Interactive E‑Commerce as Purposeful Availment: Territorial Jurisdiction and Prior User Protection in “GAAY CHHAP / COW BRAND” – Commentary on Sunil Niranjan Shah v. Vijay Bahadur (2025 DHC 10364)

Interactive E‑Commerce as Purposeful Availment: Territorial Jurisdiction and Prior User Protection in “GAAY CHHAP / COW BRAND”

Commentary on Sunil Niranjan Shah v. Vijay Bahadur, 2025 DHC 10364 (Delhi High Court, 24 November 2025)

I. Introduction

The decision of the Delhi High Court in Sunil Niranjan Shah v. Vijay Bahadur, 2025 DHC 10364, rendered by Justice Tejas Karia, addresses two contemporary and crucial issues in intellectual property litigation:

  • How territorial jurisdiction is to be determined when infringing goods are offered through an interactive e‑commerce platform such as IndiaMart; and
  • The continued primacy of prior user rights and the “triple identity” test in grant of interim injunctions in trade mark and trade dress disputes.

At the interlocutory stage (I.A. 15795/2025 under Order XXXIX Rules 1 and 2 CPC), the plaintiff sought an injunction against alleged infringement and passing off of its “COW BRAND / GAAY CHHAP” family of marks and associated artistic works by the defendant’s use of the marks “GOPAL GAI CHHAP” and “COW BRAND”, and a look‑alike label reproducing the plaintiff’s tagline and overall get‑up for detergent products in Class 3.

The judgment is significant for:

  • Clarifying when an interactive online listing will amount to “purposeful availment” of a court’s territorial jurisdiction; and
  • Re‑affirming that in a case of triple identity (identical mark, goods and trade channels), a prior user with established goodwill is entitled to strong injunctive protection, even against a defendant who claims earlier user and raises objections of “unclean hands”.

II. Factual Background

1. Parties and their Businesses

  • Plaintiff: Sunil Niranjan Shah, successor to a detergent business using the marks “COW BRAND”, “GAAY CHHAP”, and “GAAY CHHAP (COW BRAND)” since 1975 for detergent cakes, detergent powder and soaps (Class 3).
  • Defendant: Vijay Bahadur, a trader in detergents operating primarily in several districts of Uttar Pradesh (Basti, Gorakhpur, Ambedkar Nagar, Siddharth Nagar, Maharajganj, Kushinagar).

The plaintiff’s predecessor adopted the “COW BRAND/GAAY CHHAP” marks in 1975. In 2023, rights were assigned to the plaintiff, who has since obtained or applied for multiple trade mark registrations, including:

  • Reg. No. 304873 – “COW BRAND” in Class 3 (with disclaimer and territorial limitation to Uttar Pradesh and Bihar), applied in 1975;
  • Reg. No. 6140474 – “GAAY CHHAP (COW BRAND)” in Class 35 (registered);
  • Several 2025 applications for “COW BRAND”, “GAAY CHHAP (COW BRAND)”, label marks, and the tagline “HATHO KI RAKSHA CHAKACHONDH SHAKTI KAPDO KI SURAKSHA”.

The plaintiff also holds copyright registration (A‑153025/2024) for an artistic label used on detergent packaging. The business is substantial: turnover for FY 2024–25 was ₹39.66 crore, with about 70% derived from products under the “GAAY CHHAP/COW BRAND” marks. The plaintiff markets through:

  • Its own website: www.shabrocindia.com;
  • E‑commerce platforms, including IndiaMart and Amazon; and
  • Social media (Instagram, Facebook).

2. Defendant’s Impugned Activities

The defendant applied for and/or used the following impugned marks for detergents in Class 3:

  • “GOPAL GAI CHHAP” (label) – Application No. 7018370, user claimed from 26.12.1973;
  • “COW BRAND” (word per se) – Application No. 7031696, user claimed from 26.12.1973;
  • A label substantially copying the plaintiff’s label and tagline “Hathon ki Raksha Chakachaundh Shakti Kapdo ki Suraksha”.

