Delhi High CourtM/S. Living Media India Ltd. vs Adarsh Gupta & Ors. on 18 August, 2009Author:Aruna SureshBench:Aruna Suresh*            HIGH COURT OF DELHI AT NEW DELHI

+                   CS(OS)No.1175/2003

                 Judgment delivered on: 18th August, 2009

#     M/s. Living Media India Ltd.      ..... Plaintiff
!          Through : Mr. S.D. Salwan, Advocate
                     Mr. Neeraj Choudhary, Advocate


                           Versus

$     Adarsh Gupta & Ors.               .....Defendants
^          Through : Nemo.


%
      CORAM:
      HON'BLE MS. JUSTICE ARUNA SURESH

     (1) Whether reporters of local paper may be
         allowed to see the judgment?

     (2) To be referred to the reporter or not?           Yes

     (3) Whether the judgment should be reported
         in the Digest ?                                  Yes

                        JUDGMENTARUNA SURESH, J.1.    Plaintiff company has filed the present suit for

      perpetual injunction for restraining the defendants

      from    passing   off,   infringement   of   copyright,

      rendition of accounts and delivery etc. in the name

      of 'Today'.CS(OS) No.1175/2003                                  Page 1 of 192.    Briefly narrated, the case of the plaintiff is that it is

      a public limited company and Chand Prakash being

      Manager Administration of the plaintiff company

      has been duly authorized by way of resolution of

      Board of Directors dated 25.4.2003 to sign, verify

      and file the present suit on its behalf, that plaintiff

      is the publisher of most reputed leading magazine

      'India Today' which is being published in different

      languages in India as well as abroad, that it has

      wide circulation, that plaintiff alleges that it is

      running its business of printing, publishing and

      producing the magazine 'India Today' since 1975,

      that the said registered magazine is registered

      under the name and style of 'India Today' with the

      Registrar        of   Newspapers        for     India    under

      Registration Certificate No.28587 of 1975, that

      plaintiff   is    also    registered    as    proprietor      of

      trademark        'India    Today'      having     registration

      No.295963 as of 4th October, 1982, that plaintiff

      filed an application seeking registration of the said

      trademark 'India Today' in Hindi language for its

      newspapers, periodicals, magazines etc., that theCS(OS) No.1175/2003                                           Page 2 of 19word 'Today' is an essential and dominant feature

      and it is written in a characteristic logo style in

      which the artistic copyright subsists with the

      plaintiff, that plaintiff is first person to use the

      word 'Today' as covered underSection 2(c)of the

      Copyright Act, that the name and style as well as

      layout of the word 'Today' is the exclusive property

      of the plaintiff for all categories as specified in its

      application,     that under the law it is distinct and

      exclusive copyright and the trademark 'Today' for

      publications with the plaintiff since 1954, that the

      visual     impact    of    the    word    'Today'      being

      represented in the artistic script is a significant one

      and the viewers/public and readers identify the

      plaintiff's production not by the trademark 'Today'

      but also by peculiar style of writing, that English

      evening daily newspaper published under the name

      and      style   'Today'   is    also   registered    under

      registration No. DELENG/2002/9066, that the word

      'Today' has become synonymous to authentic news

      and has been generated and used exclusively by

      the plaintiff in various languages which has given aCS(OS) No.1175/2003                                        Page 3 of 19secondary meaning to the identification of the word

      as 'India Today Group', that 'Today' is so distinctive

      that it has acquired a meaning, that any prefix or

      suffix has no relevance so far as action of passing

      off is concerned, that the only object and design of

      any person to adopt the trademark 'Today' would

      be to trade and encash upon the goodwill of the

      plaintiff earned over the years because of its

      extensive popularity, that the annual subscription

      of the magazine 'India Today' all over India is

      approximately Rs.15 lacs and annual turnover of

      the   company     from    the    sale    of    its   various

      publications    since    the    year    1998    has    been

      increasing from Rs.8867.07 lacs to Rs.10479.14

      lacs in 2002, that the said artistic work at the

      behest of the plaintiff was originally authored by

      one of its employees employed under a contract of

      service and the plaintiff became the first copyright

      owner of the said artistic work and the first

      publisher of the said artistic/literary work of the

      way and style of writing the 'Today' in Hindi as well

      in the other languages, that no person without theCS(OS) No.1175/2003                                        Page 4 of 19permission or consent of the plaintiff has right to

