PARVEEN KUMAR JAIN vs RAJAN SETH & ORS.
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 17th October, 2023
+ CS(COMM) 213/2019
PARVEEN KUMAR JAIN ….. Plaintiff
Through: Mrs. Kajal Chandra & Ms. Prerna Chopra, Advocates.
versus
RAJAN SETH & ORS. ….. Defendants
Through: Mr Mohit Mittal, Advocate.
CORAM:
JUSTICE PRATHIBA M. SINGH
Prathiba M. Singh, J. (Oral)
1. This hearing has been done through hybrid mode.
2. The Plaintiff – Mr. Parveen Kumar Jain filed the present suit seeking injunction against the use of the expression/name CHUR CHUR NAAN and other similar derivatives, by the Defendants.
3. The Plaintiff claims to be running an outlet in Paharganj by the name Chur Chur Naan, Paharganj Ke Mashoor Chur Chur Naan and, Amritsari Chur Chur Naan. The case of the Plaintiff is that the Defendants are using absolutely identical names/marks for their business. Photographs of the Plaintiffs store in Paharganj and the Defendants’ stores have been placed on record. The Defendants are also claimed to be using the name Paharganj Ke Mashoor Chur Chur Ke Naan.
4. Vide order dated 8th May 2019, this Court disposed of the injunction application I.A 5942/2019 in the following terms:
12. The said expressions, at a later stage, could even be disclaimed as they are so generic. Moreover, both in Jiva Institute (supra) and Automatic Electric (supra) the argument of the Defendants therein was that the marks were descriptive. In the present case, the issue is that the expressions are completely generic. If registrations are wrongly granted or applied for in respect of completely generic expressions, the Court cannot ignore the generic nature of the marks and confer monopoly on the same in favour of any party.
13. However, a perusal of the chart filed by the Defendant Nos. 1 and 2 shows that most of the entities are distinguishing themselves from each other by using prefixes which are distinctive in nature for example ‘Sanjay Chur Chur Naan, Vijay Chur Chur Naan, N.S. Chur Chur Naan, Chawla de Mashoor Chur Chur Naan’ etc. In view of the fact that the Plaintiff claims that it is using ‘PAHARGANJ KB MASHOOR CHUR CHUR NAAN’, in order to avoid any consumer deception and confusion, though the Defendant Nos. 1 and 2 are permitted to use the marks ‘CHUR CHUR NAAN” and AMRITSARI CHUR CHUR NAAN’, the Defendant Nos. I and 2 ought to distinguish themselves from the Plaintiffs outlet. Accordingly, the Defendant Nos. land 2, who are present in Court, have agreed to change the name of their outlets to ‘PAHAR GANJ SETH KB MASHOOR CHUR CHUR NAAN’ and ‘PAHARGANJ SETH KB MASHOOR AMRITSARI NAAN’. The entire name shall be used in the same font, colour and in the same style without giving any undue prominence ‘CHUR CHUR NAAN’ or AMRITSARI CHUR CHUR NAAN’. The Defendant Nos. I and 2 are permitted 30 days time to change over to the new names. The present order is prima facie in nature and is not an expression on the merits of the suit.
As per the above order, the Court was of the opinion that no monopoly can be granted on the term CHUR CHUR NAAN. But directions were passed to ensure that the Defendants distinguish themselves sufficiently from the Plaintiffs name.
5. An appeal was preferred challenging the above order, before the Division Bench being FAO(OS)(COMM) 181/2019 titled Parveen Kumar Jain v. Rajan Seth & Ors. The said appeal was disposed of vide the order passed by the Division Bench on 18th May, 2023 which reads as under:
1. The present appeal has been instituted by the appellant aggrieved by the order of 08 May 2019 in terms of which a prayer for ad interim injunction had come to be refused.
2. Mr. Bhola, learned counsel who has entered appearance on behalf of the respondents, states that respondents are no longer manufacturing, producing, distributing or supplying products under the name “Paharganj Ke Mashoor Chur Chur Naan” and “Amritsari Chur Chur Naan”. The statement so made is recorded and accepted.
3. In view of the above and since nothing further would survive in the instant appeal, the same shall stand disposed of
4. The Court leaves it open to the plaintiff / appellant to pursue the other reliefs which are sought in the suit.
6. As per the above order, the Defendants had voluntarily agreed not to use the name Paharganj Ke Mashoor Chur Chur Naan and Amritsari Chur Chur Naan The assurance had been accepted by the Division Bench. In view thereof, the order on the injunction application dated May, 2019 was modified in terms of the Division Bench’s order.
7. On the last date of hearing, ld. Counsel for the Defendants submitted that the restaurants located in Paharganj, Delhi have been closed by the Defendants. The location of the said restaurants is as follows:
* M/s Tasty Food at 8958, Chowk Multani Dhanda, Paharganj, New Delhi- 110055 and,
* M/s Paharganj Ke Mashoor Chur-Chur Naan at 8958, Chowk Multani Dhanda, Paharganj, New Delhi- 110055.
8. Today, ld. Counsel for the Defendants has submitted that the owner of Defendants restaurant has passed away. Ld. Counsel submits that the ld. Division Benchs order dated 18th May, 2023 is acceptable on behalf of the Defendants as the final order in the suit.
9. In view thereof, the permanent injunction qua the Defendants is made absolute.
10. In view of the above statement on behalf of the Defendants, the order dated 18th May, 2023 in the appeal passed by the ld. Division Bench shall now operate as the final order in the suit between the parties.
11. The present suit is accordingly decreed in terms of the order passed by the Division Bench dated 18th May 2023. No other reliefs are pressed. All pending applications are also disposed of.
12. It is made clear that the merits of the issues raised has not been finally adjudicated by the Court.
13. Decree sheet be drawn accordingly.
PRATHIBA M. SINGH
JUDGE
OCTOBER 17, 2023
Rahul/kt
CS(COMM) 213/2019 Page 2 of 2