The plaintiff’s investigation revealed that:

  • No infringing goods were yet seen in physical markets;
  • However, the defendant (or his agents) had begun promoting, soliciting and procuring orders under the impugned marks; and
  • The defendant’s products bearing the impugned marks were offered for sale on IndiaMart, an interactive e‑commerce platform accessible in Delhi.

3. Parallel Litigation and Relationship with Other Infringers

There is a history of disputes involving marks akin to “GAAY CHHAP”:

  • The defendant is the father of Ram Saware Yadav, against whom the plaintiff has filed CS(COMM) 794/2024 (pending before the Commercial Court, Rohini, Delhi) for similar infringement.
  • The defendant and his son allegedly worked with Ashok Kumar Yadav, who applied for “NIL GAI CHHAP” for detergents. In CS(COMM) 567/2024, the Delhi High Court granted an ex parte injunction restraining use of “NIL GAI CHHAP”.
  • The defendant himself has opposed several of the plaintiff’s trade mark applications (Nos. 6813419, 6813420, 6813422) claiming to be the prior adopter and user since 1973.
  • The defendant has also filed a suit (Suit No. 123/2025) in Gorakhpur, U.P., against the plaintiff, predating the present Delhi suit, and alleged that the plaintiff’s action at Delhi amounted to forum shopping.

III. Issues Before the Court

The High Court had to decide, at the interim stage:

  1. Territorial Jurisdiction: Whether the Delhi High Court had territorial jurisdiction when neither party was based in Delhi and the defendant claimed to operate only in specific U.P. districts, but the infringing goods were offered on IndiaMart (accessible in Delhi).
  2. Interim Injunction on Trade Mark and Copyright: Whether the plaintiff, as alleged prior user and registered proprietor of “GAAY CHHAP/COW BRAND”, had made out a prima facie case for an injunction against:
    • Use of “GOPAL GAI CHHAP” and “COW BRAND”; and
    • The impugned label and tagline allegedly infringing the plaintiff’s artistic works.
  3. Effect of Alleged Suppression/Unclean Hands: Whether allegations that the plaintiff had concealed material facts (e.g. abandonment of one trade mark application, multiple copyright registrations for similar artwork) were sufficient to deny equitable relief.

IV. Summary of the Judgment

1. Territorial Jurisdiction

The Court held that it does have territorial jurisdiction over the dispute. Key findings:

  • The plaint specifically pleaded that the defendant’s infringing products were being offered and sold through an interactive IndiaMart listing accessible in Delhi.
  • On such pleadings, the defendant is deemed to have “purposefully availed” the jurisdiction of the Delhi High Court by offering goods for sale to customers in Delhi through an interactive platform.
  • At the stage of considering jurisdictional objections and interim relief, the averments in the plaint are taken as correct on demurrer (i.e., assuming them to be true) in line with precedents such as:
    • Sonal Kanodia v. Shri Ram Gupta, FAO (COMM) 43/2023;
    • World Wrestling Entertainment v. Reshma Collection, 2014 SCC OnLine Del 2031;
    • M/s Bhatia Industries v. M/s Pandey Industries, 2011 SCC OnLine Del 238;
    • LT Foods Ltd. v. Heritage Foods (India) Ltd., 2014 SCC OnLine Del 2918.
  • The decisions in Indian Performing Rights Society v. Sanjay Dalia, Banyan Tree Holding and Kohinoor Seed Fields were distinguished because, on the plaintiff’s pleadings, the defendant was engaged in interactive online commerce and offering goods for sale in Delhi, not merely maintaining a passive listing.

2. Interim Injunction – Trade Mark and Copyright

The Court granted a broad interim injunction in favour of the plaintiff, restraining the defendant, his associates and agents from:

  • Using the impugned marks “GOPAL GAI CHHAP”, “COW BRAND” or any other mark identical or deceptively similar to the plaintiff’s marks “COW BRAND”, “GAAY CHHAP”, “GAAY CHHAP (COW BRAND)” and associated device/label marks in relation to detergents in Class 3; and
  • Using the impugned label that copied the plaintiff’s tagline and overall get‑up, or any other label so as to infringe the plaintiff’s copyrighted artistic works.

