$~4 &
5
*
IN THE
HIGH COURT OF DELHI AT NEW DELHI
+
FAO 56/2017, CM APPL. 4279-80/2017
SANDHYA
KUMARI PROPRIETRESS M/S SHIVANI TRADERS
.....
Appellant
Through: Mr. S.K. Bansal, Mr. Ajay Amitabh
Suman,
Mr. Pankaj Kumar and Mr. Kapil Kumar
Giri,
Advs.
versus
M/S GUPTA & SONS AND ANR .....
Respondents
Through:
Ms. Indu Kaur, Advocate.
+
FAO 57/2017, CM APPL. 4288-89/2017
SANDHYA
KUMARI PROPRIETRESS M/S SHIVANI TRADERS
.....
Appellant
Through: Mr. S.K. Bansal, Mr. Ajay Amitabh
Suman,
Mr. Pankaj Kumar and Mr. Kapil Kumar
Giri,
Advs.
versus
M/S
SAKSHI FOOD
..... Respondent
Through:
Ms. Indu Kaur, Advocate.
CORAM:
HON'BLE
MR. JUSTICE NAJMI WAZIRI O R D E R
% 16.01.2018
Mr.
Bansal, the learned counsel for the appellant submits that the
impugned
order dated 08.11.2016 passed by District Judge, Patiala House
Court, New Delhi has erred insofar as, it did not
take into account the fact that the appellant has extensively used the
trademark “RINGO” alongwith its elaborate design for the packaging and sale of
corn puffs since 2011. Its application for registration of the mark made on
30.09.2013 remains pending. He submits that on 15.10.2014, an application for
copyright of the artistic work was made to which an NOC was granted on
29.06.2015, and lately the copyright in the artistic work has been registered
whereas the respondent applied for registration of ‘ASHOK RING” in the same
class of goods as late as on 26.04.2016.
2.
It is the appellant’s case that
they have used the aforesaid trade dress/artistic work for the packaging of
corn puffs extensively in its area of sale i.e. in Uttar Pradesh and National
Capital Territory of Delhi. Their sales turnover for the year 2013-14 was
Rs.10,15,756/- and for the year 2014-15 it was Rs.11,65,000/-. Details of advertisement
expenses for the product, done through pamphlets and stickers, are not readily
available. He submits that, the fact that sale of about Rs.20 lacs was effected
in just two years – from 2013 to 2015 – itself shows that the product was
extensively consumed and was in wide circulation. It has attained recognition
in favour of the appellant. He further submits that “RINGO” has been registered
in India in the name of Sh. Rajkumar Motandas Ahuja bearing TM No.58 of 2016.
He seeks protection against use of the identical label by the respondent. The
packaging labels used by the appellant and the respondent appear on page Nos.
50 and 54 of the paper-book, respectively. They are reproduced hereunder:
APPELLANT’S LABEL RESPONDENT’S
LABEL
3.
The two trade labels are almost
identical. The respondent’s label appear to be the copy of the artistic work
and label of the appellant, its colour, style, fonts, etc. all are nearly
identical. It can be termed as an imitation of the appellant’s label. The
respondent’s goods can easily be passed off as that of the appellant. Each
packet is priced at Re. 1. The sale of the said product is as Rs.21,80,756/-
between 2013 and 2015. As a corollary as many as 21,80,756 such packets must
have been consumed by or brought into the stream of commerce for the target
group i.e. school going children or people belonging to weaker sections of the
society. It can safely be concluded that the said label would have acquired an
element of recognition and recall value.
4.
The learned counsel for the
respondent states that the respondent is prior user of the trademark “ASHOK
RING” and has now applied for registration of the same on 26.04.2016. The
respondent has not been able to
show any
sale of goods earlier in time or from the period 2013 to 2015.
5.
Although the respondent was
granted time to adduce relevant documents, no such documents are on record. The
learned counsel for the respondent states that she has filed the relevant
documents and would pursue with the Registry to have the same brought on
record. She also seeks time to bring on record, proof of prior and extensive
use of the respondent’s said mark, alongwith label and logos, as may be.
Advance copy of the said documents, as may be filed by the respondent, shall be
served upon the appellant.
6.
At her request, renotify on 31.01.2018.
NAJMI WAZIRI, J
JANUARY 16, 2018/acm
