Delhi High Court
M/S Today Tea Ltd vs Binod Kumar Goel on 23 October, 2008
Author: Rajiv Sahai Endlaw
*IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) 1258/2006
% Date of decision: 23.10.2008
M/S TODAY TEA LTD ....... Plaintiff
Through: Mr Sanjay K Pandey, Advocate
Versus
BINOD KUMAR GOEL .......Defendant
Through: ex parte.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. Whether reporters of Local papers may
be allowed to see the judgment? No
2. To be referred to the reporter or not? No
3. Whether the judgment should be reported No
in the Digest?
RAJIV SAHAI ENDLAW, J.
1. The suit for injunction and ancillary relief is instituted in
relation to the trademark TODAY registered with respect to the
goods in class 30 and the copyright in respect of the distinctive
artistic work wherein TODAY is written in a distinguished manner.
Vide ex parte order dated 2nd June, 2006 the defendant who had
applied for registration of the identical trademark TODAY, also in
relation to the goods falling in class 30, was restrained from using
the word TODAY in any writing in respect of the products falling in
class 30.
2. The defendant failed to appear in spite of being served by
publication in "Statesman" Calcutta Edition and was vide order
dated 18th September, 2007 proceeded against ex parte, the ex parte
CS(OS) 1939/2002 Page of 1 of 4
order was made absolute during the pendency of the suit and the
plaintiff directed to lead ex parte evidence.
3. The plaintiff has tendered evidence of its Manager Mr L.D.
Tignatia. The plaintiff has proved as Exhibits PW1/2, PW1/3 and
PW1/4 the registration with respect to the trademark TODAY with
TODAY written in a distinctive manner with respect to the goods
falling in class 30, class 23 and class 31 respectively and as exhibit
PW1/6 the registration of copyright of the artistic work with respect
to the carton wherein TEA under the trademark TODAY is sold by the
plaintiff. The witness of the plaintiff has also proved the volume of
sales affected by the plaintiff under the said trademark since the
year 2000-2001 and the expenses incurred by the plaintiff in
advertisement and promoting the trademark. The witness of the
plaintiff has proved as Exhibit PW1/12 the publication in the
trademark journal wherein the defendant had advertised its intent
for registration of the same trademark TODAY in relation to spices
and masalas of all kinds. The evidence of the witness of the plaintiff
remains unrebutted.
4. A perusal of the advertisement, before acceptance, got
published by the defendant in the Trade Mark Journal shows that the
defendant's attempted to adopt not only the same trademark as of
the plaintiff and in relation to the same class of goods but the
manner in which the defendant has written TODAY is also identical
to the manner in which the plaintiff has been writing TODAY and
which is an infringement of the artistic work registered as a
copyright of the plaintiff. The publication of the defendant appeared
in the Journal dated 15th December, 2005 and the action of the
defendant of adopting the same trademark and the same unique
CS(OS) 1939/2002 Page of 2 of 4
style of writing TODAY, in which the plaintiff has a registered
copyright, leads to the conclusion that the defendant's adoption of
the trademark and the artistic work of writing TODAY in the same
manner as that of the plaintiff is in an attempt to deceive the
customers into believing that the product of the defendant is the
product of the plaintiff. If the defendant is permitted to use the said
trademark not only would the distinctiveness of the trademark of the
plaintiff be diluted but it is also likely to cause confusion amongst the
purchasers. The goods presently being marketed by the plaintiff
under the said trademark, namely, tea and the goods with respect to
which the defendant intends to use the said trademark i.e., spices
and masalas of all kinds are available in the same shops/counters.
5. A clear case of infringement of registered trademark and
copyright of the plaintiff is made out and the plaintiff has become
entitled to the relief of injunction claimed. Though the defendant
has not contested the suit but from the aforesaid it is clear that the
defendant has acted with dishonest intentions. It has now been held
in several dictas of this court that such flagrancy of the defendant's
conduct is strictly deprecatory and those who recklessly indulge in
such shenanigans must do so at their own peril. I find the present
case a fit one to award punitive damages to the plaintiff against the
defendant which I assess at Rs 1 lac.
6. Accordingly, a decree for permanent injunction is passed in
favour of the plaintiff and against the defendant restraining the
defendant, its agents, servants, dealers, stockists from
manufacturing, selling, advertising or displaying directly or
indirectly dealing in spices, masalas or any other allied and cognate
CS(OS) 1939/2002 Page of 3 of 4
goods under the impugned trademark TODAY and or any other
trademark deceptively similar thereto. The defendant, its agents,
servants, dealers, stockists further restrained from manufacturing,
selling, advertising or dealing in spices products or any other allied
or cognate products under the impugned copyright of writing word
TODAY on its label, pouches, cartons, bags in a manner similar or
deceptively similar to the copyright of the plaintiff.
7. A decree for recovery of sum of Rs 1 lac as punitive damages is
also passed in favour of the plaintiff and against the defendant. The
plaintiff shall also be entitled to costs of the suit from the defendant.
The decree sheet be prepared accordingly.
RAJIV SAHAI ENDLAW
(JUDGE)
October, 2008
M
CS(OS) 1939/2002 Page of 4 of 4
