Delhi District Court
Yug Bite And Vittles Pvt Ltd vs Roll King on 7 February, 2025
-1-
IN THE COURT OF SH. VIDYA PRAKASH
DISTRICT JUDGE (COMMERCIAL COURT)-02
NEW DELHI DISTRICT, PATIALA HOUSE COURTS
NEW DELHI
CS (COMM.)/638/2021
CNR NO.: DLND010091282021
IN THE MATTER OF:
Yug Bite and Vittles Pvt Ltd.
RZ - 1053, Street No 5/8
Main Sagar Pur
New Delhi - 110046
... PLAINTIFF
VERSUS
1. Roll King
[Through Proprietor Mr. Kush Verma],
3rd Floor, above Union Bank
Jakhan Tower, Opp Billu Chai wala
Rajpur Road, Dehradun - 248195
Ph No - 8279360831
2. Mr Pradeep Kumar
J - 3, Sector - 18
Noida, Gautam Buddha Nagar
Uttar Pradesh - 201301
... DEFENDANTS
Date of Institution : 15-12-2021
Date of reserving Judgment : 22-01-2025
Date of pronouncing Judgment : 07-02-2025
JUDGMENT
1. Vide this judgment,I shall decide the present suit for permanent injunction restraining infringement of trade mark, damages and delivery up etc., filed by the plaintiff against the defendants.
CS (COMM.)/638/2021 Page 1 of 22 -2-BRIEF FACTS OF THE CASE:
2. The case of the plaintiff, as set out in the plaint, is as under:-
2.1 The plaintiff, which is claimed to be a company incorporated in the year 2018 under the Companies Act, 2013, through its authorized signatory namely Sh. Pradeep Kumar, got instituted the present suit against the defendants.
2.2 It is averred that the defendant No.2 is the proprietor of Trademark 'Rolls King' and thus, is a proforma defendant in line with the requirements of Section 52 of the Trademarks Act, 1999 (hereinafter referred to as the Act).
2.3 It is further averred that by virtue of the Registered User Agreements, the proprietor of said trade mark, namely Mr Pradeep Kumar (defendant no.2) has granted rights under Section 52 of the Act to the present plaintiff and thus, it is stated that together, the plaintiff and the defendant no 2, may be known as the 'Right Holders' of the 'Rolls King' Trademark'. Therefore, it is claimed that the plaintiff is a Registered User for the said trademark and has been using the same since its incorporation in the year 2018.
2.4 The details of registration of said trade mark/ device mark in favour of the defendant no.2 under the Act have been given in Para no.12 of the plaint. Besides, CS (COMM.)/638/2021 Page 2 of 22 -3- the details of registered user agreement for the said trade mark/ device mark are given in the same Para of the plaint.
2.5 It is averred that since 20th October 2011, the Right
Holders have been using the trademark
'ROLLSKING' while since 6th January 2014, the Right Holders have been supplementing the trademark 'RollsKing' with its device mark [hereinafter referred to as the said trade mark/ device mark 'RollsKing'].
2.6 It is further averred that the trademark 'RollsKing' has been in continuous use since 20 October 2011.
The first store under the said brand name was opened in J-3, Sector - 18, Noida, Gautam Buddha Nagar, an area that falls within the NCR and due to the high quality of food products used and the great taste of the rolls, wraps and other food products made by the proprietor, the name and reputation of 'RollsKing' kept gaining increasing popularity among the consuming public. It is stated that due to this increasing demand, the proprietor soon started opening franchise branches across Delhi/NCR and thereafter, beyond NCR to States such as Haryana, Telangana, Maharashtra and Uttarakhand. With the time, the Right Holders started using the said trademark for various other items such as ketchup CS (COMM.)/638/2021 Page 3 of 22 -4- sachets, bottled mineral water and milkshakes. It is further stated that with its long use and quality products, the consuming public recognizes the said trade mark/ device mark and the brand stands for quality that consumers can trust when looking for a convenient and tasty meal that is not as elaborate as the traditional Indian meal. The Right Holders have leveraged this aspect of the appeal and have widened its network of outlets to provide a standardized and appealing experience to the customers.
