CHAPTER -1

INTRODUCTION TO THE RESEARCH PROJECT

OBJECTIVES

This research paper is aimed to analyse the case Radico Khaitan Ltd vs. M/S Devans Modern
Breweries Ltd. From the procedural point of view, It is aimed at analysing the various stages through
the suit where Provisions, rules and orders of Code of Civil Procedure were applied in the case. The
researcher in the end will also conclude by identifying the shortcomings or which he is able to
identify in the same from his analysis.

SHORT SUMMARY OF THE CASE

In the case of Radico Khaitan Ltd vs. M/s. Devans Modern Breweries Ltd., Radico Khaitan Lid.
("Radico") filed a suit seeking permanent injunction against Devans Modern Breweries Ltd. (Devans")
at the Delhi High Court. It stated that Devans's mark ELECTRA was identical to and infringing upon
Radico's registered trademark ELECTRA in class 33. Radico has also opposed the Devans's application
for trademark registration of the mark in class 32. It is noteworthy that Class 32 and Class 33 are
classes with cognate/ related goods. Devans contended that it was the honest and bonafide adopter
of the marks GODFATHER' and 'ELECTRA' for its brand GODFATHER ELECTRA in relation to Beer and
other. goods. It also contended to be the prior user as it was using the marks since 2014. It stated
that though Radico had obtained registration for the mark in 2007, it actually started using the mark
only in 2016, therefore Radico's mark was liable to be removed from the records of the Trade Marks
Registry.

Radico however established its prior use by way of evidence of its test launch in 2004 and placing on
record invoices and agreements related to its various activities involving the brand ELECTRA' in the
following years. The Court relied upon Hardie Trading Ltd. and Anr. Vs. Addisons Paint and Chemicals
Ltd. to elaborate that the use" may not be limited to use on the goods or to sale of goods bearing
the trade mark. The Court observed that the trademark law permits registration of a second
application for the same mark only if prior continuous use of the mark is proved by the applicant.
Also, relying upon Mis Gujarat Bottling Co. Ltd. and others v. Coca Cola Company and others it
observed that protection of a registered trade mark is not dependent on its use. The Court therefore
ruled in favour of Radico since it satisfied the primary grounds for granting of injunction, that is, it
made out a prima facie case, the balance of convenience was in its favour and it successfully proved
that irreparable injury would be caused to it if the permanent injunction is not granted, Devans was
thus restrained from using the mark ELECTRA or any mark deceptively similar to it.

CHAPTER-2
BRIEF OF WRITTEN STATEMENT

The written statement has been signed by Mr. K.G. Bansal who is the Authorized Signatory of the
Defendant and is authorized to institute the present suit and sign and verify pleadings on behalf of
the Defendant.

BRIEF OF PRILIMINARY OBJECTIONS

The present suit is liable to be dismissed at the threshold and is not maintainable against the
defendant. Neither the plaintiff nor defendant uses the trademark ELECTRA as word mark alone in
relation to their respective goods.

The plaintiff is very recent user (allegedly since June, 2015) of the trademark MAGIC MOMENT
ELECTRA in relation to ready to ready to drink alcoholic beverage whereas defendant has been using
the trademark GODFATHER ELECTRA in relation to beer and other goods falling in class 32 since
April, 2013.

It is stated that the acts of the Defendant of using the mark ELECTRA amounts to infringement of
Trade Mark as well as passing off for the reason that the Defendant is using an identical trade mark
in the course of trade for similar goods which is already registered in favour of the plaintiff

PRAYER

It was prayed before the court to grant the following orders in favour of the plaintiff and against the
defendants:

> Decrees of Permanent Injunction restraining the defendants, from dealing with the trademark
ELECTRA, from passing off the goods and services of the Defendants as those of the Plaintiff,
amounting to unfair competition and amounting to dilution of the goodwill and reputation of the
Plaintiff's trademark ELECTRA.

Decree for delivery up of all the bottles with the mark of ELECTRA to the

authorized representative of the Plaintiff for the purposes of destruction and crasure. ► Decree for
rendition of accounts of profits illegally earned by the defendant on
account of the sale of the products bearing the mark of ELECTRA and a decree of the amount so
found to be passed in favour of the plaintiff

> Decree for damages for damages to the tune of Rs. 1,00.05,000/- or for the amount

determined by the court. An order for the costs of the proceedings.

