KHADI AND VILLAGE INDUSTRIES COMMISSION vs. KHADI DESIGN COUNCIL OF INDIA AND OTHERS

Neutral Citation Number : 2023:DHC:2044
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
th
Reserved on 10 March 2023
nd
Pronounced on 22 March 2023
+ CS(COMM) 244/2021 & I.A. 6811/2021 (Order XXXIX Rules
1 and 2 of CPC)

KHADI AND VILLAGE INDUSTRIES
COMMISSION ..... Plaintiff
Through: Ms. Shwetasree Majumder, Ms.
Devyani Nath and Ms. Archita Nigam,
Advs.

Versus

KHADI DESIGN COUNCIL OF
INDIA AND OTHERS ..... Defendants
Through: Mr. Jatin Sharma and Mr.
Sachin Mintri, Advs.
CORAM:
HON'BLE MR. JUSTICE C.HARI SHANKAR
JUDGMENT
% 22.03.2023

I.A. 6811/2021 ( Order XXXIX Rules 1 and 2 of CPC )

1. The plaintiff Khadi & Village Industries Commission (KVIC)
has, by the present suit, alleged that the defendant Khadi Design
Council of India (KDCI) is not entitled to use the word KHADI as any
part of any word or device mark for any purpose whatsoever, as
KHADI, both as a word mark as well as part of various device marks,
stands registered in the plaintiff‘s favour under the Trade Marks Act,
1999.

2. The plaintiff is the registered proprietor of
(i) the word mark KHADI
Signature Not Verified
Digitally Signed
By:KAMLA RAWAT
Signing Date:23.03.2023
16:24:40
CS(COMM) 244/2021 Page 1 of 45

Neutral Citation Number : 2023:DHC:2044
(a) in Classes 1, 2, 4, 5, 6, 7, 8, 14, 16, 18, 19, 20, 21, 22,
23, 24, 25, 26, 27, 29, 30, 32, 34, 35, 38 and 42 with
th
effect from 27 November 2014, claiming user since
th
25 September 1956, and
th

(b) in Class 22 with effect from 28 November 2014
th
claiming user since 4 October 2014
(ii) the device mark
in Classes 1, 2, 3,4, 5, 6, 7, 8, 14,
16, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 29, 30, 32, 34, 35, 38
th th
and 42 with effect from 19 June 2018, claiming user since 25
September 1956,
(iii) the device mark

(a) in Classes 1, 2, 3, 4, 5, 6, 7, 8, 14, 16, 17, 18, 19,
20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34,
nd
35, 37, 38 and 42 with effect from 2 December 2014,
st
claiming user since 31 May 2000, and
st
(b) in Classes 12 and 13 with effect from 31 March
th
2020, claiming user since 25 September 1956,
(iv) the device mark
in
th
(a) Classes 24 and 25 with effect from 18 October
th
2019, claiming user since 25 September 1956, and
th
(b) Class 35 with effect from 18 October 2019,
nd
claiming user since 22 July 2013 and
th
since 25 August 2020, claiming
(v) the device mark
nd
user since 22 July 2013.

For the sake of convenience, these marks would be referred to,
hereinafter, as ―the KHADI marks‖ and ―Charkha marks/logos‖.
Signature Not Verified
Digitally Signed
By:KAMLA RAWAT
Signing Date:23.03.2023
16:24:40
CS(COMM) 244/2021 Page 2 of 45

Neutral Citation Number : 2023:DHC:2044

3. Case set out in the plaint

3.1 The KHADI trademarks, registered in the plaintiff‘s favour, it is
submitted, are source identifiers. The ‗Charkha logos‘ (
and
) are also harbingers of Gandhian thoughts and ideologies which
are stated to guide the plaintiff‘s activities. It is further asserted that
KHADI has been held to a well known trade mark in various WIPO
proceedings, though the plaint does not refer to any judicial order
passed in this country to the said effect. The plaintiff is also the
proprietor of the domain name khadiindia.gov.in and operates the
websites www.kviconline.gov.in and www.ekhadiindia.com, which
catalogue a variety of products of the plaintiff. The plaintiff also
claims to have extensive social media presence. It also operates a
mobile application by the name ‗Khadi India‘. By dint of continuous
and uninterrupted adoption and use, asserts the plaint, the trade mark
KHADI has become indelibly associated, in the minds of the
consuming public, with the plaintiff.

