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HIGH COURT OF DELHI
JUDGMENT
SUNIL NIRANJAN SHAH. .....Plaintiff
For the Plaintiff : Mr. Sanjeev Sindhwani, Senior Advocate with Mr. Anil Kumar Sahu, Mr. Satish Kumar, Mr. Sreejan Pankaj and Mr. Kartik Kumar Agarwal, Advocates.
For the Defendant : Mr. Osho Mittal, Advocate.
1. The present Application has been filed under Order XXXIX Rules 1 and 2 of Code of Civil Procedure, 1908 (“CPC”) seeking an interim injunction restraining infringement of Trade Marks, ‘COW BRAND’, ‘GAAY CHHAP’, ‘GAAY CHHAP (COW BRAND)’, ‘ ’, ‘ ’, ‘ ’ ‘ ’ (“Plaintiff’s Marks”) Copyright subsisting in the artistic works ‘ ’, ‘ ’, ‘ ’ and ‘ ’ (“Plaintiff’s Artistic Works”), passing off, delivery up and rendition of accounts.
PROCEEDINGS IN THE PRESENT APPLICATION:
2. Vide Order dated 09.07.2025, the Defendant was directed to be physically present in the Court on the next date of hearing. Keeping in mind the health condition of the Defendant, personal presence of the Defendant was dispensed with vide Order dated 16.07.2025, and further it was directed that the Defendant’s son, Mr. Ram Saware Yadav, shall remain physically present in the Court on the next date of hearing.
3. Notice in the present Application was issued vide Order dated 22.07.2025, Mr. Ram Saware Yadav was physically present in the Court on 22.07.2025 and his personal presence was discharged. The Suit was referred to mediation under the Special Mediation Drive. However, none appeared for the Plaintiff before the learned Joint Registrar (Judicial) and, accordingly, the matter was listed before this Court for further directions.
SUBMISSIONS ON BEHALF OF THE PLAINTIFF:
4. The learned Counsel for the Plaintiff has made the following submissions: 4.[1] The Plaintiff’s predecessor coined and adopted the Marks, ‘COW BRAND’, ‘GAAY CHHAP’, ‘GAAY CHHAP (COW BRAND)’, with respect to detergent soap, detergent cake, detergent washing powder, etc. in the year 1975 and has been in the business of manufacturing, marketing and trading of the said goods in the open market since 1975. In the month of December, 2013, the Plaintiff further adopted, conceived and started using, soliciting, displaying, marketing the label ‘ ’ in relation to the goods of soap, detergent cake, and detergent powder. 4.[2] In the year 2023, the Plaintiff’s predecessor, transferred all rights under the Plaintiff’s Marks to the Plaintiff. In order to acquire the statutory right in the Plaintiff’s Marks, the Plaintiff has also applied for and obtained the Trade Mark registrations pertaining to the Plaintiff’s Marks. The details of the Plaintiff’s Marks are provided hereunder: APPLICATION NO.
CLASS DATE OF APPLICATI ON USER CLAIM STATUS DISCLAIM ER COW BRAND/ 03 23.04.1975 Proposed to be used Registered (Not for use in industrial or manufacturi ng Processes) For Sale in the States of Uttar Pradesh And Bihar Only GAAY CHAAP 03 06.03.2023 23.04.1975 Opposed N/A GAAY CHAAP (COW BRAND) / 35 06.03.2023 23.04.1975 Objected N/A GAAY CHHAP (COW BRAND)/ 35 09.10.2023 23.04.1975 Registered N/A (COW BRAND)/ 03 09.10.2023 23.04.1975 Abandoned N/A COW BRAND 03 20/01/2025 23/04/1975 Formalities Chk Pass N/A GAAY CHHAP (COW BRAND) 03 20/01/2025 23/04/1975 Opposed N/A 6813421 03 20/01/2025 23/04/1975 Formalities Chk Pass N/A COW COW BRAND (GAAY CHHAP) 03 20/01/2025 Proposed to be used Formalities Chk Pass N/A COW BRAND (GAAY CHHAP) 03 19/02/2025 Proposed Accepted & Advertised N/A HATHO KI RAKSHA CHAKACHO NDH SHAKTI KAPDO KI SURAKSHA 03 28/11/2024 Proposed Chk Pass N/A COW BRAND (GAAY CHHAP) 35 27/02/2025 Proposed Chk Pass N/A 4.