M/S. Living Media India Ltd. vs Adarsh Gupta & Ors.
2009 Latest Caselaw 3211 Del

*            HIGH COURT OF DELHI AT NEW DELHI

+                   CS(OS)No.1175/2003

                 Judgment delivered on: 18th August, 2009

#     M/s. Living Media India Ltd.      ..... Plaintiff
!          Through : Mr. S.D. Salwan, Advocate
                     Mr. Neeraj Choudhary, Advocate


                           Versus

$     Adarsh Gupta & Ors.               .....Defendants
^          Through : Nemo.


%
      CORAM:
      HON'BLE MS. JUSTICE ARUNA SURESH

     (1) Whether reporters of local paper may be
         allowed to see the judgment?

     (2) To be referred to the reporter or not?           Yes

     (3) Whether the judgment should be reported
         in the Digest ?                                  Yes

                        JUDGMENT

ARUNA SURESH, J.

1. Plaintiff company has filed the present suit for

perpetual injunction for restraining the defendants

from passing off, infringement of copyright,

rendition of accounts and delivery etc. in the name

of 'Today'.

2. Briefly narrated, the case of the plaintiff is that it is

a public limited company and Chand Prakash being

Manager Administration of the plaintiff company

has been duly authorized by way of resolution of

Board of Directors dated 25.4.2003 to sign, verify

and file the present suit on its behalf, that plaintiff

is the publisher of most reputed leading magazine

'India Today' which is being published in different

languages in India as well as abroad, that it has

wide circulation, that plaintiff alleges that it is

running its business of printing, publishing and

producing the magazine 'India Today' since 1975,

that the said registered magazine is registered

under the name and style of 'India Today' with the

Registrar of Newspapers for India under

Registration Certificate No.28587 of 1975, that

plaintiff is also registered as proprietor of

trademark 'India Today' having registration

No.295963 as of 4th October, 1982, that plaintiff

filed an application seeking registration of the said

trademark 'India Today' in Hindi language for its

newspapers, periodicals, magazines etc., that the

word 'Today' is an essential and dominant feature

and it is written in a characteristic logo style in

which the artistic copyright subsists with the

plaintiff, that plaintiff is first person to use the

word 'Today' as covered under Section 2(c) of the

Copyright Act, that the name and style as well as

layout of the word 'Today' is the exclusive property

of the plaintiff for all categories as specified in its

application, that under the law it is distinct and

exclusive copyright and the trademark 'Today' for

publications with the plaintiff since 1954, that the

visual impact of the word 'Today' being

represented in the artistic script is a significant one

and the viewers/public and readers identify the

plaintiff's production not by the trademark 'Today'

but also by peculiar style of writing, that English

evening daily newspaper published under the name

and style 'Today' is also registered under

registration No. DELENG/2002/9066, that the word

'Today' has become synonymous to authentic news

and has been generated and used exclusively by

the plaintiff in various languages which has given a

secondary meaning to the identification of the word

as 'India Today Group', that 'Today' is so distinctive

that it has acquired a meaning, that any prefix or

suffix has no relevance so far as action of passing

off is concerned, that the only object and design of

any person to adopt the trademark 'Today' would

be to trade and encash upon the goodwill of the

plaintiff earned over the years because of its

extensive popularity, that the annual subscription

of the magazine 'India Today' all over India is

approximately Rs.15 lacs and annual turnover of

the company from the sale of its various

publications since the year 1998 has been

increasing from Rs.8867.07 lacs to Rs.10479.14

lacs in 2002, that the said artistic work at the

behest of the plaintiff was originally authored by

one of its employees employed under a contract of

service and the plaintiff became the first copyright

owner of the said artistic work and the first

publisher of the said artistic/literary work of the

way and style of writing the 'Today' in Hindi as well

in the other languages, that no person without the

permission or consent of the plaintiff has right to

use or reproduce the word 'Today' in its distinctive

style and manner or any other deceptively similar

manner, that without the permission of the plaintiff

any such move is an infringement of the copyright

of the plaintiff, that during the last week of March

2003 the plaintiff came to know that the defendants

have introduced the newspaper under the name

and style of 'Today News' in Hindi, that on search

by the plaintiff with the concerned authorities, it

was revealed that no such name had been

registered earlier in any class, that the adoption

and use of the mark 'Today' by the defendants in

respect of their publication is an exact

reproduction of the mark of the plaintiff which is

illegal and unlawful, that the layout style as well as

the manner in which the plaintiff's trademark has

been depicted has been copied/infringed in an

identical/similar manner, that the adoption of

trademark of name 'Today' in a deceptively similar

artistic style and manner of the defendants is

actuated by malafides and with an intention to

encash upon the goodwill and reputation belonging

to the plaintiff, that as the adoption and use of the

trademark 'Today' which is visually and

phonetically similar to the reputed and well known

trademark 'Today' of the plaintiff in respect of the

news related magazines, newspapers and

newsletter is bound to lead to confusion and

deception amongst the purchasing public and trade

and creating an impression that the defendants'