In doing so, the Court found:

  • The plaintiff is the registered proprietor of “GAAY CHHAP (COW BRAND)” (at least in Class 35), and has demonstrated long and continuous use of “GAAY CHHAP” and “COW BRAND” since 1975 in relation to detergents (Class 3).
  • The plaintiff has significant goodwill and reputation, evidenced by the turnover of ₹39.66 crore and extensive promotional efforts.
  • The defendant’s impugned marks and label are deceptively similar to the plaintiff’s marks and labels.
  • The defendant’s conduct, coupled with prior suits against his son and associate, shows a prima facie dishonest intent to ride on the plaintiff’s goodwill.
  • This is a classic case of “triple identity”:
    • Identical / deceptively similar marks;
    • Identical goods (detergent soaps, cakes, powders in Class 3); and
    • Identical trade channels and consumer base.

The Court therefore held that:

  • A strong prima facie case in favour of the plaintiff exists;
  • The balance of convenience favours protection of the plaintiff’s well‑established business;
  • Refusal of injunction would cause irreparable injury to the plaintiff through market confusion and dilution of goodwill.

3. Prior User vs. Defendant’s Claimed Prior Use

On the issue of who is the prior user:

  • The plaintiff showed use of “GAAY CHHAP/COW BRAND” from 1975.
  • The defendant claimed user since 1973 but could not produce credible evidence:
    • One invoice dated 26.12.1972 predates the claimed user date (26.12.1973);
    • Another invoice bears a hybrid date format (part Hindi numerals, part English – “२२/५/2007”), raising doubt;
    • No public documents substantiating use prior to 07.04.2025 were filed.
  • The Court viewed these invoices as dubious and refused to treat them as establishing prior user.
  • Relying on Century Traders v. Roshan Lal Duggar & Co., the Court reiterated that the rights of a prior user are superior even to those of a prior registrant. The plaintiff was thus treated as the prior user and entitled to protection.

4. Defendant’s Defences of “Common to Trade” and “Unclean Hands”

The defendant advanced two main equitable defences:

  1. “Common to Trade / Descriptive” defence:
    • Defendant argued that marks like “COW BRAND” and “GAAY CHHAP” are common to trade or descriptive.
    • The Court invoked Automatic Electric Ltd. v. R.K. Dhawan and Indian Hotels Co. Ltd. v. Jiva Institute to hold that a defendant who seeks registration of a mark (as the defendant did for “COW BRAND” and “GOPAL GAI CHHAP”) cannot later claim that the mark is purely descriptive or unprotectable.
    • The defendant cannot both seek statutory rights and simultaneously deny protectability: he cannot “approbate and reprobate”.
  2. “Unclean hands / suppression” defence:
    • Defendant alleged that the plaintiff concealed:
      • Abandonment of Trade Mark Application No. 6140473 in Class 3; and
      • Existence of two copyright registrations with different authors and years of first publication for essentially the same artwork (A‑129345/2019 – year 2015; A‑153025/2024 – year 1975).
    • On this basis, he alleged fraud, forgery and perjury, and relied on S.P. Chengalvaraya Naidu v. Jagannath and A.V. Papayya Sastry v. State of A.P., which establish that a litigant who approaches the court with unclean hands is not entitled to relief.
    • The Court, however, held that the defendant had not established any material suppression or fraudulent conduct by the plaintiff that would justify denial of equitable relief, and thus these authorities were inapplicable.

Accordingly, the allegations of mala fides, forum shopping and unclean hands were rejected at the interim stage.

V. Analysis

A. Precedents Cited and Their Influence

1. Century Traders v. Roshan Lal Duggar & Co., 1977 SCC OnLine Del 50

Century Traders is the foundation of Indian law on prior user rights. It holds that:

  • Use of a mark, rather than registration, is the source of proprietary rights in a trade mark; and
  • A prior user can restrain a subsequent user even if the latter is a registered proprietor.

