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Purshotam Keshwani v. Nishant Mitrasen Mahimtura

Delhi High Court

Feb 28, 2019

Judgment

Subsequent
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Judgment Summary — Rajiv Sahai Endlaw, J. (IA No. 5693/2018 under O. XXXIX R. 1 & 2 CPC)

Factual and Procedural Background

Four plaintiffs — Mr. Purshotam Keshwani, Mr. Sidhant Keshwani, LIBAS Impex and LIBAS Fashions Pvt. Ltd. — instituted a suit against four defendants — Nishant Mitrasen Mahimtura; Ms. Reshma Riyaz Gangji; Riyaz Eqbal Gangji; and LIBAS DESIGN LTD. — seeking permanent injunction restraining trade mark infringement, passing off and ancillary reliefs. The plaintiffs' mark ("LIBAS") is registered in Class 24 (textile fabrics including suiting, shirtings, sarees and dress material) and in Class 25 (hosiery and readymade garments). The defendants' mark (also incorporating "LIBAS") is registered inter alia in Class 37 (building constructions; repair, installation services) and in Class 35 (services including advertising, business management and office functions); a certificate of registration in Class 35 for the defendants describes registration for retailing of garments and accessories.

Procedurally, summons of the suit and notice of the interim relief application were ordered issued on 26 April 2018. The plaintiffs did not press for ex parte relief at that time, reserving the right to do so after pleadings. The order dated 10 July 2018 records service on defendants no. 1, 3 & 4. Defence counsel has been appearing since 4 October 2018 and written statements were filed prior to that date. The interim application was listed on 8 January 2019; the plaintiffs' senior counsel was heard both on that date and on the final hearing date. On the day of the hearing the defendants' counsel claimed he was new and that documents filed with the plaint had not been furnished to him; no earlier grievance about non-receipt had been raised.

Legal Issues Presented

Whether a suit for trade mark infringement is maintainable against another registered trade mark and whether an interim injunction restraining use of a registered mark can be granted if the registration obtained by the defendant is prima facie found invalid.
Whether proceedings in this suit should be kept in abeyance because plaintiffs had applied to the Intellectual Property Appellate Board (IPAB) for rectification (removal) of the defendants' mark from the Register of Trade Marks.
Whether the plaintiffs have demonstrated a prima facie case, balance of convenience and risk of irreparable loss to justify grant of interim injunction restraining the defendants from using the mark 'LIBAS'.

Arguments of the Parties

Plaintiffs' Arguments

The plaintiffs are prior users of the mark 'LIBAS' — they claimed use since 1986; defendants claim use since 1997.
Plaintiffs applied for registration in Classes 24 & 25 on 12 April 2002; registration in Class 24 granted on 23 May 2006 and in Class 25 on 19 March 2009. Defendants first applied for registration only in 2007 and were granted registration later (including a Class 35 registration granted on 3 April 2018).
A defendants' application in Class 35 made earlier was rejected on 12 February 2018 inter alia citing plaintiffs' prior registrations in Classes 24 & 25.
Defendants have not produced documents demonstrating actual use of their mark before this Court.
The defendants' device/label mark is identical in dominant element to the plaintiffs' mark — both are essentially the word 'LIBAS' — and the additional words "RIYAZ GANGJI" do not sufficiently distinguish the defendants' goods/services.
Relying on authorities, the plaintiffs contend that a suit for infringement against a registered trade mark is maintainable and interim relief can be granted if the defendant's registration is prima facie invalid, and that defendants cannot now contend the mark is generic or that many others use it without evidence.

