Delhi District Court
Naresh Kumar Nagpal vs Dofey Ventures Private Limited And Ors on 22 April, 2024
DLCT010060642018
IN THE COURT OF DISTRICT JUDGE (COMMERCIAL
COURT)-01,
CENTRAL, TIS HAZARI COURTS, DELHI
PRESIDED BY: MR. SANJEEV KUMAR AGGARWAL
IN THE MATTER OF:
CS (COMM) NO. 969/20
NARESH KUMAR NAGPAL
TRADING AS TONI SALES CORPORATION
5140/24 Chaudhary market, Rui mandi
Sadar Bazar, Delhi - 110006
Also at:
B-125, 2nd Floor, Ashok Vihar
Delhi - 110052
....... Plaintiff No. 1
NATURAL TONI COSMETICS
H-4, Badli Industrial Area, Phase - 3
Pin - 110042, Delhi
... Plaintiff No. 2
VERSUS
1. DOFEY VENTURES PRIVATE LIMITED
C-697, NEW FRIENDS COLONY
NEW DELHI - 110065
E: [email protected]
CS (Comm) No. 969/20,
Naresh Kumar Nagpal Vs. Dofey Ventures Pvt. Ltd. & Ors. Page No. 1/63
Also at:
B II, Sector - 59, NOIDA - 201301
Also at:
Plot No. 223, Part of Khasra No. 223
(situated in Ext Laldora of Village)
Dhool Siras, Dwarka, Sector - 24
New Delhi - 110077
2. ANNY-JEAN LABORATORIES
Z.I. Grand Messuguet
Avenue Gay Lussac BP N° 5
13716 CARNOUX-en-Provence Cedex
FRANCE
E: [email protected]
3. LIDER KOZMETIK LTD.
Mimar Sinan Mahallesi, 12, 41455
Dilovası/Kocaeli, TURKEY
E: [email protected]
Date of Institution : 04.05.2018
Date of reserving judgment : 15.02.2024
Date of Judgment : 22.04.2024
JUDGMENT
1. Vide this judgment, I shall decide the suit for permanent injunction restraining defendant from infringement of trademark, passing off, trade dress, dilution, damages and rendition of accounts etc.
2. Brief facts as stated by plaintiffs are that plaintiff No. 1 is a sole proprietorship concern of Naresh Kumar Nagpal @ Toni and the plaintiff No. 2 is a partnership firm located at H-4, Badli Industrial Area, Delhi - 110042 and consisting of two partners namely Naresh Kumar Nagpal @ Toni and his son Ankit Nagpal.
CS (Comm) No. 969/20, Naresh Kumar Nagpal Vs. Dofey Ventures Pvt. Ltd. & Ors. Page No. 2/63 The Plaintiff No. 1 has brought into the common pool of the Plaintiff No. 2, the registered trademarks which are in favour of plaintiff no.1.
3. It has been further stated that the father of the Plaintiff No. 1 i.e. Shyam Sunder Nagpal established a sole proprietorship firm by the name and style of S.K. Cosmetics in and around the year 1962 and he adopted a mark 'TONI' which was adopted and conceived from the nickname of the Plaintiff No. 1, who is also fondly called 'TONI' by the members of the family. It has been further stated that Sh. Shyam Sunder Nagpal started using the mark in and around the year 1970, on some of its products like cosmetics, facial creams etc. In year 1983, the said Shyam Sunder Nagpal decided to convert the sole proprietorship business into a partnership firm with the Plaintiff No. 1 and consequently deed of partnership dated 1.4.1983 was executed by and amongst the Plaintiff and Shyam Sunder Nagpal and it was agreed 60% share will be held by the Shyam Sunder Nagpal and the remaining 40% by Plaintiff No. 1.
4. It has been further stated that Plaintiff No. 1 and his father Shyam Sunder Nagpal applied for the registration of the mark 'TONI' (Device) under No. 440395 in class 3 dated 17.7.1985 for the goods "Cosmetics For Skin Skin Creams Vanishing Creams Lipsticks Perfume And Spray Shaving Cream Tooth Paste And Depilatory Preparations" claiming a user since 1.1.1970 and the said mark was duly registered on 15.02.2002 (w.e.f. 17.07.1985) in favor of Plaintiff No. 1 & the Shyam Sunder Nagpal, which is valid & subsisting till 17.7.2026.
CS (Comm) No. 969/20, Naresh Kumar Nagpal Vs. Dofey Ventures Pvt. Ltd. & Ors. Page No. 3/63
5. It has been further stated that plaintiff firm also applied for registration of another mark TONI (Label) under no. 789148 in class 3 on 24.05.1988 for the goods "Lipstick, Nail Polish & Scent Spray Included in Class 03" which was eventually registered on 18.01.2005, which is valid subsisting and in force till 27.01.2028 and plaintiff firm applied for another registration of the mark TONI (Label) on 24.05.1988 under No. 491569 in class 2 for the goods "Cream (Cosmetic) Included In Class 3 Not Being For Application To The Hair Or Scalp" which mark was eventually registered on 16.12.1996 and the said mark is valid, subsisting and in force till 24.5.2019 and further, the renewal of the registration under No. 440395 in class 3 has also been done by Plaintiff No. 1.
6. It has been further stated that plaintiff No. 1 form sole proprietor firm "TONI SALES CORPORATION" in and around the year 1994 which was engaged into the selling & marketing of products under the Trademark TONI.
7. It has been further stated that Plaintiff No. 1 and Sh. Shyam Sunder Nagpal mutually agreed to dissolve the partnership business of S.K. Cosmetics firm and by virtue of a dissolution deed dated 8.4.1997 (w.e.f. 1.4.1997), the said S.K. Cosmetics firm stood dissolved and since the Plaintiff partnership was the owner and registered proprietor of 3 registered trademarks under Nos. 440395; 491569 & 789148 all in class 3, it was mutually decided amongst the Plaintiff No. 1 & Shyam Sunder Nagpal that that the trademark registration under No. 440395 would be the sole and exclusive proprietary of the Plaintiff No. 1 whereas the other two registrations bearing No. 491569 & 789148 would be CS (Comm) No. 969/20, Naresh Kumar Nagpal Vs. Dofey Ventures Pvt. Ltd. & Ors. Page No. 4/63 the exclusive proprietary of the sole proprietary business of Shyam Sunder Nagpal.
8. It has been further stated that suits are pending between Plaintiff & Shyam Sunder Nagpal bearing No. CS/DJ/55/2018 before Ld. ADJ, Tis Hazari Courts & another suit bearing No. TM/200/2017 bearing No. S.K. Cosmetics v/s Natural Toni Cosmetics before Ld. ADJ, Patiala House Courts.
9. It has been further stated that plaintiff is the sole and exclusive owner of the following registered trademarks in his favor which are duly valid, subsisting & in force.
S. Trademark Registration Goods; Status
No. No. & class
1. 440395 COSMETIC REGISTERED
in class 3 S FOR
SKIN SKIN
CREAMS
VANISHIN
G CREAMS
LIPSTICKS
PERFUME
AND
SPRAY
SHAVING
CREAM
TOOTH
PASTE
AND
DEPILATO
RY
PREPARATI
ONS
2. NATURAL 3329885 Cosmetics, REGISTERED
in class 3 Perfume,
TONI
Essential
Oils, Hair
CS (Comm) No. 969/20,
Naresh Kumar Nagpal Vs. Dofey Ventures Pvt. Ltd. & Ors. Page No. 5/63
Lotions,
Shampoos,
Hair
conditioners,
Hair Serum,
Hair gel,
Hair oil,
Hair wax,
Hair Dyes,
Hair
Remover
Cream,
Body
Deodorants,
Creams,
Petroleum
Jelly,
Talcum
Powder,
Shaving
Cream, After
Shave
Lotions;
Nail Polish,
Soaps, Face
Powder,
Face Cream,
Body
Cream,
Lipsticks,
Sindoor, Eye
Liner,
Mascara,
Lip Balm,
Lip gel,
Foundation,
Anti Wrinkle
Cream, Sun
Screen,
Beauty Balm
Cream,
CS (Comm) No. 969/20,
Naresh Kumar Nagpal Vs. Dofey Ventures Pvt. Ltd. & Ors. Page No. 6/63
Blemish
Balm
Cream.
10. It has been further stated that in the month of January 2018, Plaintiff No. 1 came across a deceptively similar mark "UNCLE TONY" for similar goods being soaps; perfumery, essential oils, cosmetics including after shave balm, foam and beard oil, mustache wax, shampoo, shower gel, hair lotion etc. under No. 3254175 in class 3 which was published in the Trademark Journal No. 1815 dated 18.09.2017 which was filed in favor of Defendant No. 1 and thereafter Plaintiff conducted a general research on the various online portals, however, could not locate any physical products and the said non - availability was also in line with the fact that the Application Applied by the Defendant No. 1 was filed only on 'proposed to be used' basis and eventually, the Plaintiff No. 1 opposed the trademark Registration of the mark 'UNCLE TONY' on 18.1.2018.
11. It has been further stated that during the second week of February 2018, one of the clients of the Plaintiff approached the plaintiff at its office located at Sadar Bazar and asked about the sale of UNCLE TONY products to which plaintiff informed that Plaintiff does not manufacture or market any products under the mark UNCLE TONY and thereafter the said client also informed the Plaintiff that such products are available online also as well as physical products are available at one of the Kiosks located at one of the malls at Saket.
12. It has been further stated that on 18.2.2018, the Plaintiff CS (Comm) No. 969/20, Naresh Kumar Nagpal Vs. Dofey Ventures Pvt. Ltd. & Ors. Page No. 7/63 No. 1 went to the kiosks located at Saket and saw the kiosk selling impugned products under a deceptively similar mark UNCLE TONY wherein the Plaintiff No. 1 met a sales executive named Akash and in order to procure such impugned products also purchased a product i.e. Shower Gel for INR 999/- under the trademark UNCLE TONY and the said invoice bears Invoice No. 1385 and issued dated 18.02.2018.
13. It has been further stated the Plaintiff No. 1 conducted online research on various B2B websites wherein it was revealed that the Defendant No. 1 is also selling its products under the impugned mark UNCLE TONY on its website www.uncletony.com & also on e-retailers like www.amazon.in and the Plaintiff also came across a domain name www.uncletony.com which was deceptively similar to the registered trademarks of the Plaintiffs and the son of the Plaintiff No. 1 i.e. Mr. Ankit Nagpal ordered a product i.e. a shaving foam & a shampoo from its website www.uncletony.com which was delivered to the Plaintiff No. 1 on February 14th & February 21st 2018 and also, the Plaintiff No. 1 sought to order another product i.e. shaving foam from Defendant No. 4 from the website www.amazon.in which was duly delivered to the Plaintiff No. 1 on 14.02.2018. It has been further stated that during an online public search on the website of www.ipindia.nic.in the Plaintiff came to know that the Defendant No. 1 has also applied similar trademark in other application bearing Nos. 3254174 in class 3; 3254183 in class 3; 3254185 in class 3; 3254187 in class 3.
14. It has been further stated that in and around 1st Week of March 2018, the Plaintiff received a call from the one of the CS (Comm) No. 969/20, Naresh Kumar Nagpal Vs. Dofey Ventures Pvt. Ltd. & Ors. Page No. 8/63 executives of the Defendant No. 1 to whom the Plaintiff reiterated its grievance and the said executive assured the plaintiff to send someone to resolve the grievance of plaintiff no.1. It has been further stated that despite assurances given by the said executive on behalf of Defendant No. 1, the Defendants have endeavored to flood the market with the impugned products under the deceptive trademark UNCLE TONY. It has been further stated that defendants in collusion & connivance are using a deceptively similar impugned mark 'UNCLE TONY' on its products manufactured by Defendant No. 2 & Defendant No. 3 and imported and marketed by Defendant No. 1 in collusion and connivance to mislead and misrepresent the customers in believing that the such impugned goods emanate from the Plaintiffs whilst piggy banking on the immense goodwill and reputation of the Plaintiffs thereby causing unlawful loss to the Plaintiffs,
15. Plaintiffs have prayed for decree of permanent injunction restraining the defendants from using the said trademark UNCLE TONY or passing off its goods under the trademark UNCLE TONY and the plaintiff has also sought decree of delivery up of all the goods of the defendant with the mark "UNCLE TONY"
and render the accounts of profits earned by the defendant no.1
16. Summons of the suit were sent to the defendants. Defendant no. 1 & contested the suit and file Written statement whereas defendant no.3 did not appear and was proceeded exparte.
