Ms. Shyel Trehan, Sr. Adv, Mr Aditya Gupta, Mr Pranav Sarthi, Ms Vidhi Jain v. B. L. AGRO INDUSTRIES LIMITED

Judgment

1. This appeal assails order dated 4 August 2025 passed by the learned District Judge (Commercial Court-02), Shahdara, whereby the learned District Judge has allowed the applications filed by the respondent B.L. Agro Industries Ltd as the plaintiff in CS (Comm) 464/20251, under Order XXXIX Rules 1 and 2 and Order XXVI Rule Signature Not Verified 1 B.L. Agro Industries Ltd v Madan Lal Purushottam Das Foods Pvt Ltd Digitally Signed By:AJIT KUMAR Signing Date:05.09.2025 20:51 FAO (COMM) 234/2025 9 of the Code of Civil Procedure, 19082, thereby granting an interlocutory injunction in favour of the respondent and against the appellant, and also appointing a local Commissioner to visit the premises of the appellant and to inventorise and seize the goods which are alleged to be infringing the registered trademarks of the respondent. Facts

2. CS (Comm) 464/2025, instituted by the respondent against the appellant, alleges that the appellant is infringing the trademarks of the respondent and is seeking to pass off its products as the products of the respondent.

3. Towards this end, the respondent asserts that it adopted the trademark BAIL KOLHU, for edible oils, ghee, fats, etc on 1 January 1986 and, thereafter, extended the use of the said mark BAIL KOLHU for other products including pickles, cheese, butter, curd, soup, flavoured milk, dried and cooked fruits and vegetables, jellies, jams and the like. It claims to have been using the said mark BAIL KOLHU continuously and extensively since the time of its adoption.

4. Undisputedly, the respondent is the registered proprietor of the mark BAIL KOLHU, both as a word mark as well as in the form of various devices, in Class 29 for edible oils, ghee, fats, milk and dairy products, dry fruits, pulses, etc., and in Class 30 for rice, atta, tea, spices, etc. A list of its registrations has been provided in the plaint. Signature Not Verified 2 ―CPC‖ hereinafter Digitally Signed By:AJIT KUMAR Signing Date:05.09.2025 20:51 FAO (COMM) 234/2025 For our purposes, we need refer only to the registration, in Class 29, of (i) the word mark BAIL KOLHU with effect from 1 June 2006 and 11 December 2016, and (ii) the device mark with effect from 24 July

5. The respondent is also the registered proprietor of the mark BAIL KOLHU in Classes 30, 31, 32 and 35 for other products, but it is not necessary for us to refer to the said registrations.

6. The respondent further contends that it also held copyright registrations of the mark BAIL KOLHU and its device, from as far back as 2 February 1999.

7. The plaint further asserts that, over the years, the BAIL KOLHU mark of the respondent has garnered vast goodwill and reputation. Sales of products using the mark BAIL KOLHU are stated to have increased from ₹ 135.12 crores in 2010-11 to ₹ 1501.2 crores in 2024-25.

8. On 7 July 2022, the appellant applied with the Registrar of Trademarks for registration of the device mark (AROHUL KOHLU). The application was filed on proposed to be Signature Not Verified Digitally Signed By:AJIT KUMAR Signing Date:05.09.2025 20:51 FAO (COMM) 234/2025 used basis, thereby indicating that, till July 2022 at least, the appellant had not commenced use of the aforesaid device mark. The application ultimately came to be abandoned vide order dated 6 December 2023 passed by the Registrar of Trademarks.

9. The appellant again applied for registration of a similar device mark on 13 June 2023 on proposed to be used basis. This application was also abandoned as recorded by order dated 1 July 2024 passed by the Registrar of Trademarks.

10. As a result, as on date, the appellant has no registered trademark for any class of goods. As against this, the respondent is the registered proprietor of the BAIL KOLHU word as well as device marks in the Classes already noted supra.

11. On 25 July 2025, the respondent claims to have come to learn of the sale of the appellant‘s goods under the mark AROHUL KOHLU with a logo and device which were deceptively similar to the device mark of the respondent, on online websites, for similar goods such as edible oil, dairy products, fats, ghee etc.

12. The rival marks of the appellant and the respondent, even as per the present appeal filed by the appellant, are as under: Signature Not Verified Digitally Signed By:AJIT KUMAR Signing Date:05.09.2025 20:51 FAO (COMM) 234/2025 Respondent’s Mark Appellant’s Mark

13. Asserting that the use of the mark AROHUL KOHLU, by the appellant, infringed the respondent‘s registered BAIL KOLHU word mark as well as device mark, and that, as the two marks were used for identical products, there was every chance of likelihood of confusion among consumers, the respondent, in its suit, sought a decree of permanent injunction, restraining the appellant from using the mark AROHUL KOHLU, either as a word or device, or any other word mark or logo/device mark which would be deceptively similar to the BAIL KOLHU word or mark of the respondent.