3.2 The plaintiff claims to promote the KHADI brand and products
bearing the KHADI mark through institutions certified by it.
According to the plaint, the right to use the KHADI mark for textile
products requires the person or organization to be enlisted as an
authorized user of the KHADI trade marks, for which it has to apply
for recognition through the Khadi Institutions Registration and
Certification Sewa (KIRCS).

th
3.3 Vide Notification dated 19 July 2013, the plaintiff, in exercise
Signature Not Verified
Digitally Signed
By:KAMLA RAWAT
Signing Date:23.03.2023
16:24:40
CS(COMM) 244/2021 Page 3 of 45

Neutral Citation Number : 2023:DHC:2044
1
of the power conferred on it by Section 27 read with Section
2
15(2)(k) of the Khadi & Village Industries Commission Act, 1956
(the KVIC Act), promulgated the Khadi Mark Regulations, 2013
nd
(hereinafter ―the KMR‖), to come into force on 2 October 2013
applicable to persons who desired to produce or trade in Khadi and
Khadi products. The KMR, asserts the plaint, provides specific
guidelines for using the KHADI trademarks or affixing the KHADI
mark or label.

3.4 The plaintiff also claims to be the nodal agency, at the national

1
27. Power to make regulations .—
(1) The Commission may, with the previous sanction of the Central Government, by
notification in the Official Gazette, make regulations, not inconsistent with this Act and the rules
made thereunder, for enabling it to discharge its functions under this Act.
(2) In particular, and without prejudice to the generality of the foregoing power, such
regulations may provide for all or any of the following matters, namely:—
( a ) the terms and conditions of appointment and service and the scales of pay of
officers and servants of the Commission, other than the Chief Executive Officer] and the
Financial Adviser to the Commission, including payment of travelling and daily
allowances in respect of journeys undertaken by such officers and servants for the
purpose of this Act;
( b ) the time and place of meetings of the Commission, the procedure to be
followed in regard to transaction of business at such meetings and the quorum necessary
for the transaction of such business at a meeting;
( bb ) the summoning and holding of meetings, and the conduct of business
of a Standing Finance Committee;
( c ) the delegation of powers and duties to the Chief Executive Officer] or any
employee of the Commission;
( d ) the maintenance of minutes of meetings of the Commission and of the Board
and the transmission of copies thereof to the Central Government;
( e ) the persons by whom, and the manner in which, payments, deposits and
investments may be made on behalf of the Commission;
( f ) the custody of moneys required for the current expenditure of the Commission
and investment of moneys not so required.
( g ) the maintenance of accounts; and
( h ) the form in which certificate of genuineness of khadi and products of village
industries may be granted by the Commission and the fees chargeable in respect thereof.
(2-A) The power to make regulations under this section with respect to the terms and conditions
of service and the scales of pay and pension to be paid to the employees of the Commission shall
include the power to give retrospective effect from a date not earlier than the commencement of this
Act, to such regulations or any of them but no retrospective effect shall be given to any such
regulation so as to prejudicially affect the interest of any person to whom such regulation may be
applicable.
(3) The Central Government may, by notification in the Official Gazette, rescind any
regulation which it has sanctioned and thereupon the regulation shall cease to have effect.
2
15. Functions of the Commission .—
*
(2) In particular, and without prejudice to the generality of the foregoing power, the
Commission may take such other steps as it may think fit,—
*
( k ) to ensure genuineness and to set up standards of quality and ensure that
products of khadi and village industries do conform to the said standards, including issue
of certificates or letters of recognition to the concerned persons; and

Digitally Signed
By:KAMLA RAWAT
Signing Date:23.03.2023
16:24:40
Signature Not Verified
CS(COMM) 244/2021 Page 4 of 45

Neutral Citation Number : 2023:DHC:2044
level, for implementation of the Prime Minister Employment
Generation Programme (PMEGP), which, at the State level, is
implemented through State offices of the KVIC, State Khadi and
Village Industries Boards (KVIBs) and District Industries Centres and
banks. Once an entity is registered under the PMEGP, it is authorized
to use the PMEGP
logo in respect of its business.

3.5 The plaintiff claims to be selling its authorised and licensed
products, under its KHADI trademarks directly from seven sale outlets
and indirectly through 8050 franchises spread all over the country.
Products bearing the KHADI trade marks are also stated to be
exhibited in exhibitions in various parts of the world. In furtherance
of its aim to promote KHADI trade marks, the plaintiff also
collaborated with the Fashion Design Council of India (FDCI) in 2018
and 2019 for organising the Lakme Fashion week. During the said
rd
event, on 23 August 2018, designated as Sustainable Fashion Day,
four designers displayed their products made from the Khadi fabric
and displaying the plaintiff‘s KHADI trade marks. The plaint also
underscores the large scale publicity that the KHADI trademarks have
enjoyed, both in the print and electronic media, as well as the large
amounts spent by the plaintiff towards that end. The scale of the
plaintiff‘s operations has been sought to be emphasised by pointing
out, inter alia , that, in the year 2019-20, the plaintiff‘s annual sales
turnover was ₹ 88875.45 crores. As a result, it is asserted that the
KHADI trade marks of the plaintiff have attained immeasurable
goodwill and reputation and have become source identifiers,
identifying the products and services in relation to which they are used
exclusively with the plaintiff.

