Dabur India Ltd V.

Amit Jain And Anr

SWAMI VIVEKANAND SUBHARTI UNIVERSITY,

MEERUT, U.P.

SUBJECT: Intellectual Property Laws

Case Memorial – Dabur India Ltd V. Amit Jain And Anr

SUBMITTED TO:

Assistant Professor: - Mrs. Mahima Garg

SUBMITTED BY:

Parag Singh

B.A. LL.B IX SEMESTER

SARDAR PATEL SUBHARTI INSTITUTE OF LAW

Memorial on behalf of Respondent Page 1

 Dabur India Ltd V. Amit Jain And Anr

BEFORE THE HONORABLE DELHI HIGH COURT

In the Matter of

Dabur India Ltd

V.s

Amit Jain And Anr

Memorial on behalf of Respondent Page 2

 Dabur India Ltd V. Amit Jain And Anr

TABLE OF CONTENTS

• LIST OF ABBREVIATION …………………………………………………………………4

• INDEX OF AUTHORITIES …………………………………………………………………5
▪ List of Books
▪ List of Statues
▪ List of Cases
▪ List of Internet Sources

• STATEMENT OF JURISDICTION ……………………………………………………….6

• STATEMENT OF FACTS …………………………………………………………………7
• ISSUES ……………… …………………………………………………………….………8
• ARGUMENTS ………………………………………………………………………..….9-12

PRAYER 13

Memorial on behalf of Respondent Page 3

 Dabur India Ltd V. Amit Jain And Anr

LIST OF ABBREVIATIONS

A.I.R - All India Reporters

Art. - Article

DHC - Delhi High Court

Hon’ble - Honorable

Ors. - Others

SEC. - Section

WP - Writ Petition

U/S - Under Section

VOL. - Volume

Memorial on behalf of Respondent Page 4

 Dabur India Ltd V. Amit Jain And Anr

INDEX OF AUTHORITIES

BOOKS REFERRED:-

• By V K Ahuja , laws relating to intellectuals Property rights , 1st Edition. Central Law
Publication.

STATUTE REFERRED

• Constitution of India, 1950.

• Trade Mark Act 1999

JOURNALS REFFERED:

• Supreme court Cases

Memorial on behalf of Respondent Page 5

 Dabur India Ltd V. Amit Jain And Anr

STATEMENT OF JURISDICTION

THE RESPONDEN HAS RESPONDED TO THE APPEAL FILED UNDER SECTION 1001

OF THE CIVIL PROCEDURE CODE 1908, TO THE HONORABLE DELHI HIGH COURT.

1
Appeals from appellate decrees [82][100. Second appeal— (1) Save as otherwise expressly provided in the body
of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree
passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a
substantial question of law.
(2) An appeal may lie under this section from an appellate decree passed ex parte.
(3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law
involved in the appeal.
(4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that
question.
(5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be
allowed to argue that the case does not involve such question : Provided that nothing in this sub-section shall be
deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other
substantial question of law, not formulated by it, if it is satisfied that the case involves such question.]

Memorial on behalf of Respondent Page 6

 Dabur India Ltd V. Amit Jain And Anr

FACTS OF THE CASE

1. That the applicant No. 1 is a private limited company and the applicant No. 2 is the director

of the applicant No. 1 company. The applicants are carrying on the business of

manufacturing and marketing of boiled sugar confectionery under various trade marks.

Among the various trade marks, the applicant is also using the SONI label which is

represented and sold in packing having distinctive artistic features, get up, colour and

design.
2. The respondent No. 1 is the registered owner of the trade mark registered under No. 580397

in class 30. The respondent No. 1 assigned the trade mark to the respondent No. 2 by a

deed of assignment dated 20.04.2001. The respondent No. 2 filed a suit for infringement

of trade mark against the applicant No. 1 in the District Court under No. 21/2001. The said

suit has been filed by misrepresenting the facts before the District Court.

3. The trade mark SONI label was first adopted and used by the firm M/s Sardar

Confectionery Works in the year 1982 for which Shri Harjeet Singh the proprietor, who

had designed and developed the design of SONI label. In the year 1986, the proprietorship

firm was converted into a partnership firm with Shri Trilok Singh, Shri Harjeet Singh and

Smt. Paramjeet Kaur, W/o Shri 3 Amarjeet Singh were made partners

4. Shri Amarjeet Singh and Shri Harjeet Singh, sons of Shri Trilok Singh, Smt. Charanjeet

Singh, W/o Shri Kawaljeet Singh and Smt. Paramjeet Singh, W/o Shri Amarjeet Singh

carried out the business as a family business. Shri Kulwant Singh filed a suit against the

assignee of the respondent No. 1 M/s Sardar Confectionery who is the real brother-in-law

Memorial on behalf of Respondent Page 7

 Dabur India Ltd V. Amit Jain And Anr
of Shri Kawaljeet Singh the proprietor of the respondent No. 1 is also carrying on business

of trading under the Soni label for toffees/boiled sugar confectionery by purchasing goods

for the applicants.

