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Delhi High Court
M/S. Modern Snacks Private Limited vs Kamran Ghani And Anr. on 25 April, 2025
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ C.O. (COMM.IPD-TM) 76/2021
M/S. MODERN SNACKS PRIVATE LIMITED .....Petitioner
Through: Mr. Ajay Amitabh Suman, Mr.
Shravan Kumar Bansal, Mr. Rishi
Bansal, Mr. Deepak Srivastava, Mr.
Risabh Gupta, Ms. Shruti Manchanda
and Ms. Deesha, Adv.
M: 99903895539
Email:
[email protected]
versus
KAMRAN GHANI AND ANR. .....Respondents
Through: Mr. Rohan Jaitley, CGSC with Mr.
Dev Pratap Shahi and Mr. Varun
Pratap Singh, Advs. for R-2
M: 8587967565
Email: [email protected]
CORAM:
HON'BLE MS. JUSTICE MINI PUSHKARNA
JUDGMENT
% 25.04.2025
MINI PUSHKARNA, J:
1. The present petition has been filed seeking rectification of the
Register of Trade Marks by cancellation/removal of the trademark registered
in favour of the respondent no. 1, i.e., ‘MARDEM’ (“impugned mark”),
bearing registration no. 3739205 dated 22nd July, 2018 in Class 30, on
account of being deceptively and identically similar to petitioner’s mark,
i.e., ‘MODERN’ in a similar Class, i.e., Class 30.
Signature Not Verified
Digitally Signed
By:AMAN UNIYAL C.O. (COMM.IPD-TM) 76/2021 Page 1 of 20
Signing Date:26.04.2025
10:58:15
2. The present petition has been transferred from the Intellectual
Property Appellate Board (“IPAB”), consequent to its abolition and upon
promulgation of the Tribunals Reforms (Rationalization and Conditions of
Service) Ordinance, 2021.
3. The facts, as canvassed by the petitioner, in the petition are as
follows:
3.1. The petitioner, ‘M/s. Modern Snacks Private Limited’, is a private
company incorporated on 07th November, 2005 under the provisions of The
Companies Act, 1956 (now, The Companies Act, 2013). The petitioner is
engaged in the business of manufacturing and marketing a wide range of
goods, including namkeens, snacks, confectionary, along with other food
items and related goods, falling in Class 30.
3.2. The petitioner holds the proprietorship of the trademark/label
‘MODERN’ (both in English and Hindi), in respect of the said goods, which
was originally adopted by its predecessor in interest, i.e., ‘M/s. Modern
Namkeen Bhandar’ in the year 1990.
3.3. The mark ‘MODERN’ was duly assigned to the petitioner by its
predecessor-in-interest, through an Assignment Deed dated 20th October,
2008. As of today, the word ‘MODERN’ constitutes a material part of the
petitioner’s trade name.
3.4. In order to distinguish its goods from those of its competitors and to
establish and secure its statutory rights under the Trade Marks Act, 1999
(“Trade Marks Act“), the petitioner has filed multiple trademark
applications, several of which have been duly registered, while others are
pending. In particular, the petitioner is the registered proprietor of the
following trademarks in Class 30:
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(i) ‘MODERN’ (Label)/ , bearing registration no. 1745147,
registered on 22nd February, 2017 with effect from 20th October, 2008.
(ii) ‘MODERN’ (Label)/ , bearing registration no. 2688680,
registered on 23rd August, 2016 with effect from 28th February, 2014.
(iii) ‘MODERN’ (Label)/ , bearing registration no. 641088,
registered on 13th November, 2003 with effect from 23rd September, 1994.
(iv) ‘MODERN’ (Label)/ , bearing registration no. 1937328,
registered on 10th February, 2016 with effect from 17th March, 2010.
3.5. The petitioner has, over time, expanded the use of the trademark
‘MODERN’/ into various variants/formative trademarks, i.e.,
, and has been continuously using the same.
3.6. Since its adoption by the petitioner and its predecessor in interest, the
mark consists of the term ‘MODERN’ as its prominent feature,
Signature Not Verified
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Signing Date:26.04.2025
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which not only forms part of the trade name of the petitioner but also is
distinctively associated with the petitioner. The consumers and members of
the trade exclusively associate the mark ‘MODERN’ with the petitioner, as
apparent from its invoices, packaging and branding.
