Delhi High Court
Case BriefsHigh Courts

   

Delhi High Court: In a suit filed by Vasundhara Jewelers Private Limited (‘plaintiff’), praying for an ad-interim injunction restraining the defendant from manufacturing, selling, offering for sale, exporting, advertising, marketing and/or in any manner using, in relation to any jewelry any other allied and cognate goods including but not limited to textiles, textile goods and fabrics, under the impugned marks or deceptively similar to the plaintiff’s trademarks i.e., ‘VASUNDHRA’ family of marks, Navin Chawla J. rejected prayer for injunction and held that merely because the plaintiff deals in jewelry items, which by themselves are more costly thereby resulting in a higher turnover for the plaintiff, will not give a better right to the plaintiff over an otherwise a common name in India.

The plaintiff-company was established on 28-10-1999 and has its jewellery showroom at Pitampura, New Delhi. It is also engaged in the services of popular Indian celebrities like Ms. Prachi Desai and Ms. Shweta Tewari. The goods of the plaintiff are regularly showcased at various fashion events like Lakme Fashion Week’ where the actress Ms. Jahnvi Kapoor was the showstopper for the fashion designer Punit Balana, in which she wore the jewellery of the plaintiff.

The plaintiff asserts that it is only around April, 2022 that it came across the publication of the defendant 1’s impugned mark/logo ‘VASUNDHRA FASHION’/ in Class 25, for goods being ‘textile, textile goods and fabrics.

The plaintiff asserts that the mark adopted by defendant 1 is deceptively similar to the ‘VASUNDHRA Marks’ of the plaintiff.

The Division Bench of this Court in Bhole Baba Milk Food Industries Ltd. v. Parul Food Specialities Pvt. Ltd., 2011 SCC OnLine Del 288, reiterated that the distinctiveness to which the registered proprietor of a mark can lay a claim is to what it has gotten registered as a whole and such registration cannot possibly give an exclusive statutory right to such proprietor qua a particular word of common origin.

Placing reliance on Cadila Health Care Ltd. v. Cadila Pharmaceuticals Ltd., 2001 PTC 300 (SC), the Court observed that the plaintiff does not have a registration in the word mark ‘VASUNDHRA’, while has obtained registration in the various marks of which ‘VASUNDHRA’ is an essential part, and it would have to be looked into for determining the balance of convenience and the effect thereof.

The Court opined that the goods of the plaintiff and the defendant 1 are not identical, however, can be said to be remotely cognate to each other. But, when compared as a whole, though phonetically the two marks are identical, visually they are different as the plaintiff’s mark has a symbol ‘V’ along with the word ‘VASUNDHRA’, while the defendant 1 has a picture of a leaf along with the word ‘VASUNDHRA Fashion’.

The Court enlisted reasons for the difference between the two marks

  1. Defendant 1 herein claims to have two manufacturing units, four warehouses, and seven offline stores. Its goods are available also online at Flipkart and Meesho, where the plaintiff is not present.

  2. The goods of the defendant 1 are aimed at persons belonging to the lower strata who are looking for cheaper garments while the goods of the plaintiff are claimed to be designer jewellery aimed at persons belonging to the higher strata of the society.

  3. The goods of defendant 1 are in Classes 24 and 25, in which the plaintiff does not have any registration.

  4. The area of operation of the plaintiff and the defendant 1 is also distinct; with the plaintiff being in Delhi, while the defendant 1 being predominantly in the State of Gujarat.

He Court remarked that as the plaintiff is dealing in jewellery, its turnover may sound enormous, but that alone may not be sufficient to, at least at this stage, presume that the mark has obtained such reputation and goodwill so as to be associated only with the plaintiff and for even other goods.

On the contention raised by the plaintiff that defendant has used its popular store mark ‘VASUNDHARA’ in a particular style in one of its stores, counsel for defendant assured that the said mark will never be used in the future.

Thus, the Court held the plaintiff has not been able to make out a prima facie case for grant of prohibitory interim injunction against the defendant 1.

[Vasundhara Jewelers Pvt Ltd. v. Kirat Vinodbhai Jadvani, CS (Comm] 363 of 2022, decided on 21-09-2022]


Advocates who appeared in this case:

For plaintiff: Mr. Sagar Chandra, Mr. Prateek Kumar, Ms. Shubhie Wahi, Ms. Sanya Kapoor, Mr. Parrek & Ms. Aarushi Jain, Advs.

For defendant: Mr. Raghavendra M. Bajaj, Mr. Anshuman Upadhyay, Mr. Naseem & Mr. Prashant, Advs. for D-1.


*Arunima Bose, Editorial Assistant has put this report together.

Delhi High Court
Case BriefsHigh Courts

   

Delhi High Court: In an application filed by Aakash Choudhary (‘petitioner’) seeking anticipatory bail, as FIR was registered against him and Gaurav Singh /co-accused under Sections 308, 323, 341 read with 34 Penal Code, 1860 (‘IPC’), Justice Talwant Singh granted bail on the ground that the CCTV footage, prima facie does not support the allegations mentioned in the FIR, as far as the present applicants are concerned keeping in view that the applicants are ready to join the investigation.

The applicant claimed that the present FIR is a counter blast to the applicant’s FIR registered at PS Sarita Vihar, Delhi, registered under the influence of one Mr. Brahm Singh, who is the aggressor and husband of a local municipal councilor.

The Court opined that that the only reliable piece of evidence, which gives a clear picture of the incident is the CCTV footage of the entire incident, which was captured in a CCTV installed near the ground.

The Court noted that the altercation started on a very minor issue when the complainant stopped a tractor trolly for ferrying certain material to the park where they were going to host a Kabaddi tournament. On this minor issue, the incident escalated to a free for all fight, which resulted in injuries on both sides and rival groups have lodged the FIRs against other groups, alleging the facts, which best suited to them, without realizing that the entire incident was captured in a CCTV camera.

The Court further noted that the investigating agency is required to investigate the entire incident on the basis of scientific evidence, without relying upon exaggerated allegations made in both the FIRs and to conclude the investigation and take further action.

The Court directed the area DCP to ensure that an independent investigation is conducted into the incident and take steps as per law, without getting influenced by the stature or political background of any of the parties and to supervise the progress of the investigation at regular intervals and review the progress made so far.

But the Court made a very interesting observation while dealing with this matter. The Court remarked

“It has been noticed that in the bail applications, apart from stating the facts, elaborate extracts from judgements have been made part of the pleadings. The learned drafting counsel is requested to adhere to the basic principles of pleading and state only facts and the legal provisions applicable along with the grounds on which the bail has been sought. As far as the citations are concerned, the counsels are at liberty to cite all relevant judgements at the time of the arguments. There is no need to attach copies of the judgements with the pleadings, which results in making the pleadings too bulky.”

The Court granted anticipatory bail, subject to the following conditions:

(i) They shall join the investigation as and when called by the IO and fully cooperate in the same.

(ii) They shall not contact, coerce or threaten the complainant and the witnesses in the present case;

(iii) They shall share their Mobile Numbers with the IO within one week of the date of this order and keep the mobile location on at all times;

(iv) They shall not leave the country without permission from the learned Trial Court.

[Aakash Choudhary v. The State of NCT of Delhi, Bail Application No. 2479 of 2022, decided on 15-09-2022]


Advocates who appeared in this case :

For petitioner- Mr. Ramesh Gupta, Sr. Advocate with Mr. Ravi Kumar, Mr. Rohit Pratap Singh, Mr. Gagandeep and Mr. Shailender Singh, Advocates

For State- Mr. N.S. Bajwa, APP. Mr. Kirti Uppal, Sr. Adv. with Mr. Himanshu Bidhuri, Ms. Riya Gulati and Mr. Chandan Sinha, Advocates for R-2.


*Arunima Bose, Editorial Assistant has put this report together.

TATA
Case BriefsHigh Courts

   

Delhi High Court: In a case filed by TATA Sons Private Limited (‘Appellants’) seeking an ad-interim injunction against the respondents from using its registered trademark “TATA” for business purposes, a Division Bench of Mukta Gupta and Manoj Kumar Ohri, JJ. granted ex-parte ad-interim injunction restraining the respondents, their partners or proprietors from manufacturing, selling, offering for sale, supplying, advertising, or unauthorizedly using the appellant’s well-known trademark TATA, or any other deceptively similar mark thereto as part of the name of their digital token/cryptocurrency TATA Coin/$TATA or as part of their corporate name/domain name and websites ‘www.tatabonus.com’/social media pages amounting to infringement/passing off.