2.7 It is further stated that not only can customers come within the store to have the Right Holders' products, but also can order them online through third party applications such as Swiggy and Zomato. The demand for the Right Holders' products is such that as on date of the institution of the suit, approximately 55,00,000 (Fifty Five lakhs) rolls are sold every year to the public, while the annual revenues of the Right Holders arising out of the RollsKing Trademark have risen to over Rs.11.32 crores. Thus, it is claimed that the Right Holders have become a big brand in the food and beverage industry and spend large amounts each year on advertising and marketing to increase their brand presence in the market.
2.8 It is further stated that apart from the above trademark rights, the Right Holders sell their rolls CS (COMM.)/638/2021 Page 4 of 22 -5- within a unique type packaging that takes forward the theme of the logo and is instantly recognizable as belonging to the proprietor. Some of the key elements that differentiate the Right Holders from the competition are that 'Crown' device used on the logo, the 'O' is filled with yellow colour, the word 'RollsKing' written vertically on the device mark and use of 'Spade' from the deck of cards creating a distinctive look. Thus, it is stated that all the above constitute the 'trade dress' of the Right Holders that is distinctive in nature and sets apart the products of defendant no.2 and its registered user from those of everyone else in the market.
2.9 It is further averred that the Right Holders have spent a large amount of time and money in building its market and popularizing its said trade mark/ device mark 'RollsKing' across India and especially in North India, where the 'RollsKing' were first started to be used. Articles and advertisements about the business and trademarks appear regularly in newspapers, magazines and blogs published and available in India. Additionally, the 'RollsKing' products have large number of reviews that have been written by customers on third party websites showing the reach of the products of the Rights Holders. It is, thus, claimed that as a result of such extensive marketing and the positive response of the public, the RollsKing trademarks enjoy immense CS (COMM.)/638/2021 Page 5 of 22 -6- goodwill and reputation in India, which is reflected in extensive sales and immense customer recall. By virtue of such extensive sales and sales promotions, the RollsKing trademarks are exclusively associated in the minds of the purchasing consumer with the Right Holders.
2.10 It is also claimed that the said trademarks/ device marks have already become distinctive indicium of the Right Holders and theirs said goods and business thereunder and the purchasing public, traders and public at large associates, identify and distinguish the said trade marks/ device marks with the Right Holders and the Right Holders' said goods and business alone. Hence, in view of the Right Holders' proprietary rights both under statutory and common law in said trademarks/ device marks and their goodwill & reputation, the Right Holders have the exclusive right to the use thereof and nobody can be permitted to use the same or any other deceptively similar trade mark/trade device in any manner whatsoever in relation to any specification of goods without the leave and license of the Right Holders.
2.11 It is alleged that in the month of July 2021, the Right Holders became aware of unauthorized use of their trademark by the defendant no.1. This came into light when the Right Holders found out that an identical mark 'Roll King' was being used by defendant no. 1 on third party websites such as CS (COMM.)/638/2021 Page 6 of 22 -7- Swiggy, Zomato and Google for identical products and services as those provided by the Right Holders. In light of the same, the Right Holders got issued a legal notice dated 19 July 2021 to defendant no. 1 and subsequent thereto, one Mr. Kush Verma, claiming to be proprietor of defendant no. 1, called up counsel of the Rights Holders and stated that the mark 'Roll King' [hereinafter referred to as impugned 'trade mark'] used by him is legal and does not infringe any rights. The counsel for the Rights Holders informed Mr. Verma that the law of trademarks did not permit him to infringe or pass off the plaintiff's trademark. Since, the business of defendant no. 1 continued unabated, the Rights Holders sent a follow up the letter dated 30 thAugust, 2021 to cease the same immediately, but to no avail.