3.7. Respondent no. 1, i.e., Kamran Ghani, is the sole proprietor of the
entity, i.e., ‘MARDEM NAMKEEN’ and is claiming to be engaged in a
business that is similar and cognate to that of the petitioner. Both the
petitioner and the respondent no. 1 are based in the same area. The
respondent no. 1 has received registration for the impugned mark
‘MARDEM’ in its favour, on account of which the present rectification
petition has been filed, seeking its cancellation.
4. Notice was issued to respondent no. 1, i.e., Kamran Ghani, and
respondent no. 2, i.e., the Registrar of Trade Marks. However, the notice to
respondent no. 1 remained unserved, with the service report indicating
‘incomplete address’. Thereafter, vide order dated 10th March, 2023, the
petitioner was permitted to effect service upon respondent no. 1, through his
authorized attorney before the Trade Marks Registry, in view of the
petitioner’s submission that no alternate address of respondent no. 1, was
available with the petitioner.
5. Pursuant thereto, the authorized attorney of respondent no. 1 before
the Trade Marks Registry appeared before this Court on 22nd August, 2023,
and submitted that his power of attorney was limited to the registration of
the trademark for respondent no. 1. He further clarified that since the
registration for the trademark ‘MARDEM’ had already been done, he did
not possess any authority to represent respondent no. 1 in the present
Signature Not Verified
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Signing Date:26.04.2025
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proceedings. He further stated that he did not have any details pertaining to
current whereabouts of respondent no. 1.
6. This Court, vide order dated 13th November, 2024, took note of the
submissions made by learned counsel for the petitioner that in terms of Rule
2(b) of the Delhi High Court Intellectual Property Rights Division Rules,
2022, the respondent no. 1 had already been served. Thus, this Court
proceeded to hear the matter.
7. On behalf of the petitioner, the following submissions have been
made:
7.1. Since adopting the trademark, i.e., ‘MODERN’, the petitioner has
honestly and bonafidely, continuously, commercially, openly, exclusively
and to the exclusion of others, been using its trademark/label/trade name in
connection with its goods and services. Further, the said goods and services,
under the trademark ‘MODERN’, are being distributed across major parts of
the country.
7.2. The word ‘MODERN’ not only forms an integral part of the
petitioner’s trade name, but also constitutes the dominant and distinguishing
feature in its other derived trademarks. Consequently, due to such
uninterrupted and continuous use of the trademark ‘MODERN’, the
petitioner has established a valuable trade, strong reputation and goodwill,
thereunder, in respect of its goods and services in Class 30.
7.3. In addition to the statutory rights under the Trade Marks Act, the
petitioner has also acquired the proprietary rights and ownership of the
copyrights in the artistic works incorporated in its labels as original artistic
works under the Indian Copyright Act, 1957 (“Copyright Act“). The
petitioner has obtained the copyrights registration bearing nos. A-
Signature Not Verified
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Signing Date:26.04.2025
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111288/2014 and A-111289/2014 in respect of the artistic work of
‘MODERN NAMKEEN’ (Label). In furtherance to the same, several other
copyright registrations for associated artistic works and formative labels are
also likely to be granted shortly, in accordance with Section 45 of the
Copyright Act, as No Objection Certificates (“NOCs”) have already been
issued by the relevant authority.
7.4. In an effort to further strengthen its online presence, the petitioner has
registered the domain names www.modernnamkeen.com and
www.modernnamkeen.theshopfloor.in, in its favour.
7.5. The petitioner has also placed reliance on various documents to
establish usage of its mark ‘MODERN’, which includes:
(i) Sales figures from the year 1991-92 till 2017-2018.
(ii) Sales figures under the mark ‘MODERN’ from the year 2014 till 28th
March, 2019.
(iii) Web extracts from various online websites/marketplaces, such as
eSuppliers India.com, tradeIndia.com, indiamart.com etc.
(iv) Invoices/cash memos of amazon.in showing sale of its products
through e-commerce website, amazon.
7.6. The petitioner has also invested substantial amount of money, efforts
and time in consistently and continuously promoting its trademark/trade
name as well as the goods and business, thereunder.
