Delhi High Court
Dharam Chand Ladha Mal vs Subhash Sabun Udyog & Ors on 23 May, 2017
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(COMM) 1602/2016 & I.As. 4643/2015 AND 8734/2015
DHARAM CHAND LADHA MAL ..... Plaintiff
Through: Ms. Aparna Jain, Advocate.
versus
SUBHASH SABUN UDYOG & ORS ..... Defendants
Through: Mr. Naveen Kumar Raheja, Advocate
for defendant No.1.
Mr. Mritunjay Kumar Singh, Advocate
for defendant No.11.
% Date of Decision: 23rd May, 2017
CORAM:
HON'BLE MR. JUSTICE MANMOHAN
JUDGMENT
MANMOHAN, J (Oral):
1. Present suit has been filed for permanent injunction, passing off,
infringement of trade mark, damages etc. The prayer clause is reproduced
hereinbelow:-
"a) Restrain the Defendants, its servants, agents, partner,
associates, and all other persons acting for and on their behalf
from selling, advertising or marketing its products under the
mark NIROKHA SOAP or NIROKHA SABUN or
NAROLKALA SOAP OR NAROLKALA SABUN any other
mark similar with that of the Plaintiff‟s mark to stop
infringement of registered trade mark of the Plaintiff.
b) Restrain the Defendants, its servants, agents, partner,
associates, and all other persons acting for and on their behalf
from selling, advertising or marketing its products under the
mark NIROKHA SOAP or NIROKHA SABUN or
NAROLKALA SOAP OR NAROLKALA SABUN any other
mark similar with that of the Plaintiff‟s mark to stop passing
off its products as that of the Plaintiffs.
c) Direct the Defendants to render accounts of all profits
made by the Defendant by use of the deceptively similar mark,
which is similar to the registered trade mark of the Plaintiff.
d) Direct the Defendants to pay damages to the Plaintiff for
a sum of Rs.25,50,000/- for use of deceptively similar mark on
its products similar to that of the registered trade mark of the
Plaintiff.
e) Direct the Defendants to hand over the entire stored/
manufactured products, which has the registered trade mark of
the Plaintiff, to Plaintiff or any of its authorized representative
for destruction.
f) Any other order/directions as this Hon‟ble court deems
fit and proper in the exigencies of circumstances may also be
passed in favour of the Plaintiff and against the Defendants."
2. On 05th March, 2015, this Court passed an injunction order restraining
the defendants, their agents and authorised representatives from selling,
advertising or marketing its product under the mark 'NIROKHA'or any
other mark which is similar to the plaintiff's registered trade mark
'NAULAKHA' in any manner. By the same order, Local Commissioners
were also appointed.
3. In one of the Local Commissioner's report dated 25th March, 2015, it
has been stated as under:-
"7. That the undersigned conducted a detailed search of the
premises and come across these empty 94 "packaging
materials" of ‟20 kg each‟, bearing the trade-mark infringing
„NIROKHA‟ mark. That on enquiring on the said packaging,
the Commissioner was granted no unambiguous explanation.
That the Sole proprietor Mr. Subhash Chander was explained
the nature of the findings of the Commissioner. That the Sole
Proprietor was further apprised of the nature of the findings
and explained how these were in infringement of the Plaintiff
Company‟s Trademark „NAULAKHA‟. That the
Commissioner seized the said packaging, sealed it and
released the same to the proprietor on „SUPERDARI‟.
4. Thereafter, the defendants No.2 to 9 were proceeded ex parte.
5. Despite a pass over, none is present for the defendant No.10.
Consequently, the said defendant No.10 is also proceeded ex parte.
6. Learned counsel for defendants No.1 and 11, who are present in
Court, state that they have no objection if the suit is decreed in terms of
prayers 'a' and 'b'. They further state that the defendants are small time
traders and they cannot afford to pay the damages sought for by the plaintiff
in the present case.
7. At this stage, the Court has suggested to the parties that each of the
defendants should pay Rs.50,000/- each as compensation/damages to the
plaintiff. Learned counsel for defendants No.1 and 11 are agreeable to the
same.
8. Consequently, keeping in view the pleadings as well as the documents
on record and the reports of the Local Commissioners, this Court is off the
view that there is a clear similarity between the trade dress of the defendants
and the plaintiff's product.
9. Accordingly, the present suit and applications are decreed in terms of
prayers 'a' and 'b' of the amended plaint.
10. Each of the defendants are also directed to pay
compensation/damages of Rs.50,000/- to the plaintiff within eight weeks.
Registry is directed to prepare the decree sheet accordingly.
MANMOHAN, J
MAY 23, 2017
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