Delhi High Court - Orders
Smc Foods Limited vs M/S Chaudhary Paneer Bhandar & Ors on 4 September, 2023
Author: C.Hari Shankar
Bench: C.Hari Shankar
$~40
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(COMM) 617/2023, I.A. 16959/2023, I.A. 16960/2023 &
I.A. 16961/2023
SMC FOODS LIMITED .... Plaintiff
Through: Mr. Pravin Anand, Mr. Manish
Bala, Mr. Devesh Ratan & Mr. Ashutosh
Upadhyaya, Advs.
versus
M/S CHAUDHARY PANEER BHANDAR & ORS.
..... Defendants
Through: None
CORAM:
HON'BLE MR. JUSTICE C.HARI SHANKAR
ORDER
% 04.09.2023
CS(COMM) 617/2023
1. The plaintiff is the registered proprietor of the following trademarks:
Trade Marks Application Application Date Class Registered No. & valid till MADHUSUDAN 572418 01.05.1992 29 01.05.2032 593090 19.03.1933 29 19.03.2033 MADHUSUDAN 1035642 09.08.2001 29 09.08.2031 MADHUSUDAN 1035643 09.08.2001 30 09.08.2031 2086414 18.01.2011 29 18.01.2021 (renewal pending)
2. The plaintiff claims to have been incorporated on 12 November 1991 and to be a leading manufacturer of dairy products under the CS(COMM) 617/2023 Page 1 of 7 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 16/09/2023 at 16:10:44 brand MADHUSUDAN since 1991. As per the assertions in the plaint, the plaintiff established its first milk processing plant in 1991 and a second plant in 1998. The plants are stated to collect milk from over 2 lakh milk producers in 5,500 villages through established societies. The milk is then brought through 400 routes and chilled at 30 chilling centres before processing. It is also asserted that the milk undergoes strict quality test through latest computerised milk collection unit systems established at each society. The plaintiff's milk processing plants are ISO 22000:2005 certified. The plaintiff has also obtained FSSAI license from the Government.
3. Under the brand MADHUSUDAN, the plaintiff sells over 20 dairy products such as milk, curd (dahi), paneer, lassi, butter milk, milk powder, ghee, dairy creamer etc. It is stated that the plaintiff's products are sold through over 5,000 outlets in 16 states.
4. The plaint also asserts that the plaintiff is earning considerable revenues through sales of its products and is also incurring considerable sums towards advertisement and promotion of its products.
5. In respect of curd/yogurt sold by it, the plaintiff adopted the following trade dress in 2017.
CS(COMM) 617/2023 Page 2 of 7This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 16/09/2023 at 16:10:44
6. It is asserted that the above trade dress is being used by the plaintiff ever since that date continuously.
7. The plaintiff is aggrieved by the fact that the defendants are marketing yogurt/curd using a trade dress which is almost identical to that of the plaintiff and a trade name which is phonetically similar to the plaintiff and depicted on the pack in such a manner that, at first glance, the two packs are virtually undistinguishable. The brand name used by the defendants is MADHUSANIA. A comparison of the plaintiff's and defendant's packs is thus provided in the plaint in a tabular fashion:
Plaintiff's Original Product Defendant's Impugned Product The overall white - magenta/maroon getup has been copied by the defendants.
Defendants has mentioned their deceptively similar mark MADHUSANIA in the same style as plaintiff's MADHUSUDAN i.e. in white color on a curved magenta/maroon ribbon.
Defendants have used deceptively similar label on the packaging, wherein some human forms are visible over the word "DAHI". Furthermore, the Defendants have used the identical font for the word DAHI.CS(COMM) 617/2023 Page 3 of 7
This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 16/09/2023 at 16:10:44
8. It is in these circumstances that the plaintiff has approached this Court by means of the present suit, seeking a decree of permanent injunction restraining the defendants, as well as all others acting on their behalf from using the mark MADHUSANIA, or any other mark which is deceptively similar to the registered trademarks of the plaintiff or from adopting a trade dress which is confusingly similar to that used by the plaintiff.
9. The plaint has made out a case worthy of consideration.
10. As such, let the plaint be registered as a suit.
11. Issue summons in the suit.
12. Written statement, accompanied by an affidavit of admission/denial of the documents filed by the plaintiff be filed within 30 days with an advance copy to learned Counsel for the plaintiff who may file replication thereto, accompanied by an affidavit of admission/denial of the documents filed by the defendants within 30 days thereof.
13. List before the learned Joint Registrar (Judicial) for completion of pleadings, admission and denial of the documents and marking of exhibits on 6 November 2023.
I.A. 16959/2023 [under Order XXXIX Rules 1 and 2, CPC]
14. By this application, the plaintiff seeks interlocutory injunctive reliefs.
CS(COMM) 617/2023 Page 4 of 7This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 16/09/2023 at 16:10:44
15. The assertions in the plaint indicate that the defendants have been using the impugned mark, though the longevity of user is unknown. Normally, where the defendants are using the mark, in deference to para 8 of the recent order passed by a Division Bench of this Court in Dabur India Ltd. v. Emami Ltd.1, this Court grants an opportunity to the defendants to file a response before proceeding to pass injunction orders.
16. However, in the present case, this Court is seized with a case of infringement/passing off in respect of yogurt/curd, which is an edible item, of almost daily usage in households in all strata of the society. In such cases, the Court has to adopt a slightly different approach. The manner in which the defendants are marketing its product, the packaging used by it, and the mark adopted by the defendants indicate, prima facie, that there is a conscious attempt to copy the plaintiff. As Mr. Pravin Anand correctly submits, the case almost borders on counterfeiting. Inasmuch as the product in question is a consumable item, and any compromise on the quality of the product could have serious deleterious effect on public health, I am of the opinion, in the present case, ex parte interlocutory orders may be passed, albeit for a short period of time.
17. In view thereof, issue notice in this application. Notice be served on the respondents by all modes including email.
18. Reply, if any, be filed within three weeks with an advance copy to learned Counsel for the plaintiff who may file a rejoinder thereto within one week thereof.
1Order dated 21 August 2023 in FAO(OS) (COMM) 171/2023 CS(COMM) 617/2023 Page 5 of 7 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 16/09/2023 at 16:10:44
19. List for hearing and disposal of this application on 10 October 2023.
20. No extension of time for filing reply or rejoinder shall be granted.
21. Till the next date of hearing, the defendants shall stand restrained from using the impugned MADHUSANIA mark, the label or a trade dress which is confusingly or deceptively similar to the trade dress used by the plaintiff, in respect of the yogurt/curd/dahi packed and sold by it or any other product which is allied or cognate thereto.
22. Compliance with Order XXXIX Rule 3 of the CPC be effected within a week from today.
I.A. 16960/2023 [under Order XI Rule 1(4) of the CPC]
23. By this application, the plaintiff seeks permission to file additional documents.
24. The plaintiff is permitted to place additional documents on record in accordance with Order XI Rule 1(4) of the Code of Civil Procedure, 1908 (CPC) as amended by the Commercial Courts Act within 30 days from today.
25. The application stands disposed of accordingly.
I.A. 16961/2023 [under Section 151 of the CPC]
26. Subject to the plaintiff filing legible copies of any dim or CS(COMM) 617/2023 Page 6 of 7 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 16/09/2023 at 16:10:44 illegible documents on which it may seek to place reliance within four weeks from today, exemption is granted for the present.
27. The application is disposed of.
C.HARI SHANKAR, J SEPTEMBER 4, 2023 ar CS(COMM) 617/2023 Page 7 of 7 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 16/09/2023 at 16:10:44