JUDGMENT

V. Kameswar Rao, J. - I.A. 7965/2019

1. The plaintiff has filed the current application under order XXXIX Rule 1 & 2 read with Section 151 of the Code of Civil Procedure, 1908 ("CPC" hereafter) with the following prayers:

a) Restraining the Defendant, its principal officers, family members, servants, agents, dealers, distributors, retailers and/ or anyone acting for and on his behalf from manufacturing, marketing, selling, offering for sale or advertising its goods i.e. spices by using the mark Gai Chaap, device of COW and the other essential features of the label and trade dress of the plaintiff either in isolation or in conjunction with each other and thereby causing confusion and deception in the course of trade and thereby passing off defendant's goods as that of the plaintiff's.

b) Pass any other order(s) which this Hon'ble Court may be pleased to in the facts and circumstances of the present case.

2. The present suit has been filed by the Plaintiff seeking permanent injunction against the Defendant from using the trademark as well as the trade dress along with the mark "GAI CHAAP" along with the "COW" device with respect to the plaintiff's products i.e. spices.

3. The Karol Bagh Masala Supplies company, a partnership, formed vide partnership deed dated April 22, 1969 was the predecessor-in-interest of the Plaintiff Co. and had been continuously and with bonafide using the trademark "GAI CHAAP" along with the "COW" device on its products since 1969. It is the claim of the plaintiff that these marks which had been applied for registration in class 30 under the Trade Marks Act, 1998 ("TM Act" hereafter) vide trademark application Nos. 748292, 748285 and 748288 and had been in use since 1969, were duly assigned to the plaintiff Co. vide Assignment deed date dated January 30, 2002.

4. The said partnership firm was dissolved vide dissolution deed dated January 23, 2002 and the plaintiff Co. vide an agreement of succession of business dated January 23, 2002 had acquired all the assets, liabilities, trademarks, goodwill, etc. of the partnership firm. As per the Plaintiff the purpose of forming the Plaintiff Co. according to the Memorandum of Association was to acquire and run the business of the partnership firm.

5. Thereafter the plaintiff had made slight changes to its label, trade dress and get up of its product in the year 2013 and this "trade dress" was then applied for registration with the application bearing No. 2802285. The plaintiff maintains that it had been using the trademark "GAI CHAAP" and "COW" device since the year 1969 and has claimed user with respect to the modified trade dress from the year 2013.

6. The plaintiff alleges that the defendant with a mala fide intent illegally got the trademark "GCMC" along with a "COW" device registered vide trademark Application no. 3531286 dated April 21, 2017 with user details mentioned as "proposed to be used". Thereafter the plaintiff came across the Defendant's trademark application No. 3673104 applied on November 11, 2017 with user details marked as "proposed to use", which the plaintiff maintains is a replica of the label of the plaintiff.

7. The plaintiff has averred in the plaint that M/s. Radha Kishan Gobind Ram Ltd. ("RKGR" for short) which is run by Mr. Vikas Aggarwal (who is the brother of the authorised representative of the Plaintiff) claiming plaintiff's predecessor i.e. the partnership, as its predecessor filed a suit against the defendant herein, being CS (COMM) 28 of 2018 on identical set of facts as that of the present suit on which an injunction was granted in favour of RKGR by this Court vide order dated January 12, 2018; wherein the defence taken by the defendant was that the user in the marks in question was the Plaintiff (herein) and not RKGR.

8. As per the plaintiff the settlement reached upon by the Defendant herein and RKGR vide order dated February 19, 2018 in FAO (OS) (COMM) 31/2018 wherein RKGR and the defendant herein proceeded to fraudulently di