17. Defendant no.1 has denied the contents of the plaint as incorrect. It is denied by defendant no.1 that plaintiff's firm CS (Comm) No. 969/20, Naresh Kumar Nagpal Vs. Dofey Ventures Pvt. Ltd. & Ors. Page No. 9/63 applied for registration of another mark TONI (Label) under No. 789148 in Class 3 on 24.5.1988 and another registration of the mark TONI (Label) on 24.5.1988 under no. 491569 in Class 2. It is also denied that Plaintiff's Partnership firm is the owner and registered proprietor of 3 registered trademarks under nos. 440395, 491569 and 789148 all in class 3". It has been stated that plaintiff firm Natural Toni Cosmetics came into existence only on 16 January 2018 as evident from partnership deed. It has been stated that Plaintiffs have no right, title or interest in the mark "Natural Toni" and the use of the mark "Natural Toni" is also under challenge in a suit which is pending between the Plaintiffs and the father of Plaintiff No.1. It is denied that plaintiff has continuously used the trademark TONI since 1970 for facial creams, cosmetics etc or that the Trademark NATURAL TONI has been used openly continuously and/or extensively since December 2016. In its written statement defendant no.1 has taken preliminary objections that plaintiffs has no right, title or interest in the two trademarks i.e. "Toni" and "Natural Toni". It has been further stated by defendant no.1 that it has filed copy of order of Civil Suit No. 55/18 entitled 'Naresh Kumar Nagpal v S.K. Cosmetics & Ors' and on perusal of the same, it reveals that the Plaintiff No.1 admitted that the said trademark 'Toni' was earlier exclusively owned by his father's proprietorship firm and he had become his partner in the year 1983 and on the dissolution of that partnership in the year 1997, the trademark 'Toni' registered under 440935 became his exclusive property but said averment of plaintiff that he become exclusive owener of Trade Mark "Toni" has been challenged by his father alleging that there CS (Comm) No. 969/20, Naresh Kumar Nagpal Vs. Dofey Ventures Pvt. Ltd. & Ors. Page No. 10/63 was no such assignment of the said trade mark in favour of Plaintiff No. 1 and his father has also filed counter claim said case is still pending for disposal, hence, the issue that plaintiff is register owner of trademark "Toni" vide registration no. 440395 is still pending in the said suit.
18. It has been further stated by defendant no.1 that plaintiffs are also claiming rights in the trademark "Natural Toni", which is also challenged in another suit TM No. 200/17 which has been instituted by Plaintiff No.1 father's firm namely S.K. Cosmetics said suit and is pending disposal in the Court of Mr. Praveen Kumar Learned ADJ and in that suit plaintiff father has sought injunction against the plaintiff using the trade mark "Toni".
19. It has been further stated that plaintiff has concealed that trade mark " Toni" is being in fact used by S.K. Cosmetics and plaintiff have no right in the said trade mark. Father of Plaintiff No.1 had made a representation to the Registrar of Trademarks on 13.2.2018 in which he has raised serious allegations of fraud and forgery by him against the plaintiff No.1.
20. It has been further alleged by defendant no.1 that plaintiff has alleged that his sole proprietorship firm came into existence in year 1994 how he could assert that the Plaintiff's firm applied for registration of another mark TONI (Label) under no. 789148 in Class 3 on 24.5.1988 and Mark TONI Label on 24.5.1988 under no. 491569 in Class 2. It was rather applied by SK Cosmetics, partnership firm. Plaintiffs have on the one hand have mentioned in para no.10 of plaint that it was mutually agreed that plaintiff no.1 would be sole and exclusive owner of trade mark registration no. 440395 and other two registration CS (Comm) No. 969/20, Naresh Kumar Nagpal Vs. Dofey Ventures Pvt. Ltd. & Ors. Page No. 11/63 having no. 491569 and 789148 would be of his father proprietary firm but on the other hand on the basis of forged and fabricated documents filed before Registrar of Trade Mark he got transferred the same in his own name. hence plaintiffs have not approached to the court with clean hand and played fraud upon this court as well as Registrar of Trade mark.
21. It has been further alleged that Plaintiffs have again falsely asserted in para -7 of plaint that Plaintiff's firm It has been further stated that plaintiffs have played a fraud upon the court by falsely relying upon the sales figures of trademark "TONI" from the year 1970 knowing fully well that those sales were of his father's firm SK Cosmetics. It has been further stated that plaintiff's firm Natural Toni Cosmetics came into existence only on 16.01.2018 as per partnership deed filed by plaintiff, thus, plaintiffs have placed forged / fabricated sale records of the said firm for the period of 2016-17.
22. It has been further stated that defendant No.1 is not using the trademark 'Toni' but using the trademark "UNCLE TONY"
which is a unique and inherently distinctive mark and the Defendant's mark is neither visually nor phonetically, nor deceptively nor confusingly similar with that of the Plaintiffs, hence, no confusion is caused. It has been further stated that defendant's mark "UNCLE TONY" is a coined and an invented mark, which does not resemble with the Plaintiff's mark either covertly or overtly and is a "composite mark" which is composed of a combination of two distinct words and the device. It has been further stated that it is settled law that a mark must be seen in its entirety and shall not be truncated or dissected into its small CS (Comm) No. 969/20, Naresh Kumar Nagpal Vs. Dofey Ventures Pvt. Ltd. & Ors. Page No. 12/63 components parts to determine similarity with other marks.
23. It has been further stated that defendant no.1 has a valid registration in class8 of its mark "Uncle Tony" in men grooming products and its registration is pending in class 3. Its product razor blade, razor handle, travel pouch, beard comb, shot glass, t shirt does not fall in the list of goods of class 3.
24. It has been further stated that perusal of receipts filed by plaintiff with plaint reveals that no product of the Plaintiff is more than Rs. 100/- whereas defendant caters only to high-end customers as the product range of Defendant's products is mostly between Rs. 800-Rs. 3,000/-. Thus, the market and the class of customers, to which the Defendant no.1 caters is completely different from that of the Plaintiffs. It has been further stated that plaintiffs themselves are indulging in infringing other established trademarks like Fair & Lovely, Boro Plus, Vicco Turmeric etc., which is evident from the plaintiffs' product.
25. On merits, defendant no.1 has admitted that defendant had put a Kiosk at a mall in Saket on 18.2.2018 and the products under trademark "Uncle Tony" were available for sale from that kiosk and that shower gel for INR 999 under the trademark Uncle Tony was sold vide invoice no. 1385 dated 18.2.2018. It is also not disputed that the answering Defendant is selling its products online on its website www.uncletony.com and through online e- retailers like www.amazon.in. It is denied that the domain name of the Defendant is allegedly similar to the so-called registered trademarks of the Plaintiff No. 1. Defendant has denied that no executive of defendant ever visited the office of the Plaintiff No. 1 at Sadar Bazar or no such assurance was provided to the CS (Comm) No. 969/20, Naresh Kumar Nagpal Vs. Dofey Ventures Pvt. Ltd. & Ors. Page No. 13/63 Plaintiff No. 1. It is further stated that defendant trade mark bear no similarity or resemblance with plaintiff trade mark. Plaintiff mark is a single word mark whereas defendant mark is composite mark which is combination of two distinct word. Same is neither visually nor phonetically similar nor is it written in "an identical style on the products manufactured by the Plaintiffs. The entire get up of mark of defendant when viewed as a whole cannot lead to any confusion. There is no similarity of packaging of plaintiff and defendant product. Defendant and plaintiff mark are neither identical nor deceptively similar as alleged, to deliberately and willfully trying to piggy bank the immense goodwill and reputation of the mark Tony/Natural Toni while unlawfully enriching themselves on the goodwill of the mark Toni/Natural Toni while causing unlawful loss to the Plaintiffs. Thus, defendant no.1 prays for dismissal of the suit.
26. Defendant no. 2 in its written statement, has stated that defendant No. 2 is a company incorporated under the laws of France with registered office at Z.I. Grand Messuget, Avenue Gay Lussac BP No. 5, 13716 CARNOUX-en-Provence CEDEX. It has been stated that defendant No. 2 was created as a packaging company specialized in cosmetics and perfumes, in Morocco in 1948 by Angel JEAN-ORTIZ, a Spanish chemical engineer and in 1964, the Defendant no.2 moved to Provence, France and distributed its own brands, mainly in supermarkets, through the banners of the group BADIN DEFFOREY (future creator of Carrefour) and LECLERC. It has been stated that defendant No. 2 does not have any business entity in India and recently, it contracted with Defendant no. 1 to manufacture CS (Comm) No. 969/20, Naresh Kumar Nagpal Vs. Dofey Ventures Pvt. Ltd. & Ors. Page No. 14/63 cosmetics to be sold in India, as per the contract between Defendants no.1 and 2, the packaging for the products manufactured, was supplied by the Defendant No. 1.
27. It has been stated by defendant no.2 that plaintiffs have sought reliefs by relying on Trademark Registration Nos. 440395 ( ), 491569 ( ) and 789148 (TONI) (the "TONI trademarks") without having any right, title or interest in the said trademarks and on perusing the online records of the Trademarks Registry for these marks, it was found that the Plaintiffs have allegedly played fraud on the Registry by submitting fabricated documents to transfer the TONI trademark registrations to Plaintiff no.1.
28. It has been further stated by defendant no.2 that plaintiffs have concealed that Plaintiff No.1's father Mr. Shyam Sunder Nagpal vide letter dated 13.02.2018 alleging that Plaintiff No. 1 had committed fraud by submitting forged documents to the Registry and the trademark TONI has been transferred to plaintiff no.1 on the basis of these false documents.
29. It has been further stated that plaintiff no. 1's father in the court of Sh. Gurvinder Pal Singh, Ld. ADJ-01, Central Delhi in suit no. TM1028/16 made a statement that the signature on the CS (Comm) No. 969/20, Naresh Kumar Nagpal Vs. Dofey Ventures Pvt. Ltd. & Ors. Page No. 15/63 copy of the partnership deed is not his and that he has never entered into such partnership with plaintiff no.1, thus, the claim of plaintiff no.1 that he got ownership of the TONI trademarks at the time when the partnership was dissolved is questionable and sub judice. It has been further stated that the trademark of plaintiff and defendant no.1 are different, the details of which as given below in the table:
Defendant no.1's mark Defendant no.1's mark Plaintiffs' mark The device markThe device markThe device mark contains two words andcontains two words andcontains one four syllables i.e.four syllables i.e.word of two UNCLE TONY. UNCLE TONY. syllables i.e. TONI.
The words are writtenThe words are written inThe word is
in capitalized letters. lower case with thewritten in lower
exception of the letter Ucase with the
and the letter T exception of the
letter T which is
capitalized. The
font weight
across the word
is the same.
The typeface is placedThere is no graphic The typeface is
above the graphic. highly stylized
and is placed
within the
CS (Comm) No. 969/20,
Naresh Kumar Nagpal Vs. Dofey Ventures Pvt. Ltd. & Ors. Page No. 16/63
graphic.
The graphic usedThere is no graphic The graphic used
contains two circles, consists of a
half an arrow, a circular diamond shaped
polygon and the design polygon that is
of an eye. The circle filled in. The
that is filled in is polygon is
placed in the same contained within
lateral space as the eye two boundaries.
graphic, with the The inner
design of half an arrow boundary is
in between them. The without color and
other circle is placed the outer
below the eye and the boundary is the
filled in circular same color as the
polygon cuts it in the polygon.
middle. The overall
graphic gives the
impression of a man
with a big moustache.
Thus, there is no possibility of confusion between the plaintiff's trademark and defendant no.1 trademark. Defendant no.2 has prayed for dismissal of the suit.
30. Plaintiff has filed replication to the WS of defendant no. 1 in which plaintiff has denied the contents of WS as incorrect and has reiterated the contents of the plaint as true and correct. In replication, plaintiff has stated that defendant has claimed to be CS (Comm) No. 969/20, Naresh Kumar Nagpal Vs. Dofey Ventures Pvt. Ltd. & Ors. Page No. 17/63 the registered proprietor of the trademark UNCLE TONY in class-8 under registration no. 3254173 dt. 09.05.2016 and the said registration is invalid & liable to be struck off from the Register of Trademarks on various grounds. Further, the plaintiff reserves its rights to file a cancellation petition before the IPAB. Further, plaintiff through its sole proprietorship firm TONI SALES CORPORATION is using the mark TONI at least since 1994 when TONI SALES CORPORATION was reconstituted as a sole proprietorship firm of the plaintiff solely. Further, it is stated that plaintiff has duly instituted a counter claim against S.K. Cosmetics in suit bearing no. TM-200/17 sub-judice before Sh. Praveen Kumar, Ld. ADJ, PHC. Plaintiff has also denied that trademark TONI / UNCLE TONY is not deceptively similar to the plaintiff's trademark TONI & UNCLE TONY and would not cause confusion. Thus, plaintiff has prayed for passing of decree.
