Delhi High Court
Coromandel Indag Products India Ltd vs Sumitomo Chemical Company Ltd. & Anr on 3 July, 2025
Author: Amit Bansal
Bench: Amit Bansal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on: 15th April, 2025
Judgment pronounced on: 03rd July, 2025
+ CS(COMM) 441/2023 with I.A. 11910/2023 and I.A. 47367/2024
COROMANDEL INDAG PRODUCTS
INDIA LTD. .....Plaintiff
Through: Mr. Pankaj Kumar, Advocate
versus
SUMITOMO CHEMICAL COMPANY
LTD. & ANR. .....Defendants
Through: Mr. Rajshekhar Rao, Senior Advocate
with Mr. Prashant Gupta, Mr. Karan
Singh, Ms. Shivangi Kohli, Mr. Mohit
Sharma, Mr. Yashraj Samant and
Mr. Aadhar Nautiyal, Advocates
CORAM:
HON'BLE MR. JUSTICE AMIT BANSAL
JUDGMENT
AMIT BANSAL, J.
I.A. 47367/2024 (under Order VII Rule 11 of the Code of Civil Procedure,
1908)
1. The present application has been filed on behalf of the defendants under
Order VII Rule 11 of the Code of Civil Procedure, 1908 (hereinafter ‘CPC‘)
seeking rejection of plaint.
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2. Notice in the present application was issued on 6th December 2024.
Reply has been filed on behalf of the plaintiff.
3. Submissions were heard on behalf of the parties on 12th March 2025
and 15th April 2025 when the judgment was reserved. The parties have also
filed their respective written submissions.
BRIEF FACTS
4. Brief facts stated in the plaint, which are relevant in deciding the
present application, are as follows:
4.1. The present suit has been filed seeking relief of permanent injunction
restraining the defendants from infringement of copyright and passing off,
along with other ancillary reliefs.
4.2. The plaintiff, a company engaged in the business of agrochemicals
including pesticides, insecticides and herbicides, was incorporated on 30th
June 1983 and is the parent company of the Coromandel Group founded in
1968. Coromandel Agrico Private Limited (hereinafter ‘CAPL’) and Agrimas
Chemicals Limited (hereinafter ‘Agrimas’) are also engaged in the aforesaid
business and are a part of the Coromandel Group.
4.3. Between 1983 and 1988, the plaintiff collaborated with one Takeda
Chemical Industries Limited (hereinafter ‘Takeda’) to launch an insecticide
based on certain technical component (CARTAP HYDROCLORIDE). The
plaintiff entered into a non-exclusive and royalty-free License Agreement
with Takeda whereby the plaintiff had to purchase the aforesaid technical
component from Takeda and was permitted to sell insecticides manufactured
therefrom under the mark PADAN.
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4.4. Takeda, in 2001, entered into a joint venture with the defendant no.1,
to be constituted as Sumitomo Chemical Takeda Agro Company Limited. The
aforesaid company was absorbed by Sumitomo Chemical Company Limited,
the defendant no.1, in 2007. However, the plaintiff remained the exclusive
user of the mark PADAN in India.
4.5. The plaintiff, in 2006, created the packaging for its product bearing the
mark PADAN with the below-mentioned original artistic work and the same
is continuously and uninterruptedly being used by the plaintiff since then.
4.6. In the year 2007, the aforesaid technical component became public and
the defendant no.1 stopped manufacturing and supplying the same to the
plaintiff. The defendant no.1, through the email dated 24th December 2007,
communicated to the plaintiff that it temporarily authorized the plaintiff to use
the mark PADAN in relation to the aforesaid technical component supplied
by third-parties during the year 2008 or till it recommenced the supply thereof.
The plaintiff then received a letter dated 4th January 2011 from the defendant
no.1 stating its willingness to recommence the supply of the aforesaid
technical compound from 1st April 2011 in terms of the Distribution
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Agreement dated 26th December 2005. It was also mentioned that the
defendant no.1 shall terminate the aforesaid temporary license/ arrangement
in terms of the aforesaid email dated 24th December 2007 with the plaintiff.
The defendant no.1 thereafter did not provide the aforesaid technical
component to the plaintiff nor did it object to the continued use of the mark
PADAN by the plaintiff.
4.7. The plaintiff has been honestly and bona fidely using the mark PADAN
in India as a proprietor thereof. By virtue of continuous, uninterrupted and
extensive use, promotion and quality control, the plaintiff has earned enviable
goodwill and reputation for the mark PADAN in India.
