly owned, further, they had no separate business whatsoever. Thirdly, in my judgment, the nature of the question involved CS (COMM) 600/23 Madhuri Refiners Pvt. Ltd. And Ors. Vs. OMSHREE AGRO TECH Pvt. Ltd. And Ors.Page 43 of 54
is highly relevant namely, whether the owners of this business have been disturbed in their possession and enjoyment of it?"
Therefore, it is clear that the concept of a single economic unit is an accepted position in law and whether a group of companies constitute a single economic unit, depends on the facts of each case. The Court can investigate the relationship between the parent company and the subsidiary in this regard. On facts, I find, as already stated, that the affidavit sworn to on 30.4.2004 and filed before this Court show that the second plaintiff was incorporated in India as the subsidiary of the first plaintiff, to meet the requirements of law in India. The affidavit also shows that the second plaintiff is under the control of the first plaintiff and it only imports the drugs manufactured by the first plaintiff and distributes the same in India. The second plaintiff is not shown to be carrying on any other business activities of its own. I have already noted that in the second plaintiff company, the first plaintiff has 50.93% shares and the remaining, with the Indian public. I am not, for a minute, saying that the first plaintiff holding major shares in the second plaintiff company would not put an end to the corporate character of the second plaintiff (See Spencer & Company Limited Case, AIR 1965 Mad. 359). As already stated, whether the companies in a group can be characterised as the single economic unit or not, depends on the facts of each case. In Gower's Principles of Modern Company Law, it is found stated as follows:
"As we have seen, it has become a habit to create a pyramid to interrelated companies, each of which is theoretically a separate entity but in reality, part of one concern represented by the group as a whole. The separation of the group into distinct companies is not necessarily in any way improper. It may well be the most economical CS (COMM) 600/23 Madhuri Refiners Pvt. Ltd. And Ors. Vs. OMSHREE AGRO TECH Pvt. Ltd. And Ors.Page 44 of 54
and most convenient arrangement when the concern carries on a number of separate business or when it is desirable to distinguish between the manufacturing and the marketing part of enterprise or between trade in it's various products."
"It is still possible and indeed usual, for a public company to carry on business through subsidiary operating private companies."
From the above passage, it is seen that the practice of creating an apex company with a number of subsidiary companies is held to be not impermissible and in fact, such an organisational set up for the purpose of business related activities is found to be permissible. The first plaintiff's case is that, the second plaintiff imports the drugs manufactured by the first plaintiff and distributes the same in India. Palmer's Company Law (25th Edition) gives, with reference to case laws, twelve instances where the corporate veil was lifted. Instance No. 3 is "in certain matters pertaining to the law of taxation, particularly where the question of controlling interest is in issue." The Supreme Court in the judgment L.I.C v. Escorts, MANU/SC/0015/1985:
1986(8)ECC189 and in State of U.P. v. Renusagar Power Co., MANU/SC/0505/1988 :
AIR1988SC1737, examined in depth the circumstances under which the corporate veil can be lifted. In New Horizon and Anr. v. Union of India and Ors., (1997) 89 C.C.785 the following stands stated:
"Nevertheless, this did not preclude treating, say, a subsidiary as the agent or the alter ego of its parent, provided the facts of the case justified such a conclusion. However, it would seem that the facts would have to reveal a very high degree of control by the parent over the subsidiary before a Court CS (COMM) 600/23 Madhuri Refiners Pvt. Ltd. And Ors. Vs. OMSHREE AGRO TECH Pvt. Ltd. And Ors.Page 45 of 54
would conclude that an agency relationship had been established."
In Renusagar Power Co. Case, MANU/SC/0505/1988 : AIR1988SC1737, on lifting the corporate veil, the Supreme Court said as follows:
"It is high time to reiterate that in the expanding of horizon of modern jurisprudence, lifting of corporate veil is permissible. Its frontiers are unlimited. It must, however, depend primarily on the realities of the situation. The aim of the legislation is to do justice to all the parties. The horizon of the doctrine of lifting of corporate veil is expanding."