Justice Karia explicitly invokes this principle, reaffirming that the plaintiff, as prior user of “GAAY CHHAP/COW BRAND” since 1975, enjoys superior rights over the defendant, regardless of the defendant’s later applications or claimed earlier dates. This directly underpins the conclusion that the plaintiff is entitled to injunctive relief and that the defendant’s dubious invoices cannot defeat decades of continuous use.

2. Automatic Electric Ltd. v. R.K. Dhawan, 1999 SCC OnLine Del 27

In Automatic Electric, the Delhi High Court held that a defendant who has himself applied for or obtained registration of a mark is estopped from contending that the mark is descriptive, generic or otherwise unprotectable. The underlying logic is:

  • By seeking registration, the defendant acknowledges the mark’s distinctiveness and protectability;
  • He cannot, thereafter, take a contradictory plea that the mark is publici juris or incapable of protection.

Justice Karia applies this doctrine to reject the defendant’s argument that “COW BRAND” and “GAAY CHHAP” are common/descriptive. Having himself applied for “COW BRAND” and “GOPAL GAI CHHAP”, the defendant is bound by his admission of distinctiveness. This reinforces the protectable status of the plaintiff’s marks and weakens the “common to trade” defence at the threshold.

3. Indian Hotels Co. Ltd. v. Jiva Institute of Vedic Science and Culture, 2008 SCC OnLine Del 1758

Indian Hotels restates and applies the same estoppel principle as Automatic Electric. Justice Karia relies on both to stress that:

  • A party cannot simultaneously claim statutory exclusivity in a mark and assert that the same mark is descriptive and not entitled to protection.

The combination of these cases makes it difficult for defendants to rely on “descriptive” or “common to trade” arguments when their own conduct (seeking registration) suggests the contrary.

4. Indian Performing Rights Society Ltd. v. Sanjay Dalia, (2015) 10 SCC 161

In IPRS v. Dalia, the Supreme Court held that for purposes of Section 134(2) of the Trade Marks Act and Section 62(2) of the Copyright Act (special jurisdiction provisions), the plaintiff must satisfy:

  • That it carries on business at the chosen forum; and
  • That at least part of the cause of action arose there.

The defendant relied on this to contend that Delhi had neither the plaintiff’s place of business nor a cause of action. The Court, however, emphasised that:

  • Cause of action does arise in Delhi because the defendant is offering infringing goods for sale via an interactive IndiaMart listing accessible by Delhi customers; and
  • On demurrer, the plaint averments on online presence and offers for sale must be taken as true.

Thus, while IPRS remains good law, this judgment illustrates that the requirement of “cause of action” can be satisfied through targeted interactive online activity, even where physical operations are elsewhere.

5. Banyan Tree Holding (P) Ltd. v. A. Murali Krishna Reddy, 2009 SCC OnLine Del 3780 (FB)

Banyan Tree is the leading Full Bench authority on internet jurisdiction. It introduced the concept of “purposeful availment” and held that:

  • Mere accessibility of a website in a jurisdiction is not enough;
  • The plaintiff must show that the defendant purposefully availed the jurisdiction by targeting customers or engaging in commercial transactions within that forum.

The defendant invoked Banyan Tree to resist Delhi jurisdiction. Justice Karia, however, finds that the defendant meets even the Banyan Tree standard:

  • IndiaMart is an interactive e‑commerce platform on which customers in Delhi can purchase the impugned products;
  • This constitutes purposeful availment of Delhi’s jurisdiction – the defendant is actively offering goods to Delhi customers, not merely hosting a passive website.

This is one of the core “precedential” contributions of the judgment: it firmly aligns interactive marketplace listings with purposeful availment under Banyan Tree.

6. Kohinoor Seed Fields India Pvt. Ltd. v. Veda Seed Sciences Pvt. Ltd., CS(COMM) 828/2022

In Kohinoor Seed, the Delhi High Court indicated that a mere listing on IndiaMart, without more, may not be adequate to confer territorial jurisdiction. The defendant relied on this to argue lack of jurisdiction in the present case.