4.8. In May 2023, the plaintiff came to know that the defendant no.2 is
going to launch pesticide based on the aforesaid technical component under
the mark PADAN.
4.9. From further enquiry, it was revealed to the plaintiff that the defendants
commenced using the mark PADAN in May 2023. The plaintiff also procured
such product of the defendant no.2 from the market. A photograph of the
packaging thereof, which is deceptively similar to that of the plaintiff, is
reproduced below:
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5. Accordingly, the present suit has been filed inter alia seeking the
following reliefs:
“(a) A decree of permanent injunction restraining the defendants themselves
and their officers, servant, affiliates, employees and all others in capacity of
principal or agent acting for and on their behalf, or anyone claiming
through, by or under him, from using, selling, soliciting, providing
dealership, displaying, advertising through print, visual or electronic media
including on internet, domain and email addresses or by any other mode or
manner dealing in the impugned trademark PADAN and packaging/artworkand/ or any other trademark/packaging/artwork
which is identical with and/ or deceptively similar to the Plaintiff’s saidtrademark PADAN (word) and packaging/artwork in
relation to insecticide and other agro-chemicals amounting to:
(i) Infringement of Copyright of the plaintiff in said
trademark/packaging/artwork.
(ii) Passing off and enabling others to pass off their goods and business as
those of the plaintiff.
(iii) Diluting the said trademark/packaging/artwork of plaintiff and
goodwill and reputation acquired thereunder.
(b) A decree of permanent injunction restraining the Defendants themselves
and their officers, servants, affiliates, employees and all others in capacity
of principal or agent acting for and on his behalf, or anyone claimingSignature Not Verified
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through, by or under him, from interfering in the business of plaintiff under
the said trademark/packaging/artwork.
(c) Declare that the plaintiff is the owner and proprietor of said
trademark/packaging/artwork PADAN in relation to Pesticide and goodwill
reputation acquired thereunder in India.”
SUBMISSIONS ON BEHALF OF THE DEFENDANTS
6. Mr. Rajshekhar Rao, senior counsel appearing on behalf of the
defendants/ applicants, has made the following submissions in support of the
application filed by the defendants under Order VII Rule 11 of the CPC:
6.1. The plaintiff has no locus standi to institute the present suit.
6.1.1. The defendant no.1 granted a non-exclusive license to CAPL to use the
mark PADAN in India. Therefore, the plaintiff has wrongfully alleged that it
holds a non-exclusive license to use the mark PADAN.
6.1.2. The plaintiff is neither a licensee of the mark PADAN nor has it ever
used the same in India. The plaintiff has fraudulently based its plaint on
CAPL’s use of the mark PADAN. However, the same is impermissible in law
as both companies are separate legal entities. Thus, the term ‘plaintiff’ can
only advert to Coromandel Indag Products India Limited and not to any of its
alleged group companies including CAPL.
6.1.3. CAPL is currently undergoing corporate insolvency resolution process
(CIRP) before the National Company Law Tribunal (Allahabad Bench).
Therefore, as the claims made in the plaint arise out of the non-exclusive
license granted by the defendant no.1 to CAPL, only the Resolution
Professional (RP) acting on behalf of CAPL could bring an action against the
defendants. However, CAPL has not even been impleaded as a party to the
present suit.
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6.2. The plaintiff did not file two agreements between CAPL and the
defendant no.1, i.e., the Trademark Agreement dated 15th March 2003 and the
Distribution Agreement dated 26th December 2005 which unequivocally
establish that CAPL was using the mark PADAN as a licensee of the
defendant no.1, and not the plaintiff.
6.3. The plaint fails to disclose any cause of action against the defendants
for the relief of declaration and/ or permanent injunction with respect to use
of the mark PADAN. Admittedly, CAPL, the plaintiff’s group company was
merely a non-exclusive licensee of the mark PADAN, while the defendant
no.1 remains the registered proprietor of the mark PADAN bearing no.255161
in class 5 with effect from 1969. Therefore, neither CAPL nor the plaintiff can
claim any proprietary rights over the mark PADAN.
6.4. The plaintiff has falsely claimed copyright ownership in the artistic
work of its packaging/ logo on the basis of the Assignment Agreement dated
4th April 2006 executed between one Mr. Kailash Sharma and CAPL.
However, any alleged copyright in the said artistic work shall be vested with
CAPL and not the plaintiff. In any event, as per the Distribution Agreement,
CAPL was obliged to seek prior permission from the defendant no.1 to
introduce any packaging for its products under the mark PADAN. As no such
permission was ever sought, the plaintiff’s claim of infringement of copyright
in the said artistic work is unsustainable.
