IMPORTANT POINT
The court allowed the amendments to the plaint to include other series of trade marks associated with 'RASNA' in the suit, finding that it did not change the nature of the suit and was justified to avoid multiplicity of litigation.

ORDER :

(Sunita Agarwal, J.)

1. This is a defendant’s petition under Article 227 of the Constitution of India challenging the order dated 20.01.2024 passed by the Commercial Court in allowing the application under Order VI, Rule 17 of the Code of Civil Procedure in Commercial Trademark Civil Suit No.22 of 2023.

2. The plaintiff has filed application Exh.28 under Order VI, Rule 17 of the Code of Civil Procedure, inter alia, seeking amendment of plaint and injunction application. The plaintiff has come out with the case in the suit seeking relief for injunction against the defendant for infringement of trade mark. A perusal of the copy of the plaint of the said suit indicates that the plaintiff has come out with a categorical stand pleading that in the month of July, 2023, the plaintiff came to know about the illegal activity of the defendant when one of its marketing personnel came across the goods of the defendant under the trade mark RUS Organic Cranberry Juice on Amazon.com, Jiomart.com, Dunzo.com, Naturesbasket.com and Shopsy.in online market platform, which is assessable from and in the city of Ahmedabad. The contention is that the defendant herein is selling its goods, namely fruit juice with the word ‘RUS’ appearing prominently on the packaging and the said act clearly amounts to infringement of trade mark and passing-off action. It is contended that the word ‘RUS’, which is phonetically identical and deceptively similar appears prominently on the defendant’s packaging /label. RUS is forming the essential and phonetically necessary part of the trade mark RASNA of the plaintiff.

3. It is also contended that the plaintiff has recently came to know that the defendant applied for the registration of the impugned mark RUS before the Trade Mark Registry on 01.09.2018. The Application No.3933156 for goods: Fruit juices and fruit beverages; fruit juices and drinks in Class 32 on proposed to be used basis was refused by the Trade Mark Registry under Section 9(1)(b) and Section 11(1) of the Trade Marks Act, 1999. However, with mala fide intention, by playing fraud on the Trade Mark Registry, the defendant has once again applied for the same mark RUS on 01.09.2018 in Class 35 vide another Application No.3933157. The said application was registered as on today, but for the services “retail or wholesale” services for Fruit juices and fruit beverages; Fruit juices and drinks” and not for goods falling in the relevant Class for juices, which is Class 32.

4. With these contentions, it is stated that the defendant is clearly liable for infringement of trade mark and the registration in Class 35 does not come in the way of the plaintiff to file the suit for infringement of trade mark. The plaintiff is well known by the name and mark RASNA and is prior adopter and registered proprietor of the mark RASNA not only in India but across multiple countries. The defendant is guilty of dishonestly and knowingly adopting the infringing mark RUS, which is visually, phonetically and structurally similar to the plaintiff’s mark.

5. The reliefs prayed by the plaintiff in the suit are relevant to be extracted hereunder:-

“36. Therefore, in light of submissions made hereinabove, the plaintiff most humbly prays to this Hon’ble Court:

A. That the Defendant company, its directors, partners, heirs, assigns, licensees, agents and all related business personnel may please be restrained from manufacturing, selling, advertising, distributing, circulating, displaying and marketing its goods namely Fruit Juices and/or allied, cognate goods through offline or online/internet mode, under the identical-deceptively similar as well as phonetically similar trademark RUS and thereby the Defendant may be restrained permanently from infringing the Plaintiff’s well-known and registered trade mark(s) RASNA.

B. That the Defendant company, its directors, partners, heirs, assigns, licensees, agents and all related business personnel may please be restrained from manufacturing, selling,