BOT ORGANIC PRIVATE LIMITED Vs. PIRUZ KHAMBHATTA

JUDGEMENT

(1.) This is a defendant's petition under Article 227 of the Constitution of India challenging the order dtd. 20/1/2024 passed by the Commercial Court in allowing the application under Order VI, Rule 17 of the Code of Civil Procedure in Commercial Trademark Civil Suit No.22 of 2023.

(2.) The plaintiff has filed application Exh.28 under Order VI, Rule 17 of the Code of Civil Procedure, inter alia, seeking amendment of plaint and injunction application. The plaintiff has come out with the case in the suit seeking relief for injunction against the defendant for infringement of trade mark. A perusal of the copy of the plaint of the said suit indicates that the plaintiff has come out with a categorical stand pleading that in the month of July, 2023, the plaintiff came to know about the illegal activity of the defendant when one of its marketing personnel came across the goods of the defendant under the trade mark RUS Organic Cranberry Juice on Amazon.com, Jiomart.com, Dunzo.com, Naturesbasket.com and Shopsy.in online market platform, which is assessable from and in the city of Ahmedabad. The contention is that the defendant herein is selling its goods, namely fruit juice with the word 'RUS' appearing prominently on the packaging and the said act clearly amounts to infringement of trade mark and passing-off action. It is contended that the word 'RUS', which is phonetically identical and deceptively similar appears prominently on the defendant's packaging /label. RUS is forming the essential and phonetically necessary part of the trade mark RASNA of the plaintiff.

(3.) It is also contended that the plaintiff has recently came to know that the defendant applied for the registration of the impugned mark RUS before the Trade Mark Registry on 1/9/2018. The Application No.3933156 for goods: Fruit juices and fruit beverages; fruit juices and drinks in Class 32 on proposed to be used basis was refused by the Trade Mark Registry under Sec. 9(1)(b) and Sec. 11(1) of the Trade Marks Act, 1999. However, with mala fide intention, by playing fraud on the Trade Mark Registry, the defendant has once again applied for the same mark RUS on 1/9/2018 in Class 35 vide another Application No.3933157. The said application was registered as on today, but for the services "retail or wholesale" services for Fruit juices and fruit beverages; Fruit juices and drinks" and not for goods falling in the relevant Class for juices, which is Class 32.