CS(COMM) 707/2023

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$~21

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IN THE HIGH COURT OF DELHI AT NEW DELHI

+

CS(COMM) 707/2023

NILKAMAL CRATES AND CONTANERS & ANR.

..... Plaintiffs

Through:

Ms. Anju Agrawal, Dr. Mohan

Dewan, Mr. Rahul Maratha, Mr. D. Pawar,

Mr. B. Ghosh, Mr. Vardhman Jain and Mr.

M.K. Bhargava, Advs.

versus

MS. REENA RAJPAL & ANR.

..... Defendants

Through:

Mr. Satish Kumar, Mr. Sreejan

Pankaj and Mr. Anil Kumar Sahu, Advs.

CORAM:

HON'BLE MR. JUSTICE C. HARI SHANKAR

J U D G M E N T (O R A L)

%

06.11.2023

I.A. 19600/2023 (under Order XXXIX Rules 1 and 2 of the CPC)

1.

Plaintiff 1 is the proprietor of various trademarks, registered

under the Trade Marks Act, 1999, of which, for the purposes of the

dispute at hand, one need only refer to the word mark NILKAMAL,

registered w.e.f. 22 January 1999 and the device marks

registered w.e.f. 6 December 2010 and

registered w.e.f. 9

May 1996. Vide License Agreement dated 1 September 1998 Plaintiff

1 authorised Plaintiff 2 to manufacture, package, supply and render

services of goods as mentioned in Schedule 1 of the license

Digitally Signed

By:HARIOM

Signing Date:07.11.2023

13:33:55

Signature Not Verified

CS(COMM) 707/2023

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agreement. Plaintiff 2 is thus the licensee of Plaintiff 1 and is

continuously using the trademark NILKAMAL.

2.

The plaintiffs are using the aforesaid marks for, among other

things, plastic moulded chairs. The plaintiffs claim user of the marks

since 1999.

3.

The plaintiffs are aggrieved by the use, by the defendants, of

the mark NILKRANTI and the logo

. The defendants, too,

admittedly, uses the impugned marks for plastic moulded chairs.

4.

Consequent to issuance of notice in this application, a reply has

been filed by Mr. Satish Kumar.

5.

I have heard Ms. Anju Agrawal and Mr. Satish Kumar at some

length on this application.

6.

To a query from the court as to how NILKAMAL and

NILKRANTI could be treated as phonetically similar, Ms. Aggarwal

emphasises the common prefix “NIL”. She submits that the

defendants have clearly acted malafide, as is apparent from the

deceptive similarity between the

logo that they have adopted

and the pre-existing

logo of the plaintiffs.

7.

Where the defendants are thus making a conscious attempt to

Digitally Signed

By:HARIOM

Signing Date:07.11.2023

13:33:55

Signature Not Verified

CS(COMM) 707/2023

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copy the plaintiffs, she submits that an absolute inunction ought to be

issued against the defendants using the mark NILKRANTI, whether as

a word mark or as a logo. She submits that it would be perfectly open

to the defendants to use “KRANTI” with any other prefix other than

“NIL” and that, by employing the “NIL” prefix, seen in conjunction

with the similarity between the logo that the defendants have chosen

to adopt vis-à-vis the plaintiffs’ logo, the defendants’ intention to

come as close to the plaintiffs as possible is evident. Without

expressly citing it, Ms. Agrawal is, thereby, invoking the principle laid

down by lord Justice Lindley in Slazenger & Sons v. Feltham & Co.¹:

"One must exercise one's common sense, and, if you are driven to

the conclusion that what is intended to be done is to deceive if

possible, I do not think it is stretching the imagination very much

to credit the man with occasional success or possible success. Why

should we be astute to say that he cannot succeed in doing that

which he is straining every nerve to do?"

8.

Ms. Agrawal has also placed reliance on the judgment of the

Hon’ble Supreme Court in Cadila Health Care Ltd v. Cadila

Pharmaceuticals Ltd², specifically citing para 16 of the said decision,

which reads thus:

“16.

Dealing once again with medicinal products, this Court in

F. Hoffmann-La Roche & Co. Ltd. Vs. Geoffrey Manner & Co.

Pvt. Ltd³, had to consider whether the words Protovit belonging to

the appellant was similar to the word Dropovit of the respondent.

This Court, while deciding the t