However, I have no hesitation in holding that both the citations as relied upon by the Ld. Counsel for the Plaintiff have no applicability to the facts of the present case as the citation of FDC (Supra) had dealt with the aspect of allied and cognate services and goods, whereas, both the goods in the present case are neither allied nor cognate but are similar. Similarly, the citation of Hon'ble High Court of Madras in Novirts AG (Supra) is also distinguishable as the defendants in the present case are the prior users of their trademark.
16. In the light of aforesaid submissions and rival submissions made by the Ld. Counsels for the parties, my issue wise findings are as under:
Issue no. i. Whether the Plaintiff is entitled to a decree for permanent permanent injunction, as prayed? OPP.
CS (COMM) 600/23 Madhuri Refiners Pvt. Ltd. And Ors. Vs. OMSHREE AGRO TECH Pvt. Ltd. And Ors.Page 46 of 54
Issue no. ii. Whether the Plaintiff is entitled to decree for rendition of accounts, as prayed? OPP.
Issue no. iii. Whether the plaintiff is entitled for damages, if any, as prayed? If so, to what extent? OPP.
Since the onus to prove all these issues was upon the Plaintiff and they are also well interconnected with each other hence, they are taken up together for adjudication.
As had already been discussed in detail while appreciating the evidence of the parties and their rival submissions made on record, it is the case of the Plaintiff that Plaintiff is the registered and prior user of the trademark "MADHURI", which it is using in respect of edible oils and other allied and cognate products including soya chunks registered under class 29 and defendants are also trying to pass off their goods under the trade name of "MADHUR" in similar class in respect of the same category of goods and products.
However, it is the case of the defendants that the family, who is currently heading the Board of Directors of Defendants no. 1 and 2 was already using this trademark much prior to the Plaintiff's even coming into its existence and since the defendants had inherited or succeeded to the said trademark from their predecessors in interest, hence, now defendants had stepped into the shoes of their predecessors and were thus the prior users of the trademark and had a predominant right even over the registered owner of the trademark as provided under Section 34 of the Trade Marks Act, 1999.
CS (COMM) 600/23 Madhuri Refiners Pvt. Ltd. And Ors. Vs. OMSHREE AGRO TECH Pvt. Ltd. And Ors.Page 47 of 54
In view of the family history and background of the Defendants' company, the first right on the trademark "MADHUR", if any would have been of the predecessors of the Defendants and not of the Plaintiff, hence, only the predecessors of the Defendants could have taken any legal action against them for unauthorizedly or illegally using the trademark "MADHUR", which was originally conceptualized and coined by them.
Though Plaintiff had claimed the presence of Defendants in the area of South Delhi for the purpose of conducting their business, however, no proof of actual business being done or transacted by the Defendants within the State of Delhi, much less in the area of South Delhi has been proved on record and same fact also applies to the Plaintiff as well in respect of its own products as it had also failed to prove its existence within the four corners of the State of Delhi, apart from placing reliance upon its business through websites.
The Division Bench of Hon'ble High Court of Delhi while dealing with the aspect of territorial jurisdiction in the matters involving IPR in case titled as "Banyan Tree Holding (P) Limited versus A. Murali Krishna Reddy & Anr, CS(OS) No. 894/2008, decided on 23.11.2009, reported as 2009 SCC Online Del 3780 : (2010) 42 PTC 361" was pleased to summarize the legal position with regard to websites as under:-
"Summary
58. We summaries our findings on the questions referred for our opinion as under:-
Question (i): For the purposes of a passing off action, or an infringement action where the CS (COMM) 600/23 Madhuri Refiners Pvt. Ltd. And Ors. Vs. OMSHREE AGRO TECH Pvt. Ltd. And Ors.Page 48 of 54
Plaintiff is not carrying on business within the jurisdiction of a court, in what circumstances can it be said that the hosting of a universally accessible website by the Defendants lends jurisdiction to such Court where such suit is filed ("the forum court")?"