Justice Karia distinguishes Kohinoor Seed by emphasising both:

  • The interactive nature of the IndiaMart listing; and
  • The plaintiff’s specific averments that customers in Delhi can purchase the defendant’s infringing goods through it.

Thus, where there is both an interactive facility and a pleaded offer for sale to customers in the forum state, the Court is willing to infer purposeful availment and cause of action, notwithstanding Kohinoor Seed.

7. S.P. Chengalvaraya Naidu v. Jagannath, AIR 1994 SC 853 and A.V. Papayya Sastry v. Govt. of A.P., (2007) 4 SCC 221

These Supreme Court decisions stand for the proposition that:

  • A decree or order obtained by fraud is a nullity;
  • A litigant who has approached the Court with unclean hands or who has suppressed material facts is not entitled to equitable relief.

The defendant relied on these to argue that the plaintiff’s alleged concealment of abandoned trade mark applications and contradictory copyright registrations should bar equitable relief. The Court, however, finds that:

  • The defendant failed to establish material suppression or fraud by the plaintiff; and
  • Therefore, these strong anti‑fraud precedents are not triggered in the factual matrix of this case.

In effect, the Court signals that accusations of “fraud” and “unclean hands” must be substantiated with clear, material evidence before they can displace standard trade mark principles at the interim stage.

8. Other Cited Authorities

The judgment also refers to:

  • Sonal Kanodia v. Shri Ram Gupta (FAO (COMM) 43/2023);
  • World Wrestling Ent. v. Reshma Collection, 2014 SCC OnLine Del 2031;
  • M/s Bhatia Industries v. M/s Pandey Industries, 2011 SCC OnLine Del 238; and
  • LT Foods Ltd. v. Heritage Foods (India) Ltd., 2014 SCC OnLine Del 2918,

for the principle that when considering applications under Order VII Rules 10 and 11 CPC or jurisdictional objections at the interim stage, the averments in the plaint are taken as correct on demurrer. This principle underpins the Court’s approach of accepting, at this stage, that the defendant’s impugned products are accessible to Delhi consumers through IndiaMart and that a cause of action thus arises.

The plaintiff also cited:

  • 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,

to support their contention that suspect or fabricated invoices should not be accepted as evidence of prior use. While the Court does not elaborate on these cases in the analysis, its sceptical treatment of the defendant’s invoices is consistent with those precedents.

B. Legal Reasoning

1. Territorial Jurisdiction in the Age of Interactive E‑Commerce

The Court’s reasoning can be broken down as follows:

  1. Pleadings of online presence and offer for sale:
    • The plaint alleges that the defendant is selling infringing products through IndiaMart.
    • Screen‑shots of the listings are produced, showing use of impugned marks in connection with detergents.
  2. Interactive nature of IndiaMart:
    • IndiaMart is not a static, informational website; it enables active interaction, enquiries and transactions between buyers and sellers.
    • Customers based within the territorial jurisdiction of the Delhi High Court can buy and sell products using the impugned marks.
  3. Purposeful availment and cause of action:
    • By listing and offering goods through this interactive platform, the defendant “purposefully avails” itself of the benefit and jurisdiction of the Delhi market.
    • This generates a cause of action within Delhi, as infringing offers for sale (and potentially sales) occur in the forum through the online marketplace.
  4. Demurrer principle:
    • At the interim stage, the Court is not conducting a trial on whether actual sales occurred in Delhi.
    • In line with precedents, the factual averments in the plaint about online offers for sale are presumed correct.
  5. Distinguishing contrary authorities:
    • Where a website is passive or merely accessible, Banyan Tree and Kohinoor Seed may deny jurisdiction.
    • In this case, the Court emphasises interactivity and targeted commercial exploitation – thus satisfying the purposeful availment test.