goods are some way connected with the goods of

the plaintiff, that defendants are guilty of passing

off their goods as those of the plaintiff as their

goods are of cognate and allied nature to that of

the plaintiff's goods having identical trading

channels and sold to the same purchasers, that

therefore the defendants have infringed the

trademark/trade name of the plaintiff and also its

copyright in their artistic style and writing 'Today',

that if the defendants are allowed to continue with

their illegal designs, the loss suffered by the

plaintiff would be of irreparable nature and would

cause injury to its business name, reputation and

goodwill. Hence, this suit for injunction and

rendition of accounts.

3. Defendants were served vide publication in

newspaper 'Statesman' dated 2.4.2004 at their last

known address as well as on the notice board of the

Court by way of affixation. Despite due service of

process on them defendants did not care to appear

in the Court and contest the suit of the plaintiff.

Hence, they were proceeded ex-parte by this Court

vide its order dated 15.9.2004.

4. Plaintiff company has produced its evidence by way

of affidavit Ex.PW1/A of Sh. Chand Prakash, its

Senior Manager Legal and affidavit Ex. PW2/A of

Sh. Binod N. Tiwari, its Assistant Manager.

5. Plaintiff had filed an affidavit of Chand Prakash in

evidence in the Court on 10.5.2005. Plaintiff filed

another affidavit of this very witness in the Court

on 12.2.2007. The second affidavit is in fact the

detailed affidavit in evidence of Chand Prakash

filed by the plaintiff. It is in no manner additional

affidavit as is apparent from the record. After the

filing of the first affidavit in evidence, the learned

counsel for the plaintiff exhibited some documents

in the Court as Ex.PW1/2 to Ex.PW1/13 on

20.5.2005. Probably the second affidavit was filed

without taking into consideration the fact that

affidavit of Chand Prakash had already been placed

on record. In the second affidavit plaintiff has

exhibited documents PW1/1 to PW1/31. Some of

these documents have also been exhibited in

evidence in the affidavit of Binod N. Tiwari. I shall

be referring to some of the documents exhibited in

the statement of PW-2, Binod N. Tiwari which

though shown as exhibited in the affidavit have not

been exhibited in evidence by the learned counsel

for the plaintiff while examining Mr. Chand

Prakash. I also make it clear that since there are

repeated different exhibit marks on the same

documents I shall refer only to the exhibits which

find mention in the affidavit Ex.PW1/A filed by

Chand Prakash on 12.2.2007.

6. Chand Prakash, PW-1 in his evidence by way of his

affidavit has proved that plaintiff is a company

incorporated under the Companies Act vide

Certificate of Incorporation Ex.PW1/1. He has

testified that by way of Resolution dated 25.4.2003,

original copy of which Ex.PW1/2, he has been

authorized by the plaintiff to sign, verify and file

the present suit on behalf of the plaintiff company

against the defendants. By way of his affidavit he

has fully supported the case of the plaintiff as

averred in the plaint and has proved in evidence

the documents like various trademark registration

certificates of the word 'Today' being used by the

plaintiff with many other pre-fix or suffix in various

magazines, newspaper and other publications

which are Ex.-PW1/3 to PW1/25. He also proved in

evidence the original front cover of the magazine

named 'India Today' published in English as well as

in Hindi as Ex.-PW1/26 and PW1/27 respectively.