[3] On account of long and continuous use of the Plaintiff’s Marks, the Plaintiff’s Marks have become distinctive indicium of the Plaintiff and the Plaintiff’s products. The purchasing public, trade and public at large associates, identifies and distinguishes the Plaintiff’s Marks with the Plaintiff and the Plaintiff’s products and business alone. The Plaintiff’s Marks have acquired secondary significance and is recognized with the Plaintiff’s source alone. 4.[4] The Plaintiff has further obtained copyright registration in the artistic work, ‘ ’, bearing Registration No. A-153025/2024. The Plaintiff is since the year 1975 been honestly and bonafidely, continuously, commercially, openly, exclusively and to the exclusion of others, continuously and uninterruptedly and in the course of trade and as proprietor thereof been using the Plaintiff’s Marks and earned a significant revenue selling the Plaintiff’s products under the Plaintiff’s Marks. Seventy percent of the Plaintiff’s total revenue comes from the products sold under the Plaintiff’s Marks. In the Financial Year (“FY”) 2024-25, the Plaintiff earned a total revenue of ₹39,66,43,930. 4.[5] The Plaintiff uses the website, http://www.shabrocindia.com/, (“Plaintiff’s Website”) to further promote and sell products under the Plaintiff’s Marks. The Plaintiff is also available on e-commerce platforms such as IndiaMart and Amazon and is also promoting the products sold under the Plaintiff’s Marks on social media websites such as Instagram and Facebook. The Plaintiff has incurred promotion expenditure of ₹17,25,710 in FY 2024-25. 4.[6] The Defendant is using the Marks, ‘GOPAL GAI CHHAP’, ‘ ’ and ‘COW BRAND’ (“Impugned Marks”) to deal with products similar to the products sold by the Plaintiff under Class 3 (“Infringing Products”). The Defendant has adopted the Impugned Marks with a mala fide intention and to pass on its products, as those of the Plaintiff. The Defendant has filed Trade Mark Applications for the Impugned Marks falsely claiming user detail since 1973. The details of the Trade Mark Applications for the Impugned Marks are as under: APPLICATION NO. TRADEMARK/ LABEL CLASS DATE OF APPLICATI ON USER CLAIM STATUS 7018370 GOPAL GAI CHHAP / 03 21.05.2025 26.12.1973 Formalities Chk Pass 7031696 COW BRAND (word per se) 03 28.05.2025 26.12.1973 Formalities Chk Pass 4.[7] The Defendant is the father of Mr. Ram Saware Yadav, against whom the Plaintiff has already instituted a commercial case being CS(COMM) No. 794/2024 for infringement of Trade Mark and Copyright of the Plaintiff’s Marks which is pending adjudication before the District Court (Commercial-02), North West Distt., Rohini Court, Delhi. 4.[8] The Defendant and his son had further worked with one Mr. Ashok Kumar Yadav, Trade Mark Application No. 6632277 in Class 3 dated 19.09.2024 for registration of the Mark, ‘NIL GAI CHHAP’/ ‘ ’. The Plaintiff has initiated a suit against Ashok Kumar Yadav being CS (COMM) No. 567/2024 and vide order dated 21.09.2024, an ex-parte ad-interim order was passed in favour of the Plaintiff and Ashok Kumar Yadav has been restrained from using, selling, soliciting, exporting, washing powder, detergent powder, detergent cake, soap under the Mark ‘NIL GAI CHHAP’/ ‘ ’. 4.[9] In the month of June, 2025, the Defendant has intentionally also filed notices of opposition in the Plaintiff's Trade Mark Application having number 6813419, 6813420 and 6813422 before the Trade Mark Registry, New Delhi on the basis that the Defendant is the prior and senior adopter and user of the Impugned Marks and further, the Plaintiff’s Marks are deceptively similar or identical to the Impugned Marks.
