FAO-650 of 2022(O&M)

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IN THE HIGH COURT OF PUNJAB AND HARYANA

AT CHANDIGARH

FAO-650 of 2022(O&M)

Date of Order:16.05.2022

Reserved on 20.04.2022

Surbhi Tangri

..Petitioner

Versus

Nishant Goel

..Respondent

CORAM: HON'BLE MR. JUSTICE ANIL KSHETARPAL

Present:

Mr. Chetan Kapoor, Advocate,

for the petitioner.

Mr. Gaurav Jindal, Advocate,

for the respondent.

ANIL KSHETARPAL, J(Oral)

This appeal has been filed by the plaintiff assailing the

correctness of order dated 11.10.2021, passed by the Additional District

Judge while dismissing an application under Order 39 Rule 1 & 2 CPC to

restrain the respondent from using deceptively similar trade name, trade

mark or device.

For the purpose of the decision of the present case, it is

appropriate to notice that the plaintiff launched a platform on 14.01.2017 on

facebook as well as on various other networking applications. Many

renowned brands and artists have collaborated with the plaintiff to market

their home décor products under the name and style of “DECOR ALLEY”.

The plaintiff claims that she created the instagram and twitter handles which

are quite popular and she charges a subscription fee from its sellers but does

not charge any commission per sale. The plaintiff's platform features a wide

range of products including artwork, home décor and other similar products.

NARESH KUMAR

2022.05.20 09:41

I attest to the accuracy and

integrity of this document

FAO-650 of 2022(O&M)

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She has also launched website under the name of “thedecoralley.com” and

“thedécoralley.com” in January 2017. The plaintiff filed a trade mark

application, on 04.03.2021 for registering her trademark “The Décor Alley”,

under Clause-35 concerning advertisement, business management etc. while

claiming its use since 14.01.2017. The trademark registration was allowed

on 07.08.2021. She complains that the defendant has launched a website

“www.decoralley.in” with the trade mark “DECORALLEY” with Device

'D'. The plaintiff claims that the defendant is malafidely and dishonestly

using the deceptively similar trade mark. While claiming passing off by the

respondent, the suit along with an application was filed.

The defendant, while filing the written statement, contended

that he had also filed an application for registering his trademark which has

been accepted by the trademark registry. He contends that the plaintiff has

applied under the category of “Word” type while the trade mark of the

defendant is applied under “Device” type. It has further been submitted that

the business model of the defendant is also different as he is selling his

goods online on websites such as flipkart, amazon etc.

It may be noted here that the trial Court while deciding the

application under Section 124 of the Trade Marks Act, 1999, filed by the

respondent held that suit qua passing off shall continue.

The Court has dismissed the application while recording the

following reasons:-

(1)

Both the trade marks are quite different and defendant's

mark is a work of art.

(2)

Sometime similar words which have different logo and

look are allowed to co-exist.

(3)

Both are in the online trading but the business model of

the plaintiff and the defendant is somewhat different.

(4)

“DECORALLEY” with device mark is distinct.

NARESH KUMAR

2022.05.20 09:41

I attest to the accuracy and

integrity of this document

FAO-650 of 2022(O&M)

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This Bench has heard the learned counsels representing the

parties at length and with their able assistance perused the paper book.

As already noticed, the petitioner's registered trade mark is “The

Decor Alley”. She also claims that she has started using “Decor Alley” in

January 2017 and has launched website under the name of

<thedécoralley.com> and <thedecoralley.com>. Her trade mark has been

registered on 07.08.2021, whereas, the defendant is stated to have started

using “DECORALLEY with “D” as Device. On a cas