M/S Hari Chandn Shri Gopal & Anr vs Bal Gopal Fragrances
2017 Latest Caselaw 2767 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                               Judgment reserved on : 26.5.2017
                                Judgment delivered on : 30.5.2017

                          CS(OS) 800/2010

M/S HARI CHANDN SHRI GOPAL & ANR
                                  ......Plaintiffs
             Through:  Mr. Pravin Anand & Ms. Prachi Agarwal,
                       Advocates
             Versus


BAL GOPAL FRAGRANCES                                .......Defendant
             Through: None.

CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J.

1. Present suit is a suit for permanent and mandatory injunction

restraining infringement of trademark, rendition of accounts, damages and

delivery up.

2. Plaintiff No.1 is a partnership firm registered in New Delhi engaged in

the business of manufacturing and selling tobacco products including

flavored chewing tobacco, pan-masala etc. since 1950. Plaintiff No.2 is the

licensee of plaintiff No.1 vide license agreement dated 01.04.2009.

Plaintiff No.1 is a registered proprietor of the Lord Krishna

device/logo (with Lord Krishna playing the flute with a cow in the

background), the trademark GOPAL (in hindi as well as english) and also the

labels comprising of the trademark GOPAL and Lord Krishna Device/Logo

in relation to flavoured chewing tobacco and has been using the trademark

continuously since 1950. The plaintiffs have also extensively promoted and

advertised its products under the trademark GOPAL accompanied by the

Lord Krishna device/logo.

3. Defendant is a proprietorship firm registered in Cuttack, also engaged

in the manufacture and sale of flavored chewing. In March, 2010 the

plaintiffs discovered that the defendant was manufacturing and selling

flavored chewing tobacco under the trade name of BAL GOPAL

FRAGRANCES which appeared on its packaging and was also using the

Lord Krishna logo along with the corporate name on its promotional

literature such as business cards etc. The suit of the plaintiffs was

accordingly filed for permanent injunction seeking restraint of the defendant

from infringing plaintiffs' trademark.

4. The defendant had put in appearance. He filed written statement. He

submitted that his was a small scale industrial unit engaged in the

manufacture and sale of unbranded chewing tobacco without any trade name.

It was admitted that defendant was working in the name and style of BAL

GOPAL FRAGRANCES and was using picture of Bal Gopal on its business

cards etc. but he denied there being any similarity between his Bal Gopal

Logo and the plaintiffs' Lord Krishna logo. He also denied using any logo or

brand name for its manufactured product. He otherwise denied the

allegations made in the plaint.

5. Replication was filed reiterating the averments contained in the plaint

and refuting the submissions made in the written statement.

6. On the pleadings of the parties, on 31.01.2012, the following issues

were framed. They read herein as under:-

(i) Whether the plaintiff No.1 is the registered proprietor of the trademark GOPAL under Nos. 331481, 333612, 814097 and 331482 in relation to its goods? OPP

(ii) Whether the plaintiff No.1 is the registered proprietor of the Lord Krishna device under No. 268259 in relation to its goods? OPP

(iii) Whether the defendant has infringed the registered trademark GOPAL and the Lord Krishna device of the palintiffs'? OPP

(iv) Whether this Court has no jurisdiction to try and entertain the present suit? OPD

(v) Whether the plaintiffs are entitled to relief, if any, as claimed in the suit? OPP

7. The plaintiffs in support of their case have examined PW1 Manoj

Gupta. He has proved the documents in support of the claim of the plaintiffs

as Ex.PW1/1 to Ex.PW1/19. PW1 has reiterated all the averments made in

the plaint. None was present on behalf of the defendant since last many dates

of hearing and the defendant was accordingly proceeded ex-parte on

28.10.2015. Objection that the name of Lord Krishna when used as GOPAL

is publici juris was raised in the interlocutory order of 13.05.2016 to which

the plaintiffs filed supplementary evidence by way of affidavit dated

30.07.2016 stating that plaintiff No.1 is the sole and exclusive user of the

trademark GOPAL for chewing tobacco in class 34 and that no one except

the plaintiffs is using the mark GOPAL with or without variations under the

said class. The plaintiffs have also produced records of the Tademark

Registry regarding various trademark registrations in class 34 using GOPAL

where out of a total 111 registrations 95 registrations belong to the plaintiffs

for chewing tobacco/zarda and 13 of such are using GOPAL with Lord

Krishna device and there is only 1 third party registration for zarda for which

the plaintiffs have already filed a lawsuit and is pendente lite.

8. The oral and documentary evidence which has been placed on record

which includes the statement of PW1 as also the supplementary affidavit

(dated 30.07.2016) duly supported by the documents establishes the case of

the plaintiffs. The plaintiffs have proved that the trademark GOPAL with or

without variations is solely used and associated with the plaintiffs for

chewing tobacco in the entire tobacco industry. The plaintiffs are entitled to

the relief as claimed for by them. Learned counsel for the plaintiffs has

pressed for prayers (a) and (b) in the prayer clause; he has given up his claim

for damages and costs.

9. Learned counsel for the plaintiff has also drawn attention of this Court

to a letter dated 2.08.2011 written by the defendant to the Central Board of

Excise and Customs wherein he had stated that he is closing down his

factory and had also undertaken to surrender his Registration Certification.

10. The suit of the plaintiffs is accordingly decreed and a decree of

permanent injunction is passed in favour of the plaintiffs and against the

defendant restraining the defendant, its partners or proprietor, its officers,

servants and agents, distributors, wholesellers, dealers, retailers or any other

person acting for and on its behalf from manufacturing, selling, offering for

sale, advertising, directly or indirectly dealing in any manner with tobacco

related products including flavored chewing tobacco bearing the Lord

Krishna device/logo under the trademark GOPAL by itself or in conjunction

with other words including the trademark/tradename BAL GOPAL

FRAGRANCES or any mark similar thereof. No order as to costs.

11. Suit of the plaintiffs is decreed and disposed of in the above terms.

Decree sheet be drawn up. File be consigned to record room.

INDERMEET KAUR, J

MAY 30, 2017