4.10 The Plaintiff being aggrieved by the activities of the Defendant, conducted enquiries in the second week of June, 2025 through the trade to ascertain the Defendant's activities under the Impugned Marks. The enquiries revealed that the Defendant has not so far started using the Impugned Marks in the course of trade in relation to the Infringing Products and nor has the Plaintiff so far come across any of the Infringing Products, however, the Plaintiff became aware that the Defendant's representatives are working and making efforts to promote, procure and solicit the orders for sale of goods under the Impugned Marks.
4.11 Along with using the Impugned Marks which are identical and deceptively similar to the Plaintiff’s Marks, the Defendant has further copied the tagline of the Plaintiff, ‘Hathon ki Raksha Chakachaundh Shakti Kapdo ki Suraksha’, on the label, ‘ ’ (“Impugned Label”). A comparison of the Plaintiff’s Label, ‘ ’ and the Impugned Label, reveals the extent of similarities between the Plaintiff’s Labels and the Impugned Label. PLAINTIFF’S LABEL IMPUGNED LABEL
4.12 The Plaintiff has been able to establish itself as the prior, senior and long user of the Plaintiff’s Marks and has been using the Plaintiff’s Marks since the year 1975. In Century Traders v. Roshan Lal Duggar & Co., 1977 SCC OnLine Del 50, it has been held that the rights of the prior user of the Trade Mark are superior to the rights of the prior registrant of the Trade Mark and the Plaintiff has established himself to be the prior user of the Plaintiff’s Marks.
4.13 The Defendant has falsely claimed user detail since 1973 and in order to authenticate it’s prior user, the Defendant has submitted invoice dated 26.12.1972, which is even prior to the user claim of the Defendant. The Defendant in another invoice has mentioned date in Hindi and English (hybrid) i.e., २२/ ५/2007 raising doubts as to the legitimacy of the invoices. The defendant has vehemently failed to file any public documents prior to 07.04.2025. In M/S Kirorimal Kashiram Marketing & Agencies Pvt. v. Shree Sita Chawal Udyog Mill, 2010 SCC Online Del 2933, and Gandhi Scientific Co. v. Gulshan Kumar, 2009 SCC OnLine Del 820, this Court refused to rely upon documents of the defendant which did not seem genuine, to establish the user claim of the defendant. The Defendant’s invoices are not legitimate invoices and cannot be relied upon.
4.14 The Defendant is selling the Infringing Products through interactive e-commerce platform IndiaMart, and the Platform being available within the territorial jurisdiction of this Court, this Court has the territorial jurisdiction to try the present Suit. In Sonal Kanodia vs Shri Ram Gupta & Anr., FAO (COMM) 43/2023 and World Wrestling Ent. Vs Reshma Collection, 2014 SCC OnLine Del 2031, M/s Bhatia Industries & Others vs. M/s Pandey Industries & Others, 2011 SCC OnLine Del 238 and LT Foods Limited Vs. Heritage Foods (India) Limited, 2014 SCC OnLine Del 2918, it has been held that while deciding on the issue of territorial jurisdiction, averments made in the plaint are required to be considered as correct on a demurrer.
4.15 The Defendant cannot take the defence that the Marks, ‘COW BRAND’ and ‘GAAY CHHAP’ are common to trade as they themselves have sought registration of the Marks, ‘COW BRAND’ and ‘GOPAL GAAY CHHAP. In Automatic Electric Limited V. R.K. Dhawan and Anr. 1999 SCC OnLine Del 27 and Indian Hotels Company Ltd. And Another V. Jiva Institute of Vedic Science & Culture, 2008 SCC Online Del 1758, it has been held that once the defendant had themselves sought registration of a mark they cannot be allowed to take a defence that the said Mark was descriptive and not entitled to protection.
4.16 The Plaintiff has made out a prima facie case for grant of an interim injunction. Balance of convenience is in favour of the Plaintiff and irreparable injury would be caused to the Plaintiff if the Defendant is not restrained from using the Impugned Marks.
