The judgment establishes the principle that the doctrine of res judicata applies to matters directly and substantially in issue and finally determined in a previous suit, barring the filing of a subsequent suit based on the same cause of action.

JUDGMENT

Sanjeev Narula, J. (Oral)

1. Having suffered a defeat in the initial suit, the Plaintiffs have come to Court with the present suit, which is based on the same cause of action and seeks nearly identical reliefs. This time again, Plaintiffs claim prior user rights and pray for restraining the Defendant from infringing and passing off their trademarks/artistic work, "KOBE, " [hereinafter "Subject Trademarks"], while seeking damages, rendition of accounts and delivery up, among other reliefs.

2. Except for the mark `', Plaintiffs have no statutory rights in the afore-noted marks. On the other hand, Defendant is the registered proprietor of the word mark `KOBE' bearing No. 1971064 in Class 2 since 26th May, 2010. Nonetheless, Plaintiffs assert that they are the prior user of the Subject Trademarks and on that basis allege that the trademarks "KOBE"/ "" being used by the Defendant [hereinafter "Impugned Trademarks"] in respect of identical goods (spray paint, paint colours, varnishes/ preservatives against rust, etc.) are identical/deceptively similar to afore-noted Subject Trademarks. Thus, Plaintiffs allege passing off and infringement.

3. Undisputedly, the Impugned Trademarks and the products associated with them are virtually identical to the Subject Trademarks (except the mark `'). However, despite the visual, phonetic and structurally similarities, the instant suit is not maintainable. To understand the Court's analysis and reasoning, it is essential to delve into the factual background leading to the filing of the instant suit:

3.1. Plaintiff No. 1 earlier filed a suit [CS (COMM) 1866/2019^{1[Titled M/s Just Spray Marketing Pvt. Ltd. v. Sh. Devendra Kumar Sachdeva.]}] before the District Judge (Commercial)-01, Central, Tis Hazari Courts. The said suit was filed for a permanent and mandatory injunction restraining Defendant from passing off subject trademark "KOBE"/"", dilution and rendition of accounts, among other reliefs. In the said suit, Plaintiff No. 1 asserted its trademark rights in the Impugned Trademarks as having been adopted by its predecessor Sh. Vijay Kumar Aggarwal, Plaintiff No. 2 (formerly trading as M/s Hindustan Traders), the authorised representative of Plaintiff No. 1, and sought the following reliefs (as recorded in the judgment dated 21st December, 2022):

"a. An order of permanent prohibitory injunction restraining the defendant, his principal officers, franchise, any agent, assignees, family members, licensees and anyone acting for and on his behalf from manufacturing, selling, offering for sale, advertising or promoting including by way of internet or physically the impugned goods i.e. paint spray, paint colours, varnishes, preservatives against rust including in class 2 and other allied goods/Identical/similar goods under the Impugned trademark KOBE or any other mark which is identical/deceptively and confusingly similar to the plaintiff's trademark KOBE and along with identical/similar colour combination scheme/packaging/getup/artistic work that may cause the passing off the defendant's impugned goods as that of the plaintiff.

b. A decree of mandatory Injunction against the defendant, his principal officers, franchise, any agent assignees, family members, licensees and anyone acting for to delivery up of all the infringing advertisements, promotional materials bearing the impugned trademarks KOBE and all account books related to selling, distribution and advertising with impugned trademark.

c. An order for destruction of all blocks, dies, packaging material, packaging strips, wrappers, labels, plastic packaging boxes, handbags, etc. bearing impugned trademark KOBE of the defendants or any other mark Identical with or deceptively and confusingly similar with trademark KOBE and of the plaintiff in the presence of plaintiff's representative.

d. A decree for recovery of damages against the defendant to amount of profits on its rendition of account along with Interest @ 18% per annum Illegally ear