14. The suit was accompanied by an application under Order XXXIX Rules 1 and 2 of the CPC, seeking interlocutory injunction, restraining the appellant, pending disposal of the suit, from using the mark AROHUL KOHLU or any other word or device mark which was confusingly or deceptively similar to the BAIL KOLHU registered word and device marks of the respondent. The respondent also filed an application under Order XXVI Rule 9 of the CPC seeking appointment of the local commissioner to seize the allegedly infringing products of the appellant. Signature Not Verified Digitally Signed By:AJIT KUMAR Signing Date:05.09.2025 20:51 FAO (COMM) 234/2025 The Impugned Order

15. By order dated 4 August 2025, the learned Commercial Court has granted ad interim injunction as sought by the respondent, even while issuing notice on the applications under Order XXXIX Rules 1 and 2, returnable on 20 September 2025. The learned Commercial Court has also acceded to the respondent‘s prayer for appointment of a local commissioner and has directed the local commissioner to visit the premises of the appellant and to inventorise the allegedly infringing goods. In arriving at its finding, the learned Commercial Court has referred to the judgment of the Supreme Court in Morgan Stanley Mutual Fund v Kartick Das3 as well as orders passed by this Court in Munish Kumar Singla Trading v Jollibee Foods Corporation4 and Devagiri Farms Pvt Ltd v Sanjay Kapur5.

16. Thereafter, the learned Commercial Court has proceeded to reason thus:

―15. Prima facie, the plaintiff has been able to show that the defendant is infringing the plaintiff registered trademark:/ trade name/ device/label "BAIL KOLHU". The plaintiff has prima facie made out a case of grant of ex-parte ad interim injunction qua defendant. The balance of convenience also lies in favour of the plaintiff and it has been able to show that it shall suffer irreparable loss and injury in case ad-interim injunction is not granted against the defendant. It is further averred that the act of defendant is a great 16. financial loss to the plaintiff and the reputation of the plaintiff is at stake as the low quality product of the defendant is damaging the goodwill of the plaintiff. Signature Not Verified 3 (1994) 4 SCC 225 4 (2017) 72 PTC 608 5 (2016) 65 PTC 349 Digitally Signed By:AJIT KUMAR Signing Date:05.09.2025 20:51 FAO (COMM) 234/2025

17. It appears from the documents annexed with the plaint that the products of the defendant is deceptively similar to the products of the plaintiff. The similarity is very striking and an ordinary person may not be able to identify any dissimilarity and would thereby be deceived, if he sees the products of the defendant. The trademark/label on is also phonetically similar to the trademark/label of the plaintiff, due to which any ordinary person would be deceived and apparently the defendant are trying to pass off it s goods as those of the plaintiff Apparently, the defendant is manufacturing and trading the counterfeit products. the products of the defendant

18. It is clear from the averments made in the plaint, documents of the plaintiff and the submissions made that the plaintiff is prima facie, the prior user of trademark/label "BAIL KOLHU". It is further averred that the defendant's dishonest adoption of plaintiff registered trademark "BAIL KOLHU" dishonest and motivated by a desire to usurp the vast reputation and goodwill which is enjoyed by the plaintiff not only in India but also overseas. The defendant's unlawful adoption of a deceptively similar/identical logo is calculated to cause loss and injury to the plaintiffs reputation and business and dilute the distinctiveness of its trademark BAIL KOLHU branded products. The loss and injury to the plaintiff's reputation being caused /likely to be caused by such dilution is not capable of being calculated in monetary terms. Hence, an immediate order of imperative. injunction restraining the defendant

19. Thus, on the basis of the averments of the plaint and the documents annexed therewith, the plaintiff has proved that it would suffer irreparable injury if the plaintiff is not awarded an ex-parte ad-interim injunction. Moreover, balance of convenience also lies in favour of the plaintiff.

20. In view of the foregoing reasons, the plaintiff has been able to show that it is entitled to ex-parte order in its favour and against the defendant.

21. Accordingly, exparte ad-interim is hereby granted in favour of the plaintiff and against the defendant up till next date of hearing i.e. 22.09.2025 and the defendant as well as others acting on his behalf shall stand restrained from using, manufacturing and trading, in any manner, the trademark/trade name BAIL KOLHU.‖ injunction Signature Not Verified

17. Aggrieved by the aforesaid order, the appellant has instituted Digitally Signed By:AJIT KUMAR Signing Date:05.09.2025 20:51 FAO (COMM) 234/2025 the present appeal before this Court. Submissions of the appellant

18. At the very outset, we suggested to Ms. Trehan that, instead of our returning any observation in this order, on the merits of the matter, it might be appropriate for us to direct the learned Commercial Court to finally decide the Order XXXIX application of the respondent on the date fixed, uninfluenced by any observation contained in the impugned order.