SUBMISSIONS ON BEHALF OF THE DEFENDANT:
5. The learned Counsel for the Respondent made the following submissions: 5.[1] The present Suit is not maintainable either on law or on facts. The present Suit has been filed malafidely, with concealment of material facts and suppression of true particulars. The Plaintiff has not approached this Court with clean hands, which by itself disentitles him from any equitable relief of injunction. 5.[2] This Court lacks territorial jurisdiction to try the present Suit as neither of the parties resides, works for gain, nor carries on business within Delhi. The Defendant is operating only in Basti, Gorakhpur, Ambedkar Nagar, Siddharth Nagar, Maharajganj, Gorakhpur and Kushi Nagar districts in Uttar Pradesh. The Plaintiff too is based in Kanpur. The Plaintiff’s reliance on a mere IndiaMart listing cannot confer jurisdiction under Section 20 CPC, Section 134(2) of the Trade Marks Act or Section 62(2) of the Copyright Act. Mere accessibility of a third-party website in Delhi is insufficient to establish the territorial jurisdiction of this Court. 5.[3] In New Life Laboratories Private Ltd vs Dr. Ilyas New Life Homoeo and Herbals Private Ltd & Anr, CS(COMM) 323/2023, it was held that in order to adjudicate an application under Order XXXIX Rule 1 and 2, the Court must be convinced that it has the territorial jurisdiction to decide the dispute. In Indian Performing Rights Society v. Sanjay Dalia, (2015) 10 SCC 161 it was held that the plaintiff must satisfy the twin conditions of ‘cause of action’ and ‘place of business’ under Section 134(2) of the Trade Marks Act, 1999 read with Section 20 of CPC to satisfy the aspect territorial jurisdiction of the Court. In M/s Kohinoor Seed Fields India Pvt Ltd. Vs. M/s Veda Seed Sciences Pvt Ltd, CS (COMM) NO. 828/2022, it was held that mere availability of IndiaMart lisiting in the territory of Delhi would not give this Court the territorial jurisdiction to try the suit. 5.[4] The Plaintiff has deliberately concealed the fact that his Trade Mark Application No. 6140473 in Class 3 was abandoned under Rule 46(2) of the Trade Marks Rules, 2017. The Plaintiff has relied upon two identical copyright registrations with different authors. Ownership has been claimed over, A-129345/2019 with year of first publication being 2015 and over A-153025/2024 with year of first publication being 1975. It is legally impossible for one artwork to have two distinct authors with two different years of publication for the same copyright. The Plaintiff is dishonest and has not approached this Court with clean hands. The Plaintiff has committed forgery and perjury while filing the present Suit. Injunction being a relief in equity cannot be granted to a party who is dishonest and suppressed material facts, reliance is placed upon S.P. Chengalvaraya Naidu v. Jagannath, AIR 1994 SC 853 and A.V. Papayya Sastry v. Govt. of A.P., (2007) 4 SCC 221. 5.[5] The three requisite conditions for grant of an interim injunction have not been made out. A prima facie case has not been made out on behalf of the Plaintiff. The Plaintiff does not possess any valid registration for ‘ ’ in Class 3. His earlier registration of ‘COW BRAND’ is subject to disclaimers and territorial limitations (U.P. and Bihar only). The Defendant has been in continuous and honest use of ‘COW BRAND’ since 1973, and has filed Trade Mark Applications which are pending registration. 5.[6] The Defendant has been continuously and openly carrying on trade in detergent powder and soaps in Basti, Gorakhpur, Ambedkar Nagar, Siddharth Nagar, Maharajganj, Gorakhpur and Kushi Nagar districts, earning goodwill and reputation. The Plaintiff’s claim is belated, mala fide, and filed only after the Defendant instituted proceedings against him in Uttar Pradesh. The Defendant has filed Suit No. 123/2025 in Gorakhpur, Uttar Pradesh against the Plaintiff in June 2025. Thereafter, the Plaintiff has filed the present suit before this Court. The present Suit is a clear instance of forum shopping and hence not maintainable, reliance is placed on Banyan Tree Holding v. A Murali Krishna Reddy, 2009 SCC OnLine Del 3780. Hence, the balance of convenience tilts strongly in favour of the Defendant, who would suffer grave prejudice if restrained from using the Impugned Marks. No irreparable injury would be caused to the Plaintiff if an interim injunction is not granted to the Plaintiff. 5.[7] Hence, the Plaintiff is not entitled to the interim injunction prayed for in the present Application and accordingly, the Application deserves to be dismissed.