6.5. The packaging of products under the mark PADAN filed by the plaintiff
does not mention its name but instead bears the text ‘in association with
Sumitomo Chemicals Takeda Agrico Company Limited, Japan’ (refer pages
159 to 163 of the documents filed with the plaint). Such text acts as a source
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identifier for the consumers who associate the mark PADAN with the
defendant no.1 only.
6.6. The License Agreement dated 6th December 2004 between the plaintiff
and CAPL relied upon by the plaintiff is fabricated. Pertinently, in the recitals
of the said agreement, the plaintiff is falsely stated to be the ‘registered
trademark owner’ of the marks PADAN 4G and PADAN 50SP.
SUBMISSIONS ON BEHALF OF THE PLAINTIFF
7. Mr. Pankaj Kumar, counsel appearing on behalf of the plaintiff, has
made the following submissions in response:
7.1. The plaintiff is the parent company of the Coromandel Group of which
CAPL is a part. Therefore, any reference to the term ‘plaintiff’ in the plaint
shall include all the group companies of the Coromandel Group including
CAPL.
7.2. As per the agreements dated 27th January 2000 and 6th December 2004
between the plaintiff and CAPL, CAPL was given the exclusive right, title
and interest over the mark PADAN, among others, subject to payment of
royalty. The aforesaid agreement dated 6th December 2004 was also enforced
before this Court in CS(COMM) 363/2016. Therefore, any use of the mark
PADAN by CAPL inures to the benefit of the plaintiff.
7.3. While the defendant no.1’s predecessor obtained registration for the
trade mark PADAN bearing no.255161 in class 5, the defendant no.1 or its
predecessor never used the said mark in India. On the other hand, the plaintiff
has been continuously and exclusively using the said mark in India since
1988.
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7.4. The defendants, on account of their inaction towards the plaintiff’s use
of the mark PADAN as well as their own non-use of the same, abandoned the
mark PADAN at least since 24th December 2007 and the dealers/ distributors
recognize the plaintiff as the owner and proprietor of the mark PADAN since
1988.
7.5. The plaintiff is the proprietor of the mark PADAN and the artwork
contained in the packaging thereof.
7.6. The defendants, in June 2023, launched their products under the mark
PADAN using the packaging which is identical with the plaintiff’s original
artwork in its product packaging under the mark PADAN. Thus, the
defendants are attempting to ride over the goodwill and reputation of the
plaintiff evidenced by uninterrupted independent use of the mark PADAN by
the plaintiff since 2012. The aforesaid sufficiently discloses a cause of action
against the defendants in the present suit.
ANALYSIS AND FINDINGS
8. I have heard counsel for the parties and perused the material on record.
9. At the outset, I deem it necessary to reiterate the settled position of law
in deciding an application filed under Order VII Rule 11 of the CPC. The
remedy under the aforesaid provision is an independent and special remedy
empowering the Court to dismiss a suit at the threshold without conducting a
trial if the Court is satisfied that any of the grounds mentioned in the said
provision is fulfilled. The underlying object of the aforesaid provision is that
the Court would prevent the plaintiff from unnecessarily protracting the
proceedings in a suit and shall put an end to the sham litigation such that no
further judicial time is wasted.
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10. The aforesaid position of law has been well crystallized in several
decisions of the Supreme Court such as T Arivandandam v. T.V. Satyapal1
and Dahiben v. Arvindbhai Kalyanji Bhanusali (Gajra)2. In T
Arivandandam (supra), the Supreme Court held that while deciding an
application under Order VII Rule 11 of the CPC, it is important to decide
whether the plaint discloses a real cause of action or something purely
illusory. The relevant portion from the aforesaid judgment is extracted below:
“5. …The learned Munsif must remember that if on a meaningful – not
formal – reading of the plaint it is manifestly vexatious, and meritless, in the
sense of not disclosing a clear right to sue, he should exercise his power
under Order 7, Rule 11 CPC taking care to see that the ground mentioned
therein is fulfilled. And, if clever drafting has created the illusion of a cause
of action, nip it in the bud at the first hearing…”
[emphasis supplied]
Whether the plaintiff is competent to institute the present suit
11. The plaintiff in the present suit is ‘Coromandel Indag Products India
Limited’, a company incorporated on 30th June 1983 under the provisions of
the Companies Act, 1956. Inexplicably, paragraph 2 of the plaint while
making a reference to other companies being a part of the Coromandel Group
states that the term ‘plaintiff’ includes other group companies of the plaintiff.