Answer: For the purposes of a passing off action, or an infringement action where the Plaintiff is not carrying on business within the jurisdiction of a court, and in the absence of a long-arm statute, in order to satisfy the forum court that it has jurisdiction to entertain the suit, the Plaintiff would have to show that the Defendant "purposefully availed" itself of the jurisdiction of the forum court. For this it would have to be prima facie shown that the nature of the activity indulged in by the Defendant by the use of the website was with an intention to conclude a commercial transaction with the website user and that the specific targeting of the forum state by the Defendant resulted in an injury or harm to the Plaintiff within the forum state.
Question (ii): In a passing off or infringement action, where the defendant is sought to be sued on the basis that its website is accessible in the forum state, what is the extent of the burden on the Plaintiff to prima facie establish that the forum court has jurisdiction to entertain the suit?
Answer: For the purposes of Section 20 (c) CPC, in order to show that some part of the cause of action has arisen in the forum state by the use of the internet by the Defendant, the Plaintiff will have to show prima facie that the said website, whether euphemistically termed as "passive plus"
or "interactive" was specifically targeted at viewers in the forum state for commercial transactions. The Plaintiff would have to plead this and produce material to prima facie show that some commercial transaction using the website was entered into by the Defendant with a CS (COMM) 600/23 Madhuri Refiners Pvt. Ltd. And Ors. Vs. OMSHREE AGRO TECH Pvt. Ltd. And Ors.Page 49 of 54
user of its website within the forum state resulting in an injury or harm to the Plaintiff within the forum state.
Question (iii): Is it permissible for the Plaintiff to establish such prima facie case through "trap orders" or "trap transactions?
Answer : "The commercial transaction entered into by the Defendant with an internet user located within the jurisdiction of the forum court cannot possibly be a solitary trap transaction since that would not be an instance of "purposeful" availment by the Defendant. It would have be a real commercial transaction that the Defendant has with someone not set up by the Plaintiff itself. If the only evidence is in the form of series of trap transactions, they have to be shown as having been obtained using fair means. The Plaintiff seeking to establish jurisdiction on the basis of such trap transactions would have to aver unambiguously in the plaint, and also place along with it supporting material, to prima facie show that the trap transactions relied upon satisfy the above test."
However, it has been argued and submitted by Ld. Counsel for the Plaintiff that the aforesaid preposition laid down by the Hon'ble Division Bench has now been diluted by subsequent pronouncements of our Hon'ble High Court of Delhi particularly in case title as "World Wrestling Entertainment, Inc. Vs. M/s Reshma Collection & Ors", FAO(OS) 506/2013, decided on 15.10.2014, wherein the Hon'ble Division Bench of Hon'ble High Court of Delhi was further pleased to hold as under:
CS (COMM) 600/23 Madhuri Refiners Pvt. Ltd. And Ors. Vs. OMSHREE AGRO TECH Pvt. Ltd. And Ors.Page 50 of 54
21.".....Because of the advancements in technology and the rapid growth of new models of conducting business over the internet, it is possible for an entity to have a virtual presence in a place which is located at a distance from the place where it has a physical presence. The availability of transactions through the website at a particular place is virtually the same thing as a seller having shops in that place in the physical world. Let us assume for the sake of argument that the appellant/ plaintiff had a shop in Delhi from where it sold its various goods and services.
In that case, it could not be denied that the plaintiff carried on business in Delhi. This is apart from the fact that the appellant/ plaintiff may also have been regarded as having voluntarily resided in Delhi. When the shop in the physical sense' is replaced by the virtual' shop because of the advancement of technology, in our view, it cannot be said that the appellant/ plaintiff would not carry on business in Delhi."
In the light of aforesaid citation, it was submitted by the Ld. Counsel for the Plaintiff that now mere presence of the parties on website was held sufficient to attract the territorial jurisdiction of the court.
Be that as it may, while agreeing completely with the law laid down by Hon'ble High Court of Delhi, I have no hesitation in holding that same applies only for the purpose of determination of the rights and claims of the parties while adjudicating interim injunction applications and thus could not take place of proof while disposing off or deciding the case finally on merits as the final disposal of the case solely depends upon the evidence adduced by the respective parties before the court in support of their claims.
CS (COMM) 600/23 Madhuri Refiners Pvt. Ltd. And Ors. Vs. OMSHREE AGRO TECH Pvt. Ltd. And Ors.