31. Plaintiff has also filed replication to the WS of defendant no. 2 in which plaintiff has denied the contents of WS as incorrect and has reiterated the contents of the plaint as true and correct. In replication, plaintiff has stated that defendant no. 2 has admitted to manufacturing products bearing the mark UNCLE TONY for defendant no. 1 and hence, liable to be restrained alongwith other defendants by an order of inunction from this Court. It is denied that the mark of the defendant no.1 UNCLE TONY is not similar to the registered trademark TONI / NATURAL TONI of the plaintiff. Thus, plaintiff has prayed for passing of decree.
32. Alongwith the instant suit, the plaintiff has filed the application under Order XXXIX Rules 1 & 2 CPC and CS (Comm) No. 969/20, Naresh Kumar Nagpal Vs. Dofey Ventures Pvt. Ltd. & Ors. Page No. 18/63 application under Order XXVI Rule 9 CPC by which plaintiff sought appointment of receiver and said application was allowed vide order dated 14.05.2018 passed by my learned predecessor, however, thereafter application u/o 39 Rule 4 CPC was filed by defendant no.1 and vide order dated 20.02.2019 the application u/o 39 Rule 4 CPC was allowed and the plaintiff's application u/o 39 rule 1 and 2 was dismissed.
33. Following issues were framed vide order datead 31.07.2019 :
1. Whether plaintiffs are entitled to an order of permanent injunction to restrain the defendant from using the mark UNCLE TONY on its goods, for packaging or as a domain name which is identical or deceptively similar to the trade mark TONI / Natural Toni of the plaintiff ? OPP
2. Whether plaintiffs are entitled to an order of permanent injunction to restrain the defendants from passing off its goods by using the mark UNCLE TONY on its goods, for packaging or as a domain name which is identical or deceptively similar to the trademark TONI / Natural Toni of the plaintiff ? OPP
3. Whether the plaintiffs are entitled to decree of damages and cost in the present proceedings against the defendants, if yes for what amount ? OPP
4. Whether the plaintiffs are entitled to decree of rendition of accounts ? OPP
5. Whether plaintiffs are guilty of concealment of material facts and have come to the Court with unclean hands, if so, what is the effect ? OPD1
6. Whether the plaintiffs do not have any cause of action CS (Comm) No. 969/20, Naresh Kumar Nagpal Vs. Dofey Ventures Pvt. Ltd. & Ors. Page No. 19/63 against the defendants as they have fraudulently claimed ownership over the trademark TONI and Natural Toni, if so, what effect ? OPD1
7. Relief.
34. In order to prove his case plaintiff has examined two wit- nesses i.e. himself as PW1 and his son Sh.Ankit Nagpal as PW2.
35. On the other hand, in order to deny the claim of plaintiff, defendant no.1 has examined its director /AR Sh. Ashok Goyal as DW1.
36. Final arguments have been heard from Sh. Varshesh, Ld. Counsel for the plaintiff and Sh. Atul Jain, Ld. Counsel for the defendants. Ld. Counsel for plaintiff also relied upon the following judgments :-
i. Wander Ltd. and Ors. Vs. Antox India P. Ltd., MANU/SC/0595/1990 ii. Kaviraj Pandit Durga Dutt Sharma Vs. Navaratna Pharmaceutical Laboratories, MANU/SC/0197/1964 iii. Amritdhara Pharmacy Vs. Satyadeo Gupta, MANU/SC/0256/1962 iv. Century Traders Vs. Roshan Lal Duggar Co., MANU/DE/0153/1977 v. Laxmikant V. Patel Vs. Chetanbhai Shah and Ors., MANU/SC/0763/2001 vi. Ruston & Hornsby Ltd. Vs. The Zamindara Engineering Co., MANU/SC/0304/1969 CS (Comm) No. 969/20, Naresh Kumar Nagpal Vs. Dofey Ventures Pvt. Ltd. & Ors. Page No. 20/63 vii. T.V. Venugopal Vs. Ushodaya Enterprises Ltd. and Ors., MANU/SC/0169/2011 viii. The Indian Hotels Company Ltd. Vs. Ashwajeet Garg and Ors., MANU/DE/1058/2014 ix. Cadila Health Care Ltd. Vs. Cadila Pharmaceuticals Ltd., MANU/SC/0199/2001 x. Caterpillar Inc. Vs. Mehtab Ahmed and Ors., MANU/DE/1067/2002 xi. Corn Products Refining Co. Vs. Shangrila Food Products Ltd., MANU/SC/0115/1959 xii. Peps Industries Private Limited Vs. Kurlon Limited, MANU/DE/0832/2020 xiii. S. Syed Mohideen Vs. P. Sulochana Bai, MANU/SC/0576/2015 xiv. Consitex S.A. Vs. Kamini Jain & Ors., MANU/DE/7597/2011 xv. K.R. Chinna Krishna Chettiar Vs. Shri Ambal and Co. & Ors., MANU/SC/0303/1969 xvi. Pidilite Industries Limited Vs. Poma-Ex Products, MANU/MH/1661/2017 xvii. Sun Pharmaceutical Industries Ltd. and Ors., Vs. Kinetic Lifescience (OPC) P. Ltd. and Ors., MANU/DE/1330/2022 xviii. South India Beverages Pvt. Ltd. Vs. General Mills Marketing Inc., MANU/DE/2574/2014 xix. Automatic Electric Limited Vs. R.K. Dgawan and Ors., MANU/DE.0461/1999 CS (Comm) No. 969/20, Naresh Kumar Nagpal Vs. Dofey Ventures Pvt. Ltd. & Ors. Page No. 21/63 xx. Neon Laboratories Ltd. Vs. Medical Technologies Ltd. and Ors., MANU/SC/1192/2015 xxi. Pioneer Nuts and Bolts Pvt. Ltd. Vs. Goodwill Enterprises, MANU/DE/2305/2009 xxii. Greaves Cotton Limited Vs. Mohammad Rafi and Ors., MANU/DE/2235/2011 xxiii. Madhubhan Holiday Inn Vs. Holiday Inn Inc., MANU/DE/1085/2002 On the other hand, Ld. Counsel for defendant no.1 also relied upon the following judgments :-
i. Kewal Krishan Kumar Vs. Rudi Roller Flour Mills, MANU/DE/1953/2014 ii. F.Hoffmann-Ia Roche & Co. Ltd. Vs. Geoffrey Manner & Co. Pvt. Ltd., MANU/SC/0302/1969 iii.Ayushakti Ayurved Pvt. Ltd. and Ors. Vs. Hindustan Lever Limited, MANU/MH/0256/2003 iv. Cadila Health Care Ltd. Vs. Cadila Pharmaceuticals Ltd., MANU/SC/0199/2001 v. Vasundhra Jewellers Pvt. Ltd. Vs. Kirat Vinodbhai Jadvani & Ors., MANU/DE/3577/2022 vi. Macleods Pharmaceuticals Ltd. Vs. Swisskem Healthcare and Ors., MANU/MH/1771/2019 vii. Johann A. Wulfing Vs. Chemical Industrial & Pharmaceutical Laboratories Limited and Ors., MANU/MH/0276/1984 viii. Kelwyn Door Cares (India) and Ors., Janson Enterprises and Ors., MANU/DE/2440/2017 CS (Comm) No. 969/20, Naresh Kumar Nagpal Vs. Dofey Ventures Pvt. Ltd. & Ors. Page No. 22/63 ix. Vee Excel Drugs and Pharmaceuticals Ltd. Vs. Hab Pharmaceuticals and Research Lim., MANU/DE/0830/2009
37. I have considered the arguments and have gone through the record. My issue wise findings are as under :-
Issue No.1 "Whether plaintiffs are entitled to an order of permanent injunction to restrain the defendant from using the mark UNCLE TONY on its goods, for packaging or as a domain name which is identical or deceptively similar to the trade mark TONI / Natural Toni of the plaintiff ? OPP Issue No.2 "Whether plaintiffs are entitled to an order of permanent injunction to restrain the defendants from passing off its goods by using the mark UNCLE TONY on its goods, for packaging or as a domain name which is identical or deceptively similar to the trademark TONI / Natural Toni of the plaintiff ? OPP AND Issue No. 6 "Whether the plaintiffs do not have any cause of action against the defendants as they have fraudulently claimed ownership over the trademark TONI and Natural Toni, if so, what effect ? OPD1"
38. Issues no. 1, 2 and 6 are interconnected issues therefore, I shall decide the same together. The Onus is upon the plaintiff to prove issue No. 1 & 2 and onus is upon defendant to prove issue no.6.
39. The plaintiffs in order to prove the same has examined CS (Comm) No. 969/20, Naresh Kumar Nagpal Vs. Dofey Ventures Pvt. Ltd. & Ors. Page No. 23/63 plaintiff no.1 Naresh Nagpal as PW1. In his examination in chief led through affidavit EXPW1/A. He has almost repeated the same contents as stated in the plaint, therefore, same are not repeated here. Plaintiff has also relied upon the documents i.e.
1. Copy of partnership deed dated 1.4.198 between Plaintiff no.1 and Sham Sunder forming partnership firm SK Cosmetics as Mark X1
2. Copies of advertisements of Toni in various new papers by SK cosmetics between 1989 to 1990, marked as Mark X-2 to X-14
3. Copy of dissolution deed dt. 08.04.1997 of partnership firm SK Cosmetics marked as Mark X-15
4. Copies of invoices of Toni Sales Corporation are Ex. PW 1/1 to Ex. PW 1/58 (objected to as to genuineness of documents) and other invoices which have been exhibited as Ex. PW1/59 to Ex. PW 1/147 are de-exhibited and marked as Mark A (colly.) Original 30 bill books containing the aforesaid said invoices have been filed in court.
5.Copy of the partnership deed is Ex. PW 1/148 (OSR)
6. Copies of invoices of Natural Toni is Ex. PW 1/149 and Ex. PW 1/150 and other invoices which have been exhibited as Ex. PW 1/151 to Ex. PW 1/164 are de- exhibited and marked as Mark B (colly.) Original 1 bill book containing the aforesaid said invoices have been filed in court.
7. The printout of Web status of mark Natural Toni is Ex. PW 1/165 obtained from Trade Mark registry (objected to the mode of proof) and copy of registration certificate which is exhibited as Ex. PW CS (Comm) No. 969/20, Naresh Kumar Nagpal Vs. Dofey Ventures Pvt. Ltd. & Ors. Page No. 24/63 1/166 is de-exhibited and marked as Mark X-16
8. Copies of advertisements of "Natural Toni "in newspaper Prakhar Times dt 28.11.2017 -11.12.2017 is Ex. PW 1/167
9. Copies of invoice of advertisement vendors of Prakhar Times dt. 14.12.2017 are Ex. PW 1/168.
10. Copy of invoice of sale of 200 T Shirt issued by KG Garments in favour of Natural Toni Cosmetics dt. 10.01.2017 Ex. PW 1/169 (OSR)
11. Web printout of the status of trademark 440395 "Toni" from trade mark registry is Ex. PW 1/170 (objected to the mode of proof and copy of LPC dated 22.2.2017 Ex. PW 1/171 (objected to the mode of proof)
11. Copy of opposition to trade mark Uncle Tony file by plaintiff Naresh Kumar is Ex. PW 1/172
12. Photographs of kiosk selling of impugned products by defendant as Ex. PW 1/173 and Ex. PW 1/174
14. Invoice issued by defendant selling shower gel to plaintiff dt. 18/02 as Ex. PW 1/175
15. Invoices issued by defendant of selling shaving foam through online sale dt. 21.02.2018 as Ex. PW 1/176
16. Original invoice of Shampoo of defendant ordered from the website which was delivered to plaintiff address on 14.2.2018 is Ex. PW 1/178.
16. Original invoice of shaving foam of defendant ordered from the website Amazon which was delivered to plaintiff address on 14.2.2018 is Ex. PW 1/178.
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17. Web printouts of applications by which defendant no.1 has applied for the mark UNCLE TONY is Ex.
