The court found no reasonable grounds for the impugned order in the interim relief period to be interfered with and therefore the Coram of Hon’ble Mr. Justice Manmohan and Hon’ble Mr. Justice Navin Chawla [FAO (COMM) 138/2021] rejected the present application.
The present is an appeal petition filed to challenge the order dated 30th March 2021 passed by the learned District Judge, Commercial Court-5, Central District, Tis Hazari Courts, Delhi in CS Comm. No. 1724/2020, which prohibits the appellant from trading and selling certain namkeen products under the mark of “Gulab”.
The counsel from the appellant side has stated that the getup, color combination, style or pattern of writing alphabet as well as the picture of rose printed on the products of the appellant is completely different from that of the respondent, furthermore, the sales being done by the plaintiff are not related with that of Namkeen and is of other items.
The Honorable Delhi High Court in their judgment finds the two marks in question and are prima facie of the view that both the marks are not identical. The present court however went into the judgment of the trial court whose reasoning is of prime importance for the present decision.
The trial court has noted that “After considering the facts and circumstances of the present case, I am of the view that goodwill and reputation of the firm M/s. Shivnath Rai Sumerchand has so closely associated with the trademark ‘Gulab’ that ordinary purchaser just identify the products of the plaintiff by simply asking about the trademark and nothing else. The products of the plaintiff are recognized and purchased only by name of trademark ‘Gulab’ and after seeing the picture of rose flower on the packaging” Furthermore “It is also revealed from the documents of the parties that M/s. Shivnath Rai Sumerchand firm now owned by the plaintiff no. 1 has started selling namkeen items since year 2000 with the trademark ‘Gulab’ whereas predecessor of defendant company namely M/s. Pankaj Industries started selling namkeen items with same trademark ‘Gulab’ since year 2008 and thus plaintiff no. 1 is entitled to seek injunction against defendant on the basis of passing off also despite existence of big dissimilarity in packaging”
The Delhi High Court in the present decision focused upon the Supreme Court’s decision in the case of Wander Ltd and Anr. v. Antox India P. Ltd., 1990 (Supp) SCC 727, which has held that in the appeals before the Division Bench against the exercise of discretion by the Trial Court, the appellate court will not interfere with the exercise of such discretion of the court of the first instance and substitute its discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principle of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle.
Therefore because of the above reason, the present Delhi High Court found no grounds for the interference of the impugned order at the interim stage. Thus the application was dismissed.
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Judgment Reviewed by: Ashwin Singh