      use or reproduce the word 'Today' in its distinctive

      style and manner or any other deceptively similar

      manner, that without the permission of the plaintiff

      any such move is an infringement of the copyright

      of the plaintiff, that during the last week of March

      2003 the plaintiff came to know that the defendants

      have introduced the newspaper under the name

      and style of 'Today News' in Hindi, that on search

      by the plaintiff with the concerned authorities, it

      was   revealed    that   no   such   name    had    been

      registered earlier in any class, that the adoption

      and use of the mark 'Today' by the defendants in

      respect    of    their   publication   is    an     exact

      reproduction of the mark of the plaintiff which is

      illegal and unlawful, that the layout style as well as

      the manner in which the plaintiff's trademark has

      been depicted has been copied/infringed in an

      identical/similar manner, that the          adoption of

      trademark of name 'Today' in a deceptively similar

      artistic style and manner of the defendants is

      actuated by malafides and with an intention toCS(OS) No.1175/2003                                     Page 5 of 19encash upon the goodwill and reputation belonging

      to the plaintiff, that as the adoption and use of the

      trademark        'Today'      which     is   visually    and

      phonetically similar to the reputed and well known

      trademark 'Today' of the plaintiff in respect of the

      news      related      magazines,       newspapers       and

      newsletter is bound to lead to confusion and

      deception amongst the purchasing public and trade

      and creating an impression that the defendants'

      goods are some way connected with the goods of

      the plaintiff, that defendants are guilty of passing

      off their goods as those of the plaintiff as their

      goods are of cognate and allied nature to that of

      the    plaintiff's    goods   having     identical   trading

      channels and sold to the same purchasers, that

      therefore       the   defendants      have   infringed   the

      trademark/trade name of the plaintiff and also its

      copyright in their artistic style and writing 'Today',

      that if the defendants are allowed to continue with

      their illegal designs, the loss suffered by the

      plaintiff would be of irreparable nature and would

      cause injury to its business name, reputation andCS(OS) No.1175/2003                                        Page 6 of 19goodwill.       Hence, this suit for injunction and

      rendition of accounts.3.    Defendants       were   served   vide   publication   in

      newspaper 'Statesman' dated 2.4.2004 at their last

      known address as well as on the notice board of the

      Court by way of affixation. Despite due service of

      process on them defendants did not care to appear

      in the Court and contest the suit of the plaintiff.

      Hence, they were proceeded ex-parte by this Court

      vide its order dated 15.9.2004.4.    Plaintiff company has produced its evidence by way

      of affidavit Ex.PW1/A of Sh. Chand Prakash, its

      Senior Manager Legal and affidavit Ex. PW2/A of

      Sh. Binod N. Tiwari, its Assistant Manager.5.    Plaintiff had filed an affidavit of Chand Prakash in

      evidence in the Court on 10.5.2005. Plaintiff filed

      another affidavit of this very witness in the Court

      on 12.2.2007.      The second affidavit is in fact the

      detailed affidavit in evidence of Chand Prakash

      filed by the plaintiff. It is in no manner additional

      affidavit as is apparent from the record. After theCS(OS) No.1175/2003                                   Page 7 of 19filing of the first affidavit in evidence, the learned

      counsel for the plaintiff exhibited some documents

      in    the   Court   as   Ex.PW1/2    to   Ex.PW1/13      on

      20.5.2005. Probably the second affidavit was filed

      without taking into consideration the fact that

      affidavit of Chand Prakash had already been placed

      on record.      In the second affidavit plaintiff has

      exhibited documents PW1/1 to PW1/31.               Some of

      these documents have also been exhibited in

      evidence in the affidavit of Binod N. Tiwari. I shall

      be referring to some of the documents exhibited in

      the statement of PW-2, Binod N. Tiwari which

      though shown as exhibited in the affidavit have not

      been exhibited in evidence by the learned counsel

      for   the   plaintiff    while   examining   Mr.    Chand

      Prakash. I also make it clear that since there are

      repeated different exhibit marks on the same

      documents I shall refer only to the exhibits which

      find mention in the affidavit Ex.PW1/A filed by

      Chand Prakash on 12.2.2007.6.    Chand Prakash, PW-1 in his evidence by way of his

      affidavit has proved that plaintiff is a companyCS(OS) No.1175/2003                                       Page 8 of 19incorporated     under   theCompanies    Actvide