7.7. Owing to the high-quality of its product, the petitioner’s mark/trade
name has become distinctive and has acquired secondary significance with
the petitioner and its goods and services. In order to protect its intellectual
property, petitioner has taken various steps via issuing notices to
Signature Not Verified
Digitally Signed
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Signing Date:26.04.2025
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infringers/counterfeiters and thereby, creating public awareness about the
petitioner’s mark.
7.8. As a result of such extensive use, the trademark/trade name, i.e.,
‘MODERN’ has acquired the status of a well-known trademark within the
meaning of Section 2(1)(zg) of the Trade Marks Act. Further, the said mark
has already become a distinctive indicum of the petitioner, and that the
purchasing public identifies and distinguishes the said trademark/label with
the petitioner.
7.9. The petitioner is the proprietor of its said trademark/label/trade name,
both under the statutory law and under the common law, therefore, no third
party can be permitted to use or deal with the petitioner’s mark, i.e.,
‘MODERN’ or any other trademark/label/trade name that is identical or
deceptively similar thereto, in connection with the allied or cognate goods or
services as those of the petitioner. Moreover, any such use of the petitioner’s
mark, ‘MODERN’, can only be allowed in accordance with the leave and
license of the petitioner.
7.10. Respondent no. 1, in order to ride upon the petitioner’s hard-earned
goodwill, has adopted the dominant feature of the petitioner’s trade name,
i.e., ‘MODERN’, by obtaining registration of a phonetically similar
impugned mark ‘MARDEM’, for identical goods covered in Class 30.
7.11. Respondent no. 1, who had previously acted as a vendor to the
petitioner, has obtained the registration of its impugned mark in the same
line of business, involving manufacturing of similar and identical goods in
Class 30, and has sought to create a deceptive association with the petitioner
in the minds of the consumers.
Signature Not Verified
Digitally Signed
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Signing Date:26.04.2025
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7.12. The impugned trademark, as registered in favour of the respondent no.
1, is not distinctive with respect to the impugned goods, neither at the time
when the impugned application was applied for, nor at the time the
registration was granted, and not even as on date.
7.13. Respondent no. 1 has neither used the impugned trademark
‘MARDEM’, nor any mark identical or similar thereto, in relation to the
impugned goods at any point of time. Respondent no. 1 does not possess any
bonafide intention to use the impugned mark in future.
7.14. The petitioner is the senior and prior adopter and user of the mark.
Consequently, the impugned registration constitutes a wrong entry on the
Register, lacking the sufficient cause, and ought to be removed and rectified
in the interest of maintaining the purity of the Register.
8. Learned counsel appearing for respondent no. 2 has submitted that
they shall comply with any directions passed by this Court.
9. I have heard learned counsel for the parties and have perused the
evidence and documents on record.
10. At the outset, it is to be noted that in the absence of any appearance
and reply by respondent no. 1, the pleadings made in the present petition
have remained uncontroverted. Accordingly, for all purposes, the pleadings
herein are deemed to have been admitted by respondent no. 1.
11. This Court notes that, on the basis of the documents placed on record,
the petitioner is the registered proprietor of multiple trademarks bearing the
mark ‘MODERN’ (Hindi and English) in Class 30. The petitioner has as
many as 11 registrations/applications under the mark ‘MODERN’ in Class
30, as reproduced below:
Signature Not Verified
Digitally Signed
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Signing Date:26.04.2025
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12. The registration of the mark in question, in favour of the petitioner
since 1990, establishes the petitioner as the first and prior adopter of the said
mark qua the respondent no. 1, in respect of the goods in question. The
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Signing Date:26.04.2025
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petitioner has placed on record the document pertaining to registration of the
mark ‘MODERN’, with a user detail dated 1st January, 1990.
