Vijay Abbot v. Super Cassettes Industries Private Limited & Ors

RAJIV SAHAI ENDLAW, J. JULY 29, 2019 "gsr"

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 29thJuly, 2019 + DR. VIJAY ABBOT .... Plaintiff Through: Mr. Harish Malhotra, Sr. Adv. with Ms. Kanishka Prasad, Mr. Harsimran Singh, Ms. Samridh Ahuja, Mr. Kartikeya & Ms. Khushboo Tomar, Advs. Versus SUPER CASSETTES INDUSTRIES PRIVATE LIMITED & ORS. …...Defendants Through: Mr. Harsh Kaushik, Mr. Varun Tandon & Mr. Harshvardhan Jha, Advs. for D-1. Dr. Harsh Surana, Ms. Deepali S. Surana & Mr. Sandeep Malik, Advs. for D-3,4,7&8. CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. The plaintiff has instituted this suit for (a) permanent injunction to restrain the ten defendants, being the producers, director and others, connected with the film "KhandaniShafakhana" slated for release on 2nd August, 2019, from releasing the film "KhandaniShafakhana" and / or from using the plaintiff"s proprietary material amounting to dilution thereof and / or passing off; (b) mandatory injunction directing the defendants to change and remove the title of the film from that of "KhandaniShafakhana" to any other title not similar or deceptively similar to the plaintiff"s proprietary material and to remove or any other similar marks; and, (c) for recovery of Rs.2 crores. 2. The suit along with the applications for interim relief and under Order II Rule 2(3) of the Code of Civil Procedure, 1908 (CPC) came up before this Court first on 23rd July, 2019 when though I was not prima facie satisfied with the rights claimed by the plaintiff but being concerned whether the title of the film causes any damage to the reputation of the plaintiff, suggested to the counsel for the defendant / caveator, to before the scheduled release of the film, allow viewing thereof by the plaintiff and his counsel as well as the senior counsel briefed. 3. The counsel for the defendant / caveator, after taking instructions, agreed thereto expressing apprehension that the plaintiff and his counsels after watching the film and / or before the release thereof, may make statements to the public, media or otherwise about the film. 4. The senior counsel appearing for the plaintiff, under instructions assured that no such statement shall be made and no information qua the film will be divulged to anyone whatsoever. 5. It was also suggested that for the sake of expediency, the undersigned may also view the film as suggested. 6. Though vide order dated 23rd July, 2019 viewing of the film was tentatively scheduled for 26th July, 2019 but with mutual agreement, the viewing took place in the evening of 27th July, 2019. 7. The senior counsel for the plaintiff and the counsel for the defendant / caveator have been heard. 8. The plaintiff has instituted this suit, pleading, that (i) the plaintiff is a eminent Ayurvedic Sexologist with a career spanning over four decades; (ii) the plaintiff currently practices from Hakim Hari Kishan Lal Shafakhana Clinic, East Patel Nagar, New Delhi; (iii) the plaintiff is the son of Late Hakim Hari Kishan Lal Abbot who was a world renowned sexologist and had contributed significantly to the health sector by providing for over three generationsAyurveda medical care / treatment for all kinds of sexual dysfunctions; (iv) the plaintiff"s father had originally coined and invented the logo / trade marks / brands / business names / portraits ; (v) the said logo / trade marks / brands / business names / portraits constitute proprietary material and have been in existence and use by the plaintiff"s late father since the year 1925 and after his death on 27th January, 1987 by the plaintiff and his other family members; (vi) the Registry of Trade Marks, vide order dated 8th December, 2000 declared Smt. Raj Devi, Dr, Rajender Kumar Abbot and the plaintiff as subsequent proprietors of the registered trade marks No.164662 and 213916 and allowed Dr. Rajender Kumar Abbot and the plaintiff to trade in the name of "KhandaniShafakhana"; (vii) the plaintiff and his brothers still use the portrait of their father as corpor