5. In the year 1987 M/s Nutrine Confectioneries filed a suit for infringement against M/s

Sardar Confectionery Works and Shri Kawaljeet Singh. The suit was dismissed as there

was no record to prove that Kawaljeet Singh was the proprietor of SONI label

Memorial on behalf of Respondent Page 8

 Dabur India Ltd V. Amit Jain And Anr

STATEMENT OF ISSUES

1. WHETHER THE APPEAL FILED, AGAINST THE ORDER PASSED BY THE

DISTRICT COUIRT, IS MAINTANBLE, BEFORE THE HON’BLE DELHI HIGH

COURT?

Memorial on behalf of Respondent Page 9

 Dabur India Ltd V. Amit Jain And Anr

SUMMARY OF ARGUMENT

1. WHETHER THE APPEAL FILED, AGAINST THE ORDER PASSED BY THE

DISTRICT COUIRT, IS MAINTANBLE, BEFORE THE HON’BLE DELHI HIGH

COURT?

The counsel humbly submits that the instant application is not maintainable either on law or on

facts of the law. The applicants are the permitted user of the respondents and are using under the

respondents. In view of the above, the application is barred by the principles of estoppel, waiver,

acquiescence as also by delay and 5 latches.

The applicants are not persons aggrieved and cannot maintain an application for rectification. Shri

Kawaljeet Singh, sole proprietor of the respondent No. 2 is carrying on the business under the trade

mark. Prior to this respondent No. 2 becoming a sole proprietor, M/s Sonik Industries was a

partnership consisting of Shri Kulwant Singh and Smt. Charanjeet Singh and Shri Kawaljeet Singh.

On 31.03.2002, Shri Kulwant Singh retired and a deed of dissolution was executed. The respondent

No. 2 is the proprietor of the impugned trade mark label SONI

Memorial on behalf of Respondent Page 10

 Dabur India Ltd V. Amit Jain And Anr

ADVANCE ARGUMENT

1. WHETHER THE APPEAL FILED, AGAINST THE ORDER PASSED BY THE

DISTRICT COUIRT, IS MAINTANBLE, BEFORE THE HON’BLE DELHI HIGH

COURT?

The counsel humbly submits that the instant application is not maintainable either on law or on

facts of the law. The applicants are the permitted user of the respondents and are using under the

respondents. In view of the above, the application is barred by the principles of estoppel, waiver,

acquiescence as also by delay and 5 latches.

The applicants are not persons aggrieved and cannot maintain an application for rectification. Shri

Kawaljeet Singh, sole proprietor of the respondent No. 2 is carrying on the business under the trade

mark. Prior to this respondent No. 2 becoming a sole proprietor, M/s Sonik Industries was a

partnership consisting of Shri Kulwant Singh and Smt. Charanjeet Singh and Shri Kawaljeet Singh.

On 31.03.2002, Shri Kulwant Singh retired and a deed of dissolution was executed. The respondent

No. 2 is the proprietor of the impugned trade mark label SONI

It is further submitted that The respondent No. 1 adopted the trade mark SONI label in the year

1989 and continuously used the same till 20.04.2001. The said trade mark was assigned to the

respondent No. 2 by a deed of assignment dated 20.04.2001 and thereafter the respondent No. 2

has been continuously using the same without any interruption. The respondent No. 2 has intimated

necessary steps to bring on record the changes, before the Registrar of Trade Marks which is

pending2.

2
Ziff-Davis Inc. vs. Dr. D.K.Jain and Ors., 2000 PTC 244 (DB)

Memorial on behalf of Respondent Page 11

 Dabur India Ltd V. Amit Jain And Anr

The applicants have violated the rights of the respondent and therefore the respondent initiated

ciivl suit for infringement in S.No.201/2001. The applicants thereafter filed a civil suit against the

applicant before the Delhi High Court in Suit No.2458 of 2001. Both the suits are pending. At no

6 point of time the trade mark SONI label was assigned to the applicants. In fact, the applicants

were mere licencee of the respondents under trade mark label SONI.

13. The applicants were aware of the use of the impugned trade mark SONI label by the

respondents. They were also aware of the respondents application for registration as well as its

registration. The other contents made in the grounds of rectification application are denied.

Memorial on behalf of Respondent Page 12

 Dabur India Ltd V. Amit Jain And Anr

PRAYER

Therefore, it may be please this Hon`ble “Delhi High Court ” that in the lights of Facts Presented,
Issues Raised, Arguments, and Authorities Citied, the Counsel for Respondent humbly prays
before this Hon`ble Court, to kindly adjudge that: -

1. The Appeal filed against the order of District Court is not maintainable

2. The rights of the Respondent with respect to the ownership of alleged Trade-Mark

should be upheld & be declared an authorized holder of said Intellectual property

Pass any order or direction in the instant case as this Hon’ble Court deem fit

………………………..

Counsel on the behalf of Respondent

Parag Singh

B.A.LL.B. IX Semester

Memorial on behalf of Respondent Page 13