13. Further, this Court also takes note of the petitioner’s Certificate of
Incorporation, which makes it apparent that the petitioner’s company was
incorporated on 07th November, 2005 under the Companies Act, 1956. The
said Certificate of Incorporation, is reproduced herein under:
14. The petitioner has also placed on record a table of its sales figures for
the year 1991-92 till 28th March, 2018, which are reproduced as under:
Signature Not Verified
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Signature Not Verified
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15. This Court also takes note of the submission on behalf of the
petitioner that its products are present and listed on various e-commerce
websites/platforms, such as Indiamart.com, Amazon.com,
eSuppliersIndia.com, etc. The documents on record showing the availability
of the products of the petitioner on various e-commerce websites/platforms,
are reproduced herein below:
Signature Not Verified
Digitally Signed
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Signing Date:26.04.2025
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16. This Court further notes that the petitioner had filed an application for
registration of its mark ‘MODERN’ under application no. 1745147, way
back on 20th October, 2008 in Class 30, with a user detail of 01st April, 1992.
In addition to the above, this Court also notes that the petitioner has placed
on record advertisements published in newspapers, to show the use of the
mark by the petitioner.
17. It is to be noted that respondent no. 1 has registered the impugned
mark, i.e., ‘MARDEM’ under registration no. 3739205 in Class 30 vide
application dated 29th January, 2018, which is much later to the prior
registration of the petitioner’s mark ‘MODERN’. This Court takes note of
the fact that respondent no. 1 had previously acted as a vendor to the
petitioner in relation to the goods and services provided by the petitioner
under the mark ‘MODERN’, as stated in the petition. Therefore, it is
Signature Not Verified
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Signing Date:26.04.2025
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apparent that the respondent no. 1 was aware of the petitioner and its mark
‘MODERN’.
18. A comparison of the respondent no. 1’s impugned mark, i.e.,
‘MARDEM’ with that of the petitioner’s mark, i.e., ‘MODERN’, showcases
that the two marks are phonetically and deceptively similar. The word
‘MODERN’ ends with an alphabet ‘N’ whereas ‘MARDEM’ has an ‘M’
which creates a similar rhythm. The below-mentioned comparison of the
two marks clearly establishes the similarity between the two marks:
PETITIONER'S MARK RESPONDENT NO. 1'S MARK
MODERN MARDEM
19. The two marks i.e., ‘MODERN’ and ‘MARDEM’ are so phonetically
similar to each other as to confuse the general public and consumers of the
petitioner. This is especially so, taking into account the fact that the
aforesaid marks are not in any vernacular language. Besides, this Court
notes that both the petitioner and respondent no.1 are located in the same
area in Hindi speaking belt. Therefore, the consumers of the products of the
petitioner are likely to get confused and not be able to differentiate in the
two marks. Although, a critical comparison of the two marks might disclose
some differences, however, a purchaser of average intelligence would
definitely be deceived by the overall similarity of the two names.
20. On the aspect of deceptive similarity/resemblance, this Court takes
note of principle applied by the Supreme Court, in the case of Amritdhara
Pharmacy Versus Satya Deo Gupta, 1962 SCC OnLine SC 13, wherein, the
Supreme Court had stated as under:
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“xxx xxx xxx
6. It will be noticed that the words used in the sections and relevant
for our purpose are “likely to deceive or cause confusion”. The Act
does not lay down any criteria for determining what is likely to
deceive or cause confusion. Therefore, every case must depend on its
own particular facts, and the value of authorities lies not so much in
the actual decision as in the tests applied for determining what is
likely to deceive or cause confusion. On an application to register,
the Registrar or an opponent may object that the trade mark is not
registrable by reason of clause (a) of Section 8, or sub-section (I) of
Section 10, as in this case. In such a case the onus is on the applicant
to satisfy the Registrar that the trade mark applied for is not likely to
deceive or cause confusion. In cases in which the tribunal considers
that there is doubt as to whether deception is likely, the application
should be refused. A trade mark is likely to deceive or cause confusion
by its resemblance to another already on the Register if it is likely to
do so in the course of its legitimate use in a market where the two
marks are assumed to be in use by traders in that market. In
considering the matter, all the circumstances of the case must be
considered. As was observed by Parker, J., in Pianotist Co
Application (1906) 23 RPC 774 which was also a case of the
comparison of two words.