Defendants' Arguments

The plaintiffs, in the plaint, admitted the defendants' use of the mark (paras 22 & 23), and therefore cannot now contend defendants are not using the mark.
The defendants have had a store in New Delhi South Extension since 2010 and have extensive operations, including international offices; the suit was filed in 2018 only after the defendant company was listed on The International Stock Exchange, implying plaintiffs delayed.
Plaintiffs learned of the defendants' mark in 2017 but filed suit only in 2018; they are thus guilty of acquiescence, laches and waiver and are not entitled to interim relief.
The plaintiffs previously applied to IPAB for rectification of the defendants' registration; therefore the present suit should be kept in abeyance.
The mark 'LIBAS' is generic and other parties also use it; the defendants' mark also contains distinguishing words ("RIYAZ GANGJI"), making it distinguishable from plaintiffs' mark.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Clinique Laboratories LLC v. Gufic Limited, 2009 (41) PTC 41 (Del)	Cited for the proposition that a suit for infringement against a registered trade mark is maintainable and that interim injunction may be granted if registration obtained by defendant is prima facie invalid; also held that stay under Section 124 of the Trade Marks Act does not prevent the Court from deciding interim relief applications.	The Court relied on Clinique to accept that interim relief can be considered despite rectification/appeal proceedings (Section 124), and to support maintainability of infringement proceedings against a registered mark for purposes of interim relief.
Bloomberg Finance Lp v. Prafull Saklecha & Ors., (2014) 207 DLT 35	Referred to (para 57) to support the proposition that infringement proceedings can be maintained against a registered trade mark.	Cited alongside Clinique by plaintiffs' counsel to reinforce that suit for infringement against a registered mark is maintainable and may warrant interim relief if registration is prima facie invalid.
Mrs. Rajnish Aggarwal & Ors. v. M/S. Anantam, 2009 SCC OnLine Del 3827	Referenced regarding the Court's ability to deal with interim relief applications despite parallel proceedings under the Trade Marks Act.	Cited to support the Court's position that stay under Section 124 does not preclude consideration of interim relief.
Procter & Gamble Manufacturing (Tianjin) Co. Ltd. v. Anchor Health & Beauty Care Pvt. Ltd., 2014 SCC OnLine Del 3374	Relied upon by plaintiffs to contend defendants are estopped from asserting the mark is generic and that defendants must produce evidence of use.	The Court noted plaintiffs' reliance on this authority to argue defendants cannot now contend genericness without supporting evidence; used in assessing defendants' failure to disclose use.
Pankaj Goel v. Dabur India Ltd., 2008 (38) PTC 49 (Del)	Relied upon together with Procter & Gamble to support the proposition that defendants cannot be allowed to contend genericness without evidence.	Used to buttress plaintiffs' argument that defendants are estopped from asserting genericness or wide usage in absence of particulars/evidence.
Rolex SA v. Alex Jewellery Pvt Ltd & Ors, 2009 (41) PTC 284 (Del)	Cited to support the proposition that infringement and passing off are recurring causes of action and delay may be immaterial.	The Court used Rolex (and Ansul) to accept plaintiffs' contention that delay, if any, may not disentitle them to relief where causes of action recur.
M/S. Ansul Industries v. M/S. Shiva Tobacco Company, 2007 (34) PTC 392 (Del)	Also cited for the view that infringement/passing off can be recurring and delay may not be fatal.	Referred to in support of the plaintiffs' submission that delay in instituting suit does not automatically bar relief in recurring causes of action.
Allied Blenders & Distillers Pvt. Ltd. v. Shree Nath Heritage Liquor Pvt. Ltd., 2014 SCC OnLine Del 3412	Held that the test for likelihood of confusion is of imperfect memory/recollection and not photogenic or perfect recollection.	The Court relied on Allied Blenders to apply the imperfect recollection test, concluding that identical dominant word 'LIBAS' necessitates grant of interim injunction.
Prathiba M. Singh v. Singh and Associates, 2014 SCC OnLine Del 1982	Referenced among authorities applying the imperfect recollection test for confusion.	Used as supporting precedent for applying the imperfect recollection standard in assessing likelihood of confusion.
Shree Nath Heritage Liquor Pvt. Ltd. v. Allied, 221 (2015) DLT 359 (DB)	Referenced in the context of confusion/imperfect recollection analysis.	Referred to as part of the line of authority supporting the test the Court applied on confusion and dominance of the common word.
Proctor & Gamble Manufacturing (Tianjin) Co. Ltd. v. Anchor Health and Beauty Care Pvt. Ltd., (2016) 234 DLT 331 (DB)	Cited among decisions dealing with confusion/dominant element and likelihood of deception.	Used to reinforce the approach to confusion and dominance of the word element in device/label marks.
Gillette Company LLC v. Tigaksha Metallics Private Limited, (2018) 251 DLT 530	Referenced among authorities dealing with confusion and dominance of a word in label/device marks.	Referred to in support of the Court's approach to identity/dominance of the common word in the label/device.
New Balance Athletics Inc. v. Apex Shoe Company Pvt. Ltd. (and Ramaiah Life Style Café v. Eminent Entertainment, order dated 21 Oct 2016)	Held that delay and laches, if any, may be relevant at ex parte stage but are not considerations at the after-notice stage.	The Court applied this principle to hold that delay/laches is not a bar to interim relief at the after-notice stage; therefore defendants' delay plea was not decisive.
BDA Pvt. Ltd. v. Paul P. John, 2008 (37) PTC 669 (Del) and B.L & Co. & Others v. Pfizer Products Ltd., 2001 (21) PTC 97 (Del) (DB)	Also cited for the proposition that delay/laches may not be relevant after notice is issued.	Used to support the Court's view that delay/laches does not necessarily disentitle plaintiffs to relief at the after-notice stage.
Sunil Mittal v. Darzi on Call, (2017) 242 DLT 62; Insecticides (India) Ltd. v. Parijat Industries (India) Pvt. Ltd., (2018) 252 DLT 129; H&M Hennes & Mauritz AB v. H.M. Megabrands Pvt. Ltd., 2018 SCC OnLine Del 9369	Authority for the proposition that a proprietor is not expected to pursue every single smaller infringer and may reasonably pick those infringers whose use affects its mark; sensible commercial restraint in enforcement is acknowledged.	The Court relied on these authorities to reject defendants' vague plea that many others are using 'LIBAS' as insufficient, finding plaintiffs need not sue everyone and may act selectively against those whose use affects their mark.

