Jiva Institute Of Vedic Science & ... vs Mr. Raymond Bickson, Managing ...
2016 Latest Caselaw 2592 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                       Judgment reserved on : 3rd March, 2016
                                        Judgment pronounced on: 4th April, 2016

+              CCP(O) No.126/2014 in CS(OS) No.1960/2006

       JIVA INSTITUTE OF VEDIC SCIENCE & CULTURE & ANR
                                                  ..... Petitioners
                      Through  Mrs.Prathiba M. Singh, Sr. Adv.
                               with     Mr.Sudeep       Chatterjee,
                               Ms.Nupur Lamba & Ms.Nikita
                               Khetrapal, Advs.

                               versus

       MR. RAYMOND BICKSON, MANAGING DIRECTOR & CHIEF
       EXECUTIVE OFFICER & ORS               ..... Respondents
                     Through Mr.Sandeep Sethi, Sr.Adv. with
                             Ms.Meghna Mishra, Mr.Rohan
                             Sharma & Mr.Dheeraj P. Deo,
                             Advs.

       CORAM:
       HON'BLE MR.JUSTICE MANMOHAN SINGH

MANMOHAN SINGH, J.

1. By way of this order I propose to decide the abovementioned contempt petition filed by the petitioners/plaintiffs which is pending for the last more than 2 years.

2. The plaintiffs filed the present suit for seeking permanent and mandatory injunction restraining the defendants/respondents from infringing and passing off trademark 'JIVA', which suit is pending adjudication along with the plaint. The plaintiff had also filed an

application under Section XXXIX Rule 1 and 2 CPC in the suit, seeking the following interim reliefs:

"(i) Pass an order restraining the defendants, their Chairman, Directors, Managers, Officers, Agents as also their hotels, resorts and other entities or anyone else connected with the defendants directly or indirectly from adopting and/ or using the trade mark "JIVA" or any other identical or deceptively similar or confusing trade name and/ or trademark "JIVA" in relation to any of their goods and services and the defendants be further restrained from manufacturing, producing or rendering or offering for sale and/or advertising, marketing etc. any goods or services under, the trade name and/or trademark "JIVA" and the defendants be further restrained from passing off their goods and services as that of the plaintiffs during the pendency of the suit."

3. The single Judge vide an ex parte interim order dated 17th October, 2006 (passed in Interim Application being IA. No.11610/2006 under Order 39 Rule 1 & 2 of CPC), restrained Indian Hotels Company Ltd. (defendant No.1 in the main suit and respondent No.7 in the Contempt Petition) from adopting and/or using the trademark 'JIVA' or any other identical or deceptively similar or confusing trademark and/or trademark 'JIVA' in relation to any of their goods and services from directly or indirectly adopting and/or using the same. The defendants were further restrained from manufacturing, producing or rendering or offering for sale and/or advertising, marketing any goods or services under the trade name and/or trademark 'JIVA'.

4. The respondent No.7 being aggrieved by the ex-parte order assailed the same before the Division Bench of this Court in an Appeal being FAO (OS) No.44/2007.

5. The Division Bench of this Court after detailed arguments modified the order dated 17th October, 2006 passed by the Single Judge, The relevant portion of the order dated 30th May, 2008 is reproduced herein below:

"46. In the result, we allow this appeal in part and to the following extent:

a. Order dated 17th October, 2006 passed by the learned Single Judge to the extent the same restrains the appellant from using the trademark "JIVA" for its spas run in the hotels established by it shall stand vacated, subject to the appellant filing an undertaking to the effects that (i) it shall maintain true and correct accounts of its income and expenditure relating to the business of the said spas and file the same in this court every six months; and (ii) that it shall not start any spa independent, of hotel owned/leased or mortgaged by it under the trademark "JIVA".

b. The impugned order to the extent it restrains the appellant from selling/using or offering for sale/use any ayurvedic product under the trademark "JIVA" shall stand confirmed and made absolute pending final disposal of the suit."