2.12 Hence, it is alleged that the defendant no.1 has dishonestly and malafidely adopted impugned Trade Mark 'Roll King' which is identical and /or deceptively and confusingly similar to Right Holders' trade mark/ device mark 'RollsKing', thereby causing confusion and deception amongst the unwary purchasing public and traders by making them believe that the origin of those goods is that of the plaintiff. It has been averred that by doing so, the defendant no.1 is not only damaging the reputation and goodwill of the plaintiff by passing off his substandard products as that of the plaintiff, but are CS (COMM.)/638/2021 Page 7 of 22 -8- also causing financial loss to the plaintiff by reaping unfair advantage of the repute and distinctive character of the said trade mark/device mark of the plaintiff.
3. On these grounds, the plaintiff has filed the present suit, praying therein, inter alia, that decree of permanent injunction may be passed restraining the defendant no.1 and all others acting for and on his behalf from using the impugned trade mark 'Roll King' or any other mark which may be identical and /or deceptively and confusingly similar to plaintiff's trade mark/ device 'RollsKing' / in relation to similar goods, thereby infringing plaintiff's registered trademarks and passing off his products as that of the plaintiff.
4. The suit was accompanied with application Order XXXIX Rules 1 & 2 CPC seeking ex parte ad interim injunction. After hearing counsel of the plaintiff, the said application was allowed, vide order dated 27-01-2022 passed by Ld. Predecessor of this Court, thereby granting ex parte ad interim injunction in favour of the plaintiff and against the defendant no.1 till next date of hearing.
5. Despite being served with the summons of the suit and notice of accompanying application on 02-9-2022 and 03-9-2022 through Speed Post, none of the defendants filed written statement either within the statutory period of 30 CS (COMM.)/638/2021 Page 8 of 22 -9- days or within maximum permissible period of 120 days and therefore, the defence of defendants was struck off, vide order dated 09-02-2023, passed by Ld. Predecessor of this Court.
6. In support of its case, the plaintiff has examined only one witness i.e. its AR namely Sh. Pradeep Kumar as PW1. He led examination-in-chief by way of affidavit [Ex.PW1/A] and deposed in terms of the facts of the plaint and has relied on the following documents:-
Srl. Document/Particulars Exhibit(s) No
1. Copy of Board of Resolution Ex. PW1/1
2. Printout from website of the Ex. PW1/2 Ministry of Corporate Affairs
3. Printouts from the third party Ex. PW1/3 & entities such as Zomato Ex.PW1/4 4. CA Certificate Ex. PW1/5
5. Legal Proceeding Certificate of Ex. PW1/6 trade mark no. 4121853
6. Printout from the website of the Ex. PW1/7 Trademark Registry for Trademark No. 4121853
7. Legal Proceedings Certificate for Ex. PW1/8 Trademark No. 3767901
8. Printout from the website of the Ex. PW1/9 Trademark Registry e for CS (COMM.)/638/2021 Page 9 of 22 -10- Srl. Document/Particulars Exhibit(s) No Trademark No. 3767901
9. Printout from the website of the Ex. PW1/10 Trademark Registry for Trademark No. 4252802
10. Registered User Agreement for Ex. PW1/11 trade mark no. 4121853
11. Registered User Agreement for Ex. PW 1/12 trade mark no. 3767901
12. Registered User Agreement for Ex. PW1/13 trade mark no. 4252802
13. Printout from the Right Holders Ex. PW 1/14 website and Ex.PW1/15
14. Printout of articles demonstrating Ex. PW 1/16 fame of the plaintiff's marks and Ex.PW1/17
15. Previous order of injunction in Ex.PW1/18 favour of plaintiff
16. Document from Zomato to show Ex.PW1/19 availability of impugned goods of defendant no.1
17. Document from Swiggy to show Ex.PW1/20 availability of impugned goods of defendant no.1 CS (COMM.)/638/2021 Page 10 of 22 -11- Srl. Document/Particulars Exhibit(s) No
18. Legal Notice dated 19th July, 2021 Ex.PW1/21
19. The follow up letter Ex.PW1/22
7. On statement of AR of plaintiff, the PE was closed on 19-09-2023.
8. During the course of final arguments, the plaintiff had moved an application u/s 151 CPC seeking amendment of Memo of Parties, thereby incorporating the name of Mr. Kush Verma, being proprietor of Roll King therein. Since the defendant no.1 could not be served with the notice of aforesaid application through ordinary mode of service, he was served through substituted mode of service by way of publication in newspapers 'Rashtriya Sahara' (Hindi edition) and 'Pioneer' (English edition), both dated 05.10.2024 in terms of order dated 06-09-2024, passed by this Court. Despite such service, none appeared on behalf of the defendant no.1 to contest the aforesaid application. Accordingly, the aforesaid application was allowed, vide order dated 28-11-2024, passed by this Court.