PW 1/179-180
17. Original packagings of various product of plaintiff having trade mark "Natural Toni" as Ex. PW1/181 (18 pages colly)
18. Visiting card of defendant Assistant Manager is exhibited as Ex. PW 1/182
40. PW-2 Ankit Nagpal in his evidence led by way of affidavit Ex. PW2/A has deposed that Sh. Shyam Sunder Nagpal has adopted trademark Toni in year 1962 and using the said trademark Toni since 1970 and the partnership deed dt. 12.10.2016 with respect to the plaintiff no. 2 firm is duly registered with the Sub Registrar, Delhi and he proved the said partnership deed as PW2/1. He further deposed that his partnership firm M/s Natural Toni Cosmetics is also the owner and registered proprietor of the registered trademark Natural Toni under no. 3329885 in class-3 with respect to the goods cosmetics, perfume, essential oils, hair lotions, shampoos, hair conditioners, hair serum, hair gel, hair oil, hair wax, hair dyes, hair remover cream, body deodorants, creams, petroleum jelly, Talcum power, shaving cream, after shave lotions, nail polish, soaps, face power, face cream, body cream, lipsticks, sindoor, eye liner, mascara, lip balm, lip gel, foundation, anti wrinkle cream, sun screen, beauty balm cream, blemish balm cream and he proved the registration certificate as PW2/2. He further states that the sales figures and advertisement of some years of his firm as under :-
CS (Comm) No. 969/20, Naresh Kumar Nagpal Vs. Dofey Ventures Pvt. Ltd. & Ors. Page No. 26/63 Years Sales Figures (in Advertisement Rupees) Figures (in Rs.) 2016-17 INR 372440/- NIL 2017-18 INR 4264677/- INR 2500/-
2018-19 INR 5514717/- INR 112791.50
2019-20 INR 5090910.44 INR 88645.25
2020-21 INR 8059875.08 INR 104164/-
He also deposed that defendant no. 1 has applied for registration of the deceptive similar mark Uncle Toni vide application no. 3254174 in class-3, for mark Uncle Toni vide application no. 3254185 in class-3 and for the mark Uncle Toni vide application no. 3254187 in class-3. He relied upon the documents which are already exhibited in the testimony of PW1.
In his cross examination, he stated that he does not remember the date or month but it was year 2016 when Trademark "Natural Toni" and Trade Name "Natural Toni Cosmetics" were started using but not able to tell the date and month with respect to invoices Ex. PW2/10 to Ex. PW2/17, Ex. PW2/20, Ex. PW2/23 to Ex. PW2/25. He admitted that all the invoices are issued by the Natural Toni Cosmetics in favour of Toni Sales Corporation and voluntarily deposed that Natural Toni Cosmetics and Toni Sales Corporation are two different entities.
41. On the other hand, defendant in order to disprove the case of plaintiff has examine Sh Ashok Goel, its AR / Director as DW1 who in his examination in chief led through affidavit EXDW1/A he has almost repeated the same contents as stated in WS by defendant no.1. He has relied upon following CS (Comm) No. 969/20, Naresh Kumar Nagpal Vs. Dofey Ventures Pvt. Ltd. & Ors. Page No. 27/63 documents :-
1. Board resolution appointing him as AR as Ex. DW1/1.
2. Copies of power of attorneys issued by defendant no.3 appointing defendant no.1 as its agent to import, market its product as Mark DW1/2 (Colly. 4 pages) [mentioned in affidavit as Ex. DW1/2 (Colly.)].
3. Copy of order dated 26.4.2018 passed in CS No. 55 of 2018 as Ex. DW1/3 (running into four pages) (exhibited being admitted by plaintiff).
4. Form TM-P dated 4.7.2017 along with annexures (21 pages) already part of document Mark F/PW1/D (from page 197 to 217) produced by Data Entry Operator of Trademark Registry.
5. Letter dated 17.7.2017 given on behalf of Naresh Kumar Nagpal to Trademark Registry already part of document Mark F/PW1/D (on page 217) produced by Data Entry Operator of Trademark Registry.
6. Representation dated 13.2.2018 along with annexures already part of document Mark F/PW1/D (from page 226 to 230) produced by Data Entry Operator of Trademark Registry.
7. Representation dated 28.2.2018 filed by defendant No. 1 in respect of application No. 440395already part of document Mark F/PW1/D (from page 231 to 236) produced by Data Entry Operator of Trademark Registry [mentioned in affidavit as Ex. DW1/7 (Colly.)].
8. Representation dated 13.2.2018 along with annexures written by SK Cosmetics already part of CS (Comm) No. 969/20, Naresh Kumar Nagpal Vs. Dofey Ventures Pvt. Ltd. & Ors. Page No. 28/63 document Mark F- 1/PW1/D (from page 432 to 435) produced by Data Entry Operator of Trademark Registry [mentioned in affidavit as Ex. DW1/8 (Colly.)].
9. Coloured photographs of packaging of products sold under trademark 'TONI' being manufactured by SK Cosmetics as Ex. DW1/9 (Colly. 4 photos) (Compared from original packagings).
10. Screenshots of website of SK Cosmetics as Ex. DW1/10 (Colly. 2 pages).
11. Brochure of defendant No. 1's product as Ex.
DW1/11.
12. E-register of all the tradermark applications of defendant No. 1 for the mark "UNCLE TONY"
and its device as Ex. DW1/12 (Colly. 27 pages) (Legal proceedings certificate has already been produced by Data Entry Operator as Ex. P-1 to Ex. P-
19).
13. Trademark Registration Certificate for applications No. 3254173 and 3254188 for the mark "UNCLE TONY" and its device in class 8 as Ex.
DW1/13 and Ex. DW1/14 respectively (Legal proceedings certificate has already been produced by Data Entry Operator as Ex. P-1 to Ex. P-19).
14. Printouts of relevant pages of English Dictionaries giving English meaning of word "TONY"
as Mark DW1/1515. Photographs of plaintiffs products along with other established brand already Ex. PW1/D-12 (3 pages) .
CS (Comm) No. 969/20, Naresh Kumar Nagpal Vs. Dofey Ventures Pvt. Ltd. & Ors. Page No. 29/63
16. Affidavit under Section 65B of the Indian Evidence Act as Mark DW1/17 .
42. It is argued by Ld. Counsel for plaintiff that from the testimony of plaintiff witness it is proved that plaintiff is using the trade mark "Toni" since 1994 for class 3 items, when plaintiff no. 1 has formed Toni Sales Corporation. He argued that prior to it, the father of plaintiff has formed firm S.K. Cosmetics and said firm got registered trademark Toni in 1985 as device later on said partnership firm was converted into S.K. Cosmetics partnership and plaintiff no.1 become partner in the same and after dissolution of the said firm, plaintiff no.1 was given trademark Toni vide registration no. 440395 and he sold various goods under such trademark i.e. COSMETICS FOR SKIN SKIN CREAMS VANISHING CREAMS LIPSTICKS PERFUME AND SPRAY SHAVING CREAM TOOTH PASTE AND DEPILATORY PREPARATIONS etc. and in year 2017 plaintiff adopted trademark Natural Toni in class-3 and got its registration vide no. 3329885, therefore, the plaintiff is registered owner of the trademark Toni and Natural Toni.
43. It is further argued by the Ld. Counsel for the plaintiff that from the testimony of PWs it is proved that plaintiff trade mark Natural Toni is registered in favour of plaintiff firm Natural Toni Cosmetics in which PW1 is a partner alongwith his son Ankit Nagpal and mark TONI forms an essential and important feature of said Trade Mark, which plaintiff is using independently since the 1997 when plaintiff no.1 dissolve partnership with his father in firm S.K Cosmetics.
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44. Ld. Counsel for plaintiffs further argued that from the testimony of PW1 & PW2 it is also proved that plaintiffs are using the trademark NATURAL TONI since December, 2016 and sale figures of NATURAL TONI is in year 2015-16 Rs. 38,13,199/-, in year 2016-17 Rs. 41,05,586/- & in year 2017-18 Rs. 45,05,563/- and PW1 has proved the invoices Ex. PW1/149 to Ex. PW1/164 to corroborate the same. He also argued mark NATURAL TONI is used for the goods cosmetics, perfume, essential oils, hair lotions, shampoos, hair conditioners, hair serum, hair gel, hair oil, hair wax, hair dyes, hair remover cream, body deodorants, creams, petroleum jelly, Talcum power, shaving cream, after shave lotions, nail polish, soaps, face power, face cream, body cream, lipsticks, sindoor, eye liner, mascara, lip balm, lip gel, foundation, anti wrinkle cream, sun screen, beauty balm cream, blemish balm cream, therefore adoption of trade mark Uncle Toni shows that defendant has adopted the said trade mark with dishonest intention to cash the goodwill of plaintiff and has tried to pass off his goods as goods of plaintiff so fas as goods belonging to class 3 is concerned however he has no objection if defendant continued to use trade mark for goods in class 8.
45. Ld. Counsel for plaintiffs further argued that from the testimony of PW1 & PW2 it is proved that defendant using the trademark Uncle Toni for the similar kind of products as given in class-3 and the said trademark has been adopted dishonestly with malafide intention to encash the goodwill and reputation of plaintiff trademark Toni which is quite popular in the market for products of class-3 i.e. SKIN CREAMS VANISHING CREAMS CS (Comm) No. 969/20, Naresh Kumar Nagpal Vs. Dofey Ventures Pvt. Ltd. & Ors. Page No. 31/63 LIPSTICKS etc. thus, defendant has infringed the trademark of plaintiff, therefore, plaintiff is entitled to decree of permanent injunction restraining the defendant from using the said trademark.
46. It is further argued by Ld. Counsel for plaintiff that and since defendant is also passing off it goods as goods of plaintiffs thus plaintiff is entitle of permanent injunction on this ground also.
47. On the other hand, learned counsel for defendant has argued that plaintiff is not registered owner of the trademark Toni but said trademark is admittedly owned by S.K. Cosmetics, and plaintiff on the basis of false documents has got transferred the trade mark registered vide no. 440395, and his father has filed representation before trade mark authority to revoke the trade mark registered in the name of plaintiff and retransfer the same in the name of SK Cosmetic, therefore no case is made out for infringement of trademark Toni by defendant.
48. Ld. Counsel for defendant has further argued that plaintiffs have falsely averred that trademark Toni registered vide no. 440395 has come into the plaintiff share after dissolution of the partnership firm S.K. Cosmetics but same has never come into the share of the plaintiff and plaintiff's father has filed a case against the plaintiff for trademark Toni registered vide no. 440395 is falsely registered by plaintiff in his name and said case is still pending, therefore, plaintiff has no right over the trademark Toni and as far as trademark Natural Toni is concerned, defendant's trademark Uncle Toni is used by the defendant prior to plaintiff as plaintiff has applied for registration of said trademark in year 2017 whereas defendant has applied for CS (Comm) No. 969/20, Naresh Kumar Nagpal Vs. Dofey Ventures Pvt. Ltd. & Ors. Page No. 32/63 registration of his trademark in year 2016, therefore, no case of infringement of trademark Toni or passing off is made out against the defendant.
49. Ld. Counsel for defendant further argued that it is undisputed fact that Trade Mark "Uncle Tony" is registered as device mark in the name of defendant vide registration no3254188 in class 8 for safety razor, safety blades and no case of infringement is made out against the registered mark, therefore suit of plaintiff is liable to be dismissed on this ground alone.
50. Ld. Counsel for defendant has further argued that plaintiffs trade mark Natural Toni is itself infringement of his father Trade Mark Toni and PW1 in his cross examination, has admitted the said fact, that his father has filed suit against him with respect to user of work NATURAL TONI in year 2018 and his father has also challenged the use of word Toni as a trademark.
51. Ld. Counsel for defendant further argued that defendant has applied for registration of Trade mark Uncle Tony prior to plaintiff applying for registration of Trade Mark Natural Toni hence no case of passing off is made out and he is prior user of the said Trademark.
52. Ld. Counsel for defendant further argued that even otherwise there is no similarity between plaintiff and defendant trade mark as plaintiff Trade Mark Toni or Natural Toni is word mark whereas defendant Trade Mark is device mark and plaintiff used spelling for last alphabet of toni as "i" whereas defendant used last alphabet as Y in Tony, and there is also graphic image in defendant trade mark which is quite different from plaintiff CS (Comm) No. 969/20, Naresh Kumar Nagpal Vs. Dofey Ventures Pvt. Ltd. & Ors. Page No. 33/63 mark if we consider the trade mark as whole.
53. Ld. Counsel for defendant further argued that defendant has not copied the Trade Mark Tony but same has beed adopted due to its meaning in English Language as "Fashionable among wealthy and high class People" as per oxford dictionary and defendant product are expensive product for wealthy people. whereas plaintiff product are less expensive product therefore the customer base of plaintiff product is different hence question of any confusion in the people mind arise.