Court's Reasoning and Analysis

The Court evaluated the application for interim relief by reference to the pleadings, the registrations and the comparative use/claims of the parties. The reasoning, in the sequence given by the Court, is summarized below (using the Court's own lettered findings A–K):

A. Both parties' registered marks are device/label marks whose dominant and operative element is the word "LIBAS".
B. The plaintiffs use the mark for manufacturing, distributing and retailing textile fabrics and ready-to-wear clothing; the defendants claim use for manufacturing and retailing of readymade garments and apparel. Thus both use the mark in respect of the same goods/services.
C. The addition of the words "RIYAZ GANGJI" on the defendants' label/device is not sufficient to distinguish the defendants' goods/services from the plaintiffs' goods/services.
D. Where the dominant words in the competing labels are identical ("LIBAS"), the Court held that an interim injunction follows — applying the test of likelihood of confusion based on imperfect recollection, as explained in Allied Blenders and other authorities.
E. Given the trade/industry, the additional words on the defendants' label are likely to be perceived by consumers as a sub-brand (a line under the brand "LIBAS") rather than a distinguishing feature.
F. It was not in dispute that plaintiffs are prior adopter/user/registrant of the mark; consequently plaintiffs' rights prevail over defendants' later rights.
G. On delay and laches, the Court applied earlier authorities (New Balance, Ramaiah, BDA, B.L & Co.) to hold that while delay may be relevant at ex parte stage, it is not a determinative factor after notice. The defendants did not plead specific prejudice caused by any alleged delay or a change of position that could disentitle the plaintiffs to relief.
H. Defendants have not disclosed particulars/evidence of actual use or extent of use of their mark; plaintiffs, by contrast, have pleaded and filed documents in support of their use.
I. The defendants' contention that others also use the mark "LIBAS" is vague and unsupported by specifics as to extent of use; relying on Sunil Mittal, Insecticides and H&M, the Court observed a proprietor is not expected to sue every user and may reasonably take action against those whose use affects its mark.
J. Concluding from the above, the Court found plaintiffs have a prima facie case in their favour.
K. The Court found that balance of convenience and risk of irreparable injury lay in favour of plaintiffs: plaintiffs had pleaded and produced documents of use showing likely injury from continued defendant use, whereas defendants had not produced documents to prove their use or the extent thereof.

