Mr. Sushant Singh and Mr. Sourav Pattanaik, Advocates v. AADHYATMIK TECHNOLOGIES PVT LTD ORS

CS(COMM) 1100/2024 Page 1 of 10 $~20 * IN THE HIGH COURT OF DELHI AT NEW DELHI + CS(COMM) 1100/2024 & I.A. 47695/2024 DEVDARSHAN DHOOP INDUSTRIES & ANR. .....Plaintiffs Through: Mr. Sushant Singh and Mr. Sourav Pattanaik, Advocates. versus AADHYATMIK TECHNOLOGIES PVT LTD & ORS. .....Defendants Through: Ms. Archana Sahadeva and Ms. Akshita Jhapa, Advocates for D-1. CORAM: HON'BLE MS. JUSTICE JYOTI SINGH O R D E R % 18.03.2025 1. Present suit is filed by Plaintiffs seeking decree of permanent injunction restraining Defendant No. 1, its directors, associates, agents and all those acting on its behalf from manufacturing, marketing, reproducing, printing or publishing, selling or offering for sale dhoops, havan samagri, pooja samagri etc. under Plaintiffs’ registered trademark ‘DEVDARSHAN’ amounting to infringement of the trademark and passing off, amongst other reliefs including a decree of damages and rendition of accounts with costs of proceedings. 2. Plaintiff No. 1 is a partnership firm engaged in the business of manufacturing and selling dhoops, aggarbatis and havan samagri since 1954 and is stated to be a leading manufacturer in India. Plaintiff No.2 is another partnership firm engaged in marketing and selling the goods owned by Plaintiff No.1 and is the permitted user of brand names of Plaintiff No.1. ‘DEVDARSHAN’ is the house mark of Plaintiffs, which was conceived and adopted in 1954 and has been continuously since then. Trademark 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 08/05/2025 at 16:02:13 CS(COMM) 1100/2024 Page 2 of 10 ‘DEVDARSHAN’ along with its formative marks enjoys registrations in Class 03 and registrations are valid and subsisting. Plaintiffs actively promote the trademark on various platforms including digital media and spend huge sums on advertisement The products are sold under the mark, both physically and on various e-commerce platforms. From 2013-14 when good worth Rs.49,88,97,011.92 were sold, sales increased to Rs.83,15,21,252.75 in 2023-24. Plaintiffs aver that they have been vigilant in protecting the trademark ‘DEVDARSHAN’ from infringement and misuse by third parties. 3. It is averred that in the month of June, 2023, Plaintiffs came across Defendant No. 1 promoting the trademark ‘DEVDARSHAN’ in respect of its services rendered on online platforms, allowing the public to have virtual mandir visits or facilitating them to donate prasadam or perform pooja. On a further search, Plaintiffs came across a website from which revealed mobile applications on the Google Play Store and Apple Application Store, whereby Defendant No. 1 was providing/facilitating pooja and darshan services at religious places under the mark ‘DEVDARSHAN’. Plaintiffs sent a legal notice dated 15.06.2023 calling upon Defendant No. 1 to cease and desist from using the trademark ‘DEVDARSHAN’. 4. It is further averred that in the reply to the legal notice, Defendant No.1 offered to settle the matter and eventually, a Settlement Agreement dated 12.08.2023 was executed and signed between the parties, pursuant to which, Defendant No. 1 changed its brand name to DEVDHAM as also the domain name. However, despite this Defendant No. 1 continued to infringe the registered trademark ‘DEVDARSHAN’ of the Plaintiffs and thus the present suit was filed. 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 08/05/2025 at 16:02:13 CS(COMM) 1100/2024 Page 3 of 10 5. On 14.01.2025, counsel entered appearance on behalf of Defendant No. 1 and submitted that the suit can be decreed in favour of the Plaintiffs and Defendant No. 1 shall comply with the terms of Settlement Agreement dated 12.08.2023. It was also stated before the Court that Defendant No. 1 had stopped user of the mark ‘DEVDARSHAN’ and all references thereto on social media had been cleansed and removed by Defendant No. 1 albeit counsel for the Plaintiffs expressed his reservation and apprehension on the correctness of this stand. Court directed that in case Plaintiffs found any reference of their mark, the same shall be brought to the notice of Defendant No. 1 and in that event, appropriate steps will be taken by Defendant No. 1. On 21.01.2025, counsel for Defendant No. 1 assured the Court that in terms of order dated 14.01.2025, various listings from social media and e-commerce platforms were being removed. 6. Mr. Sushant Singh, learned counsel for the Plaintiffs submits that Defendant No. 1 continued to infringe the registered trademark of the Plaintiffs even after 12.08.2023, when it entered into a Settlement Agreement by: (a) operating another website using the trademark; (b) posting videos and other contents on social media platforms like YouTube, Facebook, Instagram etc.; (c) using new promotional material by prominently displaying DEVDHAM as a trademark but with a tagline ‘Previously DEVDARSHAN’; (d) continuously using ad-word ‘DEVDARSHAN’ on Google search for prioritizing its website in the search results, over and above the trademark ‘DEVDARSHAN’ of the Plaintiffs; and (e) continuously promoting the trademark ‘DEVDARSHAN’ on other Apps only to show association of the mark with Defendant No. 1. As per the Plaintiffs, these infringements continued between 15.12.2023 to 14.01.2025. 