54. Ld. Counsel for defendant has further argued that from the packages of plaintiff product is it evident that plaintiffs have themselves copy the trade dress packaging of well established in Skin care product like Fair and lovely, Boroplus and Vico therefore plaintiff cannot claim that defendant is infringing its trade mark. Therefore plaintiff is not entitle to injunction even on the ground off passing off.
55. It is undisputed fact that defendant trade mark Uncle Toni is registered in class 8 vide registration no. 3254176 vide application dt. 09.05.2016.
56. As far as contention of the Ld. Counsel for the defendant that since defendant trade mark is registered in class 8, therefore no injunction can be passed is concerned, in Clinique Laborato- ries Lic & Anr. Vs. Gufic Limited & Anr.(supra) relied by Ld. Counsel for plaintiff The Hon,ble High Court has held that suit for infringement is made out against a party having registered trade mark if registration of trade mark is not valid. The Relevant para of judgement is reproduce as below:
CS (Comm) No. 969/20, Naresh Kumar Nagpal Vs. Dofey Ventures Pvt. Ltd. & Ors. Page No. 34/63 " 8. In my view, Section 29 of the Act providing for infringement of the registered trademark does not contemplate infringement by another registered proprietor. Sections 29(1), (2) & (4) expressly provide that "registered trademark is infringed by a person who, not being a registered proprietor ..........." Though, Section 29(5) which has been newly introduced in the 1999 Act does not use the same language but in my view the same would be irrelevant for the present purposes. Section 30 (2) (e) further fortifies the said position by expressly providing that the registered trademark is not infringed where the use being as one of two or more trademarks registered under the Act which are identical or nearly resemble each other and in exercise of the right to use of that trademark given by registration thereof. However, Sections 28(3), 29 & 30(2) (e) cannot be read in isolation. If the intent was that there could be no action for infringement against the registered proprietor, the legislature while giving the right for rectification before the Registrar would not have in Section 31 made the registration as only prima-facie evidence of validity thereof. If that had been the intention all that would have been said is that as long as the registration exists it is valid, without any question of prima-facie or not. Then the courts would have had to wait for the outcome of the rectification proceedings.
9. Registration has been made only prima-facie evidence of the registration otherwise being in accordance with the Act under Section 31(1) as contended by senior counsel for plaintiff but I find that even Section 28 (1) while being subject to other provisions of Act, further provides that "registration of the trademark, if valid, give to the registered proprietor"
exclusive right to use the trademark. Thus the validity of registration can be gone into, wherever permissible under the Act. Section 124(1) (b) also indicates that it was within the contemplation of the legislature that there could be a suit for infringement of trademark where the defendant takes a plea under Section 30 (2) (e) i.e. that use by him is not infringement because of his mark being also registered. The legislature while further providing for stay of suit in such cases, in sub Section (5) expressly provided that such stay would not preclude the court from making any interlocutory order. Section 31 r/w the scheme of 124 leads to an un-escapable conclusion that (A) there can be a suit for infringement against the registered proprietor (B) that upon the defendant taking the plea of his registration and of there being thus no infringement, such suit has to be stayed awaiting the rectification proceedings and (C) the court is empowered in such case to pass any interlocutory order. The court while passing interlocutory order will necessarily have to prima facie adjudicate the validity of the two competing registrations. Upon inquiry, it was informed that the Registrar while trying the rectification application has no power to grant interim relief. The legislature under Section 124 (5) has thus empowered the court under Section 124 (5) to grant injunction against use of a registered trademark also if the court is satisfied of the invalidity thereof. Though in view of Section 31, the test would be much stricter;
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10. In my opinion, unless the provisions are so read, effect cannot be given thereto.
11. Once having reached a conclusion that registration is only prima facie evidence of validity, it is axiomatic that if the court is satisfied otherwise on the basis of material on record and in the facts of the case, the court is empowered to injunct use of registered trademark also. I do not find any reason to limit/restrict the applicability of sub Section (5) as suggested by the senior counsel for the defendant, in the absence of the legislature providing so. If the legislature had felt that there could be no infringement by a registered trademark, there was no need to provide for such a suit as in Section 124 (1) (b) and (i). In fact, sub-clause (i) of 124 (1) shows that the suit can be instituted even where the rectification proceedings are pending i.e. where the plaintiff is even at the time of institution of the suit aware of the defendant having a registered trademark.
12. I also find merit in the contention of the senior counsel for the plaintiff with reference to Section 31 (2) of the Act. Section 31 (2) suggests that the court notwithstanding registration being prima- facie evidence of validity as provided in Section 31(1) can hold the registered trademark to be invalid. The court can hold the registration to be invalid, on any ground or for non compliance of any of the conditions for registration provided under the Act. It further provides that if the invalidity of registration is averred for the reason of non compliance of Section 9 (1), i.e. of evidence of distinctiveness having not been submitted before the Registrar, then the party pleading validity of registration shall be entitled to give evidence in legal proceedings where validity is challenged, of the mark having acquired distinctiveness on date of registration. Section 32 permits evidence of acquisition of distinctive character within the meaning of Section 9(1) post registration, also being led in such proceedings. It follows that where validity of registration is challenged on grounds other than provided in Section 9(1) of the Act, the test is whether the criteria laid down in such other provisions of the Act, for registration has been satisfied or not. Since, Section 124 otherwise provides for stay of proceedings in such suit and only permits passing an interlocutory order, such finding of invalidity naturally has to be on the touchstone of principles for interlocutory order only and not as at the time of final decision of the suit, in as much as the finding in the rectification proceedings has been otherwise made binding in the suit and on all aspects of validity i.e. under Section 9 as well as under Section
11.
13. Neither counsel has cited any direct judgment on this aspect. Nor have I been able to find any.
14. I thus conclude that a suit for infringement of registered trademark is maintainable against another registered proprietor of identical or similar trademark and in such suit, while staying the further proceedings pending decision of the registrar on rectification, an interim order including of injunction restraining the use of the registered trademark by the defendant CS (Comm) No. 969/20, Naresh Kumar Nagpal Vs. Dofey Ventures Pvt. Ltd. & Ors. Page No. 36/63 can be made by the court, if the court is prima facie convinced of invalidity of registration of the defendant‟s mark.
57. Abbott Healthcare Pvt. Ltd. Vs. Raj Kumar Prasad & Ors. ILR (2014) III DELHI 1734, also it is held that a suit for infringement of a registered trademark is maintainable against another registered proprietor of identical or similar trademark and the provisions of Section 28(3) and Section 30 (2) (e) of the Trade Marks Act do not bear such a suit or prohibit an action for passing off.
58. Further in the matter of Peretti Van Melle Benelux BV Vs. Ramkrishna Food Products & Ors., CS (OS) No. 2099/2003 dated 6.3.2012 held that suit for infringement is not maintainable against a registered trade mark and held that only passing off action is made out. The relevant para of said Judg- ment is reproduced as below:
"32. The question as to whether a suit against a registered proprietor is maintainable on the basis of Common Law remedy of passing off, is no longer res integra. A Division Bench of this Court in the case of N.R. Dongre And Ors. vs Whirlpool Corporation and Anr., reported as AIR 1995 Delhi 300 answered the same in affirmative, wherein it was held as under:
"According to section 28(1) of the Act, registration of a trade mark gives to the registered proprietor thereof exclusive right to use the same in. relation to the goods in respect of which it has been registered. But from the opening words of section 28(1) namely, "subject to other provisions" it is clear that the right conferred on a trader is not an indefeasible right as the same is expressly made subject to other provisions of the Act. This is further, made clear by section 27(2) of the Act, which' provides that " nothing in this Act shall be deemed to affect the right of action against any person for passing off the goods as goods of another person or the remedies in respect CS (Comm) No. 969/20, Naresh Kumar Nagpal Vs. Dofey Ventures Pvt. Ltd. & Ors. Page No. 37/63 thereof." Thus it is manifest that Section 28 of the Act and all other provisions come within the '" 'over riding sway of section 27(2) of the Act. Similarly section 33 of the Act also saves vested rights of a prior user. It lays down that nothing in the Act shall entitle a registered proprietor of a trade mark to interfere with the use of the trade mark by a prior user of the same. Thus the right created by section 28(1) of the Act in favour of a registered proprietor of a trade mark is not an absolute right and is subservient to other provisions of the Act namely sections 27(2), 33 etc. Neither section 28 nor any other provision of the Act bars an action for passing off by. an anterior user of a trade mark against a registered user of the same.- In other words registration of a trade mark does not provide a defence to the proceedings for passing off as under section 27(2) of the Act a prior user of a trade mark can maintain an action for passing off against any subsequent user of an identical trade mark including a registered user thereof. Again this right is not affected by section 31 of the Act, under which the only presumption that follows from registration of a mark is its prima facie evidentiary value about its validity and nothing more. This presumption is not an unrepeatable one & can be displaced. Besides section 31 is not immune to the over- riding effect of section 27(2). Placing reliance on section 28(3) of the Act the learned counsel for the appellant contended that when two registered proprietors of identical or near similar trade marks cannot be deemed to have acquired exclusive right to the use of any of those trade marks against each other, how can an unregistered user of the trade mark maintain an action for passing off against a registered user of the same mark and seek an injunction restraining him from using it. This argument of the learned counsel seems to stem from a misconception about the real purpose and intent of section 28(3). Actually section 28(3) protects registered proprietor of a trade mark from an infringement action by another registered proprietor of an identical or near similar trade mark. In this regard it will also be necessary to extract Section 28(3) and section 30(1)
(d) which carries out the intent of section 28(3). These sections read as under:-
"28(3) Where two or more persons are registered proprietors of trade marks, which are identical with or nearly resemble CS (Comm) No. 969/20, Naresh Kumar Nagpal Vs. Dofey Ventures Pvt. Ltd. & Ors. Page No. 38/63 each other, the exclusive right to the use of any of those trade marks shall not (except so far as their respective rights are subject to any conditions or limitations entered on the register) be deemed to have been acquired by any one of those persons as against any other of those persons merely by registration of the trade marks but each of those persons has otherwise the same rights as against other persons (not. being registered users using by way of permitted use) as he would have if he were the sole registered proprietor. 30(l)(d) Notwithstanding anything contained in this 'Act, the following acts do not constitute an infringement or the 'right to the use of a registered trademark-
.........the use of a registered trade mark, being, one of two or more trade marks registered under this Act which are identical or nearly resemble each other, in exercise of the right to the use of that trade mark given by registration under this Act." ' (32) A reading of section 28(3) with section 30(l)
(d) shows that the proprietor of a registered trade mark cannot file an infringement action against a proprietor of an identical or a similar trade mark. While sections 28(3) and 30(l)(d) on the one hand deal with the rights of registered proprietors of identical trade marks and bar action of infringement against each other. Section 27(2) on the other hand deals with the passing off action. The rights of action under section 27(2) are not affected by section 28(3) and section 30(l)(d). Therefore, registration of a trade mark under the Act would be irrelevant in an action for passing off. Registration of a trade mark in fact does not confer any new right on the proprietor thereof than what already existed at common law without registration of the mark. The right of goodwill & reputation in a trade mark was recognised at common law even before it was subject of statutory law. Prior to codification of trade mark law there was no provision in India for registration of a trade mark.
The right in a trade mark was acquired only by use thereof. This right has not been affected by the Act and is preserved and recognised by sections 27(2) and 33."
33. From a bare reading of the observations made by the Division Bench it becomes clear that Section 27(2) of the Trade Marks Act, 1999 read with Section 29 gives the Section 27(2) an overriding effect over and above the other CS (Comm) No. 969/20, Naresh Kumar Nagpal Vs. Dofey Ventures Pvt. Ltd. & Ors. Page No. 39/63 provisions of the act due to its opening words "nothing in this act....". Therefore, the passing off remedy is a broader remedy and can defeat even the rights of a registered trademark and consequently the suit against the registered proprietor is maintainable on the ground of prior use and trans-boarder reputation. This has also been affirmed by Hon‟ble Supreme Court in the said judgment of the Whirlpool (Supra)".
59. Recently in Himalaya wellness Company and others vs WIPRO Entersprises private LTD,. CS COM no. 118/2023 has held that:
13.The present suit has been filed by the plaintiffs for infringement as well as for passing off. Section 27(2) of the Trade Marks Act provides that de hors the provisions of the Act, an action of passing off would be maintainable. A reference in this regard may be made to the judgment of S. Syed Mohideen v. P. Sulochana Bai, 2016 (2) SCC 683, wherein the Supreme Court held that an action for passing off shall remain unaffected by any registration provided under the Trade Marks Act. Therefore, even if the marks of the plaintiffs and the defendant are both registered, an action for passing off would still be maintainable.