6. It is submitted by the learned Senior counsel appearing on behalf of the plaintiffs that true spirit of the order dated 30th May, 2007 was that the defendants could not use the mark JIVA for any products or advertise the same but would only have a limited right of use of the mark JIVA i.e only for its Spa run within its Hotels, till the final disposal of the suit. The operative portion of the order dated 30th May, 2007 passed by the Division Bench is at paras 39 and 44 was referred. The same is reproduced herein below:

"39. In the light of what we have stated above, we have no hesitation in repelling the contention urged by Mr. Rohtagi that since the appellant carries on business in Spas it can continue using the trade mark of the respondent as the said trade mark is used by the respondent only for manufacture of its ayurvedic products.

...

44. The plaintiffs are, as seen earlier, not only manufacturing and marketing ayurvedic preparations but are offering therapies in a clinic at Faridabad and another at South Extension in Delhi. There is material to which we have referred earlier to show that the plaintiff's business in the manufacture and sale of ayurvedic preparations runs into lakhs of rupees, as is evident from Profit and Loss accounts for three years, immediately preceding the filing of the suit. Manufacture and sale of such preparations under the trade mark 'JIVA' by the appellants is therefore, bound to create unavoidable confusion among the customer who use such preparation, whether by purchasing them across the counter or in Spas established by the appellant. The injunction granted by the Learned Single Judge to the extent the same forbids use of JIVA as a trademark for the manufacture and sale of the medicinal/ health care products cannot be faulted specially when the injury which a denial of the said relief might cause would be irreparable for the plaintiffs. ...."

7. It is also submitted on behalf of the plaintiffs that the defendants, inspite of the injunction granted by this Court, failed to adhere to the same and in complete violation and with impunity started selling products under the mark JIVA. After investigation was conducted in the year 2014, the present CCP was filed along with investigation report which would show that the products were also purchased. Copies of invoices and product photographs so purchased have been filed along with the Contempt Petition. It is alleged that even from the website of the defendants would

reveal that they are selling a large number of products under the mark JIVA including Incense sticks, towels, DVD, mats, clay potteries, robes, value stones etc. Printouts from the website https://jivaspa.tajhotels.com/jivaspas/index.html have been filed.

8. In nut shell, it is alleged that respondent No.7 has been selling products under the mark 'JIVA' which is a blatant violation of the order dated 17th October, 2006 passed by this Court in CS(OS) No.1960 of 2006 and the order dated 30th May, 2008 passed by the Division Bench in FAO (OS) No.44 of 2007.

9. There is a material placed on record which would show that after passing the order by the Division Bench, the defendants were selling certain goods and as per the defendants they are non-ayurvedic in nature. The stand taken by the defendants is backed up by certain documents and expert opinions which disclosed that they are non-ayurvedic in nature, therefore, it is canvassed before Court by the defendants that the Division Bench had only restricted the defendants from selling ayurvedic products under the mark 'JIVA', however, they were entitled to sell non-ayurvedic products in the absence of any interim order.

10. It is submitted by the plaintiff that the said stand of the defendant is incorrect in view of the material placed on record which would show that the manufacturers of the abovementioned products are in fact, using ayurvedic aromatherapy blends in their products which are being sold under the mark JIVA by the defendants. It is also submitted by the plaintiff that the products of the respondent No.7 are manufactured by an Australian Based Company which itself claims that their products are ayurvedic in nature.

The petitioners have also placed on record an original booklet of respondent No.7 which would show that the ingredients/products used in the manufacture of the products by the defendant are ayurvedic in nature.

11. It is argued that the contention of the respondent No.7 is misleading the Court into believing that his products are non-ayurvedic in nature by trying to assert that 'ayurveda' and 'ayurvedic blends' are two separate fields/products. It is submitted that the entire range of products by respondent No.7 is ayurvedic in nature and merely blending the base product does not change the nature of the product as they still remain Ayurvedic products inherently.

12. The stand of the so called experts that the technique of extraction of ayurvedic products has changed the very nature of product is completely in correct. In fact, the ingredients used by the respondent No.7 find clear mention in the Ayurveda Pharmacopoeia and in spite of the injunction order, the defendants continue to advertise their JIVA Spa in various newspapers on a weekly basis. The advertisement of the defendants' spa under the name JIVA has appeared on 7th February, 2016 and 14th February, 2016 in the Hindustan Times, Delhi Edition in Brunch.

13. It is also submitted that respondent No.7 has started claiming proprietary rights over the mark JIVA and has in fact, filed a case against 'ZIVA' spas against their parties who have also employed doctors who are trained Ayurvedic doctors to treat/advise customers thus, the respondents cannot take a stand that they have no relation/connection with Ayurveda. Hence, the conduct of the defendants would speak for itself.