He further proved in evidence the registration

certificate No.DELENG/2002/9066 dated 14.2.2003

wherein the name and style of plaintiff's newspaper

'Today' is registered as Ex.PW1/29 along with its

representations. He has categorically deposed that

defendants, in order to cash in on the name and

goodwill of the plaintiff, have started Hindi

newspaper with the name of 'Today' with a suffix of

'news' suggesting its publication to be called

'Today News'. The defendants have used the word

'Today' in their newspaper in exactly the same

manner and style in which the word 'Today' is

written in the Hindi Magazine of the plaintiff. He

further testified that defendants have therefore

copied the plaintiff's trademark and copyright of

the word 'Today' and has used it in a deceptive

manner with a view to give an impression on the

public that their paper is also published by the

plaintiff company. He also testified that the style

and presentation of 'Today' by defendants in their

impugned publication is identical to that of plaintiff

which is causing grave loss of business and

credibility to the plaintiff and such user is also an

infringement to the intellectual property right of

the plaintiff. The defendants have passed off their

publication as that of the plaintiff. In his testimony

he proved the issue of 'Today News' dated 3/9-

4.2003 as Ex.-PW1/30. He also proved in evidence

the legal notice dated 7.4.2003 Ex.-PW1/13 (in his

affidavit he has exhibited copy of the notice as Ex.-

PW1/31 but the document was not tendered in

evidence, however, since the copy of this notice

was earlier tendered in evidence when the first

affidavit was filed and exhibited as PW1/13, the

same finds mention here).

7. PW-2 Binod N. Tiwari, Assistant Manager, tendered

in evidence his affidavit Ex.-PW2/A. He has

testified that plaintiff company had filed a

complaint for offence under Section 78 and 79 of

the Trade and Merchandise Marks Act read with

Section 63 and 65 of the Copyright Act under

Sections 420,425 and 486 of the Indian Penal Code,

which complaint is pending adjudication before the

Metropolitan Magistrate at Patiala House Court.

He proved the copy of the complaint as Ex.-PW2/1

and copy of the court proceedings as Ex.-PW2/2.

He further corroborated the testimony of PW-1

Chand Prakash regarding the certificate of

registration of the plaintiff company passed by

Deputy Registrar of trademarks on 29.1.1988 in

respect of 'India Today' of the Hindi edition along

with additional representations in Form TM-1 Ex.-

PW2/5, Certificate of Registration dated 14.2.2003,

Extract of Resolution dated 25.4.2003 and notice

dated 4.7.2003 Ex. PW1/13 which was sent by

registered cover as well as UPC which he proved in

evidence as Ex.-PW2/7 and PW2/8. Ex.-PW2/9 is

the AD card received from the defendant No.1 for

having received the notice.

8. I have heard Mr. Neeraj Choudhary, learned

counsel for the plaintiff and have carefully perused

the record. Plaintiff is a company which is carrying

on its business of publishing newspapers,

magazines and other various publications for

number of years. Plaintiff is a duly incorporated

company under the Companies Registration Act

vide Certificate of Incorporation copy of which is

Ex.-PW1/1. Chand Prakash PW-1 has been duly

authorized to sign, verify and file the present suit

on behalf of the plaintiff against the defendants as

is proved from the copy of the Directors' Resolution

dated 25.4.2003 Ex.-PW1/2. Plaintiff has

successfully proved in evidence that the word

'Today' is a distinct name which is used by the

plaintiff for publication of its magazine 'India

Today' which is being published in various

languages including Hindi. It is admittedly a well

known magazine which is in circulation and in

demand not only all over India but also overseas.

The name 'Today' has been registered for

newspaper in English to be published by the

plaintiff vide registration No.DELENG/2002/9066

Ex.-PW1/29. Plaintiff is the owner of numerous

trademarks for its different publications in

newspaper, other magazines, music cassettes etc.

which have been exhibited as Ex.-PW1/3 to

PW1/25.

9. By way of evidence, plaintiff has successfully

proved that it is the holder of trademark 'India

Today' in Hindi Language. All these registration

certificates conclusively prove that the plaintiff is

the exclusive owner and user of the word 'Today'

being its registered trademark in all its magazines,

newspapers, other publications and music cassettes

etc. Plaintiff had applied in form TM-I along with

additional representation vide its application dated

15.1.2002 Ex-PW2/5. The artistic style and manner

of writing the trademark 'India Today' in Hindi for

which the plaintiff applied for registration of a

trademark have been specifically shown in writing

in the said form TM-I; Ex.-PW2/5.

10. The grievance of the plaintiff is that defendants

have copied their trademark 'Today' in Hindi which

is an infringement to its trademark 'Today'

registered with the trademarks registered at

Bombay. The infringing newspaper has been

proved in evidence as Ex.-PW1/30. I have visually

examined the infringing name 'Today' in Ex.-

PW1/30 with that of the registered trademark

'India Today' in Hindi Ex.-PW1/27. I do find that

defendants have copied the trademark of the

plaintiff 'Today' in Hindi in an identical and similar

manner which, for a common person, visually could

appear to be the same. A common man under

these circumstances would go for purchasing the

paper published by the defendants taking it to be

published by the plaintiff company i.e. the same

publisher who published 'India Today' in Hindi or

in English and other magazines carrying the

trademark name 'Today'. Phonetically also, when

spoken, the name 'Today' as registered would be

identical to name 'Today News' when spoken.