Factual Background

The appellant was incorporated in the year 1917 having the trade name/trademark “TATA”, derived from the surname of its founder-Shri Jamsetji Nusserwanji Tata. Allegedly, the respondents are businesses registered in the United Kingdom and the United States, which are using their trademark for doing online trading in cryptocurrency through their website(s) ‘www.tatabonus.com’ and ‘www.hakunamatata.finance’. It is further alleged that the websites are accessible in India and are in fact accessed by visitors from Delhi on daily basis.

A suit was filed seeking injunction but the Single Judge did not doubt the appellant’s entitlement to file the plaint in Delhi, yet he doubted his extraterritorial jurisdiction to injunct the overseas parties by way of ad-interim order, as there was no evidence of the respondents’ targeting the customers in India to sell their digital and physical merchandise and the Indian traffic on the respondents’ website was found to be too scant to call it an interactive website, which is an essential factor recognized Indian Courts for attracting territorial jurisdiction in the cases of online trade.

Principles surrounding Territorial Jurisdiction in Online Trade via Internet websites

A question came up for consideration in the case of Banyan Tree Holding (P) Limited v. A. Murali Krishna Reddy, 2009 SCC OnLine Del 3780, that,

For the purposes of a passing off action, or an infringement action where the plaintiff is not carrying on business within the jurisdiction of a court, and in the absence of a long-arm statute, in order to satisfy the forum court that it has jurisdiction to entertain the suit, the Plaintiff would have to show that the Defendant “purposefully availed” itself of the jurisdiction of the forum court. For this it would have to be prima facie shown that the nature of the activity indulged in by the Defendant by the use of the website was with an intention to conclude a commercial transaction with the website user and that the specific targeting of the forum state by the Defendant resulted in an injury or harm to the plaintiff within the forum state.

In a passing off or infringement action, where the defendant is sought to be sued on the basis that its website is accessible in the forum state, what is the extent of the burden on the Plaintiff to prima facie establish that the forum court has jurisdiction to entertain the suit? Plaintiff would have to plead this and produce material to prima facie show that some commercial transaction using the website was entered into by Defendant with a user of its website within the forum state resulting in an injury or harm Plaintiff within the forum state.

In Millennium & Copthorne International Limited v. Aryans Plaza Services Private Limited & Ors., 2018 SCC OnLine Del 8260, a Single Judge bench of this Court further held that what is relevant for determination in an action for infringement and/or passing off is where the injury has been caused to the plaintiff, as the place where deception has been caused to customers or is likely to be caused, by the offending product of the defendant shall certainly have jurisdiction.

Observations and Analysis

Placing reliance on Lifestyle Equities CV and another company v. Amazon UK Services Ltd, [2022] EWCA Civ 552, the Court noted that even if a website is not directed at customers in a particular country, the fact that they are not restricted by the website to have access to it is enough to characterize it as targeting. Targeting need not be a very aggressive act of marketing aiming at a particular set of customers. The mere looming presence of a website in geography and the ability of the customers therein to access the website is sufficient, in a given case.

Thus, a White Paper, issued by respondent 1 where, in the list of programs pursued by respondent 1, there is a fund called ‘India Development and Relief Fund’ along with other social media printouts, shows respondents’ looming presence in the virtual world over India, including in the territorial jurisdiction of this Court.

Therefore, the fact that the people behind the offending website are stated to be UK nationals of Pakistani origin does make the motives suspicious, given the popularity of the TATA brand among the people from the Indian subcontinent. It is not unreasonable to infer that the objective of respondent 1 could be to target the unsuspecting Indian origin public by doing trade in the name of “TATA”.

The Court opined that in India, the trademark TATA is embedded in the subconsciousness of the public and is only relatable to TATA group of companies. The way trademark “TATA” has been lifted and adopted as it is by the respondent, without even an attempt to disguise it with a prefix or a suffix to claim distinctiveness, appears to be unscrupulous and with an intention to deceive the public by selling inferior and dubious products in the name of TATAs.

Decision

The Court held that as far as the domain name www.hakunamatata.finance is concerned, Hakunamatata is a generic word, and the word “TATA” has fully coalesced in the word Hakuna Matata. It does not cause any deception or confusion. There is only partial phonetic overlap with the word “TATA” in Hakunamatata. Thus, the appellant cannot prevent the adoption by others of names that naturally have alphabets TATA embedded in them.

The Court held that the appellant has a good prima facie case to seek an injunction, as far as the website www.tatabonus.com, crypto products by the name of $TATA, or any other product of respondent 1 being sold on the website www.hakunamatata.finance under the name TATA is concerned.

The Court directed respondents 1 and 3 to immediately take down the website parked on the domain ‘www.tatabonus.com’ and to put the said domain on hold till the pendency of the application, with an exception, that use of domain name ‘www.hakunamatata.finance’ by respondent 1 is not prohibited, at this stage.

Further, it directed respondent 4 is to delist the TATA Coin/$TATA and/or any other crypto-assets bearing the mark “TATA” or another deceptively similar mark thereto, from the networks/platforms operated by respondent 4 including Binance Smart Chain and Binance community.

[TATA Sons Private Limited v. Hakunamatata TATA Fopunders, FAO (OS) (Comm) 62 of 2022, decided on 19-09-2022]


Advocates who appeared in this case:

Mr. Pravin Anand, Mr. Achuthan Shreekumar and Mr. Rohil Bansal, Advocates, for the Appellants;

None, for the Respondents.


*Arunima Bose, Editorial Assistant has put this report together.

Delhi High Court
Case BriefsHigh Courts

   

Delhi High Court: In a petition filed by Jaideep Singh (’Petitioner’) for quashing of FIR registered by Shaildendra Singh (‘Respondent 2’) with Economic Offences Wing, New Delhi under Sections 120-B r/w 406 and 420 Penal Code, 1860 (’IPC’), Anu Malhotra, J. quashed FIR filed by, EOW under Sections 406/420/120-B of IPC and all consequential proceedings emanating therefrom against the Petitioner , in view of the deposition of the respondent 2 that settlement has been arrived and the terms of the settlement dated 10-02-2022 have been adhered to by the parties.

The Petitioner is one of the directors of Global Mega Ventures Private Limited, a construction company located in Bhopal and entered into Builder-builder agreement with Respondent 2 for purchase of 4 flats under a subvention scheme in Bhopal at a consideration of INR 2.30 crores, out of which 1.53 crores was paid by bank and rest by respondent 2.

The projects were scheduled for completion by 29-04-2022, however, respondent 2 approached Madhya Pradesh RERA by pleading non-payment of EMI and refund of money against the petitioner, wherein vide order dated 15-07-2019, RERA directed the petitioner to pay the outstanding EMI within a period of 3 months. It is interesting to note that RERA remarked “as per trimester report the development of tower A is 90%. Hence, this work can be completed in the near future as the agreement date is 29-04-2022”. Also “there is much time in completion of the scheduled period and hence, this complaint for refund is pre-matured”

Thereafter, respondent 2 lodged a complaint with Economic Offences Wing, Delhi on 19-06-2019 when the reply was directed to be filed, which was duly complied with, by the petitioner. Then, in December 2019, a notice was issued under Section 41-A Criminal Procedure Code against the petitioner, but the petitioner sought anticipatory bail, which was thereby granted by Additional Sessions Judge, Tis Hazari Court. The summon notices were sent, documents were demanded by the IO which was duly complied with, by the petitioner.

However, during the proceedings, a settlement was entered between the parties vide agreement dated 10-02-2022. Hence, the present petition was filed seeking quashing of the said FIR.

Justice Subramonium Prasad vide order dated 11-02-2019 noted that the petitioner is seeking quashing based on settlement stating that “the petitioner will pay a sum of Rs. 10,28,000/- to the complainant. The last instalment of Rs. 2,78,000/- to be paid on 15-06-2022.”

Further, placing reliance on Gian Singh v. State of Punjab, (2012) 10 SCC 303, the Court directed that if the entire payment is made before 15-06-2022, the parties and the investigating officer have to be present in Court to record implementation of the settlement and FIR can thus be quashed.

Thus, vide the latest order dated 12-09-2022, Anu Malhotra J. noted that the proceedings dated 11-02-2022 indicate that it has already been submitted by the counsel for the State that the State would not be filing the charge sheet if the parties have already entered into a settlement and if the entire amount is paid by the due date fixed.