On procedural objections, the Court recorded that the defendants' contention that the suit should be kept in abeyance because of rectification proceedings before IPAB lacked merit, relying on the Court's prior conclusion (Clinique) that stay under Section 124 does not prevent adjudication of interim relief applications.

Holding and Implications

CORE RULING: APPLICATION FOR INTERIM RELIEF SUCCEEDS — INTERIM INJUNCTION GRANTED.

Direct effect on the parties:

During the pendency of the suit, the defendants are restrained from directly or indirectly dealing with any products or other goods or services, including retailing, under the trade mark "LIBAS".
The defendants are restrained from using the word "LIBAS" as part of any trade name and/or on cartons, packaging, labels, dyes, blocks, parts of e-mail addresses, websites or in any other manner.
The defendants requested a two-month stay of the injunction to enable filing an appeal; the Court observed that since the plaintiffs were found entitled, the injunction could not be kept in abeyance unless the defendants sought time to settle, effect name change and give an undertaking not to use the plaintiffs' mark or any deceptively similar mark in future.

Broader implications: The opinion applies established principles (including the imperfect recollection test for confusion, and that delay/laches is not decisive after notice) but does not purport to set new precedent beyond its application of those authorities to the facts of this case.

Show all summary ...

Rajiv Sahai Endlaw, J.:—

IA No. 5693/2018(u/O.XXXIX R. 1 & 2 CPC).

1. The application of the plaintiffs for interim relief is for consideration.

2. The four plaintiffs namely, (i) Mr. Purshotam Keshwani; (ii) Mr. Sidhant Keshwani; (iii) LIBAS Impex; and, (iv) LIBAS Fashions Pvt. Ltd. have instituted this suit, against the four defendants, namely, (a) Nishant Mitrasen Mahimtura; (b) Ms. Reshma Riyaz Gangji; (c) Riyaz Eqbal Gangji; and, (d) LIBAS DESIGN LTD., for permanent injunction restraining infringement of trade mark, passing off and for ancillary reliefs.

3. The mark of the plaintiffs as under:—

is registered in Class 24 (Textile fabrics including suiting, shirtings, sarees and the dress material) and in Class 25 (Hosiery and readymade garments.

4. The mark of the defendants as under:—

is also registered inter alia in Class 37 (building constructions; repair, installation services) and in Class 35 (Services, Advertising, Business Management, Business Administration, Office functions).

5. Summons of the suit and notice of the application for interim relief were ordered to be issued to the defendants on 26 April, 2018. On that date, the counsel for the plaintiffs did not press for ex parte relief, reserving the right to seek the same after completion of pleadings. The order dated 10 July, 2018 records that the defendants no. 1, 3 & 4 had been served. The counsel for the defendants has been appearing in this suit since 4 October, 2018 and the written statement of all the defendants was filed even prior thereto.

6. The counsel for the defendants today states that the documents filed by the plaintiffs along with the plaint have not been furnished to the defendants and are not available with him.

7. At no earlier point of time was any grievance made in this respect. In fact, the application of the plaintiffs for interim relief was listed on 8 January, 2019 when the counsel for the defendants did not appear on first call and appeared at the fag end of the day and assured the Court that in future he shall make appropriate arrangements for appearance on time; on his request, though the senior counsel for the plaintiffs appearing on that day also had been heard, the hearing was adjourned to today. On that date also no grievance was made of the documents having not been received. Thus no adjournment on such ground can be granted.