19. Ms. Trehan sought time to obtain instructions in this regard, but has submitted that the appellant is not agreeable to this suggestion.

20. We, therefore, have heard Ms. Shyel Trehan, learned Senior Counsel for the appellant and Mr. Rajesh Sharma, learned Counsel for the respondent at length on the appeal.

21. Ms. Trehan advances the following submissions, to assail the impugned order: (i) ―Kolhu‖ refers to an age-old process for extracting mustard oil through wood pressing. In this process, traditionally, a bull, or ox, is tethered by a rope to the wooden churner. The ox or bull moves in circles, thereby resulting in the crushing of the mustard seeds and extraction of oil. No one can be permitted to claim exclusivity over the use of the word Signature Not Verified ―Kolhu‖, which refers to this process, as it is publici juris. Digitally Signed By:AJIT KUMAR Signing Date:05.09.2025 20:51 FAO (COMM) 234/2025 (ii) The respondent also conceded, in the plaint, that it had no option to the use, by the appellant, of the words ―AROHUL KOHLU‖ per se. (iii) Insofar as the logo of the ox/bull tethered to the churner is concerned, there are several registered device marks which incorporate the same motif, of which one dates back to 1973, prior to the first use of the mark by the respondent in 1986. The written submissions of the appellant provide a screenshot of several such marks: Signature Not Verified Digitally Signed By:AJIT KUMAR Signing Date:05.09.2025 20:51 FAO (COMM) 234/2025 The motif of the ox/bull tethered to the grinder was, therefore, not distinctive, and was publici juris. There was no evidence that it had acquired any secondary meaning favouring the respondent, over time. (iv) The respondent did not possess any trade mark registration for the motif of the ox/bull tethered to the churner per se. The registered device mark of the respondent was a composite mark, with the said device along with the words ―BAIL KOLHU‖ (in Devanagari). The respondent could not claim exclusivity over the pictorial part of the mark alone, as it would infract the anti-dissection rule contained in Section 176 of the Trade Marks Act. Reliance is placed, in this context, on paras 31.4 and 32 to 32.3 of the judgment of the Supreme Court in Pernod Ricard v Karanveer Singh Chhabra7, which read thus: ―31.4. The strength of a trademark lies in its inherent distinctiveness or the distinctiveness acquired through use. Invented or coined marks - such as Kodak or Solio - are inherently distinctive and command the highest degree of protection. These marks commercial origin of the goods or services. In contrast, descriptive marks - such as Air India, Mother Dairy, HMT, Windows, Doordarshan, LIC, and SBI - are not inherently immediately signify 6 17. Effect of registration of parts of a mark: - (1) When a trade mark consists of several matters, its registration shall confer on the proprietor exclusive right to the use of the trade mark taken as a whole. (2) Notwithstanding anything contained in sub-section (1), when a trade mark— (a) contains any part— (i) which is not the subject of a separate application by the proprietor for registration as a trade mark; or (ii) which is not separately registered by the proprietor as a trade mark; or (b) contains any matter which is common to the trade or is otherwise of a non-distinctive character, the registration thereof shall not confer any exclusive right in the matter forming only a part of the whole of the trade mark so registered. 7 2025 SCC OnLine SC 1701 Signature Not Verified Digitally Signed By:AJIT KUMAR Signing Date:05.09.2025 20:51 FAO (COMM) 234/2025 distinctive and must acquire secondary meaning in the minds of the public to qualify for protection. That is, the public must come to associate the mark with a particular source. Similarly, like Simla or Liverpool, or generic terms, are they have acquired generally not registrable unless distinctiveness through long and exclusive use. The more distinctive a mark - whether inherently or through acquired reputation - the stronger its position in infringement or passing off actions. geographical (B) RULE OF ANTI-DISSECTION

32. A foundational principle in trademark law is that marks must be compared as a whole, and not by dissecting them into individual components. This is known as the anti- dissection rule, which reflects the real-world manner in which consumers perceive trademarks - based on their overall impression, encompassing appearance, sound, structure, and commercial impression. In Kaviraj Pandit Sharma v. Navratna Pharmaceuticals Durga Dutt Laboratories, this Court underscored that the correct test for trademark infringement is whether, when considered in its entirety, the defendant's mark is deceptively similar to the plaintiff's registered mark. The Court expressly cautioned against isolating individual parts of a composite mark, as such an approach disregard how consumers actually experience and recall trademarks.

