$~O-1 * IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 25.10.2017 + CS(COMM) 99/2016 JATINDER SINGH Through versus... Plaintiff Mr.D.K. Yadav, Adv. 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. OCTOBER 25, 2017/rk JAYANT NATH, J. CS(COMM) 99/2016 Page 5