9. It may be noted here that during the course of final arguments, Ld. Counsel of plaintiff made statement to give up prayers/reliefs as prayed in Prayer Clause Nos. 33(c), 33(d) and 33(e) of the plaint regarding rendition of accounts, delivery up and damages respectively. Accordingly, the plaintiff was permitted to give up the CS (COMM.)/638/2021 Page 11 of 22 -12- said reliefs, vide order dated 22-01-2025. In view thereof, the suit survives only with respect to relief of permanent injunction, whereby the plaintiff has sought permanent injunction against the defendant no.1 from using the impugned trademark.
10. I have already heard Ld. counsel of the plaintiff. I have also gone through the material available on record including the plaint and the evidence, oral as well as documentary, led from the side of the plaintiff.
ARGUMENTS OF THE PLAINTIFF
11. In support of his case, Ld. Counsel of plaintiff has advanced the following arguments:-
11.1 The entire testimony of PW-1 has remained unchallenged and un-rebutted from the side of the defendant no.1and therefore, the plaintiff company is entitled to the decree, as prayed for. In that regard, he has relied upon the documents duly proved by PW1 as Ex.PW1/1 to Ex.PW1/22.
11.2 While pointing out the relevant documents, Ld. Counsel of plaintiff has argued that said trade marks/device marks 'RollsKing' are duly registered under the provisions of Trade Mark Act, 1999 in favour of the defendant no.2, who is made herein as proforma party, which is shown to be valid and subsisting as on date in favour of the defendant no.2. Further, by virtue of the Registered User Agreements, the defendant no.2 has granted CS (COMM.)/638/2021 Page 12 of 22 -13- rights under Section 52 of the Act to the present plaintiff for use of the said trade marks/device marks and accordingly, the Right Holders [the plaintiff and the defendant no.2] have been commercially, openly and continuously using the said trade marks/ device mark since 20 October 2011.
11.3 The plaintiff spends huge amount of money in advertising and promotion of its products and said mark enjoys a huge goodwill and reputation in business community and public in general across length and breadth of the country.
11.4 The defendant no.1 has malafidely and dishonestly adopted and using the impugned trade mark/ word mark 'Roll King', which is identical and/or deceptively similar to trade mark/device 'RollsKing' in all material particulars such as layout design, colour scheme, get up, arrangement of artistic features, lettering style, etc. and hence, the use of impugned trademark in similar goods as adopted by the defendant no.1, is identical and/or confusingly or deceptively similar to the registered trademark of the Right Holders and thus, same amounts to not only committing fraud upon the Right Holders, but also upon the unwary general public, due to which, the plaintiff suffers huge monetary loss and its goodwill and reputation is also at stake and therefore, he urged that the suit may be decreed in favour of the plaintiff CS (COMM.)/638/2021 Page 13 of 22 -14- and against the defendant no.1, thereby restraining him and all others acting for and on his behalf from using said impugned trade-mark/ device mark.
ANALYSIS & CONCLUSION:
12. I have considered the submissions made on behalf of the plaintiff. I have also duly considered the relevant material available on records.
JURISDICTION:
13. Firstly, as regards jurisdiction of this Court, it is submitted by Ld. Counsel of plaintiff that the plaintiff, which is the Registered User of the trademark, is carrying on its business from its registered office situated at RZ-1052, Street No.5/8, Main Sagarpur, Nangal Raya, New Delhi, which falls within the territorial jurisdiction of this Court. Besides, it is also argued that the goods of the plaintiff i.e. food items, are also available through third party online i.e. Zomato and Swiggy, through which the goods can be purchased and delivered to any place including the place within the territorial jurisdiction of this Court. Thus, it is contended that this Court has the jurisdiction to try the present suit under Section 134 of the Trademarks Act, 1999, read with Section 52 of the Copyright Act.
