Mr. Om Prakash and Mr. Ankur Agnihotri, Advocates v. MR. SAGAR GARG
Case Details
Acts & Sections
MR. SAGAR GARG .....Defendant Through: Mr. Jayant Kumar and Mr. Amit Mehta, Advocates. CORAM: HON'BLE MS. JUSTICE JYOTI SINGH % O R D E R 24.03.2025 I.A. 7623/2025 1. This application is jointly preferred on behalf of the parties under Order XXIII Rule 3 read with Section 151 CPC, 1908 for recording of settlement between them. Terms of settlement are incorporated in paragraph 4 of the application, which are as follows: - “(i) The Defendant admits and acknowledges that the Plaintiff is the honest/senor adopter/owner/proprietor of the Trademark/Label/Artistic work/Packaging “FUNFINE” and that the Plaintiff is the exclusive proprietor of the Trademark/Label/Artistic work “FUNFINE” for the goods and related items included in Classes 30 and 35 and the same is valid, effective and subsisting in favour of the Plaintiff till date as provided in Paragraph No. 8 of the Plaint. (ii) The Defendant admits and acknowledges that the Plaintiff is the also original conceiver, adopter and user of the artistic work “FUNFINE” and it has been continuously, extensively and openly using the aforesaid CS(COMM) 638/2024 Page 1 of 7 This is a digitally signed order. The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 01/04/2025 at 12:53:09 having distinctive artistic work “FUNFINE” unique colour combination, layout and lettering style in relation to the said goods since the year 2005. The Defendant also acknowledges and admits that the Plaintiff is the registered proprietor of the original artistic works “FUNFINE” under the Copyrights Act, 1957 as mentioned in Paragraph No. 9 of the Plaint. (iii) The Defendant undertakes and agrees not to manufacture, market, advertise, sell and offer for sale any products/goods or provide services the Label/Artistic Work/Packaging “FUN TWIST” or any Label/Artistic Work/Packaging that is deceptively similar to the Plaintiff’s registered Label/Artistic Work/Packaging “FUNFINE ” in any manner. The Defendant further undertakes and agrees not to manufacture, (iv) market, advertise, sell and offer for sale any products/ goods or provide services Artistic Work/ Packaging/Layout/Get-Up/Colour Scheme or any products/goods or provide services deceptively/structurally/conceptually similar Plaintiff’s original Artistic Work/Packaging/Layout/Get-Up/Colour Scheme. Plaintiff’s original (v) The Plaintiff acknowledges that the Defendant has a registered Trade Mark/Label under Application No. 5491533 and the Plaintiff has no objection to the registration of the aforesaid Trade Mark Application. The Defendant undertakes to file a withdrawal letter as well as the (vi) present signed Settlement Agreement in the Trade Mark Applications No. 5502577 and 6414049 in Class 30 within 15 days of the receipt of the copy of the present signed Settlement Agreement. (vii) The Defendant also undertakes that he has already removed the products/ goods under the marks “FUN TWIST” under CS(COMM) 638/2024 Page 2 of 7 This is a digitally signed order. The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 01/04/2025 at 12:53:09 Packaging/Trade Dress CS(COMM) 638/2024 Page 3 of 7 This is a digitally signed order. The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 01/04/2025 at 12:53:09 or any Packaging/Trade Dress similar to the Plaintiff’s original Artistic Work/ Packaging/Layout/ Get- Up/Colour Scheme in which the Plaintiff has statutory as well as common law rights from its premises/go-down/ office/any website or third-party e- commerce website or any place where the Defendant resides or personally works for gain. The Defendant further undertakes that it shall take diligent steps to remove any or all listing on third-party e-commerce websites and intimate the same to the Plaintiff’s Counsel. Moreover, if the Plaintiff finds any impugned listing on any third-party e-commerce of the Defendant’s products, it shall intimate the Defendant and the Defendant thereafter, shall take steps to remove the said impugned listing. The CS(COMM) 638/2024 Page 4 of 7 This is a digitally signed order. The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 01/04/2025 at 12:53:09 aforesaid act shall be performed by the parties diligently and both the parties shall not be liable for any acts beyond their power and control . It is further clarified that the Plaintiff has no objection to the aforesaid product packaging other than use of the mark FUN TWIST (Label) on them. (viii) The Defendant