This reasoning is doctrinally coherent with Banyan Tree and marks a clear judicial affirmation that:

“An interactive e‑commerce marketplace listing, accessible to consumers in the forum state and used to offer infringing goods for sale, is sufficient to found territorial jurisdiction under Section 20 CPC and the special IP jurisdiction provisions.”

2. Prior User Rights and the Triple Identity Test

On the core trade mark issue, the Court proceeds along familiar but rigorously applied lines:

  1. Distinctive character and secondary meaning:
    • “GAAY CHHAP” and “COW BRAND”, particularly in the context of detergents, have acquired a distinctive character due to prolonged, extensive use since 1975.
    • The public and trade identify these marks exclusively with the plaintiff.
  2. Prior use vs. claimed earlier dates:
    • The plaintiff’s use from 1975 is documented through registrations, continuous commercial use and impressive turnover.
    • The defendant’s claim of user since 1973 is unsupported by credible evidence – invoices contradict their own claim (an invoice predating the user claim, hybrid dates, lack of public documents).
    • Applying Century Traders, the Court treats the plaintiff as prior user and thus prima facie holder of superior rights.
  3. Likelihood of confusion:
    • The test is that of the average consumer with imperfect recollection.
    • “GAAY CHHAP” (Cow Stamp) vs. “GOPAL GAI CHHAP” (Gopal Cow Stamp), and “COW BRAND” vs. “COW BRAND” (word per se), when used on identical detergents, are almost inevitably confusing.
    • The replication of the plaintiff’s tagline and overall layout in the impugned label further amplifies the risk of confusion.
  4. Triple identity:
    • The Court expressly characterises this as a case of “triple identity”:
      1. Identical/deceptively similar marks (“GAAY CHHAP/COW BRAND” vs. “GOPAL GAI CHHAP/COW BRAND”);
      2. Identical goods (detergent cake, powder, soaps in Class 3);
      3. Identical trade channels and consumer base (mass‑market detergent consumers).
    • Under such circumstances, confusion and damage are almost presumed, justifying a strong injunction.

This reasoning adheres to established trade mark doctrine, while giving a clear, practical illustration of how “triple identity” cases are to be treated at the interim stage.

3. Treatment of Suspect Evidence of Prior Use

The Court’s approach to the defendant’s evidence of prior use is noteworthy:

  • Invoices relied upon by the defendant:
    • Are inconsistent with their own pleaded dates (an invoice from 1972 although user claimed from 1973);
    • Feature non‑standard or hybrid dating formats; and
    • Are unsupported by public or contemporaneous documents.
  • This leads the Court to cast doubt on their legitimacy and refuse to treat them as proof of genuine prior use.
  • This approach is consistent with Kirorimal Kashiram and Gandhi Scientific, where fabricated or unreliable invoices were disregarded.

The message is clear: mere invoices, especially when suspect, will not rebut a well‑documented claim of long‑term prior use.

4. Rejection of “Unclean Hands” Defence

The defendant’s charge that the plaintiff acted fraudulently (by not fully disclosing abandoned applications and multiple copyright registrations) is dealt with briefly but firmly:

  • The Court finds that the defendant has not demonstrated any material suppression sufficient to:
    • Vitiate the proceedings; or
    • Disentitle the plaintiff from equitable relief.
  • Accordingly, powerful anti‑fraud authorities like Chengalvaraya Naidu and Papayya Sastry are held inapplicable.

Implicitly, the Court applies a proportionality lens to “unclean hands”: minor procedural omissions or arguable inconsistencies in IP registrations will not, without more, outweigh a strong prima facie case of infringement and long‑standing goodwill.

5. Grant of Injunction: Prima Facie Case, Balance of Convenience, Irreparable Injury

The Court applies the standard three‑fold test for interim injunction:

  1. Prima facie case:
    • Established prior user rights and registration;
    • Strong evidence of distinctiveness and goodwill;
    • Clear deceptive similarity and copying (including label and tagline);
    • Questionable and unpersuasive evidence of prior use by the defendant;
    • Dishonest pattern of conduct involving defendant, his son and associate.
  2. Balance of convenience:
    • Stopping an infringer from riding on goodwill causes them only the burden of adopting a non‑deceptive mark;
    • Allowing infringement to continue risks erosion of the plaintiff’s brand built over 50 years.
  3. Irreparable injury:
    • Loss of distinctiveness, dilution of trade mark and confusion in the market cannot easily be quantified or adequately compensated in damages;
    • The goodwill associated with a mass‑market detergent brand is particularly vulnerable to copycats.