60. From the aforesaid judgement, it is evident that suit for infringement is maintainable against a registered trademark for passing off action only.
61. Now reverting bank to the case, from document EXPW1/170 which is status report obtained from Trade Mark registry it is evident that Trade Mark "Toni" is registered in the name of plaintiff Naresh Nagpal vide registration no. 440395 but it is also evident from the said document that said trade mark was transfer in the plaintiff Naresh Nagpal on request vide TM form -34 dt. 16.08.2016. From the testimony of plaintiff/PW1 it is evident that his father Sh. Shyam Sunder Nagpal has adopted CS (Comm) No. 969/20, Naresh Kumar Nagpal Vs. Dofey Ventures Pvt. Ltd. & Ors. Page No. 40/63 trademark TONI in year 1962 and was converted into a partnership firm with him as a partner vide partnership deed dt. 01.04.1983 Mark X1. He also admitted that partnership firm S.K. Cosmetics was the owner and registered proprietor of "Toni" vide registration nos. 440395, 491569 & 7891148. Plaintiff/PW1 has deposed that mutually the partnership firm S.K. Cosmetics of his father was dissolved vide dissolution deed dated 08.04.1997 (w.e.f. 01.04.1997) Mark X15. He further deposed that it was mutually decided by him & his father Shyam Sunder Nagpal that out of three trademarks nos. 440395, 491569 & 7891148, the trademark registration under No. 440395 would be the sole and exclusive proprietary of the Plaintiff No. 1 whereas the other two registrations bearing No. 491569 & 789148 would be the exclusive proprietary of his father Sh. Shyam Sunder Nagpal. Undoubtedly trade mark "Toni" is registered in the name of plaintiff vide registration no. 440395 in the name of partnership firm Naresh Kumar Sham Sunder and was applied vide application dt.17.07.1985. Thus said registration is not in the name of plaintiff exclusively and was in the name of partnership firm in which plaintiff no.1 was on of partner. In his cross examination, he was put the dissolution deed Ex. PW1/D4 & Ex. PW1/D5. On perusal of said dissolution deed it is evident that there is no clause in the said deed by which his father Sh. Shyam Sunder Nagpal has agreed that plaintiff will be sole proprietor of trademark Toni registered vide No. 440395 before Trade Mark registry. He also did not produce any other document that his father has agreed to transfer ownership of trade mark "Toni" in plaintiff no.1 favour. He further himself in examination in chief CS (Comm) No. 969/20, Naresh Kumar Nagpal Vs. Dofey Ventures Pvt. Ltd. & Ors. Page No. 41/63 stated that there are suits pending by and amongst him & Sh. Shyam Sunder Nagpal bearing No. CS/DJ/55/2018 before Sh. Sunil Beniwal, Ld. ADJ, Tis Hazari Courts & another suit bearing No. TM/200/2017 bearing No. S.K. Cosmetics v/s Natural Toni Cosmetics before Sh. Praveen Kumar, Ld. ADJ, Patiala House Courts with respect to the use of the Trademark TONI which itself contradicted PW1 testimony that his father has agreed that plaintiff will be sole proprietor of trademark "TONI" having trademark registration no. 440395. He also admitted the suggestion that trademark no. 440395 was in the name of Shyam Sunder and Nareh Nagpal Trading as S.K. Cosmetics as reflected in document Ex. PW1/D1. On perusal of document Ex. PW1/D1 it is evident that said document is dated 17.07.85 in which it is mentioned that trademark TONI is registered in the name of Sh. Sham Sunder and Naresh Kumar Trading as S.K. Cosmetics and said certificate has been issued on 15.03.2022.
In response to the question that he ( PW1) has surrendered all his rights and interest including goodwill, tenancy right, ST registration certificate, all assets and liabilities etc. in favour of Shyam Sunder Nagpal since 31.03.1997 by putting him document Ex. PW1/D3. Though he has deposed that all rights under trademark No. 440395 was never surrendered, however, on perusal of dissolution deed Ex. PW1/D3, I found that in the said dissolution deed dated 08.04.1997 it is categorically mentioned that plaintiff has retired from the services of S.K. Cosmetics and he has surrendered all his rights interest, into the said business and the said dissolution deed nowhere it is mentioned that he has CS (Comm) No. 969/20, Naresh Kumar Nagpal Vs. Dofey Ventures Pvt. Ltd. & Ors. Page No. 42/63 retained right of trademark TONI which was registered vide registration no. 440395, hence, he has deposed falsely in this regard. He was asked to produce original of Ex. PW1/D3 and when he produced the same, it was found that said dissolution deed at page no. 2 does not contain signatures of witnesses Saranjeet Singh and Yogesh Malhotra and further Ex. PW1/D3 bears stamp of notary but Ex. PW1/D4 & Ex. PW1/D5, which are dissolution deed of the same date, do not bear stamp of notary. Though he has produced two affidavit dated 01.01.1997 to prove that he has applied for registration of copyright of artistic work of TONI but in my view same does not help the plaintiff to prove that his father assign the trademark TONI bearing No. 440395 to him. Though the plaintiff has deposed the partnership was dissolved vide dissolution deed dt. 08.04.1997 Ex. PW1/D3 but he later on stated that he is still partner in M/s S.K. Cosmetics and when he was asked to explain how after dissolution deed dated 08.04.1997 he is partner, he has deposed that new partnership deed was executed either in December, 2016 or in January, 2017 and subsequently stated that he has not filed the same in the present matter and nothing has stated about the new partnership deed. Further, he himself admitted that he is not working with his father and litigation are pending in the Court, therefore, itself create doubt that new partnership deed was executed by plaintiff and his father in the name of S.K. Cosmetics after dissolution of previous partnership deed dated 08.04.1997. Therefore, in these circumstances, I do not find his testimony CS (Comm) No. 969/20, Naresh Kumar Nagpal Vs. Dofey Ventures Pvt. Ltd. & Ors. Page No. 43/63 reliable that new partnership deed was executed between him and his father either in December, 2016 or in January, 2017 by name of S.K. Cosmetics.
62. In these circumstances it is evident that though plaintiff at present is registered owner of Trade Mark vide registration no. 440395 in class 3 but same is under challenged by previous owner of said registered trade mark i.e. Sham Sunder on the ground of fraud. Therefore at this stage in my view it would not be appropriate to give any benefit to plaintiff for said registration and in my view no case is made out for infringement on the ground of infringement of trade mark "Toni" by defendant.
63. As far as trademark NATURAL TONI is concerned, plaintiff / PW1 in his examination in chief led through affidavit Ex. PW1/A has deposed that he is owner of the trademark NATURAL TONI under registration no. 3329885 in class-3 which he marked as Mark X16 it is evident that same was applied on 05.08.2016 and was registered on 16.10.2017. There is no suggestion to PW1 that registration of said trade mark is set aside. Undoubtedly, from Ex. PW1/D10 it is evident that S.K. Cosmetics has sought permanent injunction against plaintiff for using Trademark Natural Toni but no document has been filed that till now any injunction has been granted from using said Trademark by the Court. Hence I hold that plaintiff is the registered owner of Trade Mark "Natural Toni".
CS (Comm) No. 969/20, Naresh Kumar Nagpal Vs. Dofey Ventures Pvt. Ltd. & Ors. Page No. 44/63
64. Since a trademark is deemed to be registered from the date of application hence it is proved that same was registered on 05.08.2016 whereas, as per own testimony of plaintiff and document proved by him i.e. EXPW1/170 to EXPW1/180 the defendant has applied for registration of trade mark UNCLE TONY on 09.05.2016 vide applications no. 3254175,3254174 3254183, 3254185 and 3254187 in class 3 as device mark which means defendant has applied for registration of trade mark Uncle Toni Prior to plaintiff applying for registration of trade Mark Natural Toni but same is not registered yet in class 3 though it is registered in class 8 but since it is not the case of plaintiff that applications file by the defendant for registration of Trade Mark Uncle Tony has been rejected, therefore in my view till said applications is rejected even in case of class 3 goods no case for infringement of trade mark against the defendant is made out.
65. As far as passing off is concerned, in Kaviraj Pandit Durga Dutt Sharma v. Navaratna Pharmaceutical Laboratories, (1965) 1 SCR 737, the Supreme Court set out the distinction between action for passing off and an action for infringement of a trademark and expounded the principles that:
(a) where two marks are identical no further question arises and the infringement is made out;
(b) when two marks are not identical, Plaintiff would have to establish that the mark of the Defendant so nearly resembles the Plaintiff's registered trademark that it is likely to deceive or cause confusion in relation to goods for which it is registered;
CS (Comm) No. 969/20, Naresh Kumar Nagpal Vs. Dofey Ventures Pvt. Ltd. & Ors. Page No. 45/63
(c) Court must assess the degree of resemblance so as to discern the deceptive similarity of the impugned mark with the proprietor's registered mark and then come to a conclusion whether or not there is likelihood of confusion/association;
(d) resemblance may be phonetic, visual or in the basic idea represented by the Plaintiff's mark; and
(e) identification of essential features of the mark is in essence a question of fact and depends on the judgment of the Court, based on evidence before it as regards its usage in the trade.
66. Hon,ble Supreme Court in Cadila Health Care Ltd v. Cadila Pharmaceuticals Ltd., 2001 (5) SCC 73, Hon'ble Supreme Court laid down the test for passing off:-
35. Broadly stated, in an action for passing-off on the basis of unregistered trade mark generally for deciding the question of deceptive similarity the following factors are to be considered: (a) The nature of the marks i.e. whether the marks are word marks or label marks or composite marks i.e. both words and label works.
(b) The degree of resembleness between the marks, phonetically similar and hence similar in idea.
(c) The nature of the goods in respect of which they are used as trade marks.
(d) The similarity in the nature, character and performance of the goods of the rival traders.
(e) The class of purchasers who are likely to buy the goods bearing the marks they require, on their education and intelligence and a degree of care they are likely to exercise in purchasing and/or using the goods.
(f) The mode of purchasing the goods or placing orders for the goods.
(g) Any other surrounding circumstances which may be relevant in the extent of dissimilarity between the competing marks."
67. The principles relating to passing off have also been crystalised by the Supreme Court in Satyam Infoway v. Siffynet Solution Pvt. Ltd., (2004) 6 SCC 145 in the following manner:
CS (Comm) No. 969/20, Naresh Kumar Nagpal Vs. Dofey Ventures Pvt. Ltd. & Ors. Page No. 46/63 "13. The next question is, would the principles of trade mark law and in particular those relating to passing off apply? An action for passing off, as the phrase "passing off" itself suggests, is to restrain the defendant from passing off its goods or services to the public as that of the plaintiff's. It is an action not only to preserve the reputation of the plaintiff but also to safeguard the public. The defendant must have sold its goods or offered its services in a manner which has deceived or would be likely to deceive the public into thinking that the defendant's goods or services are the plaintiff's. The action is normally available to the owner of a distinctive trade mark and the person who, if the word or name is an invented one, invents and uses it. If two trade rivals claim to have individually invented the same mark, then the trader who is able to establish prior user will succeed. The question is, as has been aptly put, who gets these first? It is not essential for the plaintiff to prove long user to establish reputation in a passing- off action. It would depend upon the volume of sales and extent of advertisement
14. The second element that must be established by a plaintiff in a passing-off action is misrepresentation by the defendant to the public.
The word misrepresentation does not mean that the plaintiff has to prove any mala fide intention on the part of the defendant. Of course, if the misrepresentation is intentional, it might lead to an inference that the reputation of the plaintiff is such that it is worth the defendant's while to cash in on it. An innocent misrepresentation would be relevant only on the question of the ultimate relief which would be granted to the plaintiff [Cadbury Schweppes v. Pub Squash, 1981 RPC 429 : (1981) 1 All ER 213 : (1981) 1 WLR 193 (PC); Erven Warnink v. Townend, 1980 RPC 31 : (1979) 2 All ER 927 : 1979 AC 731 (HL)] . What has to be established is the likelihood of confusion in the minds of the public (the word "public" being understood to mean actual or potential customers or users) that the goods or services offered by the defendant are the goods or the services of the plaintiff. In assessing the likelihood of such confusion the courts must allow for the "imperfect recollection of a person of ordinary memory" [Aristoc v. Rysta, 1945 AC 68 : (1945) 1 All ER 34 (HL)] .