11. Infringing newspaper was published much after the

plaintiff had filed an application in TM-I form

seeking registration of its trademark name 'Today'

in Hindi as well. The name 'Today' appearing in

Ex.-PW1/27 when compared with name 'Today'

appearing in Ex.-PW1/30, I find no difference as

visually they look identical. The defendants

therefore have copied the name 'Today' in the same

manner and the style in which it has been got

registered by the plaintiff as its trademark. Under

the circumstances plaintiff, being user of this name

over a long period, have got copyright in the

artistic style and manner in which it is used in its

various publications. Plaintiff therefore has

acquired exclusive property rights in the trademark

'Today' for all the categories for which it has been

registered or in its application and its style.

Plaintiff has also acquired exclusive copyright in

the writing style of the word 'Today' as it has a

particular characteristic style which can be termed

as an artistic work of the plaintiff and is being used

by it daily in its numerous publications.

12. To save its trademark and copyright in the name

'Today', plaintiff has also filed a complaint on

14.5.2003 before the concerned court of

Metropolitan Magistrate at Patiala House. Vide

order dated 18.8.2003 the MM was pleased to

direct the SHO, Police Station Connaught Place to

investigate the matter under Section 156(3) Cr.P.C.

in accordance with law.

13. Hence, I conclude that plaintiff has successfully

proved its case against the defendants. The

defendants have infringed the copyright and

trademark of the plaintiff in the trade name 'Today'

by using it in identical manner in its own magazine.

Defendants have therefore passed off the name

'Today' in their publication 'Today News' as that of

the plaintiff. This obviously must have decreased

the circulation of the publications of the plaintiff in

the market and consequent turnout of the plaintiff

company. The defendants are therefore guilty of

passing off their goods as those of the plaintiff and

also for infringement of its copy right in the

publication 'Today'.

14. Plaintiff, though has claimed a relief of rendition of

accounts of profits illegally earned by the

defendants on account of use of the name 'Today'

in its publication 'Today News', however, no

evidence has been led by the plaintiff as regards

this relief is concerned. Plaintiff has also not led

any evidence to indicate if it actually suffered any

loss to the advantage of the defendants because of

publication of 'Today News' and its circulation in

the market. In para 23 of the plaint, plaintiff has

submitted that on account of being rendered

plaintiff would be found entitled to more than Rs.20

lacs. Plaintiff has not led any evidence regarding

its production turnover or defendants' earned

profits. Hence, in the absence of any evidence,

plaintiff is not entitled to any rendition of accounts

as prayed. Since the plaintiff itself has alleged in

para 23 that on account of being rendered, it shall

be found entitled to more than Rs.20 lacs and the

plaintiff itself has valued the suit for the purpose of

Court fees at Rs.20 lacs in para 31 (d) of the plaint

and has paid the ad-valorem court fees on the said

amount.

15. Consequently, I hereby pass a decree of permanent

injunction in favour of the plaintiff and against the

defendants thereby restraining the defendants

themselves, their agents or any other persons on

their behalf from printing/publishing, offering for

sale, advertising, directly or indirectly dealing in

respect of printing and publication material

bearing the name 'Today' or 'Today News' and

from passing off their newspaper or any other

publication as the publication of the plaintiff or any

other trademark/name/tile/name of a publication

which is deceptively similar to the plaintiff's

trademark 'Today', in Hindi or any other language

and from using the name 'Today in any manner or

in the same logo script or an obvious or fraudulent

imitation or a substantial reproduction of the

plaintiff's logo script used in characteristic manner

or any other logo script which is imitation and

substantially reproduction of plaintiff's highly

artistic work amounting to infringement of the

plaintiff's copyright therein.

16. Defendants are further directed to hand over the

infringing goods including magazines, blocks, dies,

lables, wrappers, price list, leaflets and literature

for purposes of destruction and/or obliteration to

the plaintiff on an affidavit with cost of the suit.

Suit of the plaintiff as regards relief of rendition of

accounts is hereby dismissed.

17. The decree sheet be prepared accordingly.

ARUNA SURESH (JUDGE) AUGUST 18, 2009 jk