The pleading in paragraph 2 of the plaint is set out below in verbatim:
“2. That the Plaintiff Company is engaged in the business of
Agrochemicals more particularly Pesticides Insecticide, Herbicides etc.
Plaintiff company is the Parent company of Coromandel Groupfounded in
the year 1968. Predecessor of the Plaintiff was incorporated by the name
Coromandel Indag Products Private Limited in the year 1973 having
registered office at 12, Police Commissioners Office Road, Madras-8,
Chennai. Coromandel Agrico Pvt. Ltd., A-73, Industrial Area, Sikandrabad-
1
(1977) 4 SCC 467
2
(2020) 7 SCC 366Signature Not Verified
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203205, Uttar Pradesh and Agrimas Chemicals Limited having registered
office at H2, MIDC Industrial Estate, Taloja, Distt.Rajgadh, Maharastra-
410208 and other office at 602, 6th Floor, ILD Trade Centre Sector- 47
Gurugram, Haryana – 122018 are the part of the Coromandel Group which
are engaged in the same business. Term Plaintiff hereinafter includes and
said group companies of the plaintiff if not specified.”
[emphasis supplied]
12. It is well-established that every corporate entity is a separate legal
entity. As far back as in 1897, the House of Lords, in Salomon v. Salomon &
Co. Ltd3, held that every company has a separate legal personality from its
shareholders and related entities. The aforesaid position of law was
recognized by various courts in India including the Supreme Court in
Vodafone International Holdings BV v. Union of India4 wherein it was held
that a parent company and its subsidiary including a wholly owned subsidiary
are distinct legal entities. Therefore, the plaintiff company cannot represent
any other company in a suit even if the said company is a group company/
subsidiary of the plaintiff. Only CAPL was competent to institute the present
suit against the defendants if there was a cause of action in its favour. Hence,
the plaintiff cannot espouse the cause of CAPL in the present suit.
13. In paragraph 21 of the plaint, it has been admitted that CAPL is under
liquidation and an RP has been appointed. Merely because CAPL is under
insolvency would not create a right in favour of the plaintiff to institute the
present suit. In terms of the provisions of the Insolvency and Bankruptcy
Code, 2016, the management of affairs of the corporate debtor CAPL would
lie with the RP. Therefore, the cause of action for filing the present suit would
3
[1897] AC 22 : (1895-99) All ER Rep 33 (HL)
4
(2012) 6 SCC 613
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be in favour of CAPL acting through the RP and there is no legal basis for the
plaintiff to institute the aforesaid suit on behalf of CAPL.
14. Next, a reference may be made to paragraphs 7 and 8 of the plaint which
are set out below:
“7. That upon obtaining the registration under Section 9(3) of the
Insecticide Act, 1968 by the Plaintiff, Takeda Chemical Industries Ltd.
entered into License Agreement with Plaintiff whereby Plaintiff had to
purchase the said CARTAP HYDROCHLORIDE technical from Tekeda
Chemical Industries Ltd. and manufacture insecticide with other
ingredients of the composition of the insecticide which the plaintiff itself had
to procure from local sources and sell the same under the trademark
PADAN.
8. That though Takeda Chemical Industries Ltd. had applied for
registration of trademark PADAN under no. 255161 in class 05 and obtained
registration, it gave non-exclusive and royalty free permission to use the said
trademark to the Plaintiff of the said CARTAP HYDROCLORIDE
insecticide in consideration of the fact that the plaintiff had to purchase the
technical i.e CARTAP HYDROCLORIDE from them.”
[emphasis supplied]
15. In the aforesaid paragraphs, it has been averred that Takeda had
obtained registration for the mark PADAN and gave a non-exclusive right to
use the said mark to the plaintiff. It is also averred that the plaintiff entered
into a License Agreement with Takeda to use the mark PADAN. However,
pertinently, no such license agreement has been filed along with the plaint.
16. Now a reference may also be made to paragraphs 13 and 14 of the
plaint, the relevant extracts from which are set out below:
“13. …Defendant in one of the communications through email dated
24.12.2007 informed as under:
Regarding use of our trademark “PADAN” which we discussed on
December 12, we inform you of our comment as follows:
‘We Authorize you to use the trademark of PADAN in connection with the
cartap TG supplied by other source during 2008 or until we re-start theSignature Not Verified
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supply: provided that we will not be responsible nor will we incur any
liability to you or your customers for any damage, losses, or problem cause
by other source’s cartap.’