Signature Not Verified
Digitally Signed
By:KAMLA RAWAT
Signing Date:23.03.2023
16:24:40
CS(COMM) 244/2021 Page 5 of 45

Neutral Citation Number : 2023:DHC:2044
3.6 The plaintiff claims to have become aware of infringement, by
Defendants 1 to 3, of the plaintiff‘s KHADI trade marks in December
2019, when Defendants 1 to 3 organised the National Khadi Designers
Awards, 2019 and the Miss India Khadi event at Goa, in which they
were using the word mark KHADI as well as the
logo.
The plaintiff addressed a legal notice to Defendant 3, calling upon him
to cancel the aforesaid events and also filed complaints with the
statutory authorities in Goa. Consequent thereto, the defendants
removed the mark KHADI and logo
from their banners,
posters and hoardings. The plaintiff, therefore, did not choose to
prosecute the matter further.


3.7 This, however, submits the plaint, was a false sense of security,
as the defendants have infringed the plaintiff‘s KHADI and Charkha
trade marks through various other methods and modalities, which may
be enumerated thus:

(i) The use of the word ―Khadi‖ by the defendant, in any and
every form is, according to the plaintiff, infringement of the
plaintiff‘s KHADI marks, which include the word mark
KHADI.

(ii) On the websites www.kdci.org and
www.missindiakhadi.in, owned by Defendants 1 and 2
respectively, the said defendants are alleged to be using the
KHADI trademarks and marks deceptively similar thereto,
without authorisation or permission from the plaintiff.

(iii) The said websites also contained photographs of the
Signature Not Verified
Digitally Signed
By:KAMLA RAWAT
Signing Date:23.03.2023
16:24:40
CS(COMM) 244/2021 Page 6 of 45

Neutral Citation Number : 2023:DHC:2044
National Khadi Designers Awards, 2019 and the Miss India
Khadi Event held in 2019, in violation of the assurance, to the
th
contrary, extended by the defendants on 19 December 2019.

(iv) The KHADI and Charkha trademarks also stand infringed
by the use, by the defendants, of the names ―Khadi Design
Council of India‖ and the logos
,
,

and
.

(v) It is also alleged that the acronym KDCI is structurally
and phonetically similar to KVIC, and also creates an
impression of association between Defendant 1 and the
plaintiff, in view of the similarity between KDCI and the
acronym of the Fashion Design Council of India, FDCI, who is
the authorised partner of the plaintiff in the Lakme Fashion
week.


(vi) The defendants are also alleged to be using the impugned
marks on their social media platforms.

3.8 The plaint further alleges that, on their website
www.paridhaanam.com (hereinafter ―the Paridhaanam website‖), for
which a hyperlink is provided on the defendants‘ websites
www.kdci.org and www.missindiakhadi, the defendants are selling
jewellery and fabric apart from apparel. The plaintiff has also drawn
attention to the following recital, to be found on the said website
www.paridhaanam.com:
―Khadi fabric, also known as khaddar, is a hand woven
natural fibre made with cotton. The other variations of Khadi
fabric include silk and wool. Khadi fabric originated during the
Signature Not Verified
Digitally Signed
By:KAMLA RAWAT
Signing Date:23.03.2023
16:24:40
CS(COMM) 244/2021 Page 7 of 45

Neutral Citation Number : 2023:DHC:2044
time of Mahatma Gandhi when he led the Swadeshi Movement.
This fabric has a rugged texture and feels comfortable when worn
during winter season while also keeping one fresh in summers.

With dynamic advancements, Khadi fabric is now available
in multiple variations. With handwork ranging from Kantha to
Block print , this fabric captivates beauty with its subtle weaves.
The styles that can be crafted from Khadi are not limited to a
Nehru jacket anymore. You can now choose from a wide range of
shirts, flared pants and dresses.

Modern machinery is taking over the traditional methods of
manual crafting. The fabric now also comes with innovative cuts
and styles .‖
(Emphasis supplied)

The plaint alleges that the admission, in the concluding part of the
afore-extracted recital, to the effect that the fabric sold across the
Paridhaanam website was also being made using modern machinery
indicated that the defendants were selling non-Khadi material across
the Paridhaanam website, as Khadi fabric is exclusively hand woven,
and no machinery can be employed in its making.