It was also noted that respondent 2 affirms having signed the settlement document dated 10-02-2022 voluntarily of his own accord without any duress, coercion or pressure from any quarter and affirms the factum that in terms of the said settlement document dated 10-02-2022, the total sum of Rs. 1.53 Crores has since been paid by the petitioner to the financial institutions involved and a sum of Rs. 10.28 lakhs has been received by the respondent 2 from the petitioner as compensation in terms of the said settlement document.

The State reiterated that in view of the terms of the settlement document dated 10-02-2022 having been adhered to by the parties to the petition, the State does not oppose the prayer made by the petitioner seeking the quashing of the FIR in question.

The Court, thus, found it appropriate to put a quietus to the litigation between the parties qua the FIR in question as the offences punishable under Sections 406/420 of IPC are per se compoundable in terms of Section 320 CrPC, with the deposition of the respondent 2 that apart from the petitioner arrayed to the present petition, the other persons mentioned in the FIR were not in any manner connected with the alleged commission of the offences along with the deposition regarding settlement having been adhered to by the parties.

[Jaideep Singh v. The State of NCT of Delhi, WP (Crl) 446 of 2020, decided on 11-02-2022 and 12-09-2022]


Advocates who appeared in this case:

For petitioner- Ms. Sonia Mathur, Senior Advocate with Mr. Swarnendu Chatterjee AOR, Advocate with Ms. Vatsala Bhatt, Advocate

For respondent- Mr. Saransh, Advocate on behalf of Ms. Nandita Rao, ASC for State with Insp. Satish Kumar, EOW, Mandir Marg. R-2 in person with Mr. Prashant Kanha & Mr. Arnav Kumar, Advocates for R-2.


*Arunima Bose, Editorial Assistant has put this report together.

Case BriefsHigh Courts

   

Delhi High Court: In a suit filed by plaintiff (‘Carlsberg Breweries A/S’) seeking ad interim injunction against Tensberg Breweries Industries Pvt Ltd (‘defendants’) claiming, that they have adopted deceptively similar mark and is marketing its beer in deceptively similar bottle so as to cause confusion in the minds of the general consumers, Navin Chawla, J. granted ad interim injunction as prima facie, the shape of the bottle and the Can adopted by the defendants appears to be deceptively similar to that of the plaintiff; with the same color green for the bottle, and green/white for the Can as well as the placement of the marks, the appearance of the deceptively similar crown, also prima facie reflects the intention of the defendants to come as close to the plaintiff’s mark as possible.

It is the case of the plaintiff that the plaintiff is the registered proprietor of the mark ‘CARLSBERG’, which was first registered in India on 09-07-1949 and the first sale in India under the said brand was made by the plaintiff in the year 1904. However, defendant 1 has been incorporated on 22-07-2022 and is engaged in the business of manufacturing and selling alcoholic and non-alcoholic beverages.

Defendant 2 is an importer of the beer bearing the impugned Mark/label. Defendant 3, claiming itself to be the proprietor of the mark “TENSBERG”, has applied for seeking registration of the same in the word mark and also in the device mark. Defendant 4 is a company incorporated on 01-04-2022 and is engaged in the business of manufacturing and selling of beer with the impugned mark and label in India.

The plaintiff asserts that the defendant 5 is in the business of manufacturing, brewing and exporting of beer bearing the marks “TENSBERG” and under the impugned trade dress from Nepal to India, while the defendant 6 is the Indian subsidiary registered on 06-01-2021.

The conflicting marks are

The Court noted that prima facie, the mark of the plaintiff and the defendants appear to be deceptively similar. There is phonetic similarity between the same.

The Court further noted that there can also be no doubt of the plaintiff being the proprietor and prior adopter of the mark ‘CARLSBERG’ and with its registration, having a better right over the defendants, who on their own case, adopted the said mark in India only in 2018, and do not hold registration in the said mark.

The Court remarked that Beer bottles and cans are not bought with minute scrutiny but in a more casual manner. Applying the test of an unwary consumer with imperfect recollection, the two marks and their trade dress, prima facie appear to be deceptively similar and likely to deceive and confuse such Consumer.

The Court opined that it is not only the use of the mark alone but also get-up of the product, that is, bottle and the Can which prima facie indicates the intent of the defendants to ride on the reputation and goodwill of the plaintiff, thereby, causing confusion and deception to the mind of unwary consumers.

The Court thus held that the plaintiff has been able to make out a good prima facie case in its favour. The balance of convenience is also in favour of the plaintiff and against the defendants. The plaintiff is likely to suffer grave irreparable injury if an ad-interim injunction is not granted in favour of the plaintiff and against the defendants.

[Carlsberg Breweries A/S v. Tensberg Breweries Industries Pvt Ltd., CS (Comm] 646 of 2022, decided on 16-09-2022]


Advocates who appeared in this case:

Mr. Rishi Bansal, Mr.S.K. Bansal, Mr.Krishan Gambhir, Mr. Aditya Rajesh, Mr. Neeraj Bhardwaj, Advocates, for the Carlsberg;

Mr. Chander M. Lall, Sr. Adv. With Mr. Kameshwar Nath Mishra, Mr. Mimansak Bhardwaj, Mr. Sunny, Mr. Rangeen, Ms. Ananya Chug, Advocates, for the Tensberg.


*Arunima Bose, Editorial Assistant has put this report together.

Delhi High Court
Case BriefsHigh Courts

Delhi High Court: In two cross letter Patents appeal, one by the petitioner/appellant for the enhancement of costs imposed upon the Municipal Corporation of Delhi (MCD) and other by the MCD setting aside of the compensation imposed upon it, the division bench of Satish Chandra Sharma, CJ. and Subramonium Prasad, J. while enhancing the compensation awarded to the appellant, observed that the Municipal Corporation was constituted for the precise purpose of providing basic amenities to the citizens, thus, it cannot shirk off its responsibility on the ground that society was once unauthorised or by citing financial constraints.

In this case, when the appellant’s property was constructed, it was placed at the road level. However, subsequently, the MCD has re-laid the adjoining road and each time the road was repaired/re-constructed, the level of the road rose by about 2½ feet. Due to this, the appellant’s house has gone below the road level, thus, the rain water gets collected in the house which has caused damage to the house.

The Court noted that the issue has been under consideration before the Court since 2011 and several status reports have been filed. Also, the MCD has been adamant about not bringing down the road level on the ground that, if it is done then it will create problems for other house owners. Further, a Status Report had been filed on 24.05.2011, admitted that since 1997, roads were repaired many times and because of which the roads have elevated, and that out of 101 properties in the area, 82 properties are at the road level, meaning thereby that the residents have demolished and reconstructed the properties by bringing it to the road level and 11 properties, which are not demolished and re-constructed, are below the road level.

The Court further noted that the MCD admitted that 11 houses were facing the same issue. However, it diverted the blame on the Petitioner and the Delhi Jal Board, by stating that the problem has been caused as Azad Nagar was an illegal/unregularized society. The Court rejected this argument by observing that a sizeable population of Delhi lives in areas designated by the Government as “unauthorized colonies”, which did not feature in the original development area of Delhi or were areas which were not zoned for residential use. Thereafter, the Government of NCT Delhi initiated the regularisation process in the 1970s, then the early 1980s, with the aim of including these societies within the development plans of the city. Thereby, the appellant’s colony was regularised in 1987.

Moreover, the Court viewed that the locality of Azad Nagar faces the issue of waterlogging because the MCD has indiscriminately repaired the roads, without following basic care and caution and this has compelled individuals, who did not have the finances to raise the level of their houses to sell their houses to builders, thus, it rejected the argument that the issue of waterlogging has occurred due to the status of the colony, further, the MCD needs to ensure that other societies which were “unauthorised” and have subsequently been regularised are provided with the requisite sanitation facilities, functional drainage system, roads, and other similar infrastructural amenities.

The Court strongly objected to the MCD’s suggestion that the petitioner should apply for a fresh sanction plan and rebuild her house, as MCD is a public body duly enacted for the benefit of the public at large, thus, it cannot reasonably expect individuals to reapply for sanction plans, and further build their houses from scratch. Moreover, the Court viewed that it should not be the prerogative of a few, with the requisite finances, to enjoy the basic amenities as basic as sanitation, functional drainage systems, and mindfully constructed roads.

