M/S Nice Food Products vs M/S Kalyan Products
2009 Latest Caselaw 4282 Del

*                       IN THE HIGH COURT OF DELHI AT NEW DELHI
+                                      CS (OS) 1298/2008

                                                           Pronounced on: 23.10.2009

M/S NICE FOOD PRODUCTS                                       ..... PLAINTIFF

                 Through:       Mr. Ashok Mittal, Advocate

                                       versus

M/S KALYAN PRODUCTS                                          ..... DEFENDANTS

                 Through:    None

CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT

1.        Whether the Reporters of local papers              Yes
          may be allowed to see the judgment?

2.        To be referred to Reporter or not?                 Yes

3.        Whether the judgment should be                     Yes
          reported in the Digest?

HON'BLE MR. JUSITCE S.RAVINDRA BHAT (Open Court)

*

1. The plaintiff is a proprietorship firm. The suit claims permanent injunction, damages and

delivery up, alleging that the defendants have infringed the plaintiff's trademarks, and caused

injury.

2. According to the suit, the plaintiff's predecessors were in the business of manufacturing

and marketing confectionaries, for more than eighteen years, in "Goli, Tofeee, Candies,

Lollipops, Confectionary goods and sweets. It is contended that the plaintiff, and through its

predecessors had been continuously using the word trademarks "Chaa-Pat" and "Prika's Chaa-

CS(OS) No.1298/2008 Page 1 Paat" as well as in the label forms, for their confectionary goods. The plaintiff concern claims

registered ownership of the trademark "Chaa-Pat" in Classes 30 and 5, as well as in class 30, in

Hindi. The registrations have been placed on record, and marked as Exh. PW-1/4 to PW-1/8.

3. The suit also alleges that the stylized label "Prika's Chaa-Paat" is an original artistic

work, for which the plaintiff owns copyright, (and which is used in its labels) evidenced through

registration A-57577/99 and A-58500/2001. The distinctive feature of the label is the depiction

of a child with a bald, large head, in yellow; the entire layout of the label, it is claimed, is unique

to the plaintiff's goods. In support of the averment, the plaintiff relies on registration

certificates Ex. PW-1/9 and Ex. PW-1/10. The plaintiff's packaging pouch is exhibited as Ex. PW-

1/1.

4. The plaintiff submits that the user of the trademark and artistic devise has been

continuous, since 1990 and that it has acquired a certain goodwill and reputation in respect of

the goods marketed and sold by it (the plaintiff). It is stated that the plaintiff's trademark, and

use of the phrase "Prika's Chaa-Paat" is inherently distinctive and was not being used by any of

its competitors. The plaintiff relies on its growing sales figures, as well as copies of its invoices

(marked as Ex. PW-1/140-Ex. PW-1/182) to testify its goodwill and reputation, established

during the last 18 years.

5. The plaintiff alleges that in July, 2008 it learnt that the defendants are manufacturing

Sweets, Golie, candies and toffees under an identical or confusingly similar word mark

"Chaafaat" with the same device (of a bald boy with a large head) with a view to cause

confusion and deception in the trade and public and to make unlawful and illegal gains. The

CS(OS) No.1298/2008 Page 2 impugned mark, similar name and a deceptively similar label and device adopted by the

defendant would show that the latter has used the plaintiff's trade mark as a model / guide

while conceiving its trade mark. The plaintiff alleges, therefore, that the defendant's action

amounts to infringement of its trade mark. It is claimed that the use of the impugned trade

mark by the defendant is visually, structurally and phonetically identical to the plaintiff's trade

mark and artistic label in respect of its goods and is bound to lead to confusion and deception

amongst the purchasing public and trade. The mis-representation by the defendant is not only

relatable to the origin of the goods but also to the quality of the products which are not of the

same standard as that of the pliaintiffs. The reason for the defendant's for doing what has

been done, is to encash upon the tremendous goodwill and reputation of the reputation and

plaintiff's prior used trade mark, and artistic label. It is also alleged that the products or goods

are purchased by a large number of customers, who rely on the trademarks, and would fit the

description of unwary customers, with imperfect recollection, who would in all probability be

misled into believing that the defendant's mark is similar to those of the plaintiffs, and

therefore, buy the defendant's goods based on the slavishly imitated packaging.

6. On the above averments and allegations, the plaintiff has sought the relief of perpetual

injunction for restraining the defendant, its servants, retailers, stockist, distributors,

representatives and agents from manufacturing, selling, offering for sale, advertising, directly or

indirectly dealing in confectionary articles under the impugned trade mark artistic work "Chaa-

Paat" and "Prika's Chaa Paat" or any of its variants, as used by the defendants, or any other

deceptively or confusingly identical, or similar mark or label.

CS(OS) No.1298/2008 Page 3

7. At the time of issuing summons, the court had granted an ad-interim injunction in the

plaintiff's favour. The defendant had been served, and counsel appeared on its behalf, initially.

However, no written statement was filed on its behalf, and it remained unrepresented on some

dates of hearing. Consequently, it was set down ex-parte, and the plaintiff led its ex-parte

evidence, through deposition of Shri. Prakash Chand Rijhwani, PW-1, who also exhibited the

documents filed, by the plaintiff. He averred in support of the suit, and proved the documents

placed on the record.

8. The plaintiff's mark is a word mark, as well as a label. It is not descriptive or suggestive

of the products or services offered. The mark, in relation to sweets and confections is arbitrary;

a coined one. The image or device of the bald boy with a large head, does not have any ready

association with candies, toffees or "golas". The materials on record show that this mark has

been used since quite long, for over 15 years. The plaintiff has produced documents such as

invoices, etc. The plaintiff was not the initial owner of the mark, but became one due to

assignment. Yet, its use has been established. Also, the plaintiff has, through the deposition of

its witness, shown that sales figures have grown over the years, which can lead the court to

conclude that its marks, and the goods, have acquired a certain reputation, with the

consumers. In these background of facts, the use of an identical device, label, and trademark,

with a similar artistic layout, by the defendant, without any explanation (since it has chosen to

stay away from the proceedings) shows that there is a clear attempt to appropriate the

plaintiff's goodwill and reputation.

CS(OS) No.1298/2008 Page 4

9. In the above circumstances, the court is of the opinion that the plaintiff has proved its

claim, for permanent injunction. However, as far as the question of the claim for damages is

concerned, the plaintiff has not produced any evidence to show to what extent the activities of

the defendant have caused it commercial or economic losses. In these circumstances, apart

from directing costs, the court is of opinion that the damages claimed cannot be decreed.

10. In the light of the above discussion, the suit is decreed in terms of Para 22 (i), 22 (ii) and

22 (iii) of the suit. The plaintiff is also entitled to costs; counsel's fee is quantified at Rs. 30,000/.

DATED: October 23, 2009                                                  S. RAVINDRA BHAT, J




CS(OS) No.1298/2008                                                                                Page 5