CS(COMM) 395/2022 Page 1 of 39

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IN THE HIGH COURT OF DELHI AT NEW DELHI

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CS(COMM) 395/2022

VINITA GUPTA

..... Plaintiff

Through:

Mr. N. Mahabir, Mr. Abhishek Saini

and Mr. P.C. Arya, Advocates.

versus

AMIT ARORA

..... Defendant

Through:

Mr. Umesh Mishra, Mr. Junaid Alam

and Mr. Nishant Mahtta, Advocates.

CORAM:

HON'BLE MS. JUSTICE JYOTI SINGH

JUDGEMENT

JYOTI SINGH, J.

I.A. 9130/2022 (under Order 39 Rules 1 and 2 CPC, by Plaintiff)

1.

This judgment shall dispose of an application preferred on behalf of

the Plaintiff under Order 39 Rules 1 and 2 CPC.

2.

Present suit has been filed for injunction by the Plaintiff restraining

the Defendant and others acting on his behalf from selling, offering for sale,

advertising or promoting any product under the trademark ‘APPLEPLANT’

or any trademark similar to Plaintiff’s trademark ‘APPLESTREE’, which

may cause confusion and deception in the market, leading to passing off

Defendant’s goods as those of the Plaintiff, including products in similar

packaging, get-up, trade dress as well as infringement of copyright in the

artistic work comprised in Plaintiff’s label, amongst other reliefs.

This is a digitally signed Judgement.

NEUTRAL CITATION NO: 2022/DHC/004060

CS(COMM) 395/2022 Page 2 of 39

3.

Expose of facts set out in the plaint and succinctly put are that the

registered trademark APPLESTREE as well as packaging/trade dress has

been used by the proprietor of Palm Abrasives, Late Shri Yogesh Gupta

from the year 2008. Late Shri Gupta expired on 14.05.2021 due to

COVID-19 Pandemic and thereafter, Plaintiff has taken over the said Firm.

Trademark APPLESTREE is well-known and under the said trademark,

huge sales were generated in India for various products such as Abrasive

Strips, Abrasive Rolls, Abrasive Paste etc. as well as Silicon Carbide

Waterproof Abrasive Paper, Velcro Disc, Sandpaper and other allied and

cognate goods.

4.

It is averred that trademark APPLESTREE was coined by the

predecessor/husband of the Plaintiff in the year 2008. Invoices placed on

record show that until 2021, no other brand was used for sale of the products

and it was only in the year 2021 that Plaintiff commenced use of another

brand i.e. ‘AXE products of APPLESTREE’.

5.

It is stated that by virtue of long, continuous and extensive use of the

trademark APPLESTREE for over 14 years with its distinctive packaging,

the trademark has acquired a secondary meaning and has become highly

distinctive such that it is associated with the Plaintiff and none else. By

virtue of prior adoption, prior use coupled with extensive publicity and

promotion, Plaintiff has acquired common law rights apart from proprietary

interest in the trademark APPLESTREE and its packaging, get-up and trade

dress. Plaintiff also claims copyright in the artistic work in the packaging,

which was created/authored by her husband in January, 2008 and was

commercially published in the said year. Plaintiff is thus entitled to

This is a digitally signed Judgement.

NEUTRAL CITATION NO: 2022/DHC/004060

CS(COMM) 395/2022 Page 3 of 39

protection under the Copyright Act, 1957 and any unauthorized use would

be deemed to be infringement under Section 51 of the said Act.

6.

Plaintiff

has averred that trademark

APPLESTREE enjoys

registrations in Classes 03, 08, 07 and 17 and registrations are valid and

subsisting. Annual sales figures of Plaintiff’s products under the trademark

APPLESTREE with its distinctive packaging show steady growth from the

year 2008-09 and in 2021-22, the annual turnover is Rs. 12,57,33,557/-.

Substantial sums of money are