Delhi High Court
Pankaj Sales Corporation vs Indra Jain Industries on 23 October, 2018
#16
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ EX.P. 33/2013 & EX.APPL.(OS) 95/2013
PANKAJ SALES CORPORATION ..... Decree Holder
Through Mr. Amit Narang with
Mr. Yadminder Lal, Advocates
versus
INDRA JAIN INDUSTRIES ..... Judgement Debtor
Through Ms. Sushmita Chaudhary,
Advocate
% Date of Decision: 23rd October, 2018
CORAM:
HON'BLE MR. JUSTICE MANMOHAN
JUDGMENT
MANMOHAN, J: (Oral)
1. Present execution petition has been filed seeking execution of
the consensual decree dated 14th December, 2011 passed in CS (OS)
2039/2011. It is pertinent to mention that the consensual decree had
been passed in accordance with the Settlement Agreement dated 8 th
December, 2011 executed between the parties before the Delhi High
Court Mediation and Conciliation Centre. The relevant portion of the
said Settlement Agreement dated 8th December, 2011 is reproduced
hereinbelow:-
a) The defendant acknowledge the plaintiff to be the
registered proprietor of the trade mark TRISHUL with
device of TRISHUL/TRIDENT under No. 1335878 as of
02-02-2005 in respect of Hand Saw Blades and Hand
Tools in Class-08 and registered trade mark TRISHUL
(world per se) under No. 1335879 as of 02-02-2005 in
respect of the same goods. The defendant has agreed
that he will not claim any copy right in the label of
TRIPHUL and device of TRISHUL/TRIDENT style and
arrangement etc.
b) The defendant state that he had also started using the
device similar to the trademark of the plaintiff, with the
Trade Name "JAIN". Now the defendant has come to
know that the device used by the defendant is a
registered trade mark of the plaintiff. The defendant
now undertakes that he will not manufacture, sell, offer
for sale, advertise, directly or indirectly deal in Hand
Tools included Karni, Garden Tools, Masonary Tools,
Khurpy, Hand Saw, Purnins implements (hand
operated). Cutlery, Side Arms and Razors under the
device mark TRISHUL/TRIDENT with conjunction of
the word JAIN and/or any other trade mark and its
copyright, as may be identical with and/or deceptively
and confusingly similar to Plaintiff's registered trade
mark and its copyright in the artistic work of TRISHUL
device TRISHUL/TRIDENT and/or from committing
any such act or acts, which is likely to cause confusion
and deception amounts to passing off the goods and
business as that of the Plaintiff.
c) The Defendant further undertakes that he will withdraw
the application No. 1976531 in class-08 for the
registration of trade mark TRISHUL device
TRISHUL/TRIDENT from the Trade Mark Registry,
Ahmedabad and receipt of the same will be given to the
Plaintiff.
d) The Defendant further agreed to destroy all of the
offending counterfeited goods and all the of the cartons,
wrappers, labels, stickers, blocks and dies under the
trade mark TRIPHUL device TRISHUL/TRIDENT and
device TRISHUL/ TRIDENT with conjunction of the
words JAIN, which are those in possession and control
of the Defendant."
2. Learned counsel for the decree holder contends that the
judgment debtor is still using a label which is identical and/or
deceptively similar to the decree holder's label in violation of the
consensual decree. The decree holder's label and the judgment
debtor's label post the decree are reproduced hereinbelow:-
A) Decree Holder's label`(Annexure P-1) :-
B) Judgment Debtor's label (Annexure D-1):-
3. Per contra, learned counsel for judgment debtor states that only
the device and word mark TRISHUL/TRIDENT as well as the mark
JAIN had been injuncted.
4. However, this Court upon a perusal of the Settlement
Agreement dated 8th December, 2011 is of the view that the decree
dated 14th December, 2011 does not incorporate Annexure P-1. It
incorporates the decree holder's trade marks bearing registration No.
1335878 and 1335879. The device/label mark registration bearing No.
1335878 is reproduced herienbelow:-
5. Consequently, this Court is of the view that the judgment debtor
had been restrained from using the device/label mark bearing
registration No.1335878 as well as word mark TRISHUL bearing
registration No.1335879 and the word mark JAIN only. Further, the
judgment debtor had to withdraw its application for registration of the
trade mark TRIPHUL, device TRISHUL/TRIDENT from the Trade
Mark Registry.
6. However, under the guise of the aforesaid injunction, decree
holder cannot claim any exclusive right in either Annexure P-1 or
shape of Steel Furner. In fact, the Annexure P-1 was neither referred
to nor incorporated in the Settlement Agreement dated 08 th December,
2011 and consensual decree dated 14th December, 2011.
7. Consequently, this Court is of the view that the present
execution petition is without any merit and accordingly, the same is
dismissed.
MANMOHAN, J
OCTOBER 23, 2018
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