Prathiba M. Singh, J.

I.A. 5942/2019 (u/O XXXIX R 1 and 2)

The delicacies in the streets of Delhi are legendary. Whether it is Chandni chowk for its paranthe wali gali, Paharganj and Karol Bagh for their eateries, Kamla Nagar for its chaat, Connaught Place and Pandara road for their restaurants, Jama Masjid and Nizamuddin areas for their Mughlai cuisine, regional food at the various bhavans - these food outlets have been catering to consumers from all walks of life from the connoisseurs to the common man.

2. The present case involves two outlets based in Paharganj which sell Naan and other food items. The Plaintiff claims exclusive rights in the expression 'Chur Chur Naan' against the defendant who uses a similar expression for its outlet. The question is whether there can be any monopoly in the expression 'CHUR CHUR NAAN' or "AMRITSARI CHUR CHUR NAAN'.

3. The Plaintiff has filed the present suit for permanent injunction restraining infringement of trade mark, copyright passing off, rendition of accounts etc. The trade marks over which the Plaintiff seeks injunction are 'CHUR CHUR NAAN', "AMRITSARI CHUR CHUR NAAN" and "PAHARGANJ KE MASHOOR AMRITSARI NAAN".

4. The Plaintiff's case is that it has applied for/obtained registration of various trademarks including 'CHUR CHUR NAAN' and derivatives thereof. Two marks applied for by the Plaintiff namely 'CHUR CHUR NAAN' and "AMRITSARI CHUR CHUR NAAN" are registered. The Plaintiff seeks an injunction against the Defendant Nos.1 and 2 from using the name 'PAHARGANJ KE CHUR CHUR NAAN' and 'AMRITSARI CHUR CHUR NAAN'.

5. The suit was listed on 25th April, 2019 on which date this Court had appointed a Local Commissioner to submit a report as to the user of the Defendant Nos. 1 and 2 as also any other third-party user of the said expressions. The Local Commissioner has since, submitted her report. Defendant Nos. 1 and 2 have filed a reply to the injunction application and oppose the grant of any ad interim relief.

6. The submission of Mr. Bansal appearing for the Plaintiff is that the trademarks of the Plaintiff being registered, the Plaintiff enjoys exclusive rights under Sections 28 and 29 of the Trade Marks Act, 1999 ('Act'). It is further submitted that the Defendant Nos. 1 and 2 themselves having applied for the registration of the mark 'PAHARGANJ KE MASHOOR CHUR CHUR NAAN', they are estopped from claiming that the expression 'CHUR CHUR NAAN' is generic and descriptive. He relies on the judgment of this Court in Automatic Electric Limited vs. R.K. Dhawan & Anr., (1999) 77 DLT 292 (hereinafter, "Automatic Electric") and The Indian Hotels Company Ltd and Ors. vs. Jiva Institute of Vedic Science and Culture, (2008) 37 PTC 468 (Del) (hereinafter, "Jiva Institute"). The further submission of Mr. Bansal is that the Plaintiff enjoys enormous reputation and this is evident from the fact that the Plaintiff has been covered on television channels as Paharganj Ke Mashoor Chur Chur Naan and the said fact shows that the Plaintiff is entitled to an injunction owing to the extensive goodwill which it enjoys. It is his submission that various marks such as "EENADU" and "PAKWAN" which are also descriptive have already been protected by Courts.

7. On the other hand, counsel for the Defendant Nos. 1 and 2 relying on the reply filed on behalf Defendant Nos. 1 & 2 submits that there are a large number of outlets which use the name 'CHUR CHUR NAAN'. A list of such outlets has been mentioned at pages 7 to 9 of the reply. It is submitted that the trademarks of the Plaintiff are liable to be rectified as they lack basic distinctiveness. Further, it is submitted by the learned counsel for the Defendant Nos. 1 and 2 that 'PAHARGANJ KE MASHOOR CHUR CHUR NAAN' is completely descriptive. In order to buttress this submission, he relies upon the chart mentioned at pages 13 and 14 of the reply. It is his submission that no monopoly can be granted to such descriptive/generic expressions.

8. The Court today is consideri