14. …Plaintiff received letter dated January 4th, 2011 from defendant
inter-alia mentioning as under:
“We sincerely appreciate the meeting held on 22.11.2010 at your Head
Quarter attended by our managers, Mr. Horinouchi and Ohisa,
accompanied with Mr. Ooka and Mr. Gujral of our Indian Affiliate (SCIPL-
SUMITOMO CHEMICAL INDIA LIMITED) As they mentioned at the said
meeting, in accordance with the terms and conditions of the Distribution
Agreement dated December 26th, 2005, we are ready to re-commence the
supply of the Compounds (as defined in the Agreement) for the exclusive
use as an active ingredient of the product to be manufactured by you, for
the period after April 1st, 2011.
Accordingly, effective from April 1st, 2011 or actual date the supply has
re-commenced whichever comes earlier, we shall terminate our temporary
licence, which we granted pursuant to our email dated December 24, 2007,
to use the PADAN trademark for the product that uses an active ingredient
supplied by third parties; and you shall refrain from the use of the
trademark granted under such temporary license.””
[emphasis supplied]
17. In paragraphs 13 and 14 of the plaint, references have been made to an
email dated 24th December 2007 and a letter dated 4th January 2011 allegedly
written by the defendant no.1 to the plaintiff. The aforesaid letter dated 4th
January 2011 also makes a reference to a Distribution Agreement dated 26th
December 2005. However, a perusal of the aforesaid communications filed
with the plaint shows that the said communications were sent by the defendant
no.1 to CAPL, and not to the plaintiff. The plaintiff has referred to the
aforesaid communications being sent to the plaintiff overlooking the fact that
CAPL is a separate corporate entity distinct from the plaintiff.
18. From the aforesaid averments, it is evident that the plaint is premised
on a misconception that the license granted in favour of CAPL, being a group
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company of the plaintiff, would give a cause of action in favour of the
plaintiff. Therefore, the cause of action, as articulated in the plaint, would at
best lie in favour of CAPL and not the plaintiff.
Non-disclosure of documents relied upon in the plaint
19. Despite a specific mention being made in the plaint, the aforesaid
Distribution Agreement dated 26th December 2005 has not been filed by the
plaintiff. However, a copy of the said agreement has been filed by the
defendants, which shows that the said agreement was between CAPL and the
defendant no.1.
20. For the purposes of deciding an application under Order VII Rule 11 of
the CPC, the Court has to take into consideration only the averments made in
the plaint and the documents filed therewith. No reference can be made to the
written statement or the documents filed on behalf of the defendant. However,
when a reference to any document is made in the plaint, the Court can take
the same into consideration even if the same has not been filed by the plaintiff.
21. The defendants have placed reliance on the decision of the Supreme
Court in Church of Christ Charitable Trust and Education Charitable
Society v. Ponniamman Educational Trust5 wherein the Court made the
following observations:
“17. In the case on hand, the respondent-plaintiff to get a decree for specific
performance has to prove that there is a subsisting agreement in his favour
and the second defendant has the necessary authority under the power of
attorney. Order 7 Rule 14 mandates that the plaintiff has to produce the
documents on which the cause of action is based, therefore, he has to
produce the power of attorney when the plaint is presented by him and if
he is not in possession of the same, he has to state as to in whose possession
it is. In the case on hand, only the agreement between the plaintiff and the5
(2012) 8 SCC 706Signature Not Verified
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second defendant has been filed along with the plaint under Order 7 Rule
14(1). As rightly pointed out by the learned Senior Counsel for the appellant,
if he is not in possession of the power of attorney, it being a registered
document, he should have filed a registration copy of the same. There is no
such explanation even for not filing the registration copy of the power of
attorney. Under Order 7 Rule 14(2) instead of explaining in whose custody
the power of attorney is, the plaintiff has simply stated “nil”. It clearly shows
non-compliance with Order 7 Rule 14(2).
18. In the light of the controversy, we have gone through all the averments
in the plaint. In Para 4 of the plaint, it is alleged that the second defendant
as agreement-holder of the first defendant and also as the registered power-
of-attorney holder of the first defendant executed the agreement of sale. In
spite of our best efforts, we could not find any particulars showing as to the
documents which are referred to as “agreement-holder”. We are satisfied
that neither the documents were filed along with the plaint nor the terms
thereof have been set out in the plaint. The abovementioned two
documents were to be treated as part of the plaint as being the part of the
cause of action. It is settled law that where a document is sued upon and
its terms are not set out in the plaint but referred to in the plaint, the said
document gets incorporated by reference in the plaint. This position has
been reiterated in U.S. Sasidharan v. K. Karunakaran [(1989) 4 SCC 482]
and Manohar Joshi v. Nitin Bhaurao Patil [(1996) 1 SCC 169].”