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 08/05/2025 at 16:02:13 CS(COMM) 1100/2024 Page 4 of 10 7. It is urged that Defendant No. 1 was completely defiant and did not even respond to the legal notices sent subsequently by the Plaintiffs. Even after giving an undertaking to the Court on 14.01.2025 that Defendant No. 1 shall comply with terms of the Settlement Agreement and conceding that suit can be decreed, it took around two months i.e. upto 28.02.2025 for Defendant No. 1 to remove the offending videos and posts from its all social media platforms and website and in fact, it took no measures to delete the extensive material available in the video/posts on the website and social media platforms and this caused irreparable harm and damage to the goodwill and reputation of the Plaintiffs. Illustratively, learned counsel has drawn the attention of the Court to the screenshots which reflect use of Plaintiffs’ trademark by Defendant No. 1 on social media platforms as on 29.11.2024. For ease of reference, a tabular representation is as follows:- 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 08/05/2025 at 16:02:13 CS(COMM) 1100/2024 Page 5 of 10 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 08/05/2025 at 16:02:13 CS(COMM) 1100/2024 Page 6 of 10 8. Learned counsel for the Plaintiffs, strenuously urges that Defendant No. 1 is guilty of infringing the registered trademark of the Plaintiffs as also violating the terms of the settlement agreement and the undertaking given to the Court and thus it is not enough for Defendant No. 1 to state that it is no longer using the impugned mark and in this light, Plaintiffs are entitled to nominal damages. It is argued that in cases of infringement and passing off, even when Defendant appears at the initial stage of the proceedings and satisfies the Court that on becoming aware of the infringement, he forthwith ceased to use the trademark, Court has the discretion to award nominal damages and this legal position clearly flows from the language of Section 135(3) of Trade Marks Act, 1999 (hereinafter referred to as the ‘1999 Act’). Case of the Plaintiffs is on better footing as despite assurance to the Court, Defendant No. 1 continued to infringe the trademark upto 28.02.2025. Learned counsel relies on the judgment of the Supreme Court in Magma Fincorp Limited v. Rajesh Kumar Tiwari, (2020) 10 SCC 399, where the Supreme Court held that while punitive damages are awarded where party in breach of an agreement behaves in a manner which is reprehensible and calls for punishment, nominal damages can be awarded even though no real harm is done by reason of the breach of contract. Therefore, no proof of actual loss is required for the Plaintiffs to be entitled to nominal damages. 9. Mr. Singh also places reliance on the judgment of this Court in Kabushiki Kaisha Toshiba v. Tosiba Applicances Co., 2024 SCC OnLine Del 5594, where it was held that Court is empowered to award nominal damages to the aggrieved party, who is able to establish that it has suffered an injury by wrongful conduct of a wrong doer, but is unable to offer proof 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 08/05/2025 at 16:02:13 CS(COMM) 1100/2024 Page 7 of 10 of loss that can be compensated. This is particularly necessary when infringement of rights is clear. 10. Learned counsel for Defendant No. 1, per contra, argues that once the said Defendant has agreed to suffer the decree, it should not be saddled with any kind of damage and more particularly, when Defendant No. 1 initiated the process of removal of infringing material and agreed to abide by the Agreement dated 12.08.2023 on the first day of appearance itself and decided not to contest the proceedings. It is also argued that since the Plaintiffs heavily rely on terms of the Settlement Agreement, they cannot seek damages, which are not stipulated as a term of Agreement in the event of any further infringement. It is urged that no damages should be imposed on Defendant No. 1 who is no longer using Plaintiffs’ trademark ‘DEVDARSHAN’. 11. Be it noted that vide order dated 28.02.2025, Defendants No.2 to 4 were deleted from the array of parties. 12. Heard. 13. Indisputably, ‘DEVDARSHAN’ and its formative marks are registered and registrations are stated to be valid and subsisting. On receiving a cease and desist notice from the Plaintiffs, Defendant No. 1 entered into a Settlement Agreement dated 12.08.2023 and agreed not to use the trademark. It is equally true that on the first appearance on 14.01.2025, Defendant No. 1 agreed to suffer a decree and undertook to comply with the terms of the Settlement Agreement and not use the impugned trademark as also to remove all references from the social media/e-commerce platforms etc. The undertaking was reiterated on subsequent dates. 