14. In fact, it appears from the Division Bench's order dated 30th May, 2008 the defendants were restrained from selling/using or offering for

sale/use any ayurvedic product under the trademark 'JIVA'. The Division Bench modified the Single Judge's order dated 17th October, 2006, by allowing the defendants to use the trademark 'JIVA' at its spas for any products other than ayurvedic products pursuant to which the defendants have been selling/using products under the trademark 'JIVA' at its spas. It is submitted by the plaintiffs that the defendants are not in violation of the Division Bench order dated 30th May, 2008. It is evident that the spirit of the order is to avoid any confusion and deception during the pendency of the suit.

15. Mr.Sandeep Sethi, learned Senior counsel for the defendants submitted that it is disputed question of fact as to whether after passing of the order of the Division Bench, the goods used by the defendants are ayurvedic product or non-ayurvedic product, although as per his client, those were non-ayurvedic goods. He says that even if those are ayurvedic, the said use was bonafide and definitely not willful or deliberate and without any malice, as the defendants have highest regard to the orders passed by this Court. Such use was made on the basis of expert opinion. He referred the advice of Farida Irani, Founder of Subtle Energies Pvt. Ltd. (the manufacture from which the respondent No.7 sources its products) has confirmed and explained vide her letter dated 27 th September, 2014 that the products used by the defendants in their spas are not ayurvedic aromatherapy products. The key difference being that ayurveda uses herbal oil decoctions by boiling whole parts of the plants together whereas aromatherapy oils are created by using the method of distillations which are not used in ayurveda. The defendants have also sought opinions from various experts in the field of ayurveda such as Dr.

Ramkumar Kutty dated 9th October, 2014 and professor Dr. P.H. Kulkarni who have confirmed that the blends created by Subtel Energies are aromatic blends only, as ayurveda does not commonly use essential oils.

16. Mr.Sethi submits that the said use was based on their bonafide understanding and interpretation of the Division Bench's order and opinions of various experts have sought to use the trademark 'JIVA' for their spas and have further used the trademark 'JIVA' on products which are non-ayurvedic. The plaintiffs, on the other hand, have not been able to discharge the burden to prove, beyond reasonable doubt, the willful disobedience of the Division Bench's order by the defendants.

17. He submits that such use was not intentional or deliberate. Upon instruction from his client, the statement was made that during the pendency of the suit, the defendants are prepared to make the statement that they would not use the mark JIVA in relation to disputed goods as alleged by the plaintiff except in respect of JIVA for spa and in relation to pillow, towels and handkerchief and only related articles of spa but would not use JIVA for any cosmetic, soaps, ayurvedic or even non-ayurvedic or any other allied and cognate goods, but it would do without prejudice to contest the suit on merit.

18. In view of statement made on behalf of the defendants, I am of the view that the there is a force in the submissions of the defendants. The said suggestions of the defendants are reasonable and they are entitled to use the same during the pendency of the suit, however as stated by them they shall not use the mark JIVA for soaps, cosmetics, ayurvedic and non- ayurvedic in order to avoid confusion. The same would be used as Jiva Spa Centre.

19. There are various expert opinions placed on record by the defendants in order to establish their bonafide. Although, this Court is of the opinion that the defendants should have not used the said goods at least as those are allied and cognates to the goods of Ayurvedic. However, it is difficult to find out as to whether it was done deliberately and intentionally in view of expert opinion placed on record. At the best, they might have been misled by the person who gave the opinion to suggest that they were using the goods which are non-ayurvedic. There is back up evidence in the matter. In fact, in view of the documents filed by both parties, it is a case of opinion versus opinion. Therefore, I am inclined to give the benefit of doubt to the defendants, however, subject to the condition that they shall deposit a sum of Rs.1,00,000/- with Delhi High Court Mediation and Conciliation Centre as cost because of the reason that at least before using the said products and before launching, the defendants could have informed the Court in advance.

20. The CCP is accordingly disposed of. It is clarified that the suit would be decided after trial as per its merit as per pleas raised by both the parties and without influence of this order.

(MANMOHAN SINGH) JUDGE APRIL 04, 2016