Holy-Land Marketing Pvt. Ltd. v. P.S. Trading Co. & Ors.

1. Summons of the suit have not been issued as yet.

2. The application is allowed and disposed of. IA No.3164/2019 (of the plaintiff under Order XI Rule 1(4) CPC)

3. Permitting the plaintiff to file documents latest along with the replication if any, the application is disposed of. CS(COMM) No.115/2019, IA No.3162/2019 (u/O XXXIX R-1&2 CPC) & IA No.3163/2019 (u/O XXVI R-9&10 & u/O XXIX R-7 CPC)

4. The amended plaint is taken on record.

5. The plaintiff has sued for permanent injunction restraining infringement of trade mark, passing off and for ancillary reliefs.

6. The counsel for the plaintiff argues, that the plaintiff is engaged in the business inter alia of marketing „Monosodium Glutamate‟ under the mark „GOLDEN CROWN‟ and the defendants have infringed the said trade mark of the plaintiff and are passing off their goods as that of the plaintiff by CS(COMM) 115/2019 2019:DHC:1605 adopting the mark „GOLDEN BROWN‟ for the same goods and by also infringing the device mark of the plaintiff with adoption of two dragons facing each other.

7. The counsel for the plaintiff, in the Court has handed over a packaging of the plaintiff and has though also handed over several packets, but has pointed out to one of the packets and contends that the same is of the defendants and infringes the mark/packaging of the plaintiff.

8. The package purportedly of the defendants shows the same to have been packed by Bhawana & Company, Jahangir Puri, Delhi which is not a party to the present suit.

9. The name of the defendants nowhere appears on the packaging.

10. The counsel for the plaintiff states that Bhawana & Company is infringing the trade mark of the plaintiff and the plaintiff has found the stocks with the infringing packaging in the shop of the defendants at Ghaziabad.

11. On enquiry, as to why the plaintiff in this suit has not sued Bhawana & Company, which as per the packaging handed over is the infringer, with the defendants being only a retailer of infringing goods, the counsel for the plaintiff states that a separate suit will be filed against Bhawana & Company, after checking the facts.

12. The plaintiff is not permitted by law to file separate suits, first against the retailer and thereafter against the infringer. The infringing goods may be retailed at hundreds of shops/outlets and the plaintiff cannot be permitted to file hundreds of suits with respect to the trade mark, by so separately suing the infringer and the shopkeepers / retailers. Reference in this regard can be made to Prem Lala Nahata Vs. Chandi Prasad Sikaria (2007) 2 SCC 551, Iswar Bhai C. Patel @ Bachu Bhai Patel Vs. Harihar Behera (1999) 3 SCC 457 and Anil Kumar Singh Vs. Shivnath Mishra @ Gadasa Guru (1995) 3 SCC 147. Even otherwise it is inexplicable why the plaintiff, instead of instituting one suit wants to file several suits with respect to same infringement.

13. The counsel for the plaintiff states that “wherever I find the product, I will institute a separate suit”.

14. The counsel for the plaintiff then contends that the defendants have also been found to be selling counterfeit goods of the plaintiff.

15. However, the counsel for the plaintiff inspite of being asked is unable to show any plea to the said effect in the plaint.