      Certificate of Incorporation Ex.PW1/1.        He has

      testified that by way of Resolution dated 25.4.2003,

      original copy of which Ex.PW1/2, he has been

      authorized by the plaintiff to sign, verify and file

      the present suit on behalf of the plaintiff company

      against the defendants. By way of his affidavit he

      has fully supported the case of the plaintiff as

      averred in the plaint and has proved in evidence

      the documents like various trademark registration

      certificates of the word 'Today' being used by the

      plaintiff with many other pre-fix or suffix in various

      magazines,      newspaper   and   other   publications

      which are Ex.-PW1/3 to PW1/25. He also proved in

      evidence the original front cover of the magazine

      named 'India Today' published in English as well as

      in Hindi as Ex.-PW1/26 and PW1/27 respectively.

      He further proved in evidence the registration

      certificate No.DELENG/2002/9066 dated 14.2.2003

      wherein the name and style of plaintiff's newspaper

      'Today' is registered as Ex.PW1/29 along with its

      representations. He has categorically deposed thatCS(OS) No.1175/2003                                 Page 9 of 19defendants, in order to cash in on the name and

      goodwill    of   the   plaintiff,   have   started   Hindi

      newspaper with the name of 'Today' with a suffix of

      'news' suggesting its publication to be called

      'Today News'. The defendants have used the word

      'Today' in their newspaper in exactly the same

      manner and style in which the word 'Today' is

      written in the Hindi Magazine of the plaintiff. He

      further testified that defendants have therefore

      copied the plaintiff's trademark and copyright of

      the word 'Today' and has used it in a deceptive

      manner with a view to give an impression on the

      public that their paper is also published by the

      plaintiff company. He also testified that the style

      and presentation of 'Today' by defendants in their

      impugned publication is identical to that of plaintiff

      which is causing grave loss of business and

      credibility to the plaintiff and such user is also an

      infringement to the intellectual property right of

      the plaintiff.   The defendants have passed off their

      publication as that of the plaintiff. In his testimony

      he proved the issue of 'Today News' dated 3/9-CS(OS) No.1175/2003                                    Page 10 of 194.2003 as Ex.-PW1/30. He also proved in evidence

      the legal notice dated 7.4.2003 Ex.-PW1/13 (in his

      affidavit he has exhibited copy of the notice as Ex.-

      PW1/31 but the document was not tendered in

      evidence, however, since the copy of this notice

      was earlier tendered in evidence when the first

      affidavit was filed and exhibited as PW1/13, the

      same finds mention here).7.    PW-2 Binod N. Tiwari, Assistant Manager, tendered

      in evidence his affidavit Ex.-PW2/A.            He has

      testified    that   plaintiff   company   had    filed   a

      complaint for offence underSection 78and79of

      the Trade and Merchandise Marks Act read withSection 63and65of the Copyright Act underSections 420,425and486of the Indian Penal Code,

      which complaint is pending adjudication before the

      Metropolitan Magistrate at Patiala House Court.

      He proved the copy of the complaint as Ex.-PW2/1

      and copy of the court proceedings as Ex.-PW2/2.

