Delhi High Court
Jatinder Singh vs M/S Bhaiji Attarwale ... on 25 October, 2017
$~O-1
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 25.10.2017
+ CS(COMM) 99/2016
JATINDER SINGH ..... Plaintiff
Through Mr.D.K. Yadav, Adv.
versus
M/S BHAIJI ATTARWALE PERFUMERS(P) LTD ..... Defendant
Through None.
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH, J.(ORAL)
I.A. No.7648/2017
1. This application is filed under Order 6 Rule 17 CPC & Order 1 Rule
10 read with Section 151 CPC seeking amendment of the plaint.
2. None has appeared for the defendant despite service. Defendant is
proceeded against ex-parte.
3. The plaintiff has filed the present suit seeking relief of passing off
action for violation of action of the defendant's trademark 'BHAI JI
ATTARWALE'.
4. In the meantime, during pendency of the suit, the application filed by
the plaintiff for registration of the trademark 'BHAI JI ATTARWALE' was
allowed and the trademark was registered. Hence, this additional fact is
sought to be brought on record. Relief is also sought regarding infringement
of the plaintiff's trademark 'BHAI JI ATTARWALE'. The application is
necessary for complete adjudication of the disputes between the parties.
CS(COMM) 99/2016 Page 1
5. The application is allowed.
CS(COMM) 99/2016
1. None has appeared for the defendant. In several hearings before the
Joint Registrar also none had appeared for the defendant. The defendant is
proceeded ex parte.
2. Present suit has been filed by the plaintiff for permanent injunction
restraining infringement of trademark/trade name, passing off, rendition of
accounts, delivery up, damages etc.
3. It is the plaintiff's case that it is one of the leading name in the trade
and business of hair oil, perfumery, aggarbatti, shampoo and dhoop batti
(herein after referred as said goods/business) for many decades in India.
4. It is further stated that plaintiff's predecessor was engaged in the said
business in Pakistan and was known as BHAIJI and as was selling ITRA
(scent) derivative whereof is ATTAR and hence was fondly known as
BHAIJI ATTARWALE and in this way the plaintiff's trademark and trade
name came to have been adopted. And subsequently the plaintiff alongwith
his father and uncles settled in different parts of India and carried out the
trade and business from there. The plaintiff has been carrying out the said
business all over India from Bareilly since 1953.
5. It is further stated that the plaintiff that in order to acquire statutory
rights filed trade mark/trade name applications for the registration of the said
trade mark/trade name BHAIJI ATTARWALE which is duly registered in
class 3 under number 2159098. Some of the applications are pending. The
said business of the plaintiff under the trade mark/name BHAIJI
ATTARWALE has acquired tremendous goodwill and reputation. The
plaintiff claims that it has been continuously advertising and promoting its
CS(COMM) 99/2016 Page 2
said trade mark/name and has spent substantial amount of money on
publicity of the said mark.
6. It is the contention of the plaintiff that in the last week of August,
2013, the plaintiff learnt of violations of their trade mark/name by the
defendant. It is the contention of the plaintiff that the defendant is engaged
in the same nature of business i.e. spray and agarbatti etc. (hereinafter
referred to as the impugned goods). It is contended that the defendant is
commercially and in the course of its business using the trade mark/name
BHAIJI ATTARWALE PERFUMERS PVT. LTD. in relation to its
impugned goods and business. It is further contended that the defendant
copied the said trademark/name of the plaintiff BHAIJI ATTARWALE
which are same/similar/identical to the plaintiff's said trademark/name in
each and every manner.
7. It is the contention of the plaintiff that the impugned trade mark/label
is identical with and deceptively similar to the said trade mark/name of the
plaintiff. It is contended that the impugned goods of the defendant are of
same/similar and/or allied and cognate nature as that of the plaintiff.
8. It is the contention of the plaintiff that the defendant has recently
adopted impugned trade mark/name and that the defendant is not issuing any
formal bills.
9. The defendant in the written statement contends that the suit has been
filed out of business rivalry and is devoid of merit. The defendant
corroborates the fact as to how the trademark/name adopted by the plaintiff.
The defendant however contends that the business in the name of the
defendant has been started by one Maninder Pal Singh who happens to be
the uncle of the plaintiff. The defendant also contends that the trade name
CS(COMM) 99/2016 Page 3
BHAIJI ATTARWALE PERFUMERS PVT. LTD. only markets the goods
in question and defendant is using VEERA and a trademark/logo of capital
'V' in a globe.
10. It is further contended by the plaintiff in rebuttal to the contention of
the defendant that the defendant is a distinct legal entity and in absence of
any instrument/document creating any right in favour of the defendant, the
adoption of the defendant is illegal and the use of the same amounts to
infringement of the trade mark/name of the plaintiff under Section 29 of the
Trade Marks Act, 1999 and also passing off, a common law remedy and also
under Section 27 of the Trade Marks Act, 1999 as the plaintiff has
indomitable goodwill and reputation and the defendant is making
misrepresentation in trade which is injuring and causing damages to the
goodwill and reputation of the plaintiff. It is also contended by the plaintiff
that right relating to use of the name BHAIJI ATTARWALE has never been
assigned by Sh. Maninder Pal Singh by way of any separate instrument and
the above facts are admitted and supported by Sh. Maninder Pal Singh in
reply to I.A. No.9418/2014 (under Order 1 Rule 10) filed by him.
Accordingly, the defendant has no rights whatsoever to use the trade
name/company name starting with the word/name BHAIJI ATTARWALE.
11. It is clear from the unrebutted averments of the plaintiff supported by
an affidavit of the plaintiff that he has been engaged in the said business and
has been selling said goods/business known as BHAI JI ATTARWALE for
a very long time. The trademark BHAI JI ATTARWALE also stands
registered in Class III. The plaintiff has a valid and substantial registration.
The plea of the defendant claiming rights on the trademark in the absence of
any evidence cannot be accepted. Accordingly, a decree of permanent
CS(COMM) 99/2016 Page 4
injunction is passed in favour of the plaintiff and against the defendant
restraining the defendant its Directors, proprietors, agents etc. from using,
selling, exporting, offering for sale, advertising or displaying in any manner
or mode in hair oil, perfumery, agarbatti, Shampoo and dhoop batti and
allied/cognate goods under the impugned trademark and trade name BHAI
JI ATTARWALE and/o BHAI JI ATTARWALE PERFUMERS PVT.
LIMITED.
12. Keeping in view the acts of the defendants a decree of damages of
Rs.1,00,000/- is also passed in favour of the plaintiff and against the
defendant. Plaintiffs shall also be entitled to costs.
13. The suit is disposed of.
JAYANT NATH, J.
OCTOBER 25, 2017/rk
CS(COMM) 99/2016 Page 5