The Court observed that it is unfortunate that not only has the MCD created the issue of waterlogging but also aggravated the situation by not taking appropriate measures to avoid choking drains during monsoon. Further, it observed that “it is well settled that it is the duty of the MCD to ensure that there is no water logging and proper storm water drains are constructed, and it cannot pass the buck to the residents to contend that since the storm water drains are clogged nothing can be done by the MCD” therefore, MCD has failed in discharging its duties.

The Court placed reliance on the ruling in Municipal Council, Ratlam v. Vardichan, (1980) 4 SCC 162, wherein the Court held that a responsible municipal council constituted for the precise purpose of preserving public health and providing better finances cannot run away from its principal duty by pleading financial inability.

The Court took note of the ruling in Municipal Corpn. of Delhi v. Subhagwanti, (1966) 3 SCR 649 wherein the Court while dealing with the issue as to whether MCD can be held liable to pay compensation in a writ petition, observed that liability to pay compensation arises “in a situation where the circumstances surrounding the thing which causes the damage are exclusively under the control or management of the defendant or his servant and the happening is such as does not occur in the ordinary course of things without negligence on the defendant’s part.”

The Court also took note of various Supreme Court’s rulings like Nilabati Behera v. State of Orissa, (1993) 2 SCC 746, Municipal Corpn. of Delhi v. Sushila Devi, (1999) 4 SCC 317 and S Sube Singh v. State of Haryana, (2006) 3 SCC 178, wherein the Court observed that “it is well-settled that award of compensation against the State is an appropriate and effective remedy for redressal of an established infringement of a fundamental right under Article 21, by a public servant”, and observed that a responsible Municipal Corporation consisted for the precise purpose of providing the basic public goods cannot shirk off its responsibility by citing financial constraints. Further, the MCD has been grossly negligent in its conduct, and to do complete justice, providing monetary compensation to the appellant is the most viable mode of redress available.

Moreover, it was observed that a fresh evaluation indicates that the appellant would have to spend close to Rs. 21.20 lakhs to carry out the necessary repairs. Further, the appellant is 80 years old and has been pursuing this litigation for over a decade, has suffered loss of her material possessions, and has undergone immense agony and anxiety for a prolonged period, thus, the Court enhanced the compensation awarded to the appellant by a sum of Rs. 9,00,000/ and rejected the challenge by the MCD to the impugned order awarding compensation of Rs. 3,00,000/- to the appellant.

[Leela Mathur v. Municipal Corporation of Delhi, 2022 SCC OnLine Del 2731, decided on 02.09.2022]


Advocates who appeared in this case:

For Appellant: Senior Advocate Akhil Sibal

For Respondents: Advocate Tushar Sannu,

Advocate Pooja Gupta

Advocate Ajjay Aroraa

Advocate Anuj Bhargava

Delhi High Court
Case BriefsHigh Courts

Delhi High Court: In a case filed by a father of a student (‘petitioner’) challenging the validity and constitutionality of a Circular of the Government of NCT of Delhi/respondent 1 dated 27-07-2022 whereby the respondent 1 has mandated minimum 71% marks for admission in Science Stream in Class XI in respondent 2 School for the academic year 2022-23, Chandra Dhari Singh, J. upheld the validity of the circular stating that every school, including schools under State Government , has the liberty and autonomy to maintain the standards it has set out for itself and thus, laying down an eligibility criterion for admission in different classes cannot be said to be arbitrary or illegal.

Counsel for petitioner submitted that the petitioner belongs to OBC Category and shall be eligible for 5% relaxation in marks, as per the terms of Circular dated 07-02-2022, thus securing 81.80% in Class X CBSE examinations 2022, however, she was denied admission in the Science Stream stating the reason that she secured 69 marks in science and admission in Science Stream required a minimum of 71 marks, as per the impugned Circular.

It was also submitted that respondent 1 has issued different circulars for admission in Class XI in different types of schools under it and is hence, creating discrepancy in education between students studying in school run by the Government and is discriminatory in nature and hit by Articles 14, 21 & 21-A.

The Court noted that every school, including schools under the State Government , has the liberty and autonomy to maintain the standards it has set for itself. Laying down an eligibility criterion for admission in different classes cannot be said to be arbitrary or illegal. Moreover, this discretion lies with the school or any other authority under which the said school lies.

The Court further noted that since, the petitioner could not meet the eligibility criteria, she chose to challenge the criteria itself; however, such a challenge does not stand ground since the school had only exercised its discretion to set out the minimum requirements for admission in Class XI.

The Court rejected admission to the petitioner, in so far as the petitioner did not meet the eligibility criteria and nor was the relaxation for SC/ST/OBC and other categories available to her as per the admission requirements of the School, and thus, held that there is no error, illegality or impropriety found in the eligibility criteria provided for in the impugned circular.

[Natural Father Ravinder Singh v. Govt of NCT of Delhi, 2022 SCC OnLine Del 2940, decided on 26-08-2022]


Advocates who appeared in this case :

For petitioner- Mr. Ashok Agarwal, Mr. Kumar Utkarsh and Mr. Manoj Kumar, Advocates

For respondent- Mr. Santosh K. Tripathi, Standing Counsel (Civil) for GNCTD with Mr. Arun Panwar, Mr. Siddharth Krishna Dwivedi, Mr. Pradeep and Ms. Mahak Rankawat, Advocates for R1/DoE


*Arunima Bose, Editorial Assistant has put this report together.

Delhi High Court
Case BriefsHigh Courts

Delhi High Court: In a suit filed by Nikhil Chawla (‘plaintiff’) for its brand COOK STUDIO in the nature of threat application seeking declaration of non-infringement of the registered trademark COKE STUDIO by Coca Cola Company (‘defendant’), Prathiba M Singh, J. recorded the settlement terms arrived at between the parties through mediation and decreed the suit.

The Plaintiff is the proprietor of the firm trading as “The Chawla Group” and is stated to be running a very popular online platform called ‘COOK STUDIO’ engaged in the activity of blogging, production of video films, training, etc., particularly relating to cooking.

The Plaintiff has received notices from the Defendant who is the owner of the registered trademark named ‘COKE STUDIO’ calling upon him to desist from using the mark COOK STUDIO for his culinary related blog.

The summons was issued in the suit to the Defendant and the parties were referred to mediation before the Delhi High Court Mediation and Conciliation Centre for an amicable resolution, wherein they arrived at settlement.

A joint memo dated 12-09-2022 recorded the terms agreed between the parties as under:

“1. Plaintiff shall adopt the mark “Cook Pro 6” instead of the mark “Cook Studio” for the channels and platforms where the latter mark has been under use and shall completely transition to the mark “Cook Pro 6” and abandon the use of “Cook Studio” by 30th November, 2022.

2. Defendant shall not object to, nor otherwise interfere in any manner with the Plaintiff’s use of the mark and iterations of “Cook Pro 6” and shall also not object to or interfere with any application made by the Plaintiff for the registration of the mark “Cook Pro 6” whether in India or elsewhere.

3. The Plaintiff shall withdraw all trademark registration applications relating to “Cook Studio” and consequently withdraw the captioned suit.

4. The Defendant agrees that these terms shall only be limited to those channels/pages operated by the Plaintiff under the mark “Cook Studio” and shall not prejudice/affect the right of the Plaintiff in respect of any other product, service and/or channel or past/prior acts.

5. These terms shall have prospective effect from the date ascribed herein below.”

The Court noted the settlement terms arrived at between the parties and were found to be lawful.

Placing reliance on Nutan Batra v. Buniyaad Associates, 2018 SCC OnLine Del 12916, the Court further directed the complete Court fee to be refunded to the Plaintiff.

[Nikhil Chawla v. The Coca Cola Company, 2022 SCC OnLine Del 2861, decided on 12-09-2022]


Advocates who appeared in this case :

Mr. Adarsh Ramanujan, Mr. Lzafeer Ahmad and Ms. Skanda Shekhar, Advocates, for the Plaintiff;

Mr. Naval Kartia and Mr. Akshay Bhardwaj, Advocates, for the Defendant.


*Arunima Bose, Editorial Assistant has put this report together.

Delhi High Court
Case BriefsHigh Courts

Delhi High Court: In a petition filed by Ehtesham Qutubuddin Siddiqui (‘petitioner’), who is a death row convict in 7/11 Mumbai train serial bomb blasts in Mumbai challenging an order passed by Central Information Commission upholding that information sought regarding disclosure of the proposal and all documents in the Department’s file relating to issuance of the notification under Section 45(1) of the Unlawful Activity (Prevention) Act, 1967 (UAPA’), Yashwant Varma, J. held that Central Public Information Officer (‘CPIO’)- respondents rightly invoked Section 8(1)(a) of Right to Information Act, 2005 rejecting the disclosures sought and prayed for in the application.