      He further corroborated the testimony of PW-1

      Chand       Prakash    regarding   the    certificate    of

      registration of the plaintiff company passed byCS(OS) No.1175/2003                                   Page 11 of 19Deputy Registrar of trademarks on 29.1.1988 in

      respect of 'India Today' of the Hindi edition along

      with additional representations in Form TM-1 Ex.-

      PW2/5, Certificate of Registration dated 14.2.2003,

      Extract of Resolution dated 25.4.2003 and notice

      dated 4.7.2003 Ex. PW1/13 which was sent by

      registered cover as well as UPC which he proved in

      evidence as Ex.-PW2/7 and PW2/8.           Ex.-PW2/9 is

      the AD card received from the defendant No.1 for

      having received the notice.8.    I have heard Mr. Neeraj Choudhary, learned

      counsel for the plaintiff and have carefully perused

      the record. Plaintiff is a company which is carrying

      on    its   business     of   publishing    newspapers,

      magazines       and   other   various   publications   for

      number of years.       Plaintiff is a duly incorporated

      company under theCompanies Registration Actvide Certificate of Incorporation copy of which is

      Ex.-PW1/1.      Chand Prakash PW-1 has been duly

      authorized to sign, verify and file the present suit

      on behalf of the plaintiff against the defendants as

      is proved from the copy of the Directors' ResolutionCS(OS) No.1175/2003                                   Page 12 of 19dated     25.4.2003          Ex.-PW1/2.              Plaintiff    has

      successfully proved in evidence that the word

      'Today' is a distinct name which is used by the

      plaintiff for publication of its magazine 'India

      Today'    which       is    being       published       in   various

      languages including Hindi. It is admittedly a well

      known magazine which is in circulation and in

      demand not only all over India but also overseas.

      The     name    'Today'           has   been        registered     for

      newspaper in English to be published by the

      plaintiff vide registration No.DELENG/2002/9066

      Ex.-PW1/29.       Plaintiff is the owner of numerous

      trademarks      for        its     different    publications        in

      newspaper, other magazines, music cassettes etc.

      which    have     been           exhibited     as    Ex.-PW1/3      to

      PW1/25.9.    By way of evidence, plaintiff has successfully

      proved that it is the holder of trademark 'India

      Today' in Hindi Language.                All these registration

      certificates conclusively prove that the plaintiff is

      the exclusive owner and user of the word 'Today'

      being its registered trademark in all its magazines,CS(OS) No.1175/2003                                                Page 13 of 19newspapers, other publications and music cassettes

      etc. Plaintiff had applied in form TM-I along with

      additional representation vide its application dated

      15.1.2002 Ex-PW2/5. The artistic style and manner

      of writing the trademark 'India Today' in Hindi for

      which the plaintiff applied for registration of a

      trademark have been specifically shown in writing

      in the said form TM-I; Ex.-PW2/5.10.   The grievance of the plaintiff is that defendants

      have copied their trademark 'Today' in Hindi which

      is   an   infringement       to   its   trademark   'Today'

      registered      with   the   trademarks     registered     at

      Bombay.         The infringing newspaper has been

      proved in evidence as Ex.-PW1/30. I have visually

      examined the infringing name 'Today' in Ex.-

      PW1/30 with that of the registered trademark

      'India Today' in Hindi Ex.-PW1/27.           I do find that

      defendants have copied the trademark of the

      plaintiff 'Today' in Hindi in an identical and similar

      manner which, for a common person, visually could

      appear to be the same.            A common man under

      these circumstances would go for purchasing theCS(OS) No.1175/2003                                       Page 14 of 19paper published by the defendants taking it to be

      published by the plaintiff company i.e. the same

      publisher who published 'India Today' in Hindi or

      in English and other magazines carrying the

      trademark name 'Today'. Phonetically also, when

      spoken, the name 'Today' as registered would be

      identical to name 'Today News' when spoken.11.   Infringing newspaper was published much after the

      plaintiff had filed an application in TM-I form

      seeking registration of its trademark name 'Today'

      in Hindi as well.    The name 'Today' appearing in

      Ex.-PW1/27 when compared with name 'Today'

      appearing in Ex.-PW1/30, I find no difference as

      visually   they   look   identical.       The   defendants

      therefore have copied the name 'Today' in the same

      manner and the style in which it has been got

      registered by the plaintiff as its trademark. Under

      the circumstances plaintiff, being user of this name

      over a long period, have got copyright in the

      artistic style and manner in which it is used in its

      various    publications.      Plaintiff    therefore   has

      acquired exclusive property rights in the trademarkCS(OS) No.1175/2003                                     Page 15 of 19'Today' for all the categories for which it has been

      registered or in its application and its style.

