Kirorimal Kashiram Marketing & Agencies P.Ltd v. Shree Sita Chawla Udyog

SANJAY KISHAN KAUL, J. '\b' FAO[OS) No. 286/08

<» * IN THE HIGH COURT OF DELHI AT NEW DELHI + FAO (OS) No.286/2008 Reserved on : 19"" August, 2010 Pronounced on: BO'*" August, 2010 M/S KIRORIMAL KASHIRAM MARKETING & AGENCIES PVT. LTD. Appellant Through: Sh. S.K.Bansal, Advocate VERSUS M/S. SHREE SITA CHAWAL UDYOG MILL TOLLY VILL. ....Respondent Through: Mr. Manav Kumar, Mr. P.C.Arya and Ms. Neha Kapoor, Advocates CORAM: HON'BLE MR. JUSTICE SANJAY KISHAN KAUL HON'BLE MR. JUSTICE VALMIKI J.MEHTA 1. Whether the Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not? 3. Whether the judgment should be reported in the Digest? % lUDGMENT VALMIKI I. MEHTA. I. 1. The present appeal arises from the order dated 21.5,2008 (impugned order) whereby the learned Single judge has dismissed the application of the plaintiff for injunction and by which application the plaintiff had prayed for an injunction restraining the defendant from using the trademark "Golden Deer", which was said to be deceptively similar to 'Double Deer', the registered trademark of the plaintiff. The plaintiff is the appellant and the defendant is the respondent before us. \3 irrmrnmr^iiiiiiiiiiiiiiiiiiiiiiMiiiiiiiiiiiiiiiiii iiiiiiiiiiiiiiiii iiiiiiiinrinnriniiniiririi iniiririijin^riinrirjriirinnnnnnnn Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. 2. As already stated above, the appellant's registered trademark is "Double Deer" with respect to the product rice and which is also the product for which the respondent is using the offending trade mark. The suit therefore seeks the reliefs of injunction and rendition of accounts. 3. The operative portion of the order of the learned Single judge is contained in paras 4 and 5 of the impugned order and these read as under:- "4. A perusal of the documents filed by the plaintiff would show that the trademark of the plaintiff consists of a figure of two deers facing each other with a flag in between. The figures and flat are enclosed in a white colour semi circle. The base of the packing is yellow and prominent colour of the trademark is red with cooked/uncooked rice shown on the pack. The trademark being used by the defendant is one single deer enclosed in a standing oval shape ring. There is peripheral rim in the ring which is having holes at regular intervals. On both sides of the ring are spikeiets. The word 'Golden deer' is written on the top. Neither the artistic design nor the words nor the colour combination has anything common with the design of the plaintiff's trademark. The figure of deer is also altogether different from that of the plaintiff. While the two deers in the plaintiff's trademark are males with antlers, the deer of defendant is a female only having ears and no antlers. The deers in the plaintiff's trademark are running deers with both front feet bent and rear feet stretched in running condition, the deer in the defendant's trademark is a standing deer with one front feet a l ittle raised and bent. The contention of the plaintiff that the defendant's trademark is deceptively similar to that of the plaintiff is on the face of it a false and wrong contention. Neither the trademark of the plaintiff was being infringed by defendant. The plaintiff has no prima facie case to contend that the defendant was passing off the goods as that of the plaintiff. There is no similarity between fr the label of plaintiff and that of the defendant. The iearned counsei for piaintiff vehemently argued that the defendant had no right to use the word 'golden deer' since the piaintiff was using the word 'doubie deer'. He submitted that the rice may be purchased by the illiterate persons and they purchase the same only looking at the figure of deer and they wouid not go into the nicety of the fact whether there were two deers or one deer and, therefore, use of the word 'deer' by the defendant amounted to infringement of the piaintiff's trad