“You must take the two words. You must judge them, both
by their look and by their sound. You consider the goods to
which they are to be applied. You must consider the nature
and kind of customer who would be likely to buy those
goods. In fact you must consider all the surrounding
circumstances; and you must further consider what is
likely to happen if each of those trademarks is used in a
normal way as a trade mark for the goods of the respective
owners of the marks.” (p. 777)
For deceptive resemblance two important questions are: (1) who are
the persons whom the resemblance must be likely to deceive or
confuse, and (2) what rules of comparison are to be adopted in
judging whether such resemblance exists. As to confusion, it is
perhaps an appropriate description of the state of mind of a customer
who, on seeing a mark thinks that it differs from the mark on goods
which he has previously bought, but is doubtful whether that
impression is not due to imperfect recollection. (See Kerly on Trade
Marks, 8th Edition, p. 400.)
xxx xxx xxx”
Signature Not Verified
Digitally Signed
By:AMAN UNIYAL C.O. (COMM.IPD-TM) 76/2021 Page 15 of 20
Signing Date:26.04.2025
10:58:15
(Emphasis Supplied)
21. Moreover, it is pertinent to note that this Court in the case of Treasure
Studio INC and Another Versus Mohit Khungar and Another, 2024 SCC
OnLine Del 6558, while dealing with similar trademarks has opined that
minor variations in the marks would be immaterial, if it is apparent that two
marks substantially resemble each other. Thus, it has been held, as under:
“xxx xxx xxx
21. It is not necessary that in order to constitute infringement, the
impugned trademark should be an absolute replica of the registered
trademark of the petitioner. It would be sufficient if the petitioner is
able to show that the trademark adopted by the respondent resembles
its trademark in a substantial degree, on account of extensive use of
the main features found in his trademark. Minor variations or
distinguishing features of the infringing mark would not be
material, in case, resemblance in the two trademarks is found to be
substantial to the extent that the impugned trademark is found to be
similar to the registered trademark of the petitioner. (See: Greaves
Cotton Limited versus Mr. Mohammad Rafi & Ors., 2011 SCC OnLine
Del 2596)
xxx xxx xxx”
(Emphasis Supplied)
22. The respondent no. 1 has registered the impugned mark similar to the
mark of the petitioner for identical goods in the market, i.e., snacks,
namkeens and other allied/cognate goods. The respondent no. 1 has adopted
the impugned mark that is phonetically similar to that of petitioner’s mark
for a similar class of purchasers, which is likely to cause confusion in the
minds of average consumers. The judgment of the Supreme Court in
Khoday Distilleries Limited Versus Scotch Whiskey Association and
Others, (2008) 10 SCC 723, has dealt with issue of confusion arising among
the class of consumers and has held as under:
Signature Not Verified
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Signing Date:26.04.2025
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“xxx xxx xxx
75 [Ed. : Para 75 corrected vide Official Corrigendum No.
F.3/Ed.B.J./83/2008 dated 26-9-2008.]. The tests which are, therefore,
required to be applied in each case would be different. Each word
must be taken separately. They should be judged by their look and by
their sound and must consider the goods to which they are to be
applied. Nature and kind of customers who would likely to buy
goods must also be considered. Surrounding circumstances play an
important factor. What would be likely to happen if each of those
trademarks is used in a normal way as a trade mark of the goods of
the respective owners of the marks would also be a relevant factor.
(See Pianotist Co.–s Application, Re [(1906) 23 RPC 774].)
76. Thus, when and how a person would likely to be confused is a
very relevant consideration.
77. Where the class of buyers, as noticed hereinbefore, is quite
educated and rich, the test to be applied is different from the one
where the product would be purchased by the villagers, illiterate and
poor. Ordinarily, again they, like tobacco, would purchase alcoholic
beverages by their brand name. When, however, the product is to be
purchased both by villagers and town people, the test of a prudent
man would necessary be applied. It may be true that the tests which
are to be applied in a country like India may be different from the
tests either in a country of England, the United States of America or
Australia.
xxx xxx xxx”
(Emphasis Supplied)
23. Additionally, the petitioner’s prior user, i.e., since 1990, of the mark
‘MODERN’ and respondent no. 1’s registration of the mark ‘MARDEM’
dated 22nd July, 2018, establishes a clear attempt by the respondent no. 1 to
bring its mark phonetically, as close to that of the petitioner. Furthermore,
marks of the parties fall in the same Class, i.e., Class 30, for similar goods
which are snacks and confectionaries consumed by the public. Therefore,
the impugned mark of respondent no. 1 would clearly cause confusion and
deception, and it is further possible for any consumer to presume that the
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respondent no. 1’s product, if any, also emanates from the petitioner’s
business.
