Delhi High Court
Sugandhi Snuffking & Anr vs Yash Kishore Enterprises & Anr on 5 October, 2016
$~21
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) 1956/2015
% Judgment dated 5 th October, 2016
SUGANDHI SNUFFKING & ANR ..... Plaintiffs
Through Mr. N K Kantawala with Mr. Prakhar
Sharma, Advocate
versus
YASH KISHORE ENTERPRISES & ANR ..... Defendants
Through Ms. Jubli Mohalia, Advocate
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
G.S.SISTANI, J (ORAL)
1. Plaintiff has filed the present suit for permanent injunction restraining
infringement of trademark, passing off of trademark, infringement of
copyright, rendition of accounts, etc.
2. As per the plaint, plaintiffs are carrying on their business of
manufacturing, marketing and selling of its various products like
Chewing Tobacco, Pan Masala, Mouth Freshners, Khaini, Zarda,
Qiwam and other allied products under its different trademark and label
marks having original artistic work in it. The plaintiffs during course
of trade uses various trademarks such as JAGAT, SAGAR,
DHADKAN, SACHI, SAGAR SHAKTI, etc. and their respective label
marks for manufacturing, marketing and selling the above said products
and among them one of their celebrated trademark is JAGAT used for
Chewing Tobacco. The trademark JAGAT was adopted and used for
the first time in the year 1992 by Sh.Jagat Kishore Chaurasia in his
plaintiff No.1-Firm Sugandhi Snuffking, Varanasi, Uttar Pradesh, as
CS(OS).1956/2015 Page 1 of 4
the same was derived by him from his own first name and since then
the same has been used openly, extensively and continuously. The said
label/ packaging of the product of the plaintiffs i.e. Zarda/Chewing
Tobacco under its trademark JAGAT is sold in a label/packaging on
tin container having original artistic work, get up, layout, pattern and
colour combination. By virtue of the original artistic work in the getup,
layout, pattern and color combination/scheme in the label of the
plaintiffs, there vests copyright protection under the provisions of the
Copyright Act, 1957. The said trademark is registered; the details are
mentioned in para 11 of the plaint.
3. It is averred in the plaint that on 9.6.2015, the plaintiffs for the first
time from the tobacco market/traders learnt that in order to take the
undue advantage of the pre-established goodwill and reputation of the
product of the plaintiffs 'Chewing Tobacco' bearing trademark JAGAT
also under its distinctive label/packaging, one Mr.Munauwer Ahmed
Khatri trading as Red Sea Exports, Mumbai had intentions to sell and
export the inferior quality of Chewing Tobacco under the impugned
trademark GAJAT and that too under its impugned label/packaging
which is identical/ deceptively similar to the trademark JAGAT and its
distinctive label/ packaging of the plaintiffs. The plaintiffs
immediately filed a suit for infringement of Trademark and Copyright
before this Court, being CS(OS) No.1798/2015, and vide order dated
12.6..2015 this Court had restrained the defendants in the said suit from
manufacturing, selling, using and exporting the chewing tobacco under
the mark GAJAT and its label impugned therein observing the same as
infringement and passing off of the plaintiffs' rights.
4. The complaint of the plaintiffs is that later, on 30.6.2015, the plaintiffs
learnt that the said impugned mark GAJAT and its impugned label,
CS(OS).1956/2015 Page 2 of 4
which were restrained by this Court vide abovementioned order dated
12.6.2015 passed in CS(OS) No.1798/2015, have been manufactured
by the defendants herein and further to the shocking surprise, the
plaintiffs have also come to know that after the abovementioned order
of injunction against the use of the impugned mark GAJAT and its
impugned label, the defendants have malafidely by using a different
title PITARA but the same label started manufacturing, selling and
intending to export the chewing tobacco under the mark PITARA in
the impugned identical/deceptively similar colour scheme and pattern
which was already restrained as impugned by the plaintiffs herein in
earlier suit being CS(OS) No.1798/2015 which is infringement of the
plaintiffs' copyright in the colour scheme, combination of colors under
their title JAGAT.
5. I have heard learned counsel for the parties. It may be noticed that
summons in the suit and notice in the application were issued on
10.7.2015. The defendants were restrained from manufacturing,
selling, exporting, offering for sale and advertising/displaying, directly
or indirectly, dealing in their products and allied products under the
impugned mark GAJAT and its impugned labels under the marks
GAJAT and PITARA with the impugned get-up, colour combination or
any other trademark/label which are identical/deceptively similar to the
plaintiffs' registered trademark JAGAT and its copyrighted colour
combination, getup and layout label. Thereafter the defendants entered
appearance and filed their written statement, however, it was informed
to the Court that the parties are negotiating for a settlement. The matter
was adjourned from time to time on the grounds that settlement talks
were going on.
6. Today, counsel for the parties submit that the parties have entered into
CS(OS).1956/2015 Page 3 of 4
an amicable settlement and pursuant to the said settlement, it is agreed
that the present suit be decreed in favour of the plaintiffs against the
defendants in terms of para 44 (i), (ii) and (iii) of the plaint. Counsel
for the plaintiffs also submits that the plaintiffs give up their relief
claimed in para 44 (iv) and (v) of the plaint. Counsel for the defendants
on instructions to state that impugned labels, wrappers, export
materials, cylinders, dies, cartons, boxes, pouches, tin containers and
any other infringing copies of the impugned trademark will be
destroyed within a period of six weeks from today, as per the inventory
of the Local Commissioner or otherwise.
7. Accordingly, present suit stands decreed in favour of the plaintiffs
against the defendants in terms of para 44 (i), (ii) and (iii) of the plaint.
The relief claimed by the plaintiffs in para 44 (iv) and (v) of the plaint
are given up by the plaintiffs. Defendants shall be bound by the
undertaking given to Court by their counsel. Parties shall be bound by
the settlement arrived at between the parties. Let an affidavit of
compliance be also filed by the defendants.
8. No order as to costs.
IA No. 13593/2015 (U/O. 39, R-1 & 2)
9. Interim order dated 10.7.2015 stands confirmed.
10. Application stands disposed of.
G.S.SISTANI, J.
OCTOBER 05, 2016
P