On this basis, the Court characterises the case as one where equity strongly favours protection and grants a broad pan‑India injunction covering all agents, distributors, online listings and similar marks/labels.

C. Likely Impact of the Judgment

1. On Territorial Jurisdiction and E‑Commerce

The decision meaningfully advances the law on IP jurisdiction in the e‑commerce context:

  • It confirms that presence on an interactive marketplace (such as IndiaMart, Amazon, etc.) can satisfy the requirement of “carrying on business” and “cause of action” in the forum state.
  • It clarifies that mere passive accessibility is insufficient, but an interactive listing that enables customers to place orders in the forum state amounts to purposeful availment under Banyan Tree.
  • Practically, IP owners will be encouraged to:
    • Gather and plead evidence (screen‑shots, order flows) of interactive listings accessible in the chosen forum; and
    • Use such evidence to anchor jurisdiction even when both parties are physically based elsewhere.

For defendants, the judgment is a caution:

  • Operating via national e‑commerce platforms exposes them to litigation in major commercial hubs (like Delhi) if they infringe established marks.
  • Attempts to confine a dispute to a local court by pleading limited geographic business may be undermined by online offers for sale.

2. On Prior User Rights and Evidence

By reinforcing Century Traders and critically assessing dubious invoices, the judgment:

  • Re‑affirms that continuous, credible use remains the cornerstone of trade mark rights;
  • Discourages retrospective fabrication of “old” invoices or documents to bolster user claims;
  • Signals that courts will insist on coherent, trustworthy evidence of alleged early use, such as:
    • Contemporaneous invoices with standard date formats;
    • Public records (tax, registrations, advertisements);
    • Market recognition.

3. On “Common to Trade” and Descriptive Defence

The judgment strengthens the principle that:

  • A party that has sought registration of a mark cannot claim that the mark is descriptive or common to trade to evade infringement claims.
  • This will make it harder for infringers to:
    • File trade mark applications to gain an air of legitimacy; and then
    • Turn around and argue that the plaintiff’s mark is unprotectable because it uses common words (such as “COW”).

4. On Use of “Unclean Hands” in IP Litigation

The judgment also tempers the increasingly common tactic of attacking plaintiffs for alleged non‑disclosure or technical inconsistencies:

  • While fraud and suppression remain serious issues, they must be material and clearly established to defeat an otherwise strong infringement claim.
  • Minor discrepancies in IP portfolios (e.g., abandoned applications, multiple artworks) will not, by themselves, bar access to equitable relief where:
    • The defendant’s infringement is clear and prima facie dishonest; and
    • The plaintiff has long‑standing goodwill and prior user rights.

5. On Enforcement Strategy in “Family” or “Cluster” Infringements

The case also illustrates a pattern where:

  • Different relatives and associates (defendant, his son, his associate) adopt variants of a well‑known mark.
  • Court decisions, including this one, are prepared to look at the overall pattern of conduct and infer dishonest intent.

This is important for rights‑holders dealing with clusters of infringers using similar marks – it suggests that courts will take a holistic view of related litigations and not treat each as an isolated, innocent adoption.

VI. Complex Concepts Simplified

1. “Prior User” vs. Registered Proprietor

In trade mark law:

  • Prior User: The person who first used the mark in commerce (e.g., selling goods under that mark).
  • Registered Proprietor: The person in whose name the mark is registered at the Trade Marks Registry.

Indian law generally favours the prior user: even if someone else subsequently obtains registration, the prior user can still restrain them from using the mark, because goodwill and association in the minds of consumers flow from use, not registration alone.

