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$-22 & 23 HIGH COURT OF DELHI (i) + FAQ 47/2017 &C.M.3231/2017
(ii) + FAQ 49/2017 &C.Ms.3364-65/2017 GOMUKHGANGAPVTLTD&ORS. ' Appellants
Through: Mr. Pradeep Diwan,.Senior Advocate,with Mr. Ajay Garg, Advocates
(ii) + FAQ 49/2017 &C.Ms.3364-65/2017 GOMUKHGANGAPVTLTD&ORS. ' Appellants
Through: Mr. Pradeep Diwan,.Senior Advocate,with Mr. Ajay Garg, Advocates
VERSUS
GANGOTRI MINERALS PVTLTD Respondent
Through: Mr. M.K. Miglani and Mr. Jithin M. George, Advocates
Through: Mr. M.K. Miglani and Mr. Jithin M. George, Advocates
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR O R D E R o/o 09.02.2017
With the consent of learned counsel for the parties, the above- captioned two appeals have been taken up together for final hearing and upon hearing, they are being disposed of by this common order. The common impugned order of 3'"'^ December, 2016 restrains appellants- defendants from using trade mark 'Gomukh Purest Ganga JaV in similar style, font, colour; use of logo in deceptively similar manner, use of deceptively similar trade dress and use ofsame artistic and literary layout as that ofrespondent/plaintiffon the labels and pouches ofthe products of appellants-defendants as there is likelihood ofthe said use oftrade mark causing confiision in the minds ofpublic.
Impugned order is quite detailed one and encompasses the factual aspect as well as the stand ofboth the sides, which need not be adverted
FAOs47 &49of2017 2017:DHC:9109 to in these appeals for the reason that with the intervention of learned counsel for the parties, the style, font and logo of appellants' trade mark
'Gpmukh' is proposed to be substantially modified. The modified format of trade dress to be applied on Pouches of Ganga Jal of appellants as agreed upon by both the sides has been handed over and is taken on record as Mark'A'.
Learned counsel for respondents on instructions submits that the modified trade dress (Mark 'A') be put into effect with immediate effect and the Communication of S**" January, 2016 written by appellants to various customers needs to be withdrawn forthwith and a clarificatory letter like the sample letter of 9^^ February, 2017 (handed over by appellants'counsel is taken on record as Mark 'B) needs to be circulated to different customers (whose list would be supplied by respondent to i appellants within a week).
Learned senior counsel for appellants submits that as and when such list is supplied to appellants, a clarificatory letter alongwith a rider that 'the earlier Communication of 8'^ January, 2016 stands withdrawn forthwith would be issued to the customers as indicated in the abovesaid listwithin a week thereafter. The sample letter (Mark 'B') proposed to be written by appellants to various customers indicated inthe said list (yet to be supplied) shall prominentlydisplay the abovesaidrider.
In light of aforesaid stand taken on behalf of both the sides, impugned order is set aside arid application for interim reliefis disposed of with direction that during the pendency of the suit, appellants shall adopt the trade dress as in Mark 'A' on pouches of GangaJal within four weeks and shall issue the clarificatory letter in terms of the sample letter
FAOs47 &49of2017 Page 2 Mark 'B' with a rider promptly displayed that the earlier Communication of 8*^ January, 2016 stands withdrawn forthwith. Let an Undertaking by way of Affidavit in the above terms, be placed on record by appellants within a week from today. Needless to say, this interim arrangement would be without prejudice to the rights of either side and will have no bearing on merits at trial.
With directions, the above-captioned two appeals and the applications are accordingly disposed of
Dasti.
(SUNILGAUR)
JUDGE.- FEBRUARY 09, 2017 FAOs47 &49of2017 ' ^ ^ Page 3
With the consent of learned counsel for the parties, the above- captioned two appeals have been taken up together for final hearing and upon hearing, they are being disposed of by this common order. The common impugned order of 3'"'^ December, 2016 restrains appellants- defendants from using trade mark 'Gomukh Purest Ganga JaV in similar style, font, colour; use of logo in deceptively similar manner, use of deceptively similar trade dress and use ofsame artistic and literary layout as that ofrespondent/plaintiffon the labels and pouches ofthe products of appellants-defendants as there is likelihood ofthe said use oftrade mark causing confiision in the minds ofpublic.
Impugned order is quite detailed one and encompasses the factual aspect as well as the stand ofboth the sides, which need not be adverted
FAOs47 &49of2017 2017:DHC:9109 to in these appeals for the reason that with the intervention of learned counsel for the parties, the style, font and logo of appellants' trade mark
'Gpmukh' is proposed to be substantially modified. The modified format of trade dress to be applied on Pouches of Ganga Jal of appellants as agreed upon by both the sides has been handed over and is taken on record as Mark'A'.
Learned counsel for respondents on instructions submits that the modified trade dress (Mark 'A') be put into effect with immediate effect and the Communication of S**" January, 2016 written by appellants to various customers needs to be withdrawn forthwith and a clarificatory letter like the sample letter of 9^^ February, 2017 (handed over by appellants'counsel is taken on record as Mark 'B) needs to be circulated to different customers (whose list would be supplied by respondent to i appellants within a week).
Learned senior counsel for appellants submits that as and when such list is supplied to appellants, a clarificatory letter alongwith a rider that 'the earlier Communication of 8'^ January, 2016 stands withdrawn forthwith would be issued to the customers as indicated in the abovesaid listwithin a week thereafter. The sample letter (Mark 'B') proposed to be written by appellants to various customers indicated inthe said list (yet to be supplied) shall prominentlydisplay the abovesaidrider.
In light of aforesaid stand taken on behalf of both the sides, impugned order is set aside arid application for interim reliefis disposed of with direction that during the pendency of the suit, appellants shall adopt the trade dress as in Mark 'A' on pouches of GangaJal within four weeks and shall issue the clarificatory letter in terms of the sample letter
FAOs47 &49of2017 Page 2 Mark 'B' with a rider promptly displayed that the earlier Communication of 8*^ January, 2016 stands withdrawn forthwith. Let an Undertaking by way of Affidavit in the above terms, be placed on record by appellants within a week from today. Needless to say, this interim arrangement would be without prejudice to the rights of either side and will have no bearing on merits at trial.
With directions, the above-captioned two appeals and the applications are accordingly disposed of
Dasti.
(SUNILGAUR)
JUDGE.- FEBRUARY 09, 2017 FAOs47 &49of2017 ' ^ ^ Page 3
JUDGMENT