14. Learned counsel for the Plaintiffs has, however, succeeded in showing 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 08/05/2025 at 16:02:13 CS(COMM) 1100/2024 Page 8 of 10 that Defendant No. 1 infringed the trademark ‘DEVDARSHAN’ not only post the execution of the Settlement Agreement but also after the undertaking to the Court on 14.01.2025 at least upto 28.02.2025. Screenshots placed on record by the Plaintiffs completely support this position and in fact, as rightly flagged by the Plaintiffs, even when Defendant No. 1 changed the brand to DEVDHAM, it was with a tagline ‘Previously DEVDARSHAN’, which reflected an intent to show continued association with the Plaintiffs and therefore, it cannot be said that case of Defendant No. 1 falls under innocent infringement. 15. Section 135(3) of the 1999 Act provides that even where the Defendant in a suit for infringement of trademark satisfies the Court that when he became aware of the existence and nature of Plaintiff’s rights in the trademark, he forthwith ceased to use the trademark in relation to goods or services in respect of which it was registered, albeit the Court shall not award punitive/compensatory damages in favour of the Plaintiff but it has the discretion to award nominal damages. Expression ‘nominal damages’, as defined in Black’s Law Dictionary 9th Edition of Thomas Reuters, 2009, is a trifling sum awarded when a legal injury is suffered but there is no substantial loss or injury to be compensated. The Supreme Court in Magma Fincorp Limited (supra) held that nominal damages can be awarded even though no real harm is done as a result of breach of the contract. In Kabushiki Kaisha Toshiba (supra), this Court observed as follows:- “140. Nonetheless, the Court is empowered to award nominal damages to the aggrieved party who is able to establish that they have suffered an injury caused by the wrongful conduct of a wrongdoer but cannot offer proof of a loss that can be compensated. This is particularly necessary when the infringement of rights is clear, as in the present case, where the Defendant has used a deceptively similar mark. The rationale behind this is to affirm the rights of the trademark holder and recognize the 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 08/05/2025 at 16:02:13 CS(COMM) 1100/2024 Page 9 of 10 wrongdoing, albeit the actual damage might not be quantifiable due to the Plaintiff's lack of express evidence. Given the protracted duration of this lawsuit - spanning three decades - and the continuous use of the infringing mark by the Defendant throughout this period, it is both reasonable and just for the Court to award nominal damages. Therefore, in recognition of these factors and in line with judicial precedents that support the award of nominal damages in cases of clear infringement but insufficient proof of actual damage, the Court finds it appropriate to award nominal damages of Rs. 15,00,000/-. This amount is intended not as a measure of actual loss suffered, but as a minimal compensatory amount reflecting the infringement's duration and the need to uphold trademark rights.” 16. In Citizen Watch Company Limited v. Dineshkumar Laxmanbhai Virda, 2024 SCC OnLine Del 4130, also nominal damages of Rs.10 lacs were awarded in favour of the Plaintiff on finding the Defendant guilty of infringement. Argument on behalf of Defendant No.1 that only because damages were not envisaged in the Settlement Agreement, this Court is precluded from awarding even nominal damages, is misconceived in light of the judgments aforementioned and the uncontroverted fact that infringement continued even after the execution of the Settlement Agreement and undertaking given to this Court to comply with the terms of the agreement. 17. In light of the fact that Defendant No. 1 has agreed to suffer a decree of permanent injunction and counsel for the Plaintiffs has fairly given up other reliefs, save and except, nominal damages, the suit is decreed in favour of the Plaintiffs and against Defendant No. 1 in the following terms:- (a) Defendant No. 1 by itself and/or its partners, directors, employees, agents, or anyone acting on its behalf are restrained from manufacturing, marketing, reproducing, printing or publishing, selling or offering for sale goods under the trademark DEVDARSHAN or any mark identical or deceptively similar thereto amounting to infringement of Plaintiffs’ registered 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 08/05/2025 at 16:02:13 CS(COMM) 1100/2024 Page 10 of 10 trademark DEVDARSHAN and/or from passing off the goods of Defendant No. 1 as those of the Plaintiffs. (b) Plaintiffs are entitled to nominal damages of Rs.3.5 lacs from Defendant No. 1. The damages shall be paid within a period of three months from today. 18. Suit is disposed of along with pending application. 19. Registry is directed to draw up the decree-sheet in the aforesaid terms. JYOTI SINGH, J MARCH 18, 2025/shivam