Counsel for petitioner submitted that certain aspects of the information sought by the Petitioner were “severable” and thus, fall outside the scope of clause (a) of Section 8(1) of the RTI Act.

The Court while rejecting the contention noted that the petitioner has, even on a prima facie footing failed to establish what information that may ultimately lead to the issuance of the notification under Section 45 of the UAPA, 1967, would be severable.

Thus, the Court dismissed the petition being devoid of merits.

[Ehtesham Qutubuddin Siddique v. CPIO, 2022 SCC OnLine Del 2927, decided on 08-09-2022]


Advocates who appeared in this case :

Mr. Arpit Bhargava, Advocate, for the Petitioner;

None, for the CPIO.


*Arunima Bose, Editorial Assistant has put this report together.

Delhi High Court
Case BriefsHigh Courts

Delhi High Court: In a PIL filed on behalf of the Hindu Migrants who have come from Pakistan to India, and are staying in Adarsh Nagar near Majlis Park Metro Station who do not have a permanent place of shelter and are living in a cluster of jhuggis, the authorities are demanding proof of ownership of land, on demand of electricity connection, a Division Bench of Satish Chandra Sharma CJ., and Subramonium Prasad, J. directs Union of India to file an affidavit as to why a No Objection Certificate (‘NOC’) has not been issued to the migrants from Pakistan who are residing without electricity for the last five to six years.

Counsel for the petitioner submitted that Rule 9(1) of the Electricity (Rights of Consumer) Rules, 2020, states that a person who is not the owner, and if he is an occupant, can also apply for an electricity connection, emphasizing that proof of ownership is not required under the Rules.

However, Tata Power Delhi Distribution Limited (TPDDL) stated that NOC is certainly required as certain poles will have to be erected for providing proper electricity. Also, the land in question over which the Jhuggis have been established belongs to the Government of India/ Defence Department/ DMRC, and in absence of a NOC from the land-owning agency, the distribution company is not in a position to provide Electricity Connection.

The Court noted that that there are small children, women in area, and in absence of electricity, it has become very difficult for these families to survive, and they are living in extremely harsh conditions.

The Court remarked “this Court hopes and trusts that the Government of India will look into the plight of the migrants sympathetically, and shall file a proper affidavit positively within two weeks.”

Thus, the Court granted two weeks and directed the Union of India time to file an affidavit as to why NOC has not been issued to the migrants.

[Hariom v. State of NCT of Delhi, 2022 SCC OnLine Del 2919, decided on 06-09-2022]


Advocates who appeared in this case :

For petitioner- Mr. Sanjeev Poddar, Sr. Advocate with Ms. Samiksha, Advocate.

For respondent- Mr. Sameer Vashisht, Additional Standing Counsel with Ms. Sanjana Nangia, Advocate for respondent Nos. 1 & 2.

Mr. Manish Kr. Srivastava and Mr. Akhil Hasija, Advocate for respondent NO.3.

Mr. Anurag Ahluwalia and Mr. Danish Faraz Khan, Advocates for respondent/ UOI.

Mr. Anand Prakash, Standing Counsel with Mr. Akhil Raj and Ms. Varsha Arya, Advocates for respondent/ NDMC.

Mr. Sarthak Chiller and Mr. Sanjeev Mahajan, Advocates for respondent No.4.

Mr. Anand Prakash, Standing Counsel with Ms. Varsha Arya and Mr. Akhil Raj, Advocates for respondent No.5


*Arunima Bose, Editorial Assistant has put this report together.

Delhi High Court
Case BriefsHigh Courts

   

Delhi High Court: In a public interest litigation filed by an Advocate enrolled with the Bar Council of Delhi, practicing in Delhi High Court seeking directions to Respondents to provide list of 186 private liquor vendors who were harassed by officers of Respondents and identifying officers causing such harassment and the like, a Division Bench of Satish Chandra Sharma C.J., and Subramonium Prasad J., observed that the present petition is nothing but a sheer abuse of the process of law and therefore, imposed costs of Rs. 1,00,000/- (Rupees One Lakh) to be paid to the Army War Widows Fund within a period of 30 days from today, while dismissing the petition at the admission stage itself.

On 30-07-2022, the petitioner heard a news/ statement on “India TV” Channel made by the Deputy Chief Minister of Delhi that the Central Investigating Agencies are harassing the private liquor vendors and they have been forced to close their shops. It was further stated that heavy loss was caused to the State Exchequer resulting in loss of livelihood to 176 private liquor vendors and the general public was deprived of the opportunity to purchase liquor at discounted price. Thus, the present petition was filed.

The Court noted that the prayer clause in the present PIL revealed that the petitioner wants a list of 186 private liquor vendors who have been allegedly harassed by the Central Bureau of Investigation (CBI) and by the Directorate of Enforcement along with a direction be issued to the Lieutenant Governor (LG) of Delhi to identify those persons who are causing harassment to 186 liquor vendors forcing them to close their shops, thereby depriving them of their right of livelihood guaranteed under Article 21 of the Constitution of India.

The Court further noted that the petitioner has not named a single officer of the CBI, or of the Directorate of Enforcement who has harassed a single liquor vendor, nor has he given details of any kind of such harassment and based upon the so-called press releases/ statement made in the press, he wants a roving inquiry to be done by this Court. Thus, the present petition is nothing but a sheer abuse of the process of law and the petitioner wants a roving inquiry to be done by this Court based upon vague and absurd allegations.

Placing reliance on Janata Dal v. H.S. Chowdhary, (1992) 4 SCC 305, Dattaraj Nathuji Thaware v. State of Maharashtra, (2005) 1 SCC 590 and Tehseen Poonawalla v. Union of India, (2018) 6 SCC 72, the Court observed that Supreme Court has shown concern about large number of PIL’s flooding High Courts and Supreme Court wherein such petitions are misused to resolve personal scores, personal disputes and political rivalries.

Thus, the Court imposed a cost of Rs 1 lakh to be paid towards Army War Widows Fund within a period of 30 days from date of order, failing which, the Sub-Divisional Magistrate, New Delhi District will recover the amount as arrears of land revenue and shall transfer the same to the Army War Widows Fund with intimation to the Registrar General.

[Narinder Khanna v. Govt of NCT of Delhi, WP (C) No. 12762 of 2022, decided on 08-09-2022]


Advocates who appeared in this case:

Petitioner-in-person

Mr. Santosh Kumar Tripathi, Standing Counsel (Civil) with Mr. Arun Panwar, Mr. Siddharth Krishna Dwivedi, Mr. Pradeep & Ms. Mahak Rankawat, Advocates for respondent N1/GNCTD.

Mr. Rahul Raj & Mr. Anil Dutt, Advocates for respondent 2/KVIC.

Mr. Arkaj Kumar & Mr. Padmesh Mishra, Advocates for respondent 3/LG.

Ms. Suman Chauhan, SPP with Ms. Samiksha Mittal & Ms. Anubha Bhardwaj, Advocates for respondent 4/CBI.

Mr. Anurag Ahluwalia, CGSC with Mr. Danish Faraz Khan, Advocate for respondent 5/ Directorate of Enforcement.


*Arunima Bose, Editorial Assistant has put this report together.

Delhi High Court
Case BriefsHigh Courts

   

Delhi High Court: In a case filed by Warner Bros. Entertainment Limited (‘plaintiff') seeking a decree of permanent injunction restraining www.uwatchfree.st (‘Defendant 1') and such other mirror/redirect/alphanumeric websites discovered to provide additional means of accessing the Defendant Website, Navin Chawla, J. granted permanent injunction against Defendant 1 and other domains/domain owners/website operators/entities which are discovered to have been engaging in infringing the Plaintiff’s exclusive rights by hosting, streaming, reproducing, distributing, making available to the public and/or communicating to the public, or facilitating the same, on their websites, through the internet in any manner whatsoever, any cinematograph work/content/programme/ show in relation to which Plaintiff has copyright.

Counsel for plaintiff contended that the motion pictures produced by the Plaintiff, being works of visual recording and which include sound recordings accompanying such visual recordings, qualify to be a “cinematograph film” under Section 2(f) of Copyright Act, 1957. The Plaintiff claims that this Court has jurisdiction by virtue of Section 13(1) read with Sections 13(2) and 5 of the Act, since the Plaintiff’s cinematograph films are released in India, the cinematograph films of the Plaintiff would be entitled to all the rights and protections granted under the provisions of the Act.