[emphasis supplied]
22. The Supreme Court also, in Dahiben (supra), reiterated the aforesaid
position and made the following observations:
“24.4. If, however, by clever drafting of the plaint, it has created the illusion
of a cause of action, this Court in Madanuri Sri Rama Chandra Murthy v.
Syed Jalal [(2017) 13 SCC 174: (2017) 5 SCC (Civ) 602] held that it should
be nipped in the bud, so that bogus litigation will end at the earliest stage.
The Court must be vigilant against any camouflage or suppression, and
determine whether the litigation is utterly vexatious, and an abuse of the
process of the court.”
[emphasis supplied]
23. Therefore, since the aforesaid agreement has been relied upon in the
plaint, the Court can look into it even though it has been filed on behalf of the
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defendants along with the written statement. It appears that the plaintiff has
deliberately not filed the said agreement as it would show that the said
agreement has been entered by and between the defendant no.1 and CAPL
and the plaintiff was not a party to the said agreement.
24. As per the Distribution Agreement dated 26th December 2005, the terms
of trade mark license granted by the defendant no.1 in favour of CAPL are
detailed in Article 8 of the said agreement dated 26th December 2005. Article
8.1 and 8.2 of the said agreement is set out below:
“8.1 During the term of this Agreement and subject to the terms and
conditions herein, STA grants to Distributor a non-exclusive, royalty fee
non-transferrable license to use the Trademarks on the Products as
indicated in Exhibit D for distribution of the Products for the Field in the
Territory with a right to sub-license to its affiliates; provided that,
Distributor shall cause its affiliates to abide by and carry out the duties and
obligations imposed upon Distributor hereunder mutatis mutandis.
8.2 Distributor acknowledges STA’s right, title and interest in and to
the Trademarks and will not at any time do or cause to be done any action
or inaction which in any way may impair or intend to impair any part of
said right, title and interest. Distributor shall not question the validity of
any of the Trademarks. Neither Distributor nor any of its dealers nor other
sales network entities shall use or attempt to use any advertising or
promotional materials tending to dilute or harm the reputation or goodwill
attached to STA or the Trademarks. Distributor shall use the Trademarks
applicable hereto in connection solely with the sale of the Products in the
manner and form in which they have hereto before been used by STA and in
no other manner or form except as expressly authorized by STA in advance
in writing. All advertising and promotional materials prepared or placed by
Distributor and/or any of its dealers or other sales network entities, as well
as the format of any of the Trademarks, shall be consistent with STA
standards with regard to Product attributes and performance.”
[emphasis supplied]
25. These clauses demonstrate that CAPL was only given a license on a
non-exclusive basis to use the mark PADAN and there was no assignment of
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the said mark in its favour. Therefore, under the terms of the aforesaid
agreement, even CAPL could not have claimed any ownership/ proprietary
right over the mark PADAN.
Whether there is any cause of action disclosed in the plaint on the basis of
copyright infringement
26. The plaintiff claims that in the year 2006, it created the artistic work in
the form of packaging for its products being sold under the mark PADAN and
has been using the same consistently. Paragraph 12 of the plaint is set out
below:
“12. That the plaintiff in the year 2006 created an artistic packaging/logo
and the same is being used by the Plaintiff for the product under the
trademark PADAN continuously and uninterrupted since then. The said
packaging/logo is depicted as under:
The said artistic work involved in the packaging/trademark PADAN used by
the plaintiff is an original art work within the meaning of the Copyright Act
1957 and that the Plaintiff is the owner thereof. The said artwork is well
protected and enforceable within the ambit of the Copyright Act as well as
by virtue of India’s membership to the Berne Convention, the Universal
Copyright Convention and the International Copyright Order 1991. The
Plaintiff has been using the said artistic packaging in relation to said goods
and business within the meaning of Section 14 of Copyright Act, 1957.”