2. “Passing Off”

Passing off is a common law (judge‑made) remedy, independent of registration. It protects against:

  • One trader misrepresenting his goods as those of another, thereby causing confusion and damage to the other’s goodwill.

A passing off action typically requires proof of:

  1. Goodwill in the mark or get‑up;
  2. Misrepresentation by the defendant, likely to lead the public to believe that his goods are those of the plaintiff; and
  3. Damage to the plaintiff’s goodwill.

In this case, the plaintiff pursues both statutory infringement (based on registration) and passing off (based on goodwill and prior use).

3. “Triple Identity”

“Triple identity” refers to cases where:

  1. The marks are identical or nearly identical;
  2. The goods or services are the same; and
  3. The trade channels and customers are the same.

In such cases, confusion is so likely that courts are especially inclined to grant injunctions, because it is hard to conceive of consumers not being misled.

4. “Interactive Website” and “Purposeful Availment”

  • Interactive website / platform: A site or platform where users can:
    • Place orders,
    • Communicate with sellers,
    • Conclude transactions.
    Examples: IndiaMart, Amazon.
  • Passive website: A site that merely provides information, such as a corporate brochure, without transactional capability.

Purposeful availment (from Banyan Tree) means that the defendant has consciously used the forum’s market—by targeting customers there, accepting orders from there, etc.—and thus can reasonably anticipate being sued in that jurisdiction.

In this case, the defendant’s IndiaMart listing is treated as purposeful availment of Delhi jurisdiction.

5. “On Demurrer”

When a court decides something “on demurrer”, it:

  • Assumes that all the facts pleaded by the plaintiff are true for the purposes of the preliminary objection (e.g., on jurisdiction or maintainability);
  • Then asks whether, even on those assumed facts, the suit is maintainable or the court has jurisdiction.

Here, at the interim stage, the Court assumes the plaint’s allegations about online sales and offers for sale to be correct and proceeds to assess jurisdiction and merits accordingly.

6. “Approbate and Reprobate”

To “approbate and reprobate” means to:

  • Accept (approve) something in one context and reject (disapprove) it in another, when both positions cannot logically stand together.

In this context, a defendant who seeks to register a mark (claiming it is distinctive and worthy of exclusive rights) cannot later argue that the same mark is merely descriptive or common property of the trade when sued for infringement.

VII. Conclusion

Sunil Niranjan Shah v. Vijay Bahadur is an instructive and consequential decision in three respects:

  1. Territorial Jurisdiction and E‑Commerce: It concretises the application of the “purposeful availment” doctrine to interactive e‑commerce platforms. Where infringing goods are offered for sale through an interactive marketplace accessible in a forum state, courts may assume jurisdiction, even if neither party physically operates there, provided such allegations are made in the plaint.
  2. Reaffirmation of Prior User Supremacy and Triple Identity: The Court strongly re‑endorses the supremacy of prior user rights over subsequent claims and registrations and emphasises that in a “triple identity” situation—identical marks, goods and trade channels—injunctive relief is particularly compelling.
  3. Balanced Approach to Equitable Defences: While acknowledging that injunction is an equitable remedy, the Court refuses to let unsubstantiated allegations of “unclean hands” override a robust prima facie case of infringement and long‑standing goodwill. At the same time, it signals that dubious, post‑facto evidence of prior use will be closely scrutinised and, if necessary, rejected.

In practical terms, the judgment empowers brand owners to act decisively against infringers operating on nationwide e‑commerce platforms and warns would‑be infringers that online commercial presence can subject them to litigation in major fora like Delhi. It also underscores that courts will protect long‑standing domestic brands—such as the “GAAY CHHAP / COW BRAND” detergents in this case—against concerted attempts by related parties to free‑ride on established goodwill through deceptively similar marks and packaging.

Going forward, this decision is likely to be cited both on questions of internet‑based jurisdiction in IP suits and on the standards for assessing prior user evidence and equitable defences at the interim stage.

Case Details

Year: 2025
Court: Delhi High Court

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