In an action of passing off, the plaintiff must establish prior use of the mark before the defendant's use, and delay in approaching the court may lead to the dismissal of the application for an interim injunction.

JUDGMENT :

Indermeet Kaur, J.

I.A. No. 2842/2014 (under Order XXXIX Rules 1 and 2 of the CPC)

1. Present suit has been filed by the plaintiff (M/s KRBL Limited) against the defendants under the Trade Marks Act, 1999 and the Copy Right Act, 1957; relief of permanent injunction restraining infringement, passing off, rendition of accounts, delivery etc. has been prayed for.

2. The plaintiff is a company incorporated under the Indian Companies Act, 1956. It has a registered office at Lahori Gate, Delhi. It is engaged in the business of processing, marketing and exporting of rice including basmati rice. In January, 2013, it had bonafidely and honestly adopted and started using the trademark/label 'INDIA GATE' with the device of 'INDIA GATE' and the said trade name includes both the trademark label as also the device both individually, collectively and as a whole. The trademark/label bears original artistic features of placement, distinctive get up and make up and is protected under the Copy Right Act as well.

3. The plaintiff is carrying on its business in India as also overseas. The goods of the plaintiff are traded through extensive marketing and distribution channels. In 1993, the export division of M/s. Khushi Ram Behari Lal (KRBL) adopted this trademark 'INDIA GATE' with the device of 'INDIA GATE' and has been exporting rice to foreign countries since 1993. It has also built up its reputation and a valuable goodwill over the years.

4. The plaintiff has applied for registration of its trademark/label under the Trade Marks Act in Class 30 on 19.03.1999. That application is pending adjudication. The plaintiff has also filed another application for registration of its trademark (in Class 30) on 24.07.2002. The trademark of the plaintiff has also been widely advertized in Class 30. The global protection and recognition of the rights of the plaintiff and the trademark 'INDIA GATE' is thus vested with the plaintiff. The copyright involved and the said trademark are the original artistic work of the plaintiff within the meaning of Indian Copyright Act. Its domestic sale figure of sale of rice under said trademark/label is running into several crores. Its advertisement and marketing products also show that huge amounts are spent by the plaintiff on this project.

5. The defendants have allegedly adopted and have started using the trademark/label 'CHURCH GATE' with the device of 'GATE' in relation to its impugned goods i.e. sale of rice which is an infringement upon the trademark/label of the plaintiff. The trademark/label adopted by the defendants in relation to sale of goods which are identical i.e sale of rice shows that this trademark/label adopted by the defendants is phonetically, visually and structurally similar to that of the plaintiff. The defendants have violated the rights of the plaintiff.

6. The plaintiff first learnt about the defendants' impugned trademark/label in the first week of January, 2014 in New Delhi. In para 32 (cause of action), the plaintiff submits that the plaintiff learnt about defendant No. 2 adopting this impugned trademark in 'CHURCH GATE' through advertisement in a journal on 28.02.2005 and consequently the plaintiff has filed a notice of opposition dated 12.08.2005 to the application of defendant No. 2 and the said opposition is pending adjudication. However, the plaintiff learnt about the impugned goods being sold under the trademark/label 'INDIA GATE' with the device of 'GATE' only in the first week of January, 2014.

7. Suit has been filed for permanent injunction seeking a restraint against the defendants from dealing with the trademark/label 'CHURCH GATE' with the device of 'GATE' or any other mark which is deceptively similar to the trademark of the plaintiff. Along with the suit, the present application has been filed.

8. Admittedly no ex-parte order had been passed in favour of the plaintiff. Submission of the learned counsel for the plaintiff is that this is for the reason that the defendants were on cav