further undertakes to recall all the marketing, promotional and advertising materials that bear or incorporate the deceptively similar Label/Trade Dress/Packaging “FUN TWIST” or any other mark similar to the Plaintiff’s Trade Label/Artistic Work/Trade Dress/Packaging/Layout/Get- Up/Colour Scheme “FUNFINE”, that have been distributed, sold or shipped before filing the present Application. The Defendant undertakes that it will destroy all the blocks, dyes, (ix) screens, works, infringing wrappers and any other infringing material used in making the infringing Label/Packaging/Artistic Work/Trade Dress in front of the Sole Proprietor of the Plaintiff within 15 days from the date of the order passed by this Hon’ble Court. If not, the Defendant shall hand over all the infringing blocks, dyes, screens, works, infringing wrappers and any other infringing material to the Sole Proprietor of the Plaintiff or any other person directed by the Plaintiff for destruction of the same. (x) The Plaintiff and the Defendant agree that the Defendant shall destroy all and every infringing packaging material of “FUN TWIST” seized by the Ld. Local Commissioner on August 8, 2024 and recorded on Superdari in the presence of the Plaintiff’s Authorised Representative within 15 days of recording the settlement before this Hon’ble Court. through (xi) The Defendant further undertakes that it will not, directly or its directors/proprietors/partners, associates, indirectly, or assigns or assignees in interest, heirs, successors or successors in interest, permitted assigns, sister concerns or group companies, distributors, dealers, wholesalers, retailers, stockiest, agents and all others acting for and on its behalf encourage others directly or indirectly to register any Trade Mark/Device Mark/Label Mark/Trade Dress/Artistic Work “FUN TWIST” which the Trade Mark/Device Mark/Label Mark/Trade Dress/Artistic work “FUN FINE” of the Plaintiff. is deceptively similar (xii) The Defendant undertakes that in case the products/goods of the Defendant bearing the Label Mark/Device Mark/Trade Dress/Artistic work “FUN TWIST” or if the Sole Proprietor of the Plaintiff discovers any products/goods with Trade Dress/Artistic Work/Packaging as that of the Plaintiff’s registered Artistic Work/Trade Dress/Packaging, subsequent to the present Settlement in the market or in any manner through any whatsoever, the Defendant shall pay a sum of Rs. 30,00,000/- (Rupees Thirty Lakh Only) to the Plaintiff as a penalty. Moreover, the Plaintiff, apart from the said penalty shall reserve its right to initiate appropriate third-party e-commerce website or deceptively similar CS(COMM) 638/2024 Page 5 of 7 This is a digitally signed order. The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 01/04/2025 at 12:53:09 contempt proceedings against the Defendant if the Defendant is found violating the present settlement. The Defendant clarifies that it shall take diligent steps to remove any or all listing on third-party e-commerce websites and intimate the same to the Plaintiff’s Counsel. Moreover, if the Plaintiff finds any impugned listing on any third-party e-commerce of the Defendant’s products, it shall intimate the Defendant and the Defendant thereafter, shall take steps to remove the said impugned listing. The aforesaid act shall be performed by the parties diligently and both the parties shall not be liable for any acts beyond their power and control. (xiii) The Plaintiff and the Defendant agree that the Defendant shall use only with its mark “FUN TWIST” in this manner this exact font, layout, placement, Get-Up and colour scheme for all its products and there shall be no change or deviation in the same. The it shall not use any Trade Defendant Dress/Packaging for its products which is remotely similar to the Plaintiff’s Trade Dress/Packaging in any manner whatsoever. further undertakes (xiv) The Plaintiff and the Defendant agree that the Plaintiff has no objection if the Defendant goes forward to the registration of its Device only in this exact font style, with Mark/Label Mark the aforesaid layout, placement, Get-Up and colour scheme in relation to its products in Class 30 only and the Defendant agrees that there shall be no change in the same. (xv) The Defendant agrees that the present suit may be decreed in favour of the Plaintiff and against the Defendant in terms of the present Settlement Agreement. (xvi) The Defendant further has no objection if the Court Fee in the present suit is returned to the Plaintiff.”