Thus, it is the case of the Plaintiff that as a result of the unauthorized transmission of their content, the rogue websites infringe the copyright of the Plaintiff in the original works produced by it, which have been granted protection under the provisions of the Act.

On the contention that the Defendant 1 and 14 to 21 are rogue websites, the Court placed reliance on UTV Software Communication Ltd. v. 1337X.to, 2019 SCC OnLine Del 8002 along with documentary evidence placed on record, the Court noted that that there is sufficient evidence to hold that the Defendant no. 1, 14-21 are “rogue websites” and that this is a fit case for passing a summary judgement invoking the provisions of Order XIIIA of Civil Procedure Code (‘CPC'), as applicable to commercial disputes.

The Court further noted that the present matter is mainly concerned with the enforcement of the injunction orders which are passed against the rogue websites who do not have any defense to the claim of copyright infringement but use the anonymity offered by the internet to engage in illegal activities, such as copyright infringement in the present case.

The Court passed a decree and granted an injunction against the defendants.

The Court further reiterated the concept of dynamic injunctions and its application on permitted subsequent impleadment of mirror/redirect/alphanumeric websites as discussed in UTV Software case (supra), the Court opined that the same directions are liable to be made in this case also.

Thus, the Court permitted the plaintiff to implead mirror/redirect/alphanumeric websites which provide access to the Defendants Nos. 1, 14 to 21's websites by filing an appropriate application under Order I Rule 10 CPC, supported by affidavits and evidence, and such website impleaded will be subject to same decree.

[Warner Bros. Entertainment Inc. v. www.uwatchfree.st, CS (Comm) 402 of 2019, decided on 26-08-2022]


Advocates who appeared in this case :

Ms. Suhasini Raina, Ms. R. Ramya and Ms. Mehr Sidhu, Advocates, for the Plaintiff;

None, for the defendant.


*Arunima Bose, Editorial Assistant has put this report together.

Delhi High Court
Case BriefsHigh Courts

Delhi High Court: In a suit filed by Hamdard National Foundation (India) (‘plaintiff 1′) and Hamdard Dawakhana (‘plaintiff 2′) relating to the product and mark of the Plaintiffs ‘ROOH AFZA’ being sold on defendant’s website ‘Amazon’ not belonging to the plaintiff’s, Prathiba M Singh J. granted an ad-interim injunction in favour of the plaintiff in order to recognize the Plaintiffs’ rights but also to ensure that the products not meant for consumption in India are not sold on the www.amazon.in platform.

The Plaintiffs own rights of ‘HAMDARD’ and ‘ROOH AFZA’ trademarks. The grievance of the Plaintiffs in the present case is that Defendant 1, runs the e-commerce website www.amazon.in. selling and offering for sellingthe product ‘ROOH AFZA’. The defaulting sellers were ‘Royal Sales’ and ‘Good Health Enterprises’ and the product sold does not belong to the plaintiff.

Counsel for plaintiff submitted that the said product is manufactured in Pakistan and does not comply with the legal requirements of the Legal Metrology Act, 2009 (hereinafter referred as “LMA”), the Legal Metrology (Packaged Commodities) Rules, 2011, and the Food Safety and Standards Act, 2006 (hereinafter referred as ‘FSSAI’) which governs such products.

The Court noted that a perusal of the physical products shows that the same is shown to be manufactured by ‘Hamdard Laboratory (Waqf), Karachi, Pakistan’. There are no other details of the manufacturer mentioned on the product apart from just the name of the manufacturer. No address, email address or telephone number of the manufacturer is available on the label of the product. The label on the bottle was produced by the Plaintiffs.

The Court remarked It is also not clear as to how these products are being imported from Pakistan when clearly the Plaintiffs have statutory rights in the marks in India.

The Court further noted that when one clicks on the link ‘visit the Hamdard Store’, which is provided next to the product listing of Defendant No.2, the consumer is taken to the webpage of ‘Hamdard Laboratories India’ on www.amazon.com, which is of the Plaintiffs. Thus, any consumer or user on the www.amazon.in platform is likely to confuse the ‘ROOH AFZA’ product originating from Hamdard Laboratories (Waqf), Pakistan as being connected or originating from the Plaintiffs.

Thus, until and unless the consumer actually receives the product, the consumer has no way of knowing as to whether the product being sold is that of the Plaintiffs or not. This can have an adverse impact on the consumers, inasmuch as the details of the sellers are not known. Since www.amazon.in claims to be an intermediary it has an obligation to disclose names of sellers, their contact details etc., on the product listings.

Thus, the Court was convinced that the Plaintiffs have made out a prima facie case for grant of an ad-interim injunction and gave directions regarding removal of the infringing links.

[Hamdard National Foundation (India) v. Amazon India Limited, 2022 SCC OnLine Del 2849, decided on 05-09-2022]


Advocates who appeared in this case :

Mr. Shivendra Pratap Singh, Mr. Sunil Mishra and Mr. Navdeep Suhag, Advocates, for the Plaintiff;

Mr. Sidharth Chopra, Ms. Sneha Jain and Mr. Vivek Ayyagari, Advocates, for the Defendant.


*Arunima Bose, Editorial Assistant has put this report together.

Case BriefsHigh Courts

Delhi High Court: In a trademark infringement suit filed by a company namely, Impresario Entertainment and Hospitality Pvt Ltd. (‘plaintiff’) running a well-known restaurant, SOCIAL against the offending trademark SOCIAL 75 (‘defendant’), Jyoti Singh J. granted ex parte ad-interim injunction, as the impugned trademark is deceptively similar to the registered trademark of the Plaintiff.

It is the case of the Plaintiff that it is running various well-known restaurants and coffee shops including Smoke House Deli, Salt Water Cafe, Le Kebabiere, The Tasting Room, Prithvi Cafe, Flea Bazar and Social. Plaintiff commenced business in the year 2001 and since then various restaurants have opened under different names including ‘SOCIAL’. Plaintiff is recognized as a provider of high-quality services and is a well-known name in the hospitality industry.

The plaintiff contended that Defendant is the sole proprietor of the restaurant with the offending trademark ‘SOCIAL 75′ in Jamshedpur.

The Point of similarity claimed is as under

1.The trademark ‘SOCIAL’ is copied in its entirety by the Defendant;

2. The trademark ‘SOCIAL 75′ is being represented in color orange by the Defendant, which is identical to the color used by the Plaintiff for representing ‘SOCIAL’;

3. The manner of suffixing the trademark ‘SOCIAL’ with another phrase, in this case being ‘75′ is identical to the Plaintiff’s concept, the only difference being that the Plaintiff prefixes the trademark ‘SOCIAL’ usually with the name of the area in which the restaurant/bar is located;

4. The services provided by the Plaintiff and Defendant are identical and have the same target audience.

The plaintiffs further contended that Plaintiff is a prior adopter and user of the registered trademark ‘SOCIAL’ and its variants and use of the impugned mark by the Defendant amounts to infringement under Section 29 of the Trade Marks Act, 1999. It is clear that the adoption of a deceptively similar trademark by the Defendant is aimed at misrepresenting to the general public that the source of these goods is the Plaintiff.

The Court held that Plaintiff has made out a prima facie case for grant of ex parte ad-interim injunction, as the impugned trademark is deceptively similar to the registered trademark of the Plaintiff and the balance of convenience also lies in favour of the Plaintiff and it is thus, likely to suffer irreparable harm in case the injunction, as prayed for, is not granted.

[Impresario Entertainment and Hospitality Pvt Ltd., v. Social 75, 2022 SCC OnLine Del 2830, decided on 31-08-2022]


Advocates who appeared in this case :

Ms. Shikha Sachdeva, Ms. Mugdha Palsula and Ms. Shreya Das, Advocates, for the Plaintiff.


*Arunima Bose, Editorial Assistant has put this report together.

Delhi High Court
Case BriefsHigh Courts

Delhi High Court: In a suit filed by Sunshine Tea House Pvt Ltd. (‘plaintiff’) for its brand CHAAYOS was seeking permanent injunction restraining infringement of trademark and unauthorized use of trade name etc. relating to the phonetic and ocular similarity between trademarks ‘CHAAYOS’ and ‘CHAIOPS’, Prathiba M Singh J. appointed Mr. Sidharth Chopra (Counsel present in Court) as the Mediator to attempt amicable resolution of disputes between the parties, on finding that there is a possibility of amicable resolution.

