Delhi High Court – Orders
Westend Green Farms Society vs Vicky Kakkar on 7 April, 2025
Author: C. Hari Shankar
Bench: C. Hari Shankar
$~47
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA(COMM) 196/2025
WESTEND GREEN FARMS SOCIETY .....Appellant
Through: Mr. Abhinav Mukerji, Sr. Adv.
with Mr. Sumit Gehlot, Mr. Raghav Chawla,
Ms. Khushboo Hora, Ms. Archita Nigam
and Mr. T.S. Thakraon, Advs.
versus
VICKY KAKKAR .....Respondent
Through:
CORAM:
HON'BLE MR. JUSTICE C. HARI SHANKAR
HON'BLE MR. JUSTICE AJAY DIGPAUL
ORDER
% 07.04.2025
CM APPLs. 20456/2025 & 20457/2025 (for exemption)
1. Exemption allowed subject to all just exceptions.
2. Applications are disposed of.
RFA(COMM) 196/2025, CM APPL. 20458/2025
3. The appellant is aggrieved by the rejection, by the learned
District Judge (Commercial Court)1, of CS (COMM) 294/20222,
whereby the appellant sought an injunction against the respondent
infringing the appellant’s registered trademark “WESTEND
GREENS”.
1 “the Commercial Court”, hereinafter
2
_____________________________________________
RFA(COMM) 196/2025 Page 1 of 4
This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above.
The Order is downloaded from the DHC Server on 25/04/2025 at 23:24:09
4. The learned Commercial Court has dismissed the suit under
Order VII Rule 11 of the CPC holding that the appellant had no
sustainable cause of action, as neither the appellant nor the respondent
was using the mark in the course of trade.
5. Prima facie, when one reads Section 29 of the Trademarks Act,
the requirement of the mark being used in the course of trade is
essentially of the defendant and not of the plaintiff. As such, once the
plaintiff has a registered trademark, Section 28(1) of the Trademarks
Act entitles the plaintiff to injunctive relief against infringement, and
user is not a determinative criteria.
6. Insofar as the finding that the defendant was not using the
impugned mark is concerned, Mr. Abhinav Mukerji, learned Senior
Counsel appearing for the appellant submits that, in arriving at the
said finding, the learned Commercial Court relied on the written
statement filed by the defendant, which was impermissible while
deciding the case under Order VII Rule 11 of the CPC.
7. Mr. Abhinav Mukerji points out that, in the plaint, there is a
specific averment that the defendant was using the mark for
commercial purposes and that Order VII Rule 11 has to proceed on a
demurrer. He draws our attention to para 13 of the plaint which read
thus:
“13. That the defendant No.1 is misrepresenting his said farm
being part of the plaintiff society. By illegally using the plaintiff’s
name and registered trade mark “WESTEND GREENS” theRFA(COMM) 196/2025 Page 2 of 4
This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above.
The Order is downloaded from the DHC Server on 25/04/2025 at 23:24:09
defendant No.1 is trying to enhance his property value and is trying
to attract potential customers for the purpose of leasing/selling of
his said farm thereby unjustly enriching himself. The defendant
No.1 is carrying commercial activity in his property. The adoption
and use of the registered trade mark “WESTEND GREENS” by the
defendant No.1, clearly violate the plaintiff’s statutory as well as
common law rights and use of the registered trade mark by the
defendant No.1 is completely malafide and dishonest. By this
misrepresentation the public may think that the defendant No.1 is
some way connected with the plaintiff society and that is why he is
using the registered trade mark “WESTEND GREENS”. By
adopting the name and registered trade mark “WESTEND
GREENS”, which is plaintiff’s name as well as registered trade
mark, the defendant No.1 is infringing and passing off the
plaintiff’s registered trade mark. Despite being aware of illegal use
of the registered trade mark “WESTEND GREENS” by the
defendant No.1, the defendant No. 2 has not stopped its illegal
use/adoption, which is its duty.”
8. In that view of the matter, issue notice to the respondent,
returnable on 23 April 2025.
9. Notice be served on the respondent through Counsel, who
appeared on its behalf before the learned Commercial Court.
10. Both sides are directed to place on record short notes of their
respective submissions not exceeding four pages each accompanied by
duly indexed compilation of any judicial authorities on which they
may seek to place reliance after exchanging copies with each other at
least three days in advance of the next date of hearing and also to
email a copy thereof to Court Master.
11. It is made clear that no adjournment would be granted on the
next date of hearing.
12. As the issue is limited, and the suit has been dismissed at a
RFA(COMM) 196/2025 Page 3 of 4
This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above.
The Order is downloaded from the DHC Server on 25/04/2025 at 23:24:09
peremptory stage, list the appeal for disposal on 23 April 2025 in the
Supplementary List.
C. HARI SHANKAR, J.
AJAY DIGPAUL, J.
APRIL 7, 2025/aky
Click here to check corrigendum, if any
RFA(COMM) 196/2025 Page 4 of 4
This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above.
The Order is downloaded from the DHC Server on 25/04/2025 at 23:24:09
[ad_1]
Source link