Delhi High Court
Kaira District Cooperative Milk ... vs Amul Brush Enterprises & Anr. on 21 December, 2022
Neutral Citation Number : 2022/DHC/005734
$~7(Original)
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(COMM) 666/2021
KAIRA DISTRICT COOPERATIVE MILK PRODUCERS
UNION LTD. & ANR ...... Plaintiffs
Through: Mr. Afzal B. Khan, Mr. Vishal
Nagpal, Ms. Suhrita Majumdar and Mr.
Balkrishan Singh, Advs.
versus
AMUL BRUSH ENTERPRISES & ANR. ..... Defendants
Through: Ms. Kangan Roda, Adv.
CORAM:
HON'BLE MR. JUSTICE C.HARI SHANKAR
JUDGMENT(ORAL)
% 21.12.2022
CS(COMM) 666/2021
1. The plaintiff, by this suit, alleged infringement, by the
defendant, of plaintiff's well-known trademark AMUL/KBI AMUL. It
was alleged that the defendant was manufacturing, selling and dealing
in paint brushes, rollers, putty knives and other allied products under
the mark AMUL and KBI AMUL.
2. The Defendant 2 also possesses a registration for the mark "KBI
AMUL".
3. The plaintiff, however, claims priority of registration as well as
priority of user.
4. By order dated 20th December 2021, the defendants were
restrained from using the impugned marks AMUL/KBI AMUL, in any
Signature Not Verified
Digitally Signed
Signing Date:22.12.2022
15:08:41
Neutral Citation Number : 2022/DHC/005734
manner whatsoever. A local Commissioner was also appointed to visit
the premises of the defendants and to seize goods which contain mark
which infringe the plaintiff's registered mark. Consequent on the visit,
the learned Local Commissioner seized as many as 36,000 to 37,000
paint brushes with the impugned "KBI AMUL" mark.
5. On 21st July, 2022, learned Counsel for the defendants
submitted to the Court that the defendants were willing to suffer a
decree and had already stopped use of the mark "AMUL" with or
without any suffix or prefix.
6. Nonetheless, this Court, by order dated 21st July 2022, opined
that, given the number of offending goods seized from the defendant's
premises, the defendant was required to be multed with costs.
7. The defendant has thereafter filed an affidavit, undertaking not
to use the marks/logo/trade name AMUL/KBI AMUL for any goods
or services of theirs. All the material that was being used to
manufacture the said goods are also stated to have become unusable.
8. The defendant has placed on record its GST returns in order to
substantiate its stand that it is financially not in a position to pay costs.
9. The GST returns, if seen, show that, during a large part of the
period in question, the returns are nill returns. The returns are also not
certified or adjusted by any chartered accountant.
10. Mr. Afzal has drawn my attention to order dated 27th April 2022
passed by a Coordinate Bench of this Court in CS (COMM) 492/2021
(Satnam Brush Industry v. Kori Brush Industries), in which, in a
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Signing Date:22.12.2022
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Neutral Citation Number : 2022/DHC/005734
similar trademark infringement action, the Coordinate Bench imposed
costs, on Defendant 2 of ₹ 4,00,000/-.
11. Ms. Kangan Roda learned Counsel for the defendants candidly
acknowledges that the said order was never challenged and has, in
fact, been complied with.
12. As such, it cannot be said that the defendant is financially not in
a position to pay costs.
13. The manner in which the defendant infringed the plaintiff's
well-known registered mark, and the fact that, at the time of execution
of the commission, as many as 36,000 to 37,000 paint brushes
containing the offending mark were found in the defendant's
premises, this Court is of the view that the plaintiff would be entitled
to actual costs.
14. There shall be a decree in favour of the plaintiff in terms of
Prayers A and B in the suit.
15. The plaintiff is also held to be entitled to actual costs in the suit
for which purpose the plaintiff would present the bill of costs before
the concerned Taxation Officer.
16. The suit stands decreed accordingly. The registry is directed to
draw up a decree sheet in the aforesaid terms.
17. List before the concerned Taxation Officer to workout costs on
11th January 2023.
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Digitally Signed
Signing Date:22.12.2022
15:08:41
Neutral Citation Number : 2022/DHC/005734
18. Mr. Afzal B. Khan learned Counsel for the plaintiff is agreeable
to the defendant disposing of the seized brushes in any manner after
removal, or effacement, from the body of the brushes, of the offending
logo KBI AMUL. He is permitted to do so within a period of 8 weeks
and to file an affidavit to that effect in these proceedings.
C.HARI SHANKAR, J
DECEMBER 21, 2022/AR
Signature Not Verified
Digitally Signed
Signing Date:22.12.2022
15:08:41