An Affidavit was also attached and verified on 12th March, 2018 by the representatives of the

plaintiff, Mr. Satish Chandra.

REPLICATION ON BEHALF OF THE PLAINTIFF TO THE WRITTEN

STATEMENT FILED ON BEHALF OF THE DEFENDANT Defendant cannot rely on the Written Statement
as it was not filed in compliance of

Order VIII Rule 3A of the Code of Civil Procedure, 1908.

> Defendant cannot rely on the Written Statement as evidence or any of the matters set

out therein have not been verified under Sub rule (1) of Order VI Rule 15A of the Code of Civil
Procedure, 1908.

➤ Defendant's usage for the mark ELECTRA is since 2014 according to him, whereas plaintiff's
registration for the mark is dated 23-12-2004, therefore defendant can't contend prior usage.

Usage of the word GODFATHER is completely irrelevant for usage of the word ELECTRA in itself
amounts to trademark infringement

▸ Defendant is using the trademark for Beer, which is allied and cognate to Plaintiff's

product.
It is stated that the Defendant has admitted that there exist element of passing off. which means the
Defendant has admitted that there exists likelihood of

confusion/association in the present case.

BRIEF REPLY ON MERITS

> It is denied by the Plaintiff that he abandoned the trademark ELECTRA and used the

mark MAGICAL MOMENTS.

> Research was conducted with respect to the trademark ELECTRA. It is denied that the registration
of the trademark was obtained by fraud & the plaintiff

made a false claim of proprietorship.

From the sales figures it is clear that Plaintiff has actual use of the trademark

ELECTRA prior to 2015.

A Short Written Submissions on behalf of the Plaintiff was filed by the plaintiff's representative
providing a list of dates, a brief of facts, and Defendant's defences were replied.

Further a statement of Admissions or denials of defendant's documents on behalf of

plaintiff along with supporting affidavit.

ORDERS PASSED BY THE COURT

Order 29-10-18 I.A. No. 3483/2018 in CS(COMM) 724/2018 Arguments heard in part. List of further
documents on 4 December, 2018.
> Order 04-12-18 1.A. No. 3483/2018, 4354/2018 and 4355/2018 in CS(COMM)

724/2018

Heard in part. List for further documents on 7 January, 2019.

> Order 07-01-19 1.A. No. 3483/2018, 4354/2018 and 4355/2018 in CS(COMM) 724/2018

At the request of learned counsel for the plaintiff, adjourned to 01" February, 2019.

> Order 01-02-19 L.A. 3483/2018, 4354-4355/2018

List for arguments on 04 February, 2019

Appeal against the Order passed on 13-03-18 L.A. No. 3485/2018 in CS(COMM) 724/2018 was filed
by the defendant and according to the Order XXXIX Rule 4

CPC the appellant is allowed to sell the stock in Delhi but has to file the affidavit

for providing the details of the sale. > Order 04-02-19 I.A. No. 3483/2018, 4354-4355/2018

At joint request, adjourned to 05 February, 2019. Order 05-02-19 L.A. No. 3483/2018, 4354-
4355/2018

At the request o learned cunsel of the plaintiff, re-notify on 11th of February, 2019 at the end of the
Board.

➤ Order 11-02-19 I.A. No. 3483/2018, 4354-4355/2018

Arguments heard. Judgement reserved.

➤ Order 07-03-19 1.A. No. 3483/2018, 4354-4355/2018

> Order 10-07-18 learned senior counsel for the defendant has handed over his written submissions.
The same are taken on record.

Order 16-05-19 I.A. No. 3483/2018, 4354-4355/201 From the perusal of record, it appears that vide
order dated 06.07.2018, the proceedings of admission denial of documents has already been over.
The document schedule in terms of Chapter VII, Rule 7A of Delhi High Court (Original Side) Rules be
filed by the parties within 30 working days from today. The matter be placed before the Hon'ble
Court for further directions on 12.07.2019.

APPLICATIONS FILED BY THE PLAINTIFF

L.A. No. 3483/18 Under Order 39 Rules 1 & 2 read with Section 151 of the

Code of Civil Procedure, 1908.