The Plaintiff’s brand ‘CHAAYOS’ was established and started operations in the year 2012 and it claims to be the leading chain of Chai Cafes in India operating in various States across the country offering customized Chai in several variants having 200 outlets across the country.

The Defendant adopted the mark ‘CHAIOPS’ for selling tea products through a cafe under the name and style of ‘CHAIOPS’. The case of the Plaintiff is that the Defendant adopted the mark ‘CHAIOPS’ for products and services identical to the Plaintiff’s services and products which is a violation of the Plaintiff’s registered trademark ‘CHAAYOS’.

The parties admitted before the Court that there is no similarity in the device and logo of the parties. The only issue between the parties is regarding the phonetic/ ocular similarity of ‘CHAAYOS’ & ‘CHAIOPS’ marks.

Thus, the Court, realizing a scope of amicable resolution of disputes appointed Counsel Mr. Sidharth Chopra as the mediator. The Court directed the parties to appear before the mediator either virtually or physically.

[Sunshine Teahouse Pvt Ltd. v. MTRM Global Pvt Ltd., 2022 SCC OnLine Del 2831, decided on 06-09-2022]


Advocates who appeared in this case :

Mr. Jayant Mehta, Mr. Ankit Miglani, Ms. Jyoti Nambiar and Ms. Kaveri Rawal, Advocates, for the Plaintiff;

Ms. Swathi Sukumar, Mr. Abhishek Jain, Ms. Sutapa Jana, Ms. Anjali Bisht, Ms. Himangi Kapoor and Mr. Ritik Raguwanshi, Advocates, for the Defendant.


*Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Delhi High Court: In a case filed by Star Televisions Productions Limited (‘plaintiff’) seeking permanent injunction to restrain EUROSPORT (‘defendants’) from infringing ‘STAR mark’ ‘STAR Device’/trademark belonging to the plaintiffs, Asha Menon J. allowed the application and granted interim injunction against defendants from using the impugned marks and, or any other mark which is identical or deceptively similar to the Plaintiff’s registered STAR Marks including the STAR Device. 

 

The defendant 1 is EUROSPORT, defendant 2 is Discovery Communications, LLC and defendant 3 is Discovery Communications India. The grievance of the plaintiffs is that the defendants have recently renamed their sports channel which was known as DSPORT with the logo of a globe, i.e. to EUROSPORT using the STAR marks in relation to their sports television channels. In the year 2012, 20% stake in EUROSPORT was acquired by DISCOVERY which then grew into full ownership in 2015. However, the brand EUROSPORT was given a facelift and the impugned mark was resultantly adopted in 2015 in order to enhance and modernize EUROSPORT’s visual appeal. 

The conflicting marks are as follows 

Whether the subsequent user/registered proprietor should be restrained from using its Trade Mark, even if it was registered? 

The present is a case where both trademarks are registered trademarks. Reliance was placed on HTC Corpn v. LV Degao, 2022 SCC OnLine Del 953, wherein it held that certain factors are relevant in deciding cases, where there are two registered trademarks, while both proprietors could use their respective trademarks exclusively against third party, but not against each other, but the registration of the later Trade Mark may be refused or cancelled: (i) when deception or confusion results, (ii) there is dishonest user, (iii) subsequent use is without due cause, (iv) there is bad faith, or (v) dilution of the distinctiveness of a prior registered Trade Mark may occur .

Brief Legal History 

In 2017, the defendants had entered into the sports broadcasting arena in India under the name DSPORT after DISCOVERY had taken over EUROSPORT. They adopted a Single Star Device embedding it in the alphabet “D” which was immediately disputed by the plaintiffs and settlement was reached where defendants 2 and 3 agreed to alter the “DSPORT” logo with the star marks, by removing the Star Device “entirely” and replacing it with a device of a sphere/globe. Thus, both sides acknowledged the reputation of one another and in a spirit of resolution, the defendants had agreed to not use the Single Star mark in India in respect of sports broadcasting. 

 

Analysis 

The Court noted that the EUROSPORT had commenced business in 1989 in Europe, and entered Indian market only in 2017, whereas since 1992 till 2017, the company Star India Pvt. Ltd. and Star TV Production Ltd. had expanded their broadcasting activities by introducing several channels which included entertainment and sports which consistently included the word “Star” as also a Single Star logo placed in a particular manner and its variations in color and shading. Thus, the reputation and popularity that plaintiff’s channels enjoy with a wide audience has resulted in the Single Star logo being identified with the plaintiffs as the originator of the content on these channels and the provider of entertainment and sports programs on television in India. 

 

The other point of conflict is between the Single Star used in EUROSPORT and the Single Star Device used by the plaintiffs. On the contention that EUROSPORT was not at all similar and obviously not identical to Star Sports, the Court noted that if Single Star Device is allowed to be used by EUROSPORT, coupled with the fact that the plaintiffs have several channels using the STAR Device, the possibility of confusion cannot be ignored.
 

The Court opined that it is the plaintiff’s case that they had coined the word “STAR” as an acronym for Satellite Television in Asia Region. The defendants, however, had no substantial explanation for choosing the Single Star logo, except that it is inspired by the Ring of Stars of the European Union. Thus, the plaintiffs have a right to protect the use of a common word in a novel manner. 

 

It was also noted that EUROSPORT was itself not a very popular channel in Europe, as is evident from their own public statement made by Peter Huton on 2nd December 2015 which concededly establish that the defendants had no presence in India up to 2015 when they came in with DSPORT. By that time the plaintiffs were well entrenched in the sports and entertainment arena of the electronic media under the trademark ‘STAR’ and the distinctive Star logo. 

 

The Court further observed that despite the settlement reached between Star TV and DSPORT, currently known as ‘EUROSPORT’ the defendants have introduced EUROSPORT with the star mark. It is not possible for them to say that the undertaking is not applicable to EUROSPORT because that was in connection to “DSPORT”. 

Decision 

Thus, the Court held the facts unequivocally established that the plaintiffs were able to disclose a prima-facie case in their favour. The continued dishonest use of the Single Star by the defendants would cause irreparable loss and injury to the plaintiffs particularly, by diluting the unique use of the word “STAR” which is a created word and the “Star” logo, by common usage. The balance of convenience lies in favour of the plaintiff as they have built up a strong reputation in India over a long period of time, whereas the defendants have just entered the market in 2017 as EUROSPORT. 

[Star Television Productions Limited v Eurosport, CS (Comm) 359 of 2020, decided on 09-09-2022] 


Advocates Before Court 

For plaintiff: Mr. Amit Sibal, Sr. Advocate with Ms. Sneha Jain, Ms. Disha Sharma, Mr. Saksham Dhingra, Mr. Aishvary Vikram, Mr. Kanishk Kumar and Ms. Kashika Agrawal, Advocates 

For defendant: Mr. Sandeep Sethi, Sr. Advocate with Mr. Arjun Khurana and Mr. Lalltaksh Joshi, Advocates for D-1 to D-3 


Arunima Bose, Editorial Assistant has put this report together. 

 

 

Case BriefsHigh Courts

Delhi High Court: In a case filed by CROSSFIT gym (‘Plaintiff’) having CROSSFIT trademarks seeking permanent injunction against defendant gym using the identical mark, Prathiba Singh, J. granted permanent injunction against defendants and imposed a cost of Rs 10 lakhs to be paid to the plaintiff within three months. The Court also issued contempt notice against the proprietor of the defendants to show cause why contempt must not be initiated against him and his company, as they continued using the CROSSFIT mark under challenge, in blatant violation of interim injunction being granted.

The Plaintiff claims to be the proprietor of the registered trademark ‘CROSSFIT’ used in respect of services in the health, fitness and nutrition sector, providing services for strength training, fitness programs in addition to conducting fitness seminars and providing trainer certifications. The Plaintiff coined and adopted the mark ‘CROSSFIT’ in the year 1995 and has been continuously and extensively using the said mark in respect of its products and services. The Plaintiff also registered the domain name ‘www.crossfit.com’ in October, 1999.

The grievance of the Plaintiff is that the Defendant is a gym and fitness center owned and operated by its proprietor Mr. Arun Sharma and is using the identical mark ‘CROSSFIT’ in respect of identical services relating to gym and fitness. The case of the Plaintiff is that the Defendant has been prominently displaying the mark ‘CROSSFIT’ at its premises, literature, online pages as well as on various online directories and social media platforms, including Facebook, Instagram, Justdial, Fitternity etc.