14. The PW1 has categorically deposed in his affidavit in evidence on the identical lines of the averments made in the plaint. PW1 has also proved printouts taken from Zomato as Ex.PW1/3 and Ex.PW/14, to show that the goods of the plaintiff under the said trade mark/ device CS (COMM.)/638/2021 Page 14 of 22 -15- mark 'Rolls King' are available and can be purchased as well as same are deliverable to any place, including the places situated within the territorial jurisdiction of this Court.
15. The whole testimony of PW1 remained unchallenged and uncontroverted as the defendant no.1 has neither filed written statement, nor has chosen to cross-examine the PW1.
16. Therefore, in view of the law as laid down by Hon'ble Delhi High Court in cases titled as "Banyan Holding (P) Ltd. v. A Murali Krishna Reddy & Anr." reported as 2009 SCC OnLine Del 3780 ; "World Wrestling Entertainment, Inc. v. Reshma Collection & Ors." reported as 2014 (60) PTC 452 (Del.) (DB); and "Burger King v. Tekchand", reported as 2018 (76) PTC 90 (Del.), the Court is of the considered opinion that the plaintiff has been able to satisfy the test of purposeful availment of its goods under the registered trade mark/ label within the territorial jurisdiction of this Court, as stipulated in the said judgments delivered by Hon'ble Delhi High Court.
17. In view of the foregoing reasons and in the totality of the facts and circumstances of the case and in view of the above cited judgments and keeping in view the fact that evidence of PW1 remained unchallenged and uncontroverted, the Court is of the considered opinion that at least part of cause of action has arisen within the territorial jurisdiction of this Court and therefore, this CS (COMM.)/638/2021 Page 15 of 22 -16- Court has got territorial jurisdiction to try and entertain the suit.
PERMANENT INJUNCTION:
18. Hon'ble Supreme Court in case titled as "Renaissance Hotel Holdings Inc. v. B. Vijaya Sai & Ors", reported as MANU/SC/0066/2022, has laid down law with respect to infringement of trade mark, to quote:-
43. The legislative scheme is clear that when the mark of the Defendant is identical with the registered trade mark of the plaintiff and the goods or services covered are similar to the ones covered by such registered trade mark, it may be necessary to prove that it is likely to cause confusion on the part of the public, or which is likely to have an association with the registered trade mark. Similarly, when the trade mark of the plaintiff is similar to the registered trade mark of the Defendant and the goods or services covered by such registered trade mark are identical or similar to the goods or services covered by such registered trade mark, it may again be necessary to establish that it is likely to cause confusion on the part of the public However, when the trade mark of the Defendant is identical with the registered trade mark of the plaintiff and that the goods or services of the Defendant are identical with the goods or services covered by registered trade mark, the Court shall presume that is likely to cause confusion on the part of the public.
45. It could thus be seen that this Court has pointed out the distinction between the causes of action and right to relief in suits for passing off and for infringement of registered trade mark. It has been held that the essentials of a passing off action with those in respect of an action complaining of an infringement of a registered trade-mark, cannot be equated. It has been held that though an action for passing off is a Common Law remedy being an action for deceit, that is, a passing off by a person of his own goods as those of another; the action for infringement is a statutory right conferred on the registered proprietor of registered trade mark for the vindication of the exclusive rights to the use of the trade mark in relation to those goods. The use by the Defendant of the trademark of the plaintiff is a sine qua non in the case of an action for infringement. It has further been held that if the essential features of the trade mark of CS (COMM.)/638/2021 Page 16 of 22 -17- the plaintiff have been adopted by the defendant, the fact that the get-up, packing and other writing or marks on the goods or on the packets in which he offers his goods for sale show marked differences, or indicate clearly a trade origin different from that of the registered proprietor of the mark, would be immaterial in case of infringement of the trade mark, whereas in the case of a passing off, the Defendant may escape liability if he can show that the added matter is sufficient to distinguish his goods from those of the plaintiff.