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27. In this regard, the plaintiff has filed and placed reliance on the
Assignment Agreement dated 4th April 2006 executed between one Uttam
Sharma, the proprietor of M/s Creative Advertising Associate and CAPL. As
per the said agreement, the assignment of copyright is in favour of CAPL and
not the plaintiff. Notably, the said Assignment Agreement does not provide
any period for the assignment. Therefore, in terms Section 19(5) of the
Copyright Act, 1957, the period of assignment shall be deemed to be for a
period of 5 years, which has long expired. Therefore, there is no cause of
action in favour of the plaintiff to institute the present suit on the basis of
infringement of copyright.
Whether there is any cause of action disclosed in the plaint on the basis of
passing off
28. Now a reference may be made to paragraphs 16 and 17 of the plaint
which are set out below:
“16. That it is the Plaintiff who had been using the trademark PADAN
in relation to insecticide based on CARTAP HYDROCLORlDE technical
since 1988 as word mark and since 2006 in the form of artistic packaging
exclusively without any payment of royalty to the defendant or its
predecessor as mentioned above. Further CARTAP HYDROCLORlDE
technical becoming public, the plaintiff did not give any heed to the said
letter of the defendant and continued to use the trademark PADAN as
proprietor thereof in in relation to insecticide based on CARTAP
HYDROCLORlDE technical. On the other hand, defendant thereafter
neither providedCARTAP HYDROCLORlDE technical to the Plaintiff nor
objected to the use thereof by the Plaintiff.
17. There was no provision for royalty even for the brief period for the
use of trademark PADAN and there was no provision of any checks and
balances on the quality of the products. Plaintiff exclusively used the
trademark PADAN since 1988 and artistic packaging bearing the
trademark PADAN since 2006 and earned huge goodwill and reputation
there under in India by dint of extensive use, sales promotion and quality
control. By the year 2005, the plaintiff phased out all red Triangle Products
(Highly Toxic Product).”
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[emphasis supplied]
29. In the aforesaid paragraphs, the plaintiff has alleged that it has been
continuously using the mark PADAN since the year 1988 and the aforesaid
packaging since the year 2006 in India as a proprietor and without paying any
royalty to the defendants. However, all the invoices and advertising materials
that have been filed with the plaint show use of the mark PADAN on behalf
of CAPL. No documents have been filed to show that the plaintiff has made
any sales of goods bearing the mark PADAN.
30. In paragraph 20 of the plaint, the plaintiff has given sales figures of
CAPL from the financial year 2013-14 to 2021-22 and of Agrimas during the
year 2022-23. Similarly, in paragraph 23, the sales and promotional expenses
of CAPL for the financial years 2013-14 to 2021-22 have been given and not
of the plaintiff. For ease of reference, paragraphs 20 and 23 of the plaint are
set out below:
“20. That the Plaintiff has already built up a valuable business under the
said trade mark PADAN. The said trademark has become distinctive,
associated and acquired secondary significance with the Plaintiff and its
said goods. The Plaintiff has acquired common law rights in the said trade
mark in India on account of long continuous and extensive use and vast and
goodwill and reputation acquired there under. Readily available sale value
of one of the associate company namely Coromandel Agrico Pvt. Ltd. from
the year 2013-14 till 2021- 2022 and of Agrimas Chemicals Ltd. of the year
2022-2023 is as under:
Year Sales Value in Lacs (Rs.)
2013-2014 13814.74
2014-2015 19008.57
2015-2016 22256.07
2016-2017 20953.66
2017-2018 11923.46
2018-2019 8603.69
2019-2020 4381.70
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2020-2021 2219.20
2021-2022 703.32
2022-2023 515.03
*** ***
***
23. That the plaintiff has already spent enormous amounts of money on its
publicity thereof. In consequence thereof and haying regard to the aforesaid
including to the excellent quality and the high standards of the plaintiff’s
manufacture and trade under the said trademark/packaging/artwork
PADAN enjoy solid, enduring and first class reputation in the markets.
Readily available Sales Promotion expenses of the associate company
namely COROMANDEL AGRICO PVT. LTD. from the year 2013-15
onwards is as under:
Year Sales Promotion Value
In Lacs (Rs.)
2013-2014 1409.26
2014-2015 1117.61
2015-2016 886.81
2016-2017 1152.34
2017-2018 184.69
2018-2019 97.56
2019-2020 66.30
2020-2021 53.94
2021-2022 06.29
[emphasis supplied]
31. There is no explanation as to how the aforesaid sales and advertisement
expenses can be considered as that of the plaintiff. Once again, the plaintiff is
assuming that the use of the mark PADAN by CAPL would amount to use by
the plaintiff. Clearly, the aforesaid sales figures would not accrue to the
benefit of the plaintiff and hence, it cannot claim any goodwill or reputation
for the mark PADAN.