24. Holding that test as to likelihood of confusion or deception arising
from similarity of marks, is the same both in infringement and passing off
action, Supreme Court in the case of Ruston & Hornsby Ltd. Versus
Zamindara Engineering Co., (1969) 2 SCC 727, has held as follows:
“xxx xxx xxx
6. The two actions, however, are closely similar in some respects. As
was observed by the Master of the Rolls in Saville Perfumery
Ltd. v. June Perfect Ltd. [(1941) 58 RPC 147 at 161]:
“The statute law relating to infringement of trade marks is
based on the same fundamental idea as the law relating to
passing-off. But it differs from that law in two particulars,
namely (1) it is concerned only with one method of passing-off,
namely, the use of a trade mark, and (2) the statutory protection
is absolute in the sense that once a mark is shown to offend, the
user of it cannot escape by showing that by something outside
the actual mark itself he has distinguished his goods from those
of the registered proprietor. Accordingly, in considering the
question of infringement the Courts have held, and it is now
expressly provided by the Trade Marks Act, 1938, Section 4,
that infringement takes place not merely by exact imitation but
by the use of a mark so nearly resembling the registered mark
as to be likely to deceive.”
xxx xxx xxx”
(Emphasis Supplied)
25. At this stage, this Court notes that the petitioner herein is in litigation
with another party, i.e., Modern Food Enterprises Pvt. Ltd. in two cross
suits, being CS(COMM) 299/2020, titled as “Modern Snacks Pvt. Ltd.
Versus Modern Foods Enterprises Pvt. Ltd. (Now, Bimbo Bakeries India Pvt.
Ltd.)” and CS(COMM) 460/2020, titled as “Modern Food Enterprises Pvt.
Ltd. Versus Modern Snacks Pvt. Ltd.” In the judgment reported as Modern
Snacks Pvt. Ltd. Versus Modern Foods Enterprises Pvt. Ltd., 2023 SCC
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Signing Date:26.04.2025
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OnLine Del 3872, while dealing with the aforesaid cases at interim stage, a
bench of this Court, has categorically held that the other party, i.e., Modern
Food Enterprises Pvt. Ltd., is the prior adopter of the mark ‘MODERN’.
However, considering the balance of convenience, the petitioner herein, has
been allowed to use the mark ‘MODERN’ only in the labels that were in use
by it on the date of filing of the said suit. The petitioner herein has been
restrained from using the mark ‘MODERN’ (in English or Hindi or other
vernacular language) for the goods other than that which were being sold by
the petitioner herein using the mark ‘MODERN’, on the date of filing of the
suit by the other party, i.e., Modern Food Enterprises Pvt. Ltd.
26. Accordingly, it is clarified that the present judgment is being passed
only with regard to the facts and circumstances of the present case and
would have no bearing on the pending suits, i.e., CS (COMM) 299/2020 and
CS (COMM) 460/2020, between the petitioner herein and Modern Food
Enterprises Pvt. Ltd. (Now, Bimbo Bakeries India Pvt. Ltd.). It is also
clarified that the petitioner shall claim no equity in its favour on the basis of
the present judgment.
27. In the overall conspectus of the facts and law discussed herein above,
this Court finds it to be a fit case to allow the present rectification petition.
Accordingly, the impugned mark i.e., ‘MARDEM’ bearing registration no.
3739205 in Class 30, is hereby cancelled. Consequently, rectification shall
be carried out in the Register of Trade Marks. The Trade Marks Registry
shall also issue an appropriate notification, in this regard.
28. The Registry is directed to supply a copy of the present judgment to
the Office of the Controller General of Patents, Designs and Trade Marks of
India, on E-mail Id: [email protected], for compliance.
Signature Not Verified
Digitally Signed
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Signing Date:26.04.2025
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29. The present petition is allowed, in terms of the aforesaid.
(MINI PUSHKARNA)
JUDGE
APRIL 25, 2025
Au/Ak/Kr
Signature Not Verified
Digitally Signed
By:AMAN UNIYAL C.O. (COMM.IPD-TM) 76/2021 Page 20 of 20
Signing Date:26.04.2025
10:58:15
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