2. It is agreed between the parties that in light of the undertakings given by the Defendant, Plaintiff shall forego the reliefs of delivery up, damages and rendition of accounts. 3. Court has perused the terms of settlement and finds the same to be lawful. Application is supported by the affidavits of the Plaintiff and the Defendant respectively. Accordingly, this application is allowed and CS(COMM) 638/2024 Page 6 of 7 This is a digitally signed order. The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 01/04/2025 at 12:53:09 disposed of, recording the settlement between the parties. CS(COMM) 638/2024 4. Plaintiff and Defendant have settled their disputes amicably and the terms of settlement are incorporated as a part of the application. Accordingly, the suit is decreed in terms of the settlement between the parties which will form part of the decree and shall bind the parties thereto. Registry is directed to draw up a Decree Sheet. Since the matter had been settled between the parties out of Court, Plaintiff is held entitled to refund of 50% of the Court fee under Section 16A of the Court Fees Act, 1870. 5. 6. Suit stands disposed of along with pending application. Date of 04.04.2025 stands cancelled. MARCH 24, 2025 S.Sharma JYOTI SINGH, J CS(COMM) 638/2024 Page 7 of 7 This is a digitally signed order. The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 01/04/2025 at 12:53:09
MR. SAGAR GARG .....Defendant Through: Mr. Jayant Kumar and Mr. Amit Mehta, Advocates. CORAM: HON'BLE MS. JUSTICE JYOTI SINGH % O R D E R 24.03.2025 I.A. 7623/2025 1. This application is jointly preferred on behalf of the parties under Order XXIII Rule 3 read with Section 151 CPC, 1908 for recording of settlement between them. Terms of settlement are incorporated in paragraph 4 of the application, which are as follows: - “(i) The Defendant admits and acknowledges that the Plaintiff is the honest/senor adopter/owner/proprietor of the Trademark/Label/Artistic work/Packaging “FUNFINE” and that the Plaintiff is the exclusive proprietor of the Trademark/Label/Artistic work “FUNFINE” for the goods and related items included in Classes 30 and 35 and the same is valid, effective and subsisting in favour of the Plaintiff till date as provided in Paragraph No. 8 of the Plaint. (ii) The Defendant admits and acknowledges that the Plaintiff is the also original conceiver, adopter and user of the artistic work “FUNFINE” and it has been continuously, extensively and openly using the aforesaid CS(COMM) 638/2024 Page 1 of 7 This is a digitally signed order. The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 01/04/2025 at 12:53:09 having distinctive artistic work “FUNFINE” unique colour combination, layout and lettering style in relation to the said goods since the year 2005. The Defendant also acknowledges and admits that the Plaintiff is the registered proprietor of the original artistic works “FUNFINE” under the Copyrights Act, 1957 as mentioned in Paragraph No. 9 of the Plaint. (iii) The Defendant undertakes and agrees not to manufacture, market, advertise, sell and offer for sale any products/goods or provide services the Label/Artistic Work/Packaging “FUN TWIST” or any Label/Artistic Work/Packaging that is deceptively similar to the Plaintiff’s registered Label/Artistic Work/Packaging “FUNFINE ” in any manner. The Defendant further undertakes and agrees not to manufacture, (iv) market, advertise, sell and offer for sale any products/ goods or provide services Artistic Work/ Packaging/Layout/Get-Up/Colour Scheme or any products/goods or provide services deceptively/structurally/conceptually similar Plaintiff’s original Artistic Work/Packaging/Layout/Get-Up/Colour Scheme. Plaintiff’s original (v) The Plaintiff acknowledges that the Defendant has a registered Trade Mark/Label under Application No. 5491533 and the Plaintiff has no objection to the registration of the aforesaid Trade Mark Application. The Defendant undertakes to file a withdrawal letter as well as the (vi) present signed Settlement Agreement in the Trade Mark Applications No. 5502577 and 6414049 in Class 30 within 15 days of the receipt of the copy of the present signed Settlement Agreement. (vii) The Defendant also undertakes that he has already removed the products/ goods under the marks “FUN TWIST” under CS(COMM) 638/2024 Page 2 of 7 This is a digitally signed order. The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 01/04/2025 at 12:53:09 Packaging/Trade Dress CS(COMM) 638/2024 Page 3 of 7 This is a digitally signed order. The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 01/04/2025 at 12:53:09 or any Packaging/Trade Dress similar to the Plaintiff’s original Artistic Work/ Packaging/Layout/ Get- Up/Colour Scheme in which the Plaintiff has statutory as well as common law rights from its premises/go-down/ office/any website or third-party e- commerce website or any place where the Defendant resides or personally works for gain. The Defendant further undertakes that it shall take diligent steps to remove any or all listing on third-party e-commerce websites and intimate the same to the Plaintiff’s Counsel. Moreover, if the Plaintiff finds any impugned listing on any third-party e-commerce of the Defendant’s products, it shall intimate the Defendant and the Defendant thereafter, shall take steps to remove the said impugned listing. The CS(COMM) 638/2024 Page 4 of 7 This is a digitally signed order. The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 01/04/2025 at 12:53:09 aforesaid act shall be performed by the parties diligently and both the parties shall not be liable for any acts beyond their power and control . It is further clarified that the Plaintiff has no objection to the aforesaid product packaging other than use of the mark FUN TWIST (Label) on them. (viii) The Defendant further undertakes to recall all the marketing, promotional