Page 51 of 54Hence, in the light of aforesaid preposition of law requiring the Plaintiff to adduce such evidence on record for proving its case by preponderance of probabilities, I have no hesitation in holding that Plaintiff has miserably failed to adduce any evidence on record to prove either its own or Defendants' business activities and operations within the territorial jurisdiction and limits of Delhi.
Furthermore, while tendering the affidavit, PW1 had categorically deposed before the court that he was very much aware of the contents of his affidavit and same were also correct as per his knowledge and belief, however, during his cross- examination, he had taken an entire u-turn and had discarded his own affidavit by stating that since he was not well versed with English, hence, he could not read or explain his affidavit.
It was not even his case that the affidavit Ex. PW1/A was ever read over and explained to him either by his Counsel or some other person before his signing the same, therefore, PW1 during his cross-examination had nullified his entire examination-in-chief and thus I have no hesitation in holding that the Plaintiff had failed to adduce evidence on any of the aforesaid issues to discharge the onus of the same. Furthermore, it has been established on record beyond any reasonable doubt that the predecessors in interest of defendants were the prior users of their trademark "Madhur" and hence were entitled to the statutory protection as provided under Section 34 of the Trade Marks Act, 1999. Hence, all the issues are answered in negative and decided in favour of the defendants and against the Plaintiff.
CS (COMM) 600/23 Madhuri Refiners Pvt. Ltd. And Ors. Vs. OMSHREE AGRO TECH Pvt. Ltd. And Ors.
Page 52 of 54Issue no. 4. Whether this court has no territorial jurisdiction to try and entertain the present suit? OPD.
The onus to prove this issue was upon the defendants and though they had denied their presence within the territorial jurisdiction of Delhi but had never denied their presence on their own website https://omshreeagrotech.linker.store, which could have been easily accessed from South Delhi as well, if not in reality but hypothetically. Even DW1 had also stated during his cross-examination that defendants' business activities were confined only to the State of Maharashtra.
Furthermore as observed in issues no. 1, 2 and 3 above, even the Plaintiff had miserably failed to prove on record any of the business activities of the parties involved in the present suit within the territorial jurisdiction of Delhi much less in South Delhi, hence, this issue is answered in affirmative and decided in favour of the Defendants and against the Plaintiff holding that the Delhi Courts had no territorial jurisdiction to try and entertain the present suit as neither of the parties were residing or working for gain in Delhi, nor they were having any customer segment in Delhi.
Issue no. v. Whether the Plaintiff is guilty of suppression and concealment of material facts? OPD.
The onus to prove this issue was again upon the Defendants, who had contended that Plaintiff already knew about their existence while it used to purchase oil from Defendant no. 2 company but it had deliberately and intentionally concealed and suppressed this fact from the Court, however, defendants had CS (COMM) 600/23 Madhuri Refiners Pvt. Ltd. And Ors. Vs. OMSHREE AGRO TECH Pvt. Ltd. And Ors.
Page 53 of 54failed to explain as to how concealment of this fact would have proved beneficial for the Plaintiff and fatal for the Defendants in the final determination of the present lis especially when the invoices of defendants nowhere mentioned that they were supplied the oil under their brand name "MADHUR" to the plaintiff. Hence, I have no hesitation in holding that defendants had miserably failed to discharge the onus of this issue, which is accordingly answered in negative and decided in favour of the Plaintiff and against the Defendants.
Relief.
17. In view of my findings given to all the above issues, suit of the Plaintiff is dismissed with costs. Decree sheet be drawn accordingly.
18. File be consigned to record room after completion of necessary legal formalities in this regard.
ANNOUNCED IN THE OPEN COURT Digitally signed DATED:29.01.2026 LOKESH by LOKESH KUMAR KUMAR SHARMA SHARMA Date: 2026.01.29 15:26:01 +0530 (Lokesh Kumar Sharma) District Judge (Commercial Court)-05 South/Saket/New Delhi CS (COMM) 600/23 Madhuri Refiners Pvt. Ltd. And Ors. Vs. OMSHREE AGRO TECH Pvt. Ltd. And Ors.
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