32. It is a settled position of law that any use of the mark PADAN by CAPL,
being a licensee, would inure to the benefit of the defendant no.1 only. A
reference in this regard may be made to the judgment in Hilton Roulunds Ltd.
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v. Commissioner of Income Tax6, wherein a Division Bench of this Court
made the following observations:
“32. …The settled position in law is that use by a licensee would also enure
to the benefit of a licensor, for it would continue to remain the owner,
unless there was also part transfer of title. In this case, title and ownership
of the trademark was not transferred. The appellant only had permission
and approval to use the trademark. Thus, the benefit of the use of the
trademark “HILTON” during the period when it stood licensed to the
appellant enures to HRL. In Fedders Lloyd Corporation Ltd. v. Fedders
Corporation ILR [2005] I Delhi 478, it was held use of the trademark by a
licensee inures to the benefit of the licensor. This position was again
reiterated by this court in Formula One World Championship Ltd. v. CIT
(International Taxation) (2017) 390 ITR 199 (Delhi).”
[emphasis supplied]
33. Admittedly, the defendant no.1, through its predecessor, is the
registered proprietor (refer ‘E-Register extract pertaining to trade mark
no.255161 for the mark PADAN’ at page 393 of the documents filed with the
plaint) and prior user of the mark PADAN in India (refer ‘Formulation Guide
for PADAN 50% Water Soluble Powder’ dated 23rd May 1983 at page 28 of
the documents filed with the plaint). The packaging of products under the
mark PADAN filed by the plaintiff does not mention its name but instead
bears the text ‘in association with Sumitomo Chemicals Takeda Agrico
Company Limited, Japan’ (refer pages 159 to 163 of the documents filed with
the plaint) which acts as a source identifier for the consumers to identify the
mark PADAN with the defendant no.1 in India.
34. Therefore, upon a plain reading of the plaint, it is clear that the
defendant is the registered proprietor and prior user of the mark PADAN. The
plaintiff has failed to establish any goodwill or reputation in its favour for the
6
2018 SCC OnLine Del 8556
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mark PADAN. Hence, the plaintiff has not even made out a case for passing
off in its favour.
35. In order to justify the use of the mark PADAN by CAPL as its own use,
the plaintiff, along with the plaint, has filed an alleged Agreement dated 6th
December 2004 entered into between the plaintiff and CAPL. In terms of the
said agreement, the plaintiff has allegedly given rights to CAPL to use certain
trade marks, which include the mark PADAN, subject to payment of royalty.
A reference may be made to one of the recitals of the said agreements, which
is set out below:
“And Whereas the Licensor are the registered trademark owners of the agro
chemicals/products mentioned in the Schedule “A” (hereinafter called the
‘Brands’).”
36. In the aforesaid recital, the plaintiff claims to be the ‘registered
trademark owner’ of the marks given in Schedule ‘A’ to the said agreement
which includes the marks PADAN 4G and PADAN 50SP. However, nothing
has been filed to show that the plaintiff is the registered proprietor of the said
marks. In fact, it has been admitted in the plaint that the defendant no.1 is the
registered proprietor of the mark PADAN. Therefore, the Agreement dated 6th
December 2004 appears to be a fabricated document and was created and filed
only to advance the case of the plaintiff in the present suit.
37. A holistic reading of the plaint, along with the cause of action disclosed
and reliefs sought therein, would divulge that the same is vexatious and
malicious in its entirety. It is legally impermissible for the plaintiff to file the
present case on behalf of its group company, CAPL. The plaintiff has
deliberately not filed the relevant documents relied upon in the plaint. It is an
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admitted position that the defendant no.1 is the registered proprietor of the
mark PADAN and it gave only a non-exclusive license in favour of CAPL to
use the said mark. The plaintiff was never given any right to use the mark
PADAN. Further, nothing has been filed along with the plaint to show that the
plaintiff has made any sales under the mark PADAN. Moreover, the alleged
assignment of copyright in the aforesaid artistic work was also not in favour
of the plaintiff. Therefore, there is no cause of action whatsoever in favour of
the plaintiff to institute the present suit against the defendants and the cause
of action alleged by the plaintiff is purely illusory.
38. Accordingly, the application filed by the defendants is allowed and the
plaint is ordered to be rejected under the provisions of Order VII Rule 11 of
the CPC.
39. All pending applications stand disposed of.
AMIT BANSAL
(JUDGE)
JULY 03, 2025
Vivek/-
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