47. It could thus be seen that this Court again reiterated that the question to be asked in an infringement action is as to whether the Defendant is using a mark which is same as, or which, is a colourable imitation of the plaintiff's registered trade mark. It has further been held that though the get up of the Defendant's goods may be so different from the plaintiff's goods and the prices may also be so different that there would be no probability of deception of the public, nevertheless even in such cases, i.e. in an infringement action, an injunction would be issued as soon as it is proved that Defendant is improperly using the Plaintiff's mark. It has been reiterated that no case of actual deception nor any actual damage needs to be proved in such cases This Court has further held that though two actions are closely similar in some respects, in an action for infringement, where the Defendant's trade mark is identical with the Plaintiff's trade mark, the Court will not enquire whether the infringement in such as is likely to deceive or cause confusion.
19. Further, our own Hon'ble High Court in the case titled as 'Shaw Wallace & Co. Ltd. & Anr. v. Superior Industries Ltd'. 2003 (27) PTC 63 (Del) has laid down the principle as to how infringement of trade mark is to be seen, to quote:-
12.It is well settled that in an action for alleged infringement of a registered trade mark, if the impugned marked used by the defendant is identical with the registered trade mark of the plaintiffs, no further questions have been to be addressed and it has to be held that there is indeed an infringement. If the mark is not identical, the matter has to be further considered and it has to be seen whether the mark of the defendant is deceptively similar to that of the plaintiff. Deceptive similarity means that the mark is likely to deceive or cause confusion in relation to CS (COMM.)/638/2021 Page 17 of 22 -18- goods in respect of which the plaintiff got its mark registered. For the purpose of this comparison, the two marks have to be compared, not by placing them side by side, but by asking the question whether having due regard to relevant surrounding circumstances, defendant's mark is similar to that of the plaintiffs, as would be remembered by persons possessed of an average memory with its usual imperfections. On the touchstone of this query, it is to be determined whether the mark of the defendant is likely to deceive or cause confusion. The sequetur to the aforesaid preposition of law, is that, in an action of infringement, for the success by the plaintiff, he need not prove that the whole of his registered trade mark has been copied, but he can also succeed, if, he shows that the mark used by the defendant is similar to the mark of the plaintiff, as it would be numbered by persons possessed of an average memory with its usual imperfection or with its usual imperfection or that its essential particulars or the distinguishing or essential feature has been copied (ILR 197 (II) Delhi 225 Jagan Nath Prem Nath v. Bhartiya Dhoop Karvalaya Para-7).
20. In view of above law, lets examine the facts of the case in hand. The averments made in the plaint are duly supported by the documents proved during the course of evidence. PW-1 has deposed on identical lines of the averments made in the plaint and has proved various documents, as already referred to above.
21. Indisputably, the impugned trademark 'Roll King' is identical and / or deceptively/ phonetically similar to the registered trade mark/ device mark 'RollsKing'. The only difference between the two marks is that the defendant no.1 is using the said impugned trademark without the alphabet 's', which is altogether immaterial and makes no difference at all insofar as the case of infringement and passing off is concerned.
22. In the case titled as "Amrish Agarwal Vs M/s Venus Home Appliances Pvt. Ltd" in CM (M) 1059/2018 dated CS (COMM.)/638/2021 Page 18 of 22 -19- 27-08-2019, passed by Hon'ble Delhi High Court, it was directed, inter alia, that in trademark infringement matters, the following documents ought to be necessarily filed along with the plaint. The relevant Para no.7 of this judgment is reproduced hereunder:
"7. It is directed that in trade mark infringement matters the following documents ought to be necessarily filed along with the plaint:
(i) Legal Proceedings Certificate (LPC) of the trade mark showing the mark, date of application, date of user claimed, conditions and disclaimers if any, assignments and licenses granted, renewals etc.,
(ii) If the LPC is not available, at the time of filing of the suit and urgent orders of injunction are being sought, a copy of the trade mark registration certificate, copy of the trade mark journal along with the latest status report from the website of the Trade Mark Registry. This should be accompanied by an averment in the pleadings that LPC is applied for. Specific averment ought to be made that there are no disclaimers imposed on the mark and the mark stands renewed. Any licenses and assignments ought to be pleaded.
