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Showing contexts for: same wordmark in M/S Mishu Enterprises Thr. Its ... vs M/S Nakshatra 13, Thr. Its Proprietor ... on 29 May, 2025Matching Fragments
Written statement :
7. In written statement, it is stated that the certificate filed carrying a disclaimer that it is not for use in legal proceedings or for obtaining the registration abroad, therefore, this certificate cannot be used in legal proceedings. The plaintiff also not even placed on record the legal proceeding certificate alongwith the plaint. Furthermore, there is no mentioned in the body of the plaint that the legal proceeding certificate has been applied for nor any documents has been placed on record. (Relied upon Amrish Agarwal Vs. M/s Venus Home Appliances Pvt. Ltd.). The word "Macchmani" is widely used in Bengali and Sanskrit language where Maacch means fish and Mani means stone derived from head of the fish. The Macchmani is a natural product which was found inside the forehead of the fist which is called dome fish and only is a generic market name of the fish pearl found in a fish. The word Machhmani/ Machmani is synonym of an ancient word Matsya Mukta which cannot be trademarked by a person or any company because it is derived from Bengali and Sanskrit language. The plaintiff with malafide motive got trademark/ wordmark "MACCHMANI" registered in his name and this word which is a generic widely used by the plaintiff before the date of trademark registration. The copy of Garuda Puran where MATSYA MUKTA is mentioned is annexed as Annexure B. CS (COMM) 295/2022 M/S Mishu Enterprises Vs. M/S Nakshatra 13 dt. 29.05.2025 11/ 41
8. The defendant is in the business of astrology, palmistry, selling of gem stones, pearls etc. and there are various sellers highlighting the product as Machhmani, Machmani. The defendant is selling the product since 2019 when the wordmark or trademark of the plaintiff was not even registered. The defendant has been using the natural products in its natural form and the plaintiff has been using the natural product in a defective manner. The defendant uploaded its first video on 08.10.2019 and the last video was uploaded on 26.03.2021 which is much prior to the registration of the wordmark of the plaintiff i.e. on 15.09.2021. The defendant did not use the logo of the plaintiff. The defendant also applied for cancellation of the trademark/ wordmark of the plaintiff because ancient word or a natural product cannot be trademarked.
10. Relief The matter was referred to Local Commissioner for recording of evidence. The plaintiff examined PW1 Manish Sharma, Proprietor of plaintiff and PW2 Rohit, Clerk of plaintiff. The defendant examined DW1 Sh. Ravi Shankar Kapoor, Proprietor of defendant.
Brief summary of evidence
18. PW1 Manish Sharma tendered his affidavit of evidence Ex.PW1/A and in cross examination stated that he filed the present suit when he saw the video of defendant using the wordmark "Machhmani". He saw the video in 2021 but do not remember the month. He denied suggestion that nobody can use the spelling of same work. He stated that the said word mark was registered in Class 14. He further stated that he is using work Machhmani since 2014. The said stone Machhmani has been popularized by the plaintiff. He further stated that he brought the stones from Fish Market, Ghazipur, Delhi in 2013. The stone Machhmani is found in the body of the fish but he has no knowledge at which part of the body, it is found. The CS (COMM) 295/2022 M/S Mishu Enterprises Vs. M/S Nakshatra 13 dt. 29.05.2025 19/ 41 natural colour is brown and denied suggestion that it is white. He stated that brown colour Machhmani again stated that it is golden colour also. He stated that it is possible that he had telephonic conversation or whatsapp conversation with the defendant asking him to buy Machhmani stone from him and sell it in the market. The defendant agreed and selling the same after buying it from him, however not filed any proof. He further stated that Machhmani stone comes under jewelery category. He stated that legal notice dt. 09.04.2021 sent by him to the defendant asking to remove the videos of the stone Machhmani from YouTube. The defendant was using the word mark Machhmani that is why he sent the legal notice dt. 09.04.2021. He denied suggestion that since the word mark Machhmani was not registered, therefore, anyone can use it. He further stated that his lawyer advised him that even the said mark is not registered, it can be used anybody else except the plaintiff. The date of registration of Machhmani is 25.03.2021 and he had applied for registration in the year 2019. The defendant did not use his trademark but used word 'mark' and never used logo in YouTube videos. He had seen the video for infringement of his registered word mark and trademark by public at large but he never read about it anywhere. He further stated that all the legal notices dt. 09.04.2021 and 21.09.2021 were sent by his counsel on his instructions. He denied suggestion that the defendant has never used word mark or trademark. He also denied suggestions that he could not have CS (COMM) 295/2022 M/S Mishu Enterprises Vs. M/S Nakshatra 13 dt. 29.05.2025 20/ 41 registered his trademark under class 14 because the defendant has already challenged the trademark before the concerned authority.
19. PW2 Rohit has tendered his affidavit of evidence Ex.PW2/A and in cross examination stated that it is correct that printouts of all the documents alongwith my affidavit were taken by him and printouts were downloaded by him. He further stated that he do not aware about the contents of all the documents and also denied suggestion that he is deposing falsely.
20. DW1 Ravi Shankar Kapoor, Proprietor of defendant has tendered his affidavit of evidence Ex.DW1/A and in cross examination stated that he cannot show any document where the word Macchmani or any of its deceptively similar or phonetically similar sounding words are mentioned, however, Matsya Mukta was written in Hindi. He denied suggestions that he did not place on record any ancient text where the word Macchmani or any of its deceptively similar or phonetically similar sounding words are mentioned. It is correct that on 10.09.2021 he posted on his facebook page referring his product 'Meen Mukta' as Macchmani, however the spelling of Macchmani is entirely different from the plaintiff's trademark Macchmani. He stated that it is correct that he has been selling his product Meen Mukta, Macchmani since 2019 till grant of stay. He further denied suggestions that he had not applied for registration of word mark Macchmani till date. He stated that he was aware through legal notice dt. 21.09.2021 that the word mark Macchmani has been registered by the plaintiff. He CS (COMM) 295/2022 M/S Mishu Enterprises Vs. M/S Nakshatra 13 dt. 29.05.2025 21/ 41 further stated that it is correct that even after the knowledge of plaintiff's registration, he continued to sell or advertise the products MACCHMANI/ MACHHMANI, however volunteered the word mark Macchmani he was using in different spelling i.e. grammatically and phonetically. He stated that he had not placed on record any expert report or ISO certification that the products sold by the plaintiff under the registered word mark is defective, inferior or adulterated. He further stated that it is correct that Ex.DW1/B (Colly) only the specified product of the plaintiff not an evidence that the plaintiff's product are defective, inferior or adulterated. He denied suggestion that he is raising false and frivolous objection that plaintiff's product is defective. He denied suggestions that he is using the word Macchmani or any of its deceptively, structurally, visually or phonetically similar names to sell his products to gain advantage of plaintiff's wordmark.