15. The third element of a passing-off action is loss or the likelihood of it." (Emphasis Supplied). In V-Guard (supra), relied upon by the defendant, while holding that infringement under Section 29(2) is not made out as the competing goods are not similar, the Court, nevertheless, held that the defendants therein were passing off their goods as those of the plaintiff. The relevant extracts from the judgment are set out below:
" 56. In the context of passing off, once again a crucial question arises as to why and with what intent the Defendant adopted the word PEBBLE as a part of its mark and the answer in my prima facie view could only be to confuse an unwary purchaser and create an impression that the purchaser is buying the goods of the Plaintiff. Learned counsel for the Plaintiff rightly contended that in the absence of any plausible CS (Comm) No. 969/20, Naresh Kumar Nagpal Vs. Dofey Ventures Pvt. Ltd. & Ors. Page No. 47/63 reason for the Defendant to adopt the word PEBBLE, the only inference that can be drawn is that the intent was to pass off its goods as those of the Plaintiff. Defendant, as claimed in the reply, has an enviable and formidable reputation and does not need to ride over the goodwill of the Plaintiff. If that be so, it intrigues the Court as to why the Defendant adopted the word PEBBLE in addition to its house mark CROMPTON. In this context, I may refer to a few lines from the passage in the case of Thomas Bear and Sons (India) Ltd. v. Prayag Narain, (1941) 58 RPC 25, wherein Lord Langdale observed:
"A man is not to sell his own goods under the pretence that they are the goods of another man; he cannot be permitted to practise such a deception nor to use the means which contribute to that end. He cannot, therefore, be allowed to use names, marks, letters or other indicia, by which he may induce purchasers to believe that the goods which he is selling are the manufacture of another person.""
A reference in this regard may also be made to the judgment of the Gujarat High Court in Good Life Industries v. J R J Foods Pvt Ltd., MANU/GJ/3045/2022. In the aforesaid case, an injunction was denied on the basis that the defendant was the registered proprietor of the mark. However, injunction was granted on the basis of passing off. The relevant extracts with regard to the passing off in Good Life Industries(supra) are set out below "17. The plaintiff has filed Suit for infringement as well as for passing off action. Even if the defence of the defendant that it being registered owner of the disputed trademark, and therefore, no infringement action would lie against it, is accepted, for the sake of argument, then in that case also, the similarity between the two marks, which is likely to cause confusion in the public at large, can be considered for protecting the right of the plaintiff, under the head of passing off action. Passing of action has its origin, as an action in tort to restrain the wrongful conduct of the defendant in passing off his goods as the goods of the plaintiff. This might be done by using the trade name, trademark or other get-up of the plaintiff so as to induce any potential purchaser the belief that his goods or business were those of the plaintiff's. The tort list in the mis-representation by the defendant. Mis-representation is aimed at the potential buyers of the goods or the services, who are invited to buy goods believing that the goods are of the plaintiff. This might be done through confusion or deceitful use of the trade name or mark with or other indication used by the plaintiff in respect of such goods or service. The passing off action is to create an actionable wrong based on the border principles of law that nobody has any right to represent his goods or business as the goods or business of somebody else. The principle is that "trading must not only be honest but must not even unintentionally be dis-honest". The purpose of passing off action is to protect commercial goodwill and to ensure that the purchaser are not exploited and dis-honest trading is prevented. For that, the CS (Comm) No. 969/20, Naresh Kumar Nagpal Vs. Dofey Ventures Pvt. Ltd. & Ors. Page No. 48/63 plaintiff must establish that his business or goods have acquired the reputation. Whether the defendants goods are marked with the trademark of the plaintiff or made-up or described as calculated to mislead the ordinary purchaser, it is thus tendency to mislead or confuse which forms the gist of passing off action. There is no need to establish fraud or actual deception or actual damages in such cases. In passing off action it is necessary to prove that an ordinary person is likely to buy goods in a belief that the goods are that of plaintiff, though it is not necessary to show that actual sale took place.
18. It is well settled that while considering the likelihood of confusion in the mind of a purchaser, the wisdom of an ordinary person is to be taken into consideration. If an ordinary person exercising ordinary caution is likely to be confusion or is likely to be deceived into buying the product of the defendant, believing the same to be originating from the plaintiff, the injunction must follow. Intention to pass of is neither necessary nor is required to be shown. There is no necessity to prove actual damage to the plaintiff. Of course, the plaintiff has to establish that he has build-up good reputation and goodwill on the trademark. The plaintiff has also to establish deception similar so as to cause confusion in the minds of consumer and also likely suffering of substantial damages either to his business financially or to the reputation and goodwill of his trademark."
19.In Mother Sparsh Baby Care v. Aayush Gupta and Others, 2022 SCC OnLine Del 1061, relied upon by the plaintiffs, both the plaintiff and the defendant therein were registered proprietors of the mark 'Plant Powered', though the plaintiff was the prior adopter and user. While granting an interim injunction in favour of the plaintiff, the Court observed that both the plaintiff and the defendant were selling the same kind of products and since the plaintiff was the prior adopter and user of the said mark, the defendant's user of the said mark was not bona fide."
68. In the matter of Peretti Van Melle Benelux BV Vs. Ramkrishna Food Products & Ors., CS (OS) No. 2099/2003 dated 6.3.2012 " (14) Thus, the law is pretty well-settled that in order to succeed at this stage the appellant had to establish user of the aforesaid mark prior in point of time than the impugned user by the respondents. The registration of the said mark or similar mark prior in point of time to user by the appellant is irrelevant in an action passing off and the mere presence of the mark in the register maintained by the trade mark registry did not prove its user by the CS (Comm) No. 969/20, Naresh Kumar Nagpal Vs. Dofey Ventures Pvt. Ltd. & Ors. Page No. 49/63 persons in whose names the mark was registered and was irrelevant for the purposes of deciding the application for interim injunction unless evidence had been led or was available of user of the registered trade marks".
69. While applying the ration of aforesaid judgements, first of all it is to be tested whether trade mark Toni , Natural Toni the trade mark of defendant and Uncle Tony trade mark defendant if seen as a whole appear to be deceptively similar or not.
70. The defendant has given the differences of trade mark Toni and Uncle Toni in plaint as under:
Defendant no.1's mark Defendant no.1's mark Plaintiffs' mark The device markThe device markThe device mark contains two words andcontains two words andcontains one four syllables i.e.four syllables i.e.word of two UNCLE TONY. UNCLE TONY. syllables i.e. TONI.
The words are writtenThe words are written inThe word is
in capitalized letters. lower case with thewritten in lower
exception of the letter Ucase with the
and the letter T exception of the
letter T which is
capitalized. The
font weight
across the word
is the same.
The typeface is placedThere is no graphic The typeface is
above the graphic. highly stylized
CS (Comm) No. 969/20,
Naresh Kumar Nagpal Vs. Dofey Ventures Pvt. Ltd. & Ors. Page No. 50/63
and is placed
within the
graphic.
The graphic usedThere is no graphic The graphic used
contains two circles, consists of a
half an arrow, a circular diamond shaped
polygon and the design polygon that is
of an eye. The circle filled in. The
that is filled in is polygon is
placed in the same contained within
lateral space as the eye two boundaries.
graphic, with the The inner
design of half an arrow boundary is
in between them. The without color and
other circle is placed the outer
below the eye and the boundary is the
filled in circular same color as the
polygon cuts it in the polygon.
middle. The overall
graphic gives the
impression of a man
with a big moustache.
71. Further defendant product range is shown in catalogue of EX DW1/P1. Scan copy of same is as under:
CS (Comm) No. 969/20, Naresh Kumar Nagpal Vs. Dofey Ventures Pvt. Ltd. & Ors. Page No. 51/63
72. On perusal of defendant's product having trademark Uncle Tony, I found that same besides pronouncement of word Toni there is no similarity. Plaintiff product is spelt as Toni or Natural Toni and defendant product as UNCLE TONY. In the defendant trade mark is having image/ figure consist of knife blue color, yellow color circle in one side of knife and one apple type red color circle in front of knife, black and white figure like eye and black figure like moustache which create impression of the human like figure, whereas plaintiff trade Mark " Toni" is a word written in hexagen, so far as trade mark registration no.
440395 is concern whereas in registration no. 491569 there is picture of girl and lemon besides Toni, and even in products "Natural Toni" there are different picture for its different product but same has no resemblance from defendant using for its CS (Comm) No. 969/20, Naresh Kumar Nagpal Vs. Dofey Ventures Pvt. Ltd. & Ors. Page No. 52/63 product, therefore, in my view, trademark Toni and Uncle Toni does not appear to be similar or deceptively similar that public could get confused while purchasing the goods with mark Uncle Toni that they are purchasing the goods of plaintiff. In this regard I rely upon Kewal Krishan Kumar and Anr. Vs. Rudi Roller Flour Millls 2015 II AD (Delhi) 660 in that case dispute was with respect to Trademark Shakti Bhog and Shiv Shakti and Hon'ble High Court hold that these two are not deceptively similar on the basis of judgment passed by Hon'ble Division Bench of High Court in Kewal Krishan Kumar and Anr. Vs. Rudi Roller Flour Millls, 2007 35 PTC 848 (Delhi), wherein Hon'ble Division Bench hold that word Shakti is common in both trademark Shakti Bhog and Shiv Shakit which means power and further observed that what is registered in favour of appellant is Shakti Bhog and what is registered in favour of respondent is Shiv Shakti with the device of Trishul and Damru and further Hon'ble High Court hold that Shakit with device of Trishul and Damru is descriptive of Lord Shiva, the Hindu God and said word has no connection or relevance with the word Shakti Bhog Atta which is the trademark of appellant and thus, held that both marks are completely distinctive and therefore there is no likelihood that anyone would confuse with the word Shiv with Bhog and further hold that Shiv Shakit is miles away from the word Shakti Bhog
73. Further more from the invoices filed by plaintiff and catalogue file by defendant, it is evident that same is in the higher range. Hence I am agree with the contention of Ld. Counsel for defendant that customer base of plaintiff and CS (Comm) No. 969/20, Naresh Kumar Nagpal Vs. Dofey Ventures Pvt. Ltd. & Ors. Page No. 53/63 defendant would be different and it looks quite improbable that defendant customer who were purchasing the goods would get confused due to Trade Mark Tony is being used in UNCLE TONY that they are purchasing the goods of plaintiff having Trade Mark Tony or Natural Tony. One another important criteria for passing off is party who is seeking injunction must be prior user. From the testimony of plaintiff / PW1 it is evident that he himself stated that he independently started using the trademark Toni after dissolution of partnership firm S.K. Cosmetics vide dissolution dt. 08.04.1997. He further deposed that he used the trademark Toni under a separate sole proprietorship firm namely Toni Sales Corporation and further used Natural Toni trademark since December, 2016. He in evidence affidavit has relied upon the documents Ex. PW1/1 to Ex. PW/147 which are invoices Ex. PW1/1 to Ex. PW1/58 were objected by defendant's counsel on the genuineness and Ex. PW1/59 to Ex. PW1/147 were de- exhibited and were marked collectively though unfortunately no mark is mentioned on the said invoices.
74. On perusal of Invoice EXPW1/1 to EXPW1/58 it is evident that same is carbon copy of the bills. Out of the said bill Bills EXPW1/1 to EXPW1/ 38 does not bear name of the seller or its address. From perusal of original bill book of original bill no.1160 dt. 20.04.1992 and carbon copy of bill which is in said bill book in which there is bill no. 1170 EXPW1/1 which for the purpose of identification I exhibit as CW1/X and CW1/X1, it is evident that said bill is printed bill of Toni Sales Corporation. As per para no.9 of plaint Toni Sales Corporation was established in and around year 1994 whereas said bill is of year CS (Comm) No. 969/20, Naresh Kumar Nagpal Vs. Dofey Ventures Pvt. Ltd. & Ors. Page No. 54/63 1992. Undoubtedly Plaintiff has not examined any of the party to whom goods mentioned in the said bills EXPW1/ 1 to EXPW1/58 were sold but in my view it would be difficult for plaintiff to produce the party to whom goods were sold. Plaintiff has not given any sale figure of the goods sold by him with Trade Mark Toni in the plaint. Though in its evidence PW1 has given sale figure for year 2015 to 2018 but same is of Natural Toni cosmetics and not of Toni Sale Corporation. Hence in my view from said bills even if taken as gospel truth only proved that plaintiff was selling the goods with the trade mark Toni but do not prove that plaintiff sale was such that it can be presume that plaintiff has require such goodwill and reputation in market for its goods using trade mark Toni that public purchase the said goods just because of goodwill /reputation of said trade mark. Further since plaintiffs have not filed any invoice after 2016 it proves that plaintiffs have themselves stop using the trade mark "Toni and probably shifted to Trade Mark "Natural Toni" adopted in either late 1016 or 2017, probably for the reason that plaintiff father firm SK Cosmetics has opposed plaintiff using the Trade mark " Toni".