It was prayed that this Hon'ble Court may be pleased to pass an ex parte ad interim injunction
restraining the Defendants, their partners, proprietors. Companies, Sister Concerns, directors,
executives, as the case may be, its officers, servants and agents or anyone acting for and on their
behalf from manufacturing. exporting marketing offering for sale, selling, advertising or in any
manner dealing with any Alcoholic Beverages including but not limited to Beer and Ready to Drink
Beverages under the trademark ELECTRA or from adopting any other mark or label which is identical
or deceptively similar to the Plaintiffs registered trade mark ELECTRA thus amounting to
infringement of trade mark, and/or do any other thing which may lead to passing off of the goods
and/or services of the Defendants as that of the Plaintiff and/or do any other thing which may lead
to dilution of the Plaintiffs marks and unfair competition.

L.A. No. 3484/18 Application under Order 11 Rule 1(4) (As Amended by the Commercial Courts,
Commercial Division And Commercial Appellate Division of High Courts Act, 2015) Read with Sec.
151 of the Code of Civil Procedure, 1908, it is respectfully prayed before this Hon'ble Court that this
Hon'ble Court may be pleased to pass an order Granting leave to the plaintiff to rely on/file
additional documents, over and above the documents already filed. along with the Plaint.
L.A. No. 3485/18 Application under Section 151 of the CPC on behalf of the

plaintiff. It is prayed that an exemption may kindly be granted to the Plaintiffs

from filing clearer, typed, translated copies, vernacular and originals of certain documents.

L.A. No. 4354/18 Reply on Behalf of plaintiff to application under Order

XXXIX Rule 4 on behalf of the Defendant.

The Plaintiff denies the contents of the present application to the extent that they are inconsistent
with the submissions made hereinafter in the present reply. It is submitted that any averment
contained in the present application, which is not specifically admitted is deemed to be denied.

The Plaintiff claims that the Defendant has failed to make out a case in fact or in law for vacation of
ex-parte order.

It was prayed before the court that an order dismissing the present application with exemplary
costs.

L.A. No. 9243/18 an application under Order 23 Rule 3 read with Section 151 of the Code of Civil
Procedure, 1908 has been filed seeking recordal of the terms of settlement.

Mainly three applications were filed by the plaintiff along with his pleadings: ➤ Application under
Order 39 Rules 1 & 2 of CPC, seeking injunction.

Application under Order 11 Rule 1(4) of CPC. seeking a leave to rely on file additional documents.
Application under Section 151 of CPC seeking an exemption.

OF CPC PROVISIONS IN THE PRESENT CASE: ANALYSIS PLEADINGS:

> Under Order III Rule 4(1) Only that person can act on behalf of any person who has
been appointed by a document signed by such person. The Vakaalatnama is filed by the plaintiff
under this rule.

> Under Order VI Rule 1 Pleadings consist of the plaint and the written statement. In the present
case, the Plaint was filed by the Plaintiff.

► Under Order VI Rule 2(1): Rule2(2): Rule 2(3) The Pleadings (Written Statement for the
defendant) have to contain only the material facts and not the evidence. It is divided into
paragraphs, and the dates, sums and numbers are indicated in numbers as well as figures. The
Plaintiff has strictly adhered to this, he has not attached any evidence as part of the Plaint, however
the rule regarding dates and numbers has been adhered to.

Under Order VI Rule 14 Each pleading shall be signed by the party and his pleader. In the present
case, the Plaint has been signed by both the pleader and the party.

Under Order VI Rule 14A Every pleading shall be accompanied by a statement

regarding the address of the party, the plaintiff has adhered to this in his pleadings Under Order VI
Rule 15 Every pleading shall be verified at its foot by a person acquainted with the facts of the case.
The person shall also specify what he verifies of his own knowledge and what he verifies upon
information received and believed to be true. The verification shall also state the date and place at
which it was signed. (This rule was amended in 1999 and took effect from 1st July 2002 to provide
that such verification shall also be accompanied by an affidavit.) The plaintiff has adhered to this rule
also.

APPLICATIONS > Order XXXIX Rules 1 & 2 In L.A. No. 3483 Where the property in dispute in a

suit is in danger of being wasted, damaged or alienated by any party, or the defendant threatens to
remove the property to defraud the creditors, or dispossess it, the Court may grant a temporary
injunction until the disposal of the suit. The Court can also grant a temporary injunction to restrain
the defendant from committing a breach of contract. In the present case, the Plaintiff has filed an
application requesting the Court to grant a temporary injunction to restrain the defendant from
selling the stock of the Trademark in question ELECTRA in Delhi.

