Delhi High Court
Mallcom (India) Limited & Anr vs Rakesh Kumar & Ors on 17 January, 2019
$~1
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(COMM) 480/2016 & IAs No.5571/2016 (u/O XXXIX R-1&2
CPC), 12236/2017 (of D-4&5 u/O XXXIX R-4 CPC r/w S-151 CPC),
12890/2018 (of D-4&5 u/O XI R-10 CPC) & 12370/2018 (u/S 151
CPC)
MALLCOM (INDIA) LIMITED & ANR ..... Plaintiffs
Through: Mr. Saurabh Banerjee, Ms. Suhrita
Majumdar and Mr. Afzal B. Khan,
Advs.
Versus
RAKESH KUMAR & ORS ..... Defendants
Through: Mr. D.K. Yadav, Adv.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
ORDER
% 17.01.2019
CS(COMM) No.480/2016.
1. The counsel for the plaintiffs states that though this case is ripe for
framing of issues but the plaintiffs seek a summary judgment against the
defendants.
2. On enquiry, whether any application under Order XIII-A of the Code
of Civil Procedure, 1908 (CPC) has been filed in this respect, the answer is
in the negative.
3. However, the counsel for the plaintiffs refers to the amendment vide
Notification dated 16th October, 2018 with effect from 1st November, 2018
to the Delhi High Court (Original Side) Rules, 2018, particularly to the new
Chapter XA inserted therein and Rule 1 titled "Summary Judgment"
whereof provides "At the time of Case Management Hearing, a Court, may
of its own, decide a claim pertaining to any dispute, by a summary
judgment, without recording oral evidence" and contends that by the said
amendment to the Rules, the need for filing an application for summary
judgment under Order XIII-A of CPC has disappeared.
4. I have however enquired from the counsel for the plaintiffs, whether
Order XIII-A of CPC providing for an application to be made for a summary
judgment has been done away with.
5. The answer is in the negative.
6. On enquiry, that in the face of such inconsistency in Order XIII-A
Rule 4 of CPC prescribing the procedure for applying for summary
judgment and Chapter XA Rule 1 of the Delhi High Court Rules as
contended by the counsel for the plaintiffs, which of the two will prevail, the
counsel states that there is no inconsistency.
7. I am unable to agree. While one provides for an application for
summary judgment to be filed, the other empowers the Court to of its own
pass a summary judgment.
8. The counsels to address on the said aspect.
9. The counsel for the defendants states that the defendants have
preferred a Special Leave Petition against the order dated 5th October, 2018
of dismissal of the application of the defendants for amendment of the
written statement but which has not been listed as yet and seeks
adjournment.
10. List for further consideration on 14th February, 2019.
IAs No.5571/2016 (u/O XXXIX R-1&2 CPC), 12236/2017 (of D-4&5 u/O
XXXIX R-4 CPC r/w S-151 CPC)
11. The counsel for the plaintiffs and the counsel for the defendants have
been heard.
12. The suit is for permanent injunction restraining infringement of
trademark, copyright, design and passing off and for ancillary reliefs.
13. The product of the plaintiffs as well as the defendants is the same i.e.
safety shoes meant for industrial use.
14. While the mark of the plaintiffs is „TIGER‟, the mark of the
defendants is "THE TICER".
15. A photographic depiction of the two marks is as under:
16. The marks are also embossed on the sole of the shoes and the
photographic depiction of the shoes of the plaintiffs and defendants is as
under:
17. The counsel for the plaintiffs, on enquiry as to since when the
plaintiffs are in the business of safety shoes under the mark „TIGER‟,
informs that the plaintiffs are in the business since 2010.
18. On enquiry, since when the defendants are in the business of safety
shoes under the mark „THE TICER‟, the counsel for the defendants states
that the defendants commenced the said business in the year 2015.
19. As would immediately be evident from the above, not only are the
plaintiffs prior user of the mark but the mark adopted by the defendants is
identical and deceptively similar to the mark of the plaintiff with the only
difference between the two being of alphabet „G‟ in the mark of the
plaintiffs and of alphabet „C‟ in the mark of the defendants. The word „the‟
in the mark of the defendants is not capable of distinguishing the two.
20. The difference between the capital alphabet „G‟ and capital alphabet
„C‟ is only of the chin appended to the lower end of the curve of the
alphabet „C‟.
21. Human mind reads the words by presuming the rest of the alphabets
from the first one or two and last one or two letters. People do not ordinarily
read each letter in a word individually. This is known as the "Word
Superiority Effect". This is more likely in the case of „Tiger‟ and „Ticer‟,
since while „Tiger‟ is a word with definite meaning, „Ticer‟ is not. The
human mind recognises words by matching inner letter content guided by a
few clues such as exterior letters. According to Ashwini Nadkarni, Director
of Digital Integrated Care in Psychiatry, as long as the exterior letters of the
words remain the same, „typoglycemia‟ captures our preserved ability to
comprehend them. The phenomenon is also called „Chunking‟, which is a
cognitive shortcut that our brain uses to divide random information into
more meaningful parts so that the information can be recalled more
effectively.
22. The defendants are found to have even copied the font of the mark of
the plaintiffs. The first alphabet „t‟ in both marks is in small case and the rest
of the alphabets of both the marks are in capitals. The same further hides the
difference in the two marks, of the alphabet „G‟ in the mark of the plaintiffs
and the alphabet „C‟ in the mark of the defendants.
23. The only argument of the counsel for the defendants is, that the
plaintiffs have assigned the mark „TIGER STEEL‟ to another and since
„TIGER‟ was the dominant part of the mark which has been assigned, the
plaintiffs have no right with respect to the mark „TIGER‟ also.
24. The said plea is not open to the defendants and if at all available to
anyone, is available to the assignee of the plaintiffs. The defendants are
admittedly not the assignee of the plaintiffs. Moreover, the said plea does
not even form part of the written statement of the defendants and
amendment to incorporate the same has already been declined.
25. No other argument has been raised by the counsel for the defendants.
26. I am unable to find any ground for discontinuance of the ex-parte ad-
interim injunction already in force.
27. Accordingly, the ex-parte ad-interim order of injunction dated 5th
May, 2016 is made absolute during the pendency of the suit.
28. IA No.5571/2016 of the plaintiffs is accordingly allowed and IA
No.12236/2017 of defendant No.D-4&5 is dismissed.
IA No.12890/2018 (of D-4&5 u/O XI R-10 CPC)
29. The counsel for the defendants states that the said application was
filed to file additional documents in support of the plea sought to be taken
by amendment.
30. Once amendment has been declined, this application is infructuous
and is disposed of.
IA No.12370/2018 (u/S 151 CPC)
31. This application has already been disposed of and be not shown in the
Cause List.
RAJIV SAHAI ENDLAW, J.
JANUARY 17, 2019
„bs‟..