(iii) xxxx
(iv) In the case of (ii), the party ought to file the LPC prior to the commencement of the trial, if any aspect of the trade mark registration is being disputed by the opposite side"
23. In this case, the plaintiff has relied upon and has filed copies of documents pertaining to registered trade mark of the plaintiff, which are copies of Legal Proceeding Certificates and status thereof, which are duly proved by PW-1 as Ex.PW1/6 to Ex.PW-1/10 respectively. According to which, it is duly shown that trade marks 'Rolls King' / are duly registered as word CS (COMM.)/638/2021 Page 19 of 22 -20- mark and device mark in favour of the defendant no.2, which are valid and subsisting as on date in his favour. Further, the PW-1 has also proved Registered User Agreements executed between the plaintiff and the defendant no.2, whereby the defendant no.2 has granted permission to the plaintiff for use of said trade mark/ device mark, as Ex.PW-1/11, Ex.PW1/12 and Ex.PW1/13. Further, during the course of final arguments, counsel of plaintiff has stated that the registration of said trade marks/ label/ device mark stands renewed and is valid till date.
24. As already noted above, despite service of summons of the suit, the defendant no.1 chose not to turn up before this Court to contest the suit. Moreover, no written statement was filed by the said defendant and consequently, his defence was struck off. Moreover, none has appeared on behalf of said defendant to cross-examine PW1. Therefore, the entire testimony of PW-1 has gone un-rebutted, uncontroverted and unchallenged and thus, the case of the plaintiff stood proved against the said defendant on the basis of preponderance of probability. It is duly established on record that the trademarks/ device marks 'RollsKing' are duly registered in favour of the Right Holders and also that same are valid and subsisting as on date in favour of the plaintiff.
25. In totality of the facts and circumstances of the case, the Court is of the view that the plaintiff has succeeded in proving that the defendant no.1 is using said impugned trade mark 'Roll King', which is phonetically, deceptively CS (COMM.)/638/2021 Page 20 of 22 -21- and confusingly similar to the Right Holders' registered trade marks / device 'RollsKing' and therefore, the said trademarks of Right Holders are required to be protected. Accordingly, the plaintiff is held entitled to decree of permanent injunction, whereby the defendant no.1 is liable be restrained from using trade mark 'Roll King' or any other trade marks/ word marks/ device marks which may be identical with and/ or deceptively similar to the plaintiff's said trade mark /device 'RollsKing' in relation to similar goods, thereby infringing plaintiff's registered trademark and passing off his products as that of the plaintiff.
RELIEF:
26. In the light of the aforesaid discussion, the Court is of the view that the plaintiff has been able to prove its case on the basis of preponderance of probability. Thus, the suit is decreed in favour of the plaintiff and against the defendant no.1, with the following reliefs:-
26.1 The suit is decreed qua permanent injunction, thereby restraining the defendant no.1 by himself as also through his partners, servants, agents, affiliates, sister concern and others in active concert or participation with them from producing, selling, offering for sale, advertising, directly or indirectly dealing in goods or service under the impugned mark 'Roll King' or any other word mark/ mark/ trade mark/ label which may be identical with and/ or deceptively similar to the plaintiff's said trade CS (COMM.)/638/2021 Page 21 of 22 -22- mark / device mark 'RollsKing' in relation to similar goods, thereby infringing plaintiff's registered trademark and passing off his products as that of the plaintiff.
26.2 The Cost of the suit is also awarded in favour of the plaintiff.
27. Decree sheet be prepared accordingly. File be consigned to Record Room, after due compliance. Digitally signed by VIDYA VIDYA PRAKASH Announced in the open court PRAKASH Date:
2025.02.07 16:56:00 +0530 on 7th Day of February, 2025.
(VIDYA PRAKASH) DISTRICT JUDGE (COMMERCIAL COURT)-02 PATIALA HOUSE COURTS, NEW DELHI CS (COMM.)/638/2021 Page 22 of 22