      Plaintiff has also acquired exclusive copyright in

      the writing style of the word 'Today' as it has a

      particular characteristic style which can be termed

      as an artistic work of the plaintiff and is being used

      by it daily in its numerous publications.12.   To save its trademark and copyright in the name

      'Today', plaintiff has also filed a complaint on

      14.5.2003       before     the   concerned     court     of

      Metropolitan Magistrate at Patiala House.              Vide

      order dated 18.8.2003 the MM was pleased to

      direct the SHO, Police Station Connaught Place to

      investigate the matter underSection 156(3)Cr.P.C.

      in accordance with law.13.   Hence, I conclude that plaintiff has successfully

      proved its case against the defendants.                The

      defendants      have     infringed   the   copyright   and

      trademark of the plaintiff in the trade name 'Today'

      by using it in identical manner in its own magazine.

      Defendants have therefore passed off the nameCS(OS) No.1175/2003                                    Page 16 of 19'Today' in their publication 'Today News' as that of

      the plaintiff. This obviously must have decreased

      the circulation of the publications of the plaintiff in

      the market and consequent turnout of the plaintiff

      company.        The defendants are therefore guilty of

      passing off their goods as those of the plaintiff and

      also for infringement of its copy right in the

      publication 'Today'.14.   Plaintiff, though has claimed a relief of rendition of

      accounts    of     profits   illegally   earned   by   the

      defendants on account of use of the name 'Today'

      in its publication 'Today News', however, no

      evidence has been led by the plaintiff as regards

      this relief is concerned. Plaintiff has also not led

      any evidence to indicate if it actually suffered any

      loss to the advantage of the defendants because of

      publication of 'Today News' and its circulation in

      the market.       In para 23 of the plaint, plaintiff has

      submitted that on account of being rendered

      plaintiff would be found entitled to more than Rs.20

      lacs. Plaintiff has not led any evidence regarding

      its production turnover or defendants' earnedCS(OS) No.1175/2003                                     Page 17 of 19profits.   Hence, in the absence of any evidence,

      plaintiff is not entitled to any rendition of accounts

      as prayed. Since the plaintiff itself has alleged in

      para 23 that on account of being rendered, it shall

      be found entitled to more than Rs.20 lacs and the

      plaintiff itself has valued the suit for the purpose of

      Court fees at Rs.20 lacs in para 31 (d) of the plaint

      and has paid the ad-valorem court fees on the said

      amount.15.   Consequently, I hereby pass a decree of permanent

      injunction in favour of the plaintiff and against the

      defendants      thereby    restraining   the   defendants

      themselves, their agents or any other persons on

      their behalf from printing/publishing, offering for

      sale, advertising, directly or indirectly dealing in

      respect    of   printing    and   publication    material

      bearing the name 'Today' or 'Today News' and

      from passing off their newspaper or any other

      publication as the publication of the plaintiff or any

      other trademark/name/tile/name of a publication

      which is deceptively similar to the plaintiff's

      trademark 'Today', in Hindi or any other languageCS(OS) No.1175/2003                                    Page 18 of 19and from using the name 'Today in any manner or

      in the same logo script or an obvious or fraudulent

      imitation or a substantial reproduction of the

      plaintiff's logo script used in characteristic manner

      or any other logo script which is imitation and

      substantially   reproduction     of    plaintiff's     highly

      artistic work amounting to infringement of the

      plaintiff's copyright therein.16.   Defendants are further directed to hand over the

      infringing goods including magazines, blocks, dies,

      lables, wrappers, price list, leaflets and literature

      for purposes of destruction and/or obliteration to

      the plaintiff on an affidavit with cost of the suit.

      Suit of the plaintiff as regards relief of rendition of

      accounts is hereby dismissed.17.   The decree sheet be prepared accordingly.ARUNA SURESH
                                               (JUDGE)
AUGUST 18, 2009
jkCS(OS) No.1175/2003                                        Page 19 of 19