6. It is submitted by the Defendant that no cause of action has arisen within the territorial jurisdiction of this Court as neither of the parties resides, works for gain, nor carries on business within Delhi. The Defendant is operating only in Basti, Gorakhpur, Ambedkar Nagar, Siddharth Nagar, Maharajganj, Gorakhpur and Kushi Nagar districts in Uttar Pradesh and the Suit has been filed with a mala fide intention to harass the Petitioners.
7. However, a bare perusal of the Plaint would show that the Plaintiff has sufficiently pleaded that the cause of action has arisen within the jurisdiction of this Court by relying upon the screenshots showing the use of the Impugned Marks by the Defendant, which is deceptively similar to the Plaintiff’s Marks. The evidence relied upon by the Plaintiff in the Plaint is sufficient to prima facie establish that the Defendant is engaged in selling of the Infringing Products bearing the Impugned Trade Marks, which are deceptively similar to the Plaintiff’s Marks, and are available to the customers within the jurisdiction of this Court. Hence, there is clear cause of action that has arisen within the jurisdiction of this Court.
8. As the Plaint has sufficiently shown that the Defendant is present on interactive third party e-commerce platform, IndiaMart, where the customers located within the jurisdiction of this Court can buy and sell the products with the Impugned Marks, the same would satisfy the test of having ‘purposefully availed’ of the jurisdiction of this Court by making the goods available and targeting the customers within the jurisdiction of this Court. Accordingly, this Court has the territorial jurisdiction in view of the accessibility of the IndiaMart listing, which is interactive in nature and because the Defendant has purposefully availed itself of the jurisdiction of this Court.
9. The decisions in Indian Performing Rights Society Ltd. (supra), Banyan Tree Holding (supra) and M/s Kohinoor Seed Fields (supra) does not help the case of the Defendant as the Defendant is carrying on business through interactive e-commerce platform within the jurisdiction of this Court and that the cause of action has arisen as the Defendant is also offering to sell the products with Impugned Trade Marks within the jurisdiction of this Court, the objection with regard to the territorial jurisdiction as raised by the Defendant is not maintainable.
10. It is trite law that while deciding the Application under Order VII Rules 10 and 11 of CPC, the averments made in the Plaint are presumed to be correct and the Application is decided on demurrer. In Sonal Kanodia (supra), World Wrestling (supra), M/s Bhatia Industries (supra) and LT Foods Limited (supra), it has been held that while deciding on the issue of territorial jurisdiction, averments made in the plaint are required to be considered as correct on a demurrer. Considering the overall averments made in the Plaint and the prima facie perusal of the documents filed along with the Plaint show that the Plaintiff has made out a case for maintaining the Suit before this Court. Whether the Plaintiff is entitled to an interim injunction:
11. A Trade Mark indicates the source of the goods or services, in respect of which it is used. A Trade Mark is an indicator of origin, distinguishing the goods and services of a party from those of its competitors. Thus, a Trade Mark is said to possess a distinctive character, when it serves to identify and distinguish the goods or services of a party from those of others. In the present case, the Plaintiff’s Marks serves as a source indicator for the products provided by the Plaintiff. Therefore, the Plaintiff’s Marks have attained a distinctive character and have become identifiers and distinguish the goods of the Plaintiff from those of other parties, including, from those of the Defendant. By extensive, continuous, and prolonged usage, the public at large commonly associates the Mark ‘GAAY CHHAP’, with the Plaintiff. The Impugned Marks are deceptively similar to the Plaintiff’s Marks.
12. The test of confusion is to be seen from the perspective of an average person with imperfect recollection getting confused and in view of the Plaintiff’s Marks and the Impugned Marks being almost identical, any ordinary person would get confused and would not be able to distinguish between the Plaintiff’s Marks and the Impugned Marks.
13. The Parties have between them a history of disputes with respect to the use of the Marks identical or deceptively similar to the Plaintiff’s Marks and the Plaintiff has already initiated various Suits against the Defendant’s son and known associate of the Defendant, Mr. Ashok Kumar Yadav with respect to use of Marks identical or deceptively similar to the Plaintiff’s Marks. The conduct of the Defendant, his son and his associate is prima facie dishonest and with an intent to ride upon the goodwill of the Plaintiff’s Marks. All of them have continuously used and applied for various Marks which are deceptively similar to the Plaintiff’s Marks.