8. The counsel for the defendants then states that he is a new counsel and has appeared today for the first time.

9. Merely because the defendants have changed their counsel, would not entitle the defendant to any benefit thereof.

10. The senior counsel for the plaintiffs, as aforesaid, was heard on 8 January, 2019 and has been further heard today. The counsel for the defendants also has been heard.

11. I have enquired from the senior counsel for the plaintiffs, whether a suit for infringement of trade mark lies against another registered trade mark.

12. The senior counsel for the plaintiffs has referred to para 14 of Clinique Laboratories LLC v. Gufic Limited, 2009 (41) PTC 41 (Del) and to para 57 of Bloomberg Finance Lp Plaintiff v. Prafull Saklecha & Ors…., (2014) 207 DLT 35 and on the basis thereof has contended that a suit for infringement against a registered trade mark is maintainable and if the Court prima facie finds that the registration obtained by the defendant to be invalid, interim injunction restraining use of the registered mark can also be granted. The counsel for defendants has not controverted.

13. The counsel for the defendants has at the outset also taken a plea that the plaintiffs, before institution of the present suit, applied to the Intellectual Property Appellate Board (IPAB) for rectification of Register of Trade Marks, for removal therefrom of the mark of the defendants and contends that the proceedings in the present suit are thus liable to be kept in abeyance.

14. There is no merit in the aforesaid contention.

15. I have in Clinique Laboratories LLC supra held that stay of proceedings under Section 124 of the Trade Marks Act, 1999 does not come in the way of the Court dealing with an application for interim relief. Reference in this regard can also be made to Mrs. Rajnish Aggarwal & Ors…. Plaintiffs v. M/S. Anantam Defendant, 2009 SCC OnLine Del 3827.

16. Else, it is the contention of the senior counsel for the plaintiffs, (i) that while the plaintiffs, in their applications for registration, claimed use of the mark since the year 1986, the defendants, in their applications for registration of the mark, claimed use since the year 1997; the plaintiffs are thus clearly the first user of the mark; (ii) that while the plaintiffs first applied for registration in Classes 24 & 25, which are specific to the goods for which the mark is used, on 12 April, 2002, and registration in Class 24 was granted on 23 May, 2006 and registration in Class 25 was granted on 19 March, 2009, the defendants first applied for registration, only in the year 2007, that too in Classes other than in which the goods fall, and the defendants were first granted registration in the year 2012 and in Class 35 (relating to services) on 3 April, 2018; (iii) that when the defendants first applied for registration in Class 35 in the year 2007, the plaintiffs already held registration in Class 24 and the registration of the plaintiffs in Class 25 also is of a date much prior to the registration granted to the defendants in the year 2012 and/or on 3 April, 2018; (iv) that the defendants, on 7 October, 2013, again applied for registration of the same mark in Class 35 and which application of the defendants was rejected on 12 February, 2018 inter alia citing the prior registration in favour of the plaintiffs in Classes 24 & 25; (v) that the defendants have not placed before this Court any document to show use of the mark; and, (vi) that else the mark of the defendants is identical to that of the plaintiffs.

17. The senior counsel for the plaintiffs contends that the plaintiffs have thus made out a case for grant of ex parte ad interim injunction.

18. I may at this stage record that the certificate of registration in favour of the defendants in Class 35, describes the registration to have been granted for retailing of garments, accessories, shoes, ladies wear, leather/art/synthetic garments and accessories.