and advertising materials that bear or incorporate the deceptively similar Label/Trade Dress/Packaging “FUN TWIST” or any other mark similar to the Plaintiff’s Trade Label/Artistic Work/Trade Dress/Packaging/Layout/Get- Up/Colour Scheme “FUNFINE”, that have been distributed, sold or shipped before filing the present Application. The Defendant undertakes that it will destroy all the blocks, dyes, (ix) screens, works, infringing wrappers and any other infringing material used in making the infringing Label/Packaging/Artistic Work/Trade Dress in front of the Sole Proprietor of the Plaintiff within 15 days from the date of the order passed by this Hon’ble Court. If not, the Defendant shall hand over all the infringing blocks, dyes, screens, works, infringing wrappers and any other infringing material to the Sole Proprietor of the Plaintiff or any other person directed by the Plaintiff for destruction of the same. (x) The Plaintiff and the Defendant agree that the Defendant shall destroy all and every infringing packaging material of “FUN TWIST” seized by the Ld. Local Commissioner on August 8, 2024 and recorded on Superdari in the presence of the Plaintiff’s Authorised Representative within 15 days of recording the settlement before this Hon’ble Court. through (xi) The Defendant further undertakes that it will not, directly or its directors/proprietors/partners, associates, indirectly, or assigns or assignees in interest, heirs, successors or successors in interest, permitted assigns, sister concerns or group companies, distributors, dealers, wholesalers, retailers, stockiest, agents and all others acting for and on its behalf encourage others directly or indirectly to register any Trade Mark/Device Mark/Label Mark/Trade Dress/Artistic Work “FUN TWIST” which the Trade Mark/Device Mark/Label Mark/Trade Dress/Artistic work “FUN FINE” of the Plaintiff. is deceptively similar (xii) The Defendant undertakes that in case the products/goods of the Defendant bearing the Label Mark/Device Mark/Trade Dress/Artistic work “FUN TWIST” or if the Sole Proprietor of the Plaintiff discovers any products/goods with Trade Dress/Artistic Work/Packaging as that of the Plaintiff’s registered Artistic Work/Trade Dress/Packaging, subsequent to the present Settlement in the market or in any manner through any whatsoever, the Defendant shall pay a sum of Rs. 30,00,000/- (Rupees Thirty Lakh Only) to the Plaintiff as a penalty. Moreover, the Plaintiff, apart from the said penalty shall reserve its right to initiate appropriate third-party e-commerce website or deceptively similar CS(COMM) 638/2024 Page 5 of 7 This is a digitally signed order. The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 01/04/2025 at 12:53:09 contempt proceedings against the Defendant if the Defendant is found violating the present settlement. The Defendant clarifies that it shall take diligent steps to remove any or all listing on third-party e-commerce websites and intimate the same to the Plaintiff’s Counsel. Moreover, if the Plaintiff finds any impugned listing on any third-party e-commerce of the Defendant’s products, it shall intimate the Defendant and the Defendant thereafter, shall take steps to remove the said impugned listing. The aforesaid act shall be performed by the parties diligently and both the parties shall not be liable for any acts beyond their power and control. (xiii) The Plaintiff and the Defendant agree that the Defendant shall use only with its mark “FUN TWIST” in this manner this exact font, layout, placement, Get-Up and colour scheme for all its products and there shall be no change or deviation in the same. The it shall not use any Trade Defendant Dress/Packaging for its products which is remotely similar to the Plaintiff’s Trade Dress/Packaging in any manner whatsoever. further undertakes (xiv) The Plaintiff and the Defendant agree that the Plaintiff has no objection if the Defendant goes forward to the registration of its Device only in this exact font style, with Mark/Label Mark the aforesaid layout, placement, Get-Up and colour scheme in relation to its products in Class 30 only and the Defendant agrees that there shall be no change in the same. (xv) The Defendant agrees that the present suit may be decreed in favour of the Plaintiff and against the Defendant in terms of the present Settlement Agreement. (xvi) The Defendant further has no objection if the Court Fee in the present suit is returned to the Plaintiff.”
2. It is agreed between the parties that in light of the undertakings given by the Defendant, Plaintiff shall forego the reliefs of delivery up, damages and rendition of accounts. 3. Court has perused the terms of settlement and finds the same to be lawful. Application is supported by the affidavits of the Plaintiff and the Defendant respectively. Accordingly, this application is allowed and CS(COMM) 638/2024 Page 6 of 7 This is a digitally signed order. The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 01/04/2025 at 12:53:09 disposed of, recording the settlement between the parties. CS(COMM) 638/2024 4. Plaintiff and Defendant have settled their disputes amicably and the terms of settlement are incorporated as a part of the application. Accordingly, the suit is decreed in terms of the settlement between the parties which will form part of the decree and shall bind the parties thereto. Registry is directed to draw up a Decree Sheet. Since the matter had been settled between the parties out of Court, Plaintiff is held entitled to refund of 50% of the Court fee under Section 16A of the Court Fees Act, 1870. 5. 6. Suit stands disposed of along with pending application. Date of 04.04.2025 stands cancelled. MARCH 24, 2025 S.Sharma JYOTI SINGH, J CS(COMM) 638/2024 Page 7 of 7 This is a digitally signed order. The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 01/04/2025 at 12:53:09