Delhi High Court
M/S Veda Seed Sciences Pvt Ltd vs Kohinoor Seed Fields India Pvt Ltd on 15 December, 2022
Neutral Citation Number: 2022/DHC/005625
$~18
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO(OS) (COMM) 326/2022
M/S VEDA SEED SCIENCES PVT LTD ..... Appellant
Through: Mr.K.Raghavacharyulu with
Mr.Kailash Pandey and Mr.Krishna
Yadav, Advocates.
versus
KOHINOOR SEED FIELDS INDIA PVT LTD ..... Respondent
Through: Mr.Saurav Agrawal with Mr.Adarsh
Ramanujan, Mr.Shartanu Agarwal,
Ms.Sulekha Agarwal, Ms.Anmol
Dhindsa and Mr.Skanda, Advocates.
% Date of Decision: 15th December, 2022.
CORAM:
HON'BLE MR. JUSTICE MANMOHAN
HON'BLE MR. JUSTICE SAURABH BANERJEE
JUDGMENT
MANMOHAN, J:
C.M.No.54203-54204/2022
Exemption allowed, subject to all just exceptions.
Accordingly, the applications stand disposed of.
FAO(OS) No.326/2022 & C.M.Nos.54201-54202/2022
1. Present appeal has been filed challenging the interim order dated 01st
December, 2022 passed by the learned Single Judge of this Court in CS
(COMM) No. 828/2022, whereby the Appellant-Defendant has been
restrained from using or selling any product under the Respondent-
Plaintiff's trademarks being 'SADANAND', 'TADAAKHA' and
'BASANT'.
Signature Not Verified
Digitally Signed By:JASWANT
Signing Date:17.12.2022
13:46:27
Neutral Citation Number: 2022/DHC/005625
2. Learned counsel for the Appellant-Defendant states that the learned
Single Judge has erred in passing the impugned injunction order without
considering that the Respondent-Plaintiff had bypassed the statutory
provisions of Section 12A of the Commercial Court Act, 2015, which
prescribes pre-institution mediation as a mandatory requirement.
3. Learned counsel for the Appellant-Defendant states that the learned
Single Judge erred in granting injunction against the Appellant-Defendant
solely on the ground of resemblance of the marks "SADANAND",
"TADAAKHA" and "BASANT" without considering the fact the above
three marks had been used prior in time by the Appellant-Defendant. In
support of his contention, he relies upon the emails dated 20th February,
2018 and 04th February, 2019 as well as letter dated 18th January, 2020.
4. He also states that the Respondent-Plaintiff despite being aware of
registration of the trademarks 'VEDA TADAAKHA GOLD', 'VEDA
SADANAND GOLD' and 'VEDA BASANT GOLD' by the Appellant-
Defendant w.e.f. 07th August, 2021 had suppressed this fact in the plaint. In
any event, according to him, the use of the additional word 'VEDA' by the
Appellant-Defendant constitutes a sufficient distinction and rules out any
possibility of confusion between the products being sold by the Appellant-
Defendant and the Respondent-Plaintiff.
5. Learned counsel for the Appellant-Defendant lastly relies upon the
letter dated 11th April, 2022 wherein the Respondent-Plaintiff had been
informed that the Appellant-Defendant would be selling its own cotton seed
packaging under the marks 'VEDA SADANAND GOLD BGII' and
'VEDA BASANT GOLD BGII'.
Signature Not Verified
Digitally Signed By:JASWANT
Signing Date:17.12.2022
13:46:27
Neutral Citation Number: 2022/DHC/005625
6. Per contra, learned counsel for the Respondent-Plaintiff states that the
letter dated 11th April, 2022 is a forged and fabricated letter. He
emphasises that the said letter is not a part of the trial Court record and
bears no reference number unlike all other letters written by the Appellant-
Defendant to the Respondent-Plaintiff.