Section 151 of CPC In I.A. No. 3483 Saving of inherent powers of the code> Nothing in this code shall
be deemed to limit or otherwise affect the inherent powers of the court to make such orders as may
be necessary for the ends of the justice or to prevent abuse of the process of the court. In this case
also applications were moved to ask for reliefs to be granted under the inherent powers of the court.
Order XI Rule 1 In any suit the plaintiff or defendant by leave of the Court may deliver interrogatories
in writing for the examination of the opposite parties or any one or more of such parties and such
interrogatories when delivered shall have a note at the foot thereof stating which of such
interrogatories each of such persons is required to answer: Provided that no party shall deliver more
than one set of interrogatories to the same party without an order for that purpose: Provided also.
that interrogatories which do not relate to any matters in question in the suit be deemed irrelevant,
notwithstanding that they might be admissible on the oral cross-examination of a witness. In L.A. No.
3484/18, it was requested for the permission of further filing the documents at a later date.

Order XXXIX Rule 4 In 1.A. 4354/18 Any order for an injunction may be discharged, or varied, or set
aside by the Court, on an application thereto by any party dissatisfied with such order :Provided that
if in an application for temporary injunction or in any affidavit supporting such application a party his
knowingly made a false or misleading statement in relation to a material particular and the
injunction was granted without giving notice to the opposite party, the Court shall vacate the
injunction unless, for reasons to be recorded, it considers that it is riot necessary so to do in the
interests of justice Provided further that where an order for injunction has been passed after giving
to a party an opportunity of being heard, the order shall not be discharged, varied or set aside on
the application of that party except where such discharge, variation or setting aside has been
necessitated by a change in the circumstances, or unless the Court is satisfied that the order has
caused undue hardship to that party. In this case also the plaintiff has denied through his reply the
grounds on which the defendant is moving an application under this rule.

➤ Order XXIII Rule 3 In L.A. No. 9243/18 Withdrawal & Adjustment of Suits Where the Court is
satisfied. (a) that a suit must fail by reason of some formal defect, or (b) that there are sufficient
grounds for allowing the plaintiff to institute a fresh suit for the subject matter of a suit or part of a
claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit
or such part of the claim with liberty to institute a fresh suit in respect of the subject matter of such
suit or such part of the claim. This was done by the plaintiff for bringing into Court's notice about the
settlement terms between him and the defendant.

DECISIONS & ORDERS

Section 2(14)-Order

It is a formal expression of any decision of a civil court which is not a decree.

Section 27 read with Order 5 Rule 1- Summons to the Defendant After the institution of the suit,
summons was issued to the defendants for the
appearance before the court to file written statement.

> Order XVII Rule 1- Court may grant time and adjourn hearing The court may, if sufficient cause is
shown, grant time to the parties and may from time to time adjourn the hearing of the suit. The
reason has to recorded in writing. The provision clearly states that an adjournment may not be given
to a party more than 3 times during the hearing of a suit. This provision has been used in the present
case in an Order 10-09-18 Learned senior counsel for the plaintiff is stated to be unwell.
Adjournment was asked for and allowed.

REMARKS BY THE RESEARCHER

In Order XXXIX Rule 3 Before granting injunction, Court to direct notice to opposite party-The Court
shall in all case, except where it appears that the object of granting the injunction would be defeated
by the delay, before granting an injunction, direct notice of the application for the same to be given
to the opposite party. provisions relating to recording of reasons are obligatory and the same were
not duly performed. In Shiv Kumar Chadha vs. Municipal Corporation of Delhi reported in 1993 (3)
SCC 161 the Supreme court mentioned that the proviso to rule 3 is

mandatory.

In the filing of the Written Statement by the Defendant the Statement of Truth was not attached
along with the affidavit and even then the Written Statement was allowed in

the court. > Defendant cannot rely on the Written Statement as it was not filed in compliance of

Order VIII Rule 3A of the Code of Civil Procedure, 1908. > Defendant cannot rely on the Written
Statement as evidence or any of the matters set

out therein have not been verified under Sub rule (1) of Order VI Rule 15A of the

Code of Civil Procedure, 1908. These shortcomings were identified by the Researcher in respect to
the part of Plaintiff

CONCLUSION

The Researcher has analysed all the Applications filed by the Plaintiff and has also studied the orders
passed by the court pertaining to the plaintiff. It has provided better understanding of how the case
proceeds in High Courts and the huge amount of paperwork involved in it. It has helped the
Researcher develop better practical understanding of the Code of Civil Procedure.