75. Now coming back to the case, whether plaintiff is prior user of the trademark Natural Toni is concerned, though he deposed that he adopted the trademark NATURAL TONI in the year 2016 but when he was put copy of partnership deed Ex. PW1/148 pertaining to M/s Natural Toni Cosmetics, the said partnership deed is containing clause that parties want to start a business in the name and style of M/s Natural Toni Cosmetics w.e.f. 13.01.2017. Hence, said registered partnership deed proved CS (Comm) No. 969/20, Naresh Kumar Nagpal Vs. Dofey Ventures Pvt. Ltd. & Ors. Page No. 55/63 that plaintiff has started business with the name and style of M/s Natural Toni Cosmetics w.e.f. 13.01.2017 and not in year 2016. Though he has also produced another unregistered partnership deed which is dated 12.10.2016 with the title Natural Toni Cosmetics Ex. PW1/D8. On perusal of said partnership deed I found that it is containing clause that the parties want to start a business in the name and style of M/s Natural Toni Cosmetics w.e.f. 12.10.2016. though since said partnership deed is not registered and is not admissible in evidence, therefore, relying upon partnership deed Ex. PW1/148, I held that plaintiff has started business with the name and style of M/s Natural Toni Cosmetics w.e.f. 13.01.2017 and not in year 2016 and the plaintiff's trademark Natural Toni was registered on 16.10.2017 with respect to the application dated 05.08.2016 , Hence, even if said partnership deed is taken as gospel truth same only prove that plaintiff want to start the business with the name and style of M/s Natural Toni Cosmetics w.e.f. 12.10.2016 Further from the application filed by the plaintiff before the Trademark Registry it is evident that plaintiff himself while applying for registration of trademark Natural Toni on before the Trademark Registry mentioned in user details "proposed to be used". Hence, this clearly proves that plaintiff has not started the trademark Natural Toni till the date, he has filed application before the Trademark Registry for Natural Toni which he has filed on 05.08.2016. Whereas from the defendant document it is evident that defendant has applied for regsieeration of Trade Mark Uncle Tony as device mark on 09.05.2016 in class3 and class 8 and while registration in granted in class 8 it is still pending in class3.
CS (Comm) No. 969/20, Naresh Kumar Nagpal Vs. Dofey Ventures Pvt. Ltd. & Ors. Page No. 56/63 Hence it is proved that plaintiff is not prior user of the trademark Natural Toni then the defendant using the trade mark Uncle Tony.
76. Even otherwise plaintiff has not produced any document that he as using the trademark Natural Toni since long that his mark is acquired so much reputation that when the customers would purchase goods of trademark Uncle Toni that the would confuse that they are purchase the goods of the plaintiff.
77. As far as annual sale of Natural Toni and expenses on advertisement plaintiffs in the plaint to assess how much plaintiff mark has goodwill and reputation the plaintiffs have not given annual sale figure and expenses of advertisement either in plaint. PW1 only in his examination in chief led through affidavit EXPW1/A has given sale figure for brand Natural Toni year 2015-2016 as Rs. 3813199/-, for year 2016-2017 as Rs. 4105586/- and for year 2017-2018 as 4505563/- and PW2 in his evidence affidavit as give sale figures of Natural Toni Cosmetics as Rs. 372440/- in year 2016-2017, 4244677/- in year 2017-2018, and 5514717/- in year 2018-19 and Rs. 5090910/- in year 2019- 20, and Rs. 8059875/- in year 2020-21 but plaintiffs did not prove any balance sheet or income tax return to corroborate the said sale figure and only relied upon invoices to prove the sale. Further even the invoices relied upon by plaintiff proved that sale said invoices EXPW2/10 to EXPW2/17, EXPW2/20, EXPW2/23 to EXPW2/25 are invoices issued by Natural Toni Cosmetics to Toni Sales Corporation issued which create suspicious as both the firm are belonging to the plaintiffs. Further as far as advertisement expenses is concerned the PW2 gave advertisement expenses as Rs. Nil in year 2016-2017, Rs. 2500 CS (Comm) No. 969/20, Naresh Kumar Nagpal Vs. Dofey Ventures Pvt. Ltd. & Ors. Page No. 57/63 in year 2016-17, Rs. 112791 in year 2018-2019, Rs. 88654/ in year 2019-20, Rs. 104164/- in year 2020-21 but did not produce any bill of said expenditure. Plaintiff has only produce one photocopy of newspaper " Prakhar Times " dt. 28.11.2017 to 11.12.2017 EXPWW1/167 with respect to advertisement of Natural Toni and the receipt dt. 14.12.2017 of Rs. 2500/- paid probably for said advertisement. Said newspaper appear to be a unheard local newspaper. Hence I do not found either the sale figure or advertisement expenses as deposes by PW1 & PW2 reliable. Hence in my view plaintiff has failed to prove that plaintiff products using trade mark Toni or Natural Toni has a very good reputation or goodwill that defendant adopted the trade mark Uncle Toni to encash said goodwill.
78. I am also agree with the contention of Ld. Counsel for defendant that from the colour scheme used by the plaintiff for its various items like one used for Natural Toni White Lovely EXPW1 for skin cream and the colour scheme of Fair & Lovely, which is a very famous brand to be quite similar, and even he kept another product trade name as Toni and Lovely for its product Saffron & milk Cream again deceptively similar to Fair and Lovely, and similarly plaintiff has used the trade Mark BORO PLUCK for skin care cream which is deceptively similar to famous trade mark "BOROPLUS" and even colour scheme of packaging is also almost similar Hence, the plaintiff himself appear to infringing the trade mark of well establish company which shows that plaintiff brand is not well established and plaintiff required to imitate deceptively similar trade mark and colour combination scheme to of other well established brand to CS (Comm) No. 969/20, Naresh Kumar Nagpal Vs. Dofey Ventures Pvt. Ltd. & Ors. Page No. 58/63 sell its product, hence he cannot claim that defendants are infringing its trademark. Moreover, Toni is popular name and thousand of individuals might have their name or nick name as Toni . The plaintiff cannot be allowed to exclusively use the said name / word unless its trademark "Toni" become so popular that it has acquired second meaning and people associated plaintiff with the said name like Dabur, TATA or Haldiram etc and will get confused. Plaintiff has not given its sale figures to prove that the plaintiff's trademark "Toni" is so popular that people purchase the goods by said trademark. Plaintiff has not filed its sale figure or expenses spent on advertisement to prove that plaintiff's trademark so popular that people purchase the goods by said trademark and therefore defendant has motive to encash the reputation earned by through plaintiff trade Toni. As stated above, the plaintiff himself keeping Trade name, color combination / schemes on packaging for its products with the well established trademark in the said line to sell its products which create doubt that plaintiff's trademark is not so popular that people could purchase the goods.
79. As far as judgement relied upon by Ld. Counsel for plaintiff i.e. Kavi Raj Pandit Durga Dutt Sharma vs Navratna Pharmaceutical ( Supra) in that case plaintiff/ respondent was using trade mark :Navratna" for medicinal products since 1928 and was registered in 1944, the respondent registered the trade mark "Navratna" in 1947, whereas appellant/ defendant kept his trade mark "Navratna Kalpa: the Hon,ble Supreme Court has held that mark used by appellant/ defendant is colourable imitation of respondent/ plaintiff trade mark Navratna as CS (Comm) No. 969/20, Naresh Kumar Nagpal Vs. Dofey Ventures Pvt. Ltd. & Ors. Page No. 59/63 Navratna constitute essential part. In that case Navratna was main constituent whee as in present case besides TONY defendant has used the Word Uncle and the spelling of the word TONI is also different and there is graphic of human like in defendant mark which make it quite dissimilar, as stated above customer class is also quite different as defendant product range is much higher. Therefore said judgement is not applicable to the facts of present case. As far as judgement Amtitdhara Pharmacy vs Satyadeo Gupta MANU/SC/0256/1962 where the dispute was with respect to infringing trade Mark Amritdhara and Trade mark Lakhmandhara both used for medicinal products and Court found that main constituent is dhara and the Hon,ble Supreme Court has held that both product will be purchased by persons who instead of going to Doctor will purchase the medicine from market for quick alleviation of their suffering and after considering the overall structure and phonetic similarity of the two names in their opinion likely to device, whereas in my view in present case since defendant product is higher range and are probably for very rich people it look quite unlikely that they would be deceived because defendant has used the word " TONY" in their its trade mark Uncle Tony, when there are so many other dissimilarities as mention above. Almost on similar ground I do not found other judgements relied by plaintiff applicable to the facts of present case.
80. In these circumstances, in my view, though at this stage it cannot be said that plaintiff has claimed ownership of trademark Toni and Natural Toni fraudulently as case between him and his father owner of S.K. Cosmetics is still pending in the Courts, CS (Comm) No. 969/20, Naresh Kumar Nagpal Vs. Dofey Ventures Pvt. Ltd. & Ors. Page No. 60/63 however, in view of aforesaid facts and circumstances, I held that plaintiff is not entitled for decree of permanent injunction restraining the defendant from using the trademark Uncle Toni. Hence, I decide issue no. 6 in favour of plaintiff but decide issues no. 1 & 2 against the plaintiff and in favour of defendants.
Issues NO. 3 & 4 : Whether the plaintiffs are entitled to decree of damages and cost in the present proceedings against the defendants, if yes for what amount ? OPP And Whether the plaintiffs are entitled to decree of rendition of accounts ? OPP
81. In view of my findings in issues no. 1 & 2, I held that plaintiff has failed to prove that defendant's trademark is deceptively / identically similar to the plaintiff, therefore, no question of damages is arisen and similarly, no question for directing the defendants for rendition of accounts arises. Issues no. 3 & 4 are decided accordingly.
Issue No. 5 : Whether plaintiffs are guilty of concealment of material facts and have come to the Court with unclean hands, if so, what is the effect ? OPD1"
82. As far as issue no. 5 is concerned, the onus is upon the defendant to prove that plaintiff is guilty of concealment of material facts and has come to the Court with unclean hands. The defendant in his testimony led through affidavit Ex. DW1/A has deposed that plaintiff has deliberately concealed that father of CS (Comm) No. 969/20, Naresh Kumar Nagpal Vs. Dofey Ventures Pvt. Ltd. & Ors. Page No. 61/63 plaintiff no. 1 had made a representation to the Registrar of Trademarks on 13.02.2018 with respect to trademark no. 440395 where serious allegations of fraud and forgery have been made by him against the plaintiff no. 1. He further deposed that plaintiff has further concealed that to their knowledge, the Trademark "Toni" is being used by S.K. Cosmetics plaintiff no.2 father as its brand, thus, clearly reflects that plaintiff has no right in that trademark.
83. Merely because the plaintiff has not disclosed about the representation made by his father before Registrar of Trademark raising the allegations fraud and forgery against him, in my view, it cannot be called a concealment as dispute is between the plaintiff and the defendants and it is not necessary for the plaintiff to disclose each and every action taken by plaintiff's father against him with respect to trademark Toni. Even on perusal of cross examination of PW1 I do not find even a single suggestion that plaintiff has concealed any material facts or documents or that he has not approached the Court with clean hands. Even otherwise, from the plaint of plaintiff, it is evident that plaintiff has categorically stated that plaintiff is claiming ownership of trademark Toni registered vide no. 440395 and there is litigation going on between him and his father with respect to the trademark Toni who has disputed his ownership of the trademark Toni registered no. 440395, therefore, in these circumstances, in my view, plaintiff has disclosed all the facts which according to the plaintiff are necessary for just decision of this case and it cannot be said that plaintiff has concealed the material facts or he has come to the Court with unclean hands.
CS (Comm) No. 969/20, Naresh Kumar Nagpal Vs. Dofey Ventures Pvt. Ltd. & Ors. Page No. 62/63 Hence, I decide issue no. 5 against the defendant and in favour of the plaintiff.
RELIEF
84. In view of my finding in aforesaid issues no. 1, 2, 3 & 4, I held that plaintiff is not entitled to any relief. Thus, the suit of plaintiff is dismissed with costs. Decree sheet be prepared accordingly.
File be consigned to record room.
Digitally signed SANJEEV by SANJEEV KUMAR Pronounced in open Court KUMAR AGGARWAL AGGARWAL Date: 2024.04.22 on 22.04.2024 16:09:06 +0530 (Sanjeev Kumar Aggarwal) District Judge (Commercial Court)-01, Central, Tis Hazari Courts, Delhi. CS (Comm) No. 969/20, Naresh Kumar Nagpal Vs. Dofey Ventures Pvt. Ltd. & Ors. Page No. 63/63