The judgment emphasizes the importance of proving distinctiveness and infringement in trade mark cases, highlighting the need for evidence of viewership and commercial release to establish secondary meaning for a literary title.

1. The plaintiff Kanungo Media Pvt. Ltd. on 20th February, 2007 instituted this suit to restrain the defendant No.1 RGV Film Factory, defendant No.2 Adlabs Films Ltd. and defendant No.3 Super Cassettes Ltd. (T-Series) from using the brand name and title ‘NISHABD’ for their film on the ground of the same being deceptively similar to the film ‘NISSHABD’ of the plaintiff and for ancillary reliefs.

2. The suit came up before this Court first on 21st February, 2007 when the counsel for the defendants No.1 & 2 appeared on caveat and accepted summons of the suit; since the film of the defendants was scheduled to be released on 2nd March, 2007, the application for interim injunction was listed for hearing on 23rd February, 2007.

3. Vide detailed judgment dated 27th February, 2007 on the application of the plaintiff for interim injunction, the interim injunction sought was refused.

4. FAO(OS) No.68/2007 preferred against the order of refusal of interim injunction was on 19th April, 2007 dismissed as withdrawn with liberty to the plaintiff to, on the grounds of the defendants having concealed material facts before the learned Single Judge, seek appropriate orders from the learned Single Judge.

5. The plaintiff thereafter sought amendment of the plaint and which was allowed on 26th November, 2007. The defendant No.1 filed a written statement and which was adopted by the defendant No.2 (vide order dated 27th November, 2009) and though at one stage time was taken to seek instructions, whether the same written statement could be adopted on behalf of the defendant No.3 also but the same was not done and since none appeared for the defendant No.3, the defendant No.3 Super Cassettes Ltd. was on 25th October, 2010 proceeded against ex-parte. The plaintiff filed replication to the written statement of the defendants No.1 & 2.

6. On the pleadings of the parties, on 25th October, 2010, the following issues were framed in the suit and the suit put to trial:

“(a) Whether the plaintiff is the prior user of the word “NISSHABD” as the title/name of a feature film, if so, whether it has acquired such uniqueness and distinctiveness in the user of the said word “NISSHABD”? OPP

(b) Whether the defendant is passing off by using the word “NISSHABD” or any other deceptively similar word with a view to cause confusion among the film enthusiasts, if so, to what effect? OPD

(c) Whether the plaintiff is entitled to permanent injunction as prayed for? OPP

(d) If the issue no. (c) is decided in affirmative, whether the plaintiff is entitled to damages which have been quantified by the plaintiff at Rs.25,00,000/-? OPP

(e) If the issue is issue no. (d) is decided in affirmative, whether the plaintiff is entitled to payment of interest, if so at what rate and for what period? OPP

(f) Whether, the delay in instituting the suit tantamount to acquiescence on the part of the plaintiff and consequently disentitle him to any relief as prayed for? OPD

(g) Relief.”

7. The plaintiff examined two witnesses as PW-1 and PW-2 and whose examination-in-chief was completed on 9th October, 2013 when the counsel for the defendants No.1 & 2 sought adjournment on the ground that he had no instructions as to how to proceed further with the matter. On 14th March, 2014, the counsel earlier appearing for defendants No.1 & 2 sought discharge on the ground that he was not receiving instructions from defendants No.1 & 2 and was directed to move an appropriate application. However the right of the defendants No.1 & 2 to cross-examine PW-1 was closed. Vide order dated 23rd July, 2014 on the application of the counsel earlier appearing for the defendants No.1 & 2, the counsel was discharged.

8. The plaintiff examined another witness as PW-3 and closed its evidence. Vide order dated 6th January, 2015, the defendants No.1 & 2 were also proceeded against ex-parte.

9. The plaintiff filed yet another application for amendment of the plaint by adding averments with regard to the fact of registration of the p