19. Per contra, the counsel for the defendants has argued, (i) that the plaintiffs, in the plaint, have admitted use by the defendants of the mark and cannot argue that the defendants are not using the mark; attention in this regard is drawn to paras 22 & 23 of the plaint; (ii) that the defendants have their store in New Delhi South Extension since the year 2010; (iii) that this suit has been filed in the year 2018 on learning of listing of the defendant no. 4 Company on The International Stock Exchange and “realising that the plaintiffs have missed the bus”; (iv) that the defendants have international offices all over the world; (v) that the mark of the plaintiffs is generic, and others also are using the same mark; attention is drawn to para 13 of the written statement of the defendants in this regard; (vi) that the plaintiffs admit having learnt of the mark of the defendants in the year 2017 but filed the suit only in the year 2018 and are not entitled to interim relief on account of acquiescence, laches and waiver; and, (vii) that the mark of the defendants is even otherwise distinguishable from that of the plaintiffs, owing to also having the words ‘RIYAZ GANGJI’ therein and which are not to be found in the mark of the plaintiffs.

20. The senior counsel for the plaintiffs, in rejoinder has contended (i) that the plaintiffs, in paras 22 & 23 of the plaint have pleaded knowledge of the mark of the defendants on receiving a WhatsApp message from some unknown telephone number and have not pleaded any use of the mark by the defendants, and elsewhere also not admitted use of the mark by the defendants; (ii) that the written statement of the defendants does not contain any plea of use and no documents have been filed in support of what is being argued today; (iii) that the defendants are estopped from contending the mark to be generic and from taking the plea, of others also using the same mark; (iv) reliance in this regard is placed on Procter & Gamble Manufacturing (Tianjin) Co. Ltd. v. Anchor Health & Beauty Care Pvt. Ltd., 2014 SCC OnLine Del 3374 and Pankaj Goel v. Dabur India Ltd., 2008 (38) PTC 49 (Del); (v) that of the nineteen instances pleaded by the defendants in their written statement, of use of the mark ‘LIBAS’ by others, applications for registration of eleven already stand abandoned, one of the applications referred to is of the plaintiffs, the six applications which stand registered, are of the year 2009 i.e. of after the registrations in favour of the plaintiffs and though registration of one of the marks is of prior to registration in favour of the plaintiffs, but there is no evidence of any use of the said mark and the plaintiffs also have not found the said registration being used; (vi) that the addition of the words “RIYAZ GANGJI” on the mark of the defendants does not distinguish the mark of defendants from that of the plaintiffs; and (vii) attention is drawn to Rolex Sa Plaintiff v. Alex Jewellery Pvt Ltd & Ors, 2009 (41) PTC 284 (Del) and on M/S. Ansul Industries… v. M/S. Shiva Tobacco Company…, 2007 (34) PTC 392 (Del) to contend that infringement and passing off are recurring causes of action and the delay even if any is immaterial.

21. I have considered the rival contentions and find the plaintiffs entitled to interim injunction sought. My reasons therefor are as under:—

A. Though the registration of the plaintiffs as well as of the defendants are of a label/device mark and not of a word mark but the label/device of both is nothing but the word ‘LIBAS’.

B. The plaintiffs use the subject mark for the business of manufacturing/fabricating, distributing and retailing of textile fabrics, suits, ladies wear, readymade clothes, lehengas, kurtas etc. The defendants also claim to use the subject mark for manufacturing and carrying on business in readymade garments, articles of clothing for mens, ladies as well as children wear, shirts, T-shirts, trousers, jeans, pants, chudidhar kurta payjama, hosiery, readymade garments, wearing apparels. Thus the use of the mark by both, is for the same goods and services.

C. Considering the said aspect, the additional words “RIYAZ GANGJI” on the label/device of the defendants are not found to be sufficient to distinguish the goods/services of the defendants from that of the plaintiffs.