A legal notice dated 29-09-2020 and notice regarding pre litigation mediation was issued to which no reply was received. No reply has been received for emails, telephonic calls or summons by Court. However, on the date of listing of the matter, an ex parte ad-interim injunction was granted on 29-10-2021 which was made absolute on 15-02-2022.

Placing reliance on Disney Enterprises Inc. v. Balraj Muttneja, 2014 SCC OnLine Del 781, wherein the Court held “where the defendant is ex parte and the material before the Court is sufficient to allow the claim of the plaintiff, the time of the Court should not be wasted in directing ex parte evidence to be recorded and which mostly is nothing but a repetition of the contents of the plaint.”

Thus, the Court decreed the suit and granted permanent and mandatory injunction in favour of the Plaintiff as they were able to make out a prima facie case.

The Court on further coming to knowledge of the fact, that defendant is not complying with the interim order and continuing to use the mark ‘CROSSFIT’ despite the injunction granted, without choosing to defend the plaintiff’s claim or reply to the notices issued. Thus, the Court awarded Rs. 10,00,000 in favour of the Plaintiff due to brazen violation of the orders of the Court by the defendant.

The Court noted that the conduct of the Defendant in the present case prima facie amounts to contempt. The Court issued contempt notice to the defendant’s proprietor Mr. Arun Sharma to show case as to why contempt action ought not to be initiated.

The Court directed the plaintiff to approach the concerned social media platforms for taking down of the infringing listing and posts of the Defendant, using the mark ‘CROSSFIT’, which shall be taken down, within 48 hours.

The Court further appointed Ms. Meghna Jandu, Advocate as the Local Commissioner, subject to the mandate listed by the Court, to visit the premises of the Defendant to ensure compliance of the orders of the Court by removing any hoardings and any other billboards, signage, display material, brochures, packaging, and literature bearing the mark ‘CROSSFIT’.

[CROSS FIT LLC v RTB GYM and Fitness Center, 2022 SCC OnLine Del 2788, decided on 06-09-2022]


Advocates who appeared in this case :

Mr. Saif Khan and Mr. Shobhit Agrawal, Advocates, for the plaintiff;

None for the defendant.


*Arunima Bose, Editorial Assistant has put this report together.

Delhi High Court
Case BriefsHigh Courts

Delhi High Court: In a petition filed by association of shopkeepers dealing in sale, purchase and storage of kite flying materials including kites (‘petitioners’) challenging notification dated 10.01.2017 (being Notification no. F. 12(508)/Env. /Ban on Manja/2015/64-81) issued by the Department of Environment, Government of NCT of Delhi, a Division Bench of Vibhu Bakhru and Amit Mahajan, JJ., notes that the impugned notification involves two operative directions and the petitioner’s grievance is in regard to the second direction which proscribes the use of adhesive and thread strengthening material. The said direction is not applicable to the manufacturers or dealers of kite flying thread but is directed to persons engaged in kite flying.

The directions in the impugned notification are as follows:

1. There shall be complete ban on the sale, production, storage, supply, import, and use of kite flying thread made out of nylon, plastic or any other synthetic material including popularly known as “Chinese manjha” and any other kite-flying thread that is sharp or made sharp such as by being laced with glass, metal or any other sharp, materials in the National Capital Territory of Delhi.

2. Kite flying shall be permissible only with a cotton thread, free from any sharp/ metallic/glass components/ adhesives/thread strengthening materials.

The Court noted that the petitioner has no grievance with the first direction. It was further observed that insofar as the petitioner’s grievance regarding the second direction is concerned, the same proscribes the use of adhesive and thread strengthening material. Thus, the said direction is not applicable to the manufacturers or dealers of kite flying thread but is directed to persons engaged in kite flying.

The Court further noted that Respondent 1 has clarified that kite flying will be permitted only from cotton thread, free from any sharp/metallic/glass components/adhesives/thread strengthening materials. This is clearly to ensure that the persons who engage in kite flying use thread that is incapable of causing any injuries. It prohibits them from taking steps to sharpen the kite flying thread by use of sharp metallic or glass components and adhesives. A person flying kites cannot modify the kite flying thread to sharpen the same for the purposes of sparring with fellow sports persons.

The Court opined that insofar as the use of strengthening materials is concerned, the said term is very wide. In the event, the respondents desire to proscribe the strengthening of the thread used for kite flying, it would be necessary for the respondents to clearly specify that dealing above a particular tensile strength of the cotton thread would be prohibited.

The Court finally disposed of the petition as only the first direction is applicable to manufacturers and dealers of thread used for flying kites which is not under challenge.

[Hathkargah Laghu Patang Udyog Samiti v. Government of NCT of Delhi, 2022 SCC OnLine Del 2772, decided on 02-09-2022]


Advocates who appeared in this case :

Mr. Pankaj Bhagat, Advocate, for the petitioner;

Mr. Karn Bhardwaj Advocate, for the respondent.


*Arunima Bose, Editorial Assistant has put this report together.

Delhi High Court
Case BriefsHigh Courts

   

Delhi High Court: In a petition filed under Section 34 of the Arbitration and Conciliation Act, 1996, (‘A&C Act') challenging an order passed wherein the arbitrator rejected an application filed by the petitioner for amendment of the statement of claim, Prateek Jalan, J. dismissed the petition as non-maintainable and held that Section 23(3) of the Arbitration & Conciliation Act, 1996 vests discretion in the Arbitrator to reject an amendment application made at a belated stage and such an order cannot be challenged under Section 34 of Arbitration and Conciliation Act, 1996.

The Court remarked that “Factors which cloth the orders of the Arbitral Tribunal with the characteristic of finality, render them susceptible to challenge as interim awards under Section 34 of Arbitration & Conciliation Act, 1996

The Court essentially ruled that characteristics of an interlocutory order passed by an Arbitral Tribunal, having trappings of finality are the key to determine maintainability of petitions under Section 34 of Arbitration and Conciliation Act, 1996.

A suit was originally filed by the petitioner against three defendants, of whom the respondent was the principal defendant, and the other two defendants were arrayed as proforma defendants. By an order dated 07.11.2016, the suit, along with five other suits pending before the Court, were referred to arbitration before a former Judge of this Court.

In the arbitral proceedings between the parties, six proceedings have been taken up together by the arbitrator. The Petitioner in one of the six cases had claimed a decree of declaration for the Sale Deed dated 28.07.2010 registered on 29.07.2010 obtained by the Respondent from the Petitioner to be declared as void and cancelled. Vide amendment application dated 21.07.2017, the Petitioner sought amendment of the statement of claim. The Petitioner pressed for amendment by way of additional prayers for a decree directing the Respondent to transfer title of the property under dispute to the Petitioner.

The Respondent resisted the amendment, and the application for amendment was subsequently dismissed vide impugned order dated 04.11.2019 by the arbitrator under Section 23(3) of the A&C Act. The Arbitrator rejected the application as the same was filed belatedly in 2017 and further not pressed upon till 04.11.2019. The arbitrator, however, was sure to record in the impugned order that “expression of any view herein will not be treated as expression on the merit of the case.”

The Counsel for the respondent raised a preliminary objection with respect to the maintainability of the petition under Section 34 of Arbitration and Conciliation Act, 1996, directed against an order of the arbitrator, rejecting an application of amendment. The Respondent submitted that an interim interlocutory order does not have the trappings of an interim award as prescribed under Section 2(1)(c) of Arbitration and Conciliation Act, 1996, and thus, cannot be entertained by the Court.

Placing reliance on Container Corporation of India Ltd. v. Texmaco Limited, 2009 SCC OnLine Del 1594, the Court observed that in the facts of the present case, the arbitrator has proceeded only on the ground that the amendment was sought belatedly and did not adjudicate on the merits of the case. Therefore, the impugned order dated 04.11.2019 under challenge was not an interim award.

Thus, the Court held that the impugned order in the present case does not constitute an interim award, susceptible to challenge under Section 34 of the Act.

[Punita Bhardwaj v. Rashmi Juneja, 2022 SCC OnLine Del 2691, decided on 31-08-2022]


Advocates who appeared in this case :

Mr. A.K. Singla, Senior Advocate, Mr. Rahul Shukla and Mr. Akshit Sachdeva, Advocates, Counsel for the Petitioner;

Mr. Siddharth Batra, AOR, Ms. Shivani Chawla, Mr. Siddharth Satija and Mr. Akash Sachan, Advocates, Counsel for the Respondent.


*Arunima Bose, Editorial Assistant has put this report together.