7. He emphasises that the Respondent-Plaintiff is the prior user and
registrant of the three marks in question. In support of his contention, he
relies upon para 27 of the impugned order which reads as under:-
"The Respondent-Plaintiff has been selling the aforesaid varieties/hybrids
under its trademarks, as per the details below:-
Seed Variety GEAC Approval Brand Registration
KSCH 232 Dated SADANAND Registered on
03.06.2014 ® 14.08.2017
KSCH 207 Dated TADAAKHA® Registered on
30.06.2010 07.08.2017
for South
Zone
Dated
12.05.2010
for Central
Zone
KSCH 212 Dated BASANTTM Not Registered
23.05.2012
for South
Zone
Dated
10.05.2011
for Central
Zone
Signature Not Verified
Digitally Signed By:JASWANT
Signing Date:17.12.2022
13:46:27
Neutral Citation Number: 2022/DHC/005625
8. Having heard learned counsel for the parties, this Court is of the view
that the Appellant-Defendant had been selling seeds under the said marks
since 2014 by virtue of the authority and power conferred by Respondent-
Plaintiff under Marketing Agreement which were renewed on an annual
basis. In the Marketing Agreements the Appellant-Defendant has admitted
and acknowledged that the three marks in question are owned by the
Respondent-Plaintiff. The relevant portion of the Marketing Agreement
dated 22nd April, 2015 executed between the parties reads as under:-
"4. KSFIPL (Respondent-Plaintiff) has produced the Hybrid Seeds
and wishes to sell them through this marketing agreement with
VSSPL (Appellant-Defendant) under KSFIPL's (Respondent-
Plaintiff) own brand names Tadaakha, SaiCharan, Basant,
Sadanand respectively."
9. Consequently, this Court is of the view that the Respondent-Plaintiff
is the owner and prior user / adopter of the impugned trademarks.
10. While the Appellant-Defendant has obtained registration for the
aforesaid three marks in Class 31 w.e.f. 07th August, 2021, the Respondent-
Plaintiff had already obtained registration for the marks 'SADANAND' and
'TADAAKHA' way back in 2017 with user date since 2014.
Consequently, the Respondent-Plaintiff is not only a prior adopter but also
a prior registrant of the trademarks in question and the allegation of
suppression is irrelevant.
11. This Court is in agreement with the view of the learned Single Judge
that the packaging and aesthetic of the Appellant-Defendant's products are
deceptively identical to that of the Respondent-Plaintiff. A comparative
analysis of the Respondent-Plaintiff's marks along with the Appellant-
Defendant's marks as reproduced by the learned Single Judge is as under:-
Signature Not Verified
Digitally Signed By:JASWANT
Signing Date:17.12.2022
13:46:27
Neutral Citation Number: 2022/DHC/005625
Trademark Plaintiff Defendant
SADANAND
TADAAKHA
BASANT
Signature Not Verified
Digitally Signed By:JASWANT
Signing Date:17.12.2022
13:46:27
Neutral Citation Number: 2022/DHC/005625
12. This Court is of the view that the use of the additional words like
'VEDA' in Respondent-Plaintiff's marks, would not result in a material
difference so as to distinguish the essential and dominant mark of the
Appellant-Defendant from those of the Respondent-Plaintiff. In the emails
and letters referred to by the Appellant-Defendant, it had made certain
suggestions with regard to the packaging of pouches as well as for urgent
supply of pouches under the aforesaid three marks, when it was functioning
as a marketing agent of the Respondent-Plaintiff. Consequently, the same
do not offer any assistance to the Appellant-Defendant.
13. Further, as the Appellant-Defendant had been selling seeds under the
said marks by virtue of the authority and power conferred by Respondent-
Plaintiff under the Marketing Agreements, the Appellant-Defendant is
estopped from challenging either the validity of the marks or the
Respondent-Plaintiff's ownership of the said marks. In fact, the Appellant-
Defendant's adoption of the marks in question is prima facie dishonest as
the same is motivated and with an intent to springboard their business by
drawing affiliation with the Respondent-Plaintiff and its trademarks and to
make unfair gains.
14. This Court is also of the view that as urgent interim relief was sought
in the present matter, the Respondent-Plaintiff was rightly granted waiver
by the learned Single Judge of the requirement of pre-institution mediation
in terms of Section 12A of the Commercial Courts Act, 2015.
15. Accordingly, the present appeal along with pending applications
being bereft of merits is dismissed with costs of Rs.50,000/- to be paid to
the Respondent-Plaintiff. Needless to state that the aforesaid findings are
Signature Not Verified
Digitally Signed By:JASWANT
Signing Date:17.12.2022
13:46:27
Neutral Citation Number: 2022/DHC/005625
prima facie in nature and would not prejudice either of the parties at the
time of final hearing of the suit.
MANMOHAN, J
SAURABH BANERJEE, J
DECEMBER 15, 2022
KA
Signature Not Verified
Digitally Signed By:JASWANT
Signing Date:17.12.2022
13:46:27