D. Once the dominant word/s on the label/device of both are identical i.e. ‘LIBAS’ are the same, interim injunction has to follow. I have in Allied Blenders & Distillers Private Limited v. Shree Nath Heritage Liquor Private Limited, 2014 SCC OnLine Del 3412, giving reasons in detail held that the test is not of photogenic or perfect memory but of imperfect memory/recollection and need to reiterate is not felt. Reference in this regard may also be made to Prathiba M. Singh v. Singh and Associates, 2014 SCC OnLine Del 1982, Shree Nath Heritage Liquor Pvt. Ltd. v. Allied, 221 (2015) DLT 359 (DB), Proctor & Gamble Manufacturing (Tianjin) Co. Ltd. v. Anchor Health and Beauty Care Pvt. Ltd., (2016) 234 DLT 331 (DB) and The Gillette Company LLC v. Tigaksha Metallics Private Limited, (2018) 251 DLT 530.

E. Even otherwise, considering the trade/industry in which both are, the words “RIYAZ GANGJI”, even if noticed by the consumer, are likely to be considered as a sub-brand of the brand of the plaintiffs i.e. a line of clothing under the mark ‘LIBAS’, by “RIYAZ GANGJI”.

F. That else, it is not in dispute that the plaintiffs are the prior adopter/user/registrant/of the mark and thus the rights of the plaintiffs have to prevail over the rights of the defendants.

G. I have in New Balance Athletics Inc. v. Apex Shoe Company Pvt. Ltd. and order dated 21 October, 2016 in CS(COMM) No. 1433/2016 titled Ramaiah Life Style Café v. Eminent Entertainment held that though delay and laches if any in approaching the Court for injunction may be relevant factor at the stage of ex parte consideration of the application for interim stay but is not a consideration at the after notice stage. Further reference in this regard may also be made to BDA Pvt. Ltd. v. Paul P. John, 2008 (37) PTC 669 (Del.) and B.L & Co. & Others… v. Pfizer Products Incl.…., 2001 (21) PTC 97 (Del.) (DB). Even otherwise, the delay in the present case is not such so as to disentitle the plaintiffs of interim relief. The defendants, save for taking this plea, have not pleaded/disclosed as to what prejudice they have suffered from the delay pleaded. It is not pleaded that the defendants have changed their position in any manner during the period of delay averred.

H. Else, the defendants have not disclosed the use or the extent of use of the mark, while the plaintiffs have made pleadings with particulars in that respect.

I. The pleas of the defendants, of use of the mark by others are also vague. Without disclosing the extent of the use of the mark by others, the defendants cannot defeat the claim of the plaintiffs for interim injunction. I have in Sunil Mittal v. Darzi on Call, (2017) 242 DLT 62, Insecticides (India) Ltd. v. Parijat Industries (India) Pvt. Ltd., (2018) 252 DLT 129 and H&M Hennes & Mauritz AB v. H.M. Megabrands Pvt. Ltd., 2018 SCC OnLine Del 9369 held that the owner/proprietor of a mark is not expected to rush against each and every person infringing the mark and/or passing off his goods as that of the plaintiffs and is expected as a prudent businessman to take action only against those, use by whom affects the mark of the plaintiffs.

J. The plaintiffs thus have a prima facie case in their favour.

K. The elements of balance of convenience and irreparable loss and injury are also found in favour of the plaintiffs and against the defendants. While the plaintiffs have pleaded and filed documents of use of the mark by them and from which the injury suffered by the plaintiffs from the defendants continued use of the infringing mark is evident, the defendants have neither pleaded nor filed any documents qua use of the mark by the defendants.

22. The application for interim thus succeeds.

23. The defendants, during the pendency of the suit, are restrained from directly or indirectly dealing with any products or any other goods or services including of retailing under the trade mark ‘LIBAS’ and from using the word ‘LIBAS’ as part of any trade name and/or of cartons, packagings, label(s), dyes, blocks, part of e-mail address, websites and/or in any other manner whatsoever.

24. The counsel for the defendants at this stage states that the injunction order be stayed for two months because the defendants intend to file an appeal.

25. The defendants have had sufficient opportunity and once the plaintiffs are found entitled, the order of injunction cannot be kept in abeyance unless the defendants want to settle with the plaintiffs and need time for effecting change in name and give undertaking not to use the mark of the plaintiffs or any other deceptively similar mark at any time in future.