14. The Plaintiff has been able to establish use of the Mark ‘GAAY CHHAP’ since 1975, whereas the Defendant has not been able to substantiate their claim of use of the Impugned Marks since 1973. The Defendant has been unable to provide any independent evidence substantiating the use of the Impugned Marks since 1973. The Defendant has relied on invoice dated 26.12.1972, which is even prior to the user claim of the Defendant. The Defendant in another invoice has mentioned date in Hindi and English (hybrid) i.e., २२/ ५/2007. There is certainly a doubt about the legitimacy of the invoices of the Defendant. There are no public documents to substantiate the user claim of the Defendant either.
15. There is no cavil that the rights of the prior user of the Mark are superior to the rights of the prior registrant of the Mark, as held in Century Traders (supra) relied upon by the Plaintiff. Once the Defendant himself has sought registration over the Impugned Marks, the Defendant cannot take the defence that the Plaintiff’s Marks are descriptive and not entitled to protection as has been held by this Court in Automatic Electric Limited (supra) and Indian Hotels Company (supra). The Defendant cannot be allowed to approbate and reprobate.
16. The Defendant has not been able to establish that the Plaintiff has suppressed material facts from this Court and accordingly, the judgments in the case of S.P. Chengalvaraya Naidu (supra) and A.V. Papayya Sastry (supra), do not help the case of the Defendant either.
17. Having considered the submissions advanced by the learned Counsel for the Parties, the pleadings and the documents on record it is clear that the Plaintiff is the registered proprietor of the Mark ‘GAAY CHHAP’. The Plaintiff has been able to establish long and continuous use of the Mark ‘GAAY CHHAP’ with respect to detergent soap, detergent cake, detergent washing powder, etc. in Class 3. The Plaintiff has demonstrated the goodwill and reputation acquired by the use of the Plaintiff’s Marks. The Plaintiff’s turnover for the FY 2024-25 was ₹39,66,43,930/-. The Defendant’s use of the Impugned Marks is prima facie dishonest and nothing but an attempt to ride the goodwill and reputation of the Plaintiff so as to cause confusion in the market.
18. Injunction is a relief in equity, and in view of the aforesaid discussion, the same is in favour of the Plaintiff and against the Defendant. Further, the balance of convenience also lies in favour of the Plaintiff and against the Defendant and grave prejudice is likely to be caused to the Plaintiff if interim injunction as prayed for is not granted in favour of the Plaintiff and against the Defendant. A strong prima facie case has been made out on behalf of the Plaintiff for grant of interim injunction. The Plaintiff has established its prior user as well as goodwill and reputation, on the basis of the documents on record.
19. This is a case of triple identity where the Mark is identical, the product category is identical and the trade channel as also the consumer base is identical. The Plaintiff being the prior user, adopter and the registered owner of the Mark ‘GAAY CHHAP’ is entitled to protection.
20. Accordingly, the Defendant, its partners, associates, assigns or assignees in interest, heirs, successors or successors in interest, permitted assigns, sister concerns or group companies, distributors, dealers, wholesalers, retailers, stockiest, agents and all others acting for and on the Defendant’s behalf are restrained from using, soliciting, providing services and advertising in any manner including on the internet and e-commerce platform, directly or indirectly dealing in detergent soap, detergent cake and detergent washing powder in Class 3 under the Impugned Marks, ‘GOPAL GAI CHHAP’, ‘ ’ and ‘COW BRAND’, or any other Mark which is identical or deceptively similar to the Plaintiff’s Marks, ‘COW BRAND’, ‘GAAY CHHAP’, ‘GAAY CHHAP (COW BRAND)’, ‘ ’, ‘ ’, ‘ ’, so as to cause infringement or passing off of the Plaintiff’s Marks and from using the Impugned Label, ‘ ’ or any another label so as to cause infringement of the Plaintiff’s Artistic Works, ‘ ’, ‘ ’, ‘ ’ and ‘ ’.
21. With the aforesaid direction, the present Application is allowed and stands disposed of.
TEJAS KARIA, J NOVEMBER 24, 2025 ‘AK’