32.1. While Section 17 of the Trade Marks Act, 1999 restricts exclusive rights to the trademark as a whole and does not confer protection over individual, non- distinctive components per se, courts may still identify dominant or essential features within a composite mark to assess the likelihood of confusion. However, this does not permit treating such features in isolation; rather, they must be evaluated in the context of the overall commercial impression created by the mark. further support

32.2. This approach observations of scholars such as McCarthy in Trademarks and Unfair Competition, who note that consumers seldom engage in detailed, analytical comparisons of competing marks. Purchasing decisions are instead based on imperfect recollection and the general impression created by a mark's sight, sound, and structure. The anti-dissection rule thus aligns the legal test for infringement with the actual behaviour and perception of consumers in the marketplace. Signature Not Verified Digitally Signed By:AJIT KUMAR Signing Date:05.09.2025 20:51 FAO (COMM) 234/2025

32.3. Consequently, involving composite in disputes marks, the mere presence of a shared or generic word in both marks does not, by itself, justify a finding of deceptive similarity. Courts must undertake a holistic comparison examining visual, phonetic, structural, and conceptual elements, to assess whether the overall impression created by the rival marks is likely to mislead an average consumer of ordinary intelligence and imperfect memory. If the marks, viewed in totality, convey distinct identities, the use of a common element - particularly if it is descriptive or laudatory - will not by itself amount to infringement.‖ (v) There was no assertion, in the plaint, that the motif of the ox/bull tethered to the churner was the dominant/prominent feature of the respondent‘s registered device mark. In fact, the ―ox/bull with churner‖ motif was not the dominant feature of the respondent‘s device mark, as it was not the element which was most distinct, memorable and likely to influence consumer perception. (vi) Moreover, the device of the ox/bull tethered to the grinder is descriptive of the product sold under the mark within the meaning of Section 9(1)(b)8 read with Section 30(2)(a)9 of the Trade Marks Act, as it depicts the process whereby the oil is extracted. No exclusivity can, therefore, be claimed for such a mark, and no injunctive orders, restraining others from using 8 9. Absolute grounds for refusal of registration.— (1) The trade marks— ***** (b) which consist exclusively of marks or indications which may serve in trade to designate the kind, quality, quantity, intended purpose, values, geographical origin or the time of production of the goods or rendering of the service or other characteristics of the goods or service; ***** shall not be registered: 9 (2) A registered trade mark is not infringed where— (a) the use in relation to goods or services indicates the kind, quality, quantity, intended Signature Not Verified purpose, value, geographical origin, the time of production of goods or of rendering of services or other characteristics of goods or services; Digitally Signed By:AJIT KUMAR Signing Date:05.09.2025 20:51 FAO (COMM) 234/2025 such a mark, can be issued. (vii) When compared as whole marks, there was no similarity between the appellant‘s and respondent‘s marks. The stark distinction between ‗BAIL KOLHU‘ and ‗AROHUL KOHLU‘ is by itself sufficient to belie any chance of confusion. For this purpose, Ms. Trehan draws attention to the comparison between the marks, as reproduced in para 11 supra. (viii) The principle of idea infringement could not be applied to marks which were descriptive in nature. Analysis

22. The respondent/plaintiff is the registered proprietor of the mark , which is registered in its favour w.e.f. 24 July 2001, whereas the appellant has no registration in its favour.

23. Viewing the marks as wholes – character of the consumer – Initial interest confusion – Even presumption of likelihood of association sufficient

23.1 Ms. Trehan submits that the rival marks have to be seen as wholes, and, to that extent, she is correct. Her submissions, however, overlook two fundamental legal propositions, endemic to trade mark Signature Not Verified infringement jurisprudence. Digitally Signed By:AJIT KUMAR Signing Date:05.09.2025 20:51 FAO (COMM) 234/2025

23.2 The first fallacy in Ms. Trehan‘s submission is that it ignores the legal requirement of the aspect of likelihood of confusion being required to be assessed from the perspective of a consumer of average intelligence and imperfect recollection.10 The use of the word ―imperfect‖ is, in this test, pregnant with meaning. The recollection of the consumer must be imperfect. This necessarily implies that the consumer must not be one who is overly familiar with the rival marks, or with either of them. The likelihood of confusion, equally, is not to be assessed by keeping the marks side by side. Pernod Ricard, on which Ms. Trehan herself placed reliance, pithily exposits this principle by holding that ―courts are not expected to adopt a mechanical, side-by-side comparison of the marks‖. Other decisions to the same effect are Khoday Distilleries Ltd v The Scotch Whisky Association11 and Parle Products (P) Ltd v J.P. & Co.12. The classical test that applies is whether such an average consumer, of imperfect recollection, comes across one mark at one point of time, and the other later, he is likely to be placed in a state of confusion.

23.3 The ―likelihood of confusion‖, moreover, has to be assessed from an ―initial interest‖ standpoint. In other words, it is the initial impression that the defendant‘s mark conveys to the average consumer of imperfect recollection, which is relevant. Further, all that is required is likelihood of confusion, not actual confusion. In other words, if an average consumer of imperfect recollection comes across