3.9 Additionally, the plaint alleges that the defendants are falsely
claiming to be associated with the Prime Minister Employment
Generation Programme (PMEGP) by providing, on their website
https://missindiakhadi.in/, a hyperlink which redirects to the PMEGP
page of the plaintiff at
https://www.kviconline.gov.in/pmegpeportal/pmegphome/index.jsp.
The plaintiff claims to be the nodal agency in operating the PMEGP
and that, therefore, the claim of the defendants, to association with the
PMEGP is ex facie false.

3.10 The plaint also takes exception to a programme titled ―Designer
Employment Generation Programme‖, run by the defendants, under
which Designers and Design Institutes are provided ―Khadi
Signature Not Verified
Digitally Signed
By:KAMLA RAWAT
Signing Date:23.03.2023
16:24:40
CS(COMM) 244/2021 Page 8 of 45

Neutral Citation Number : 2023:DHC:2044
Certification‖. Grant of Khadi Certification, according to the plaint, is
the exclusive prerogative of the plaintiff and the defendants, by
holding themselves out as issuing such certificates, are
misrepresenting to the public.

3.11 The plaint further alleges that, despite issuance of legal notices
by the plaintiff, the defendants‘ infringing activities continued
nd
unabated as, on 22 March 2021, the defendants announced, over
Facebook that they were conducting a ―Designers Training Master
st
Class for Freshers and Experienced Designers‖ and, on 21 May 2021,
announced the holding of an event titled ―Miss and Mrs India Khadi
2021‖.

3.12 All these activities of the defendants, it is submitted, would
inevitably lead an unwary consumer, or visitor to the defendants‘
website, to believe in the existence of an association between the
defendants and plaintiff, whereas no such association, in fact, exists.
By resorting to such methods, the plaint alleges that the defendants are
seeking to derive undue benefits by capitalising on the renown and
repute of the KHADI trademarks of the plaintiffs. As prior owner and
adopter of the said trademarks, the plaintiff claims statutory as well as
common law rights therein, as well as the right to interdict
infringement, by the defendants, of the said marks. The defendants,
particularly, it is submitted, cannot be allowed to use the infringing
logos
,
,
and
, which are
deceptively similar to the plaintiff‘s KHADI and Charkha trademarks
and logos.

3.13 The plaintiff has, therefore, instituted the present suit against
Signature Not Verified
Digitally Signed
By:KAMLA RAWAT
Signing Date:23.03.2023
16:24:40
CS(COMM) 244/2021 Page 9 of 45

Neutral Citation Number : 2023:DHC:2044
the defendants, seeking a decree of permanent injunction, restraining
the defendants and, all others acting on their behalf from using, in any
manner, the word mark KHADI or the logos
,
,
and
, or any other identical or deceptively similar
mark or logos, apart from ancillary reliefs of rendition of accounts,
delivery up, damages and costs.

4. The plaintiff has also filed, with the plaint, the present
application under Order XXXIX Rules 1 and 2 of the Code of Civil
Procedure, 1908 (CPC), seeking interlocutory injunctive reliefs.

5. Written Statement

5.1 In their written statement, filed in response to the plaint, the
defendants assert that the Paridhaanam website is merely a proposed
idea to the Chairman, KVIC and the Prime Minister of India, to create
a platform for weavers and designers to purchase, sell and exhibit pure
Khadi and other fabric goods and products. It is further asserted that,
till date, no e-commerce activity has taken place on the said website as
the approval from the Prime Minister‘s Office (PMO) is awaited.

5.2 The written statement avers that Defendant 2 i.e., Miss India
Khadi Foundation (MIKF) was established in 2016 to popularise
KHADI by promoting the use of the Khadi fabric among fashion
designers. Defendant 1, the KDCI, is stated, was established by
Defendant 3 Ankush Anami in 2019 and is registered with the
Ministry of Skill Development and Entrepreneurship (MoSDE).

Signature Not Verified
Digitally Signed
By:KAMLA RAWAT
Signing Date:23.03.2023
16:24:40
CS(COMM) 244/2021 Page 10 of 45

Neutral Citation Number : 2023:DHC:2044
5.3 The written statement further asserts that Defendants 1 and 2,
i.e., KDCI and MIKF are neither engaged in manufacturing or
weaving of any KHADI fabric nor in sale of any finished clothes. The
designers associated with Defendants 1 to 3 (KDCI, MIKF and
Ankush Anami), purchased clothes or fabric only from authorised
outlets of the KVIC. The written statement asserts that every purchase
was intimated to the plaintiff.

5.4 The written statement denies the allegation of infringement.
While asserting that the allegedly infringing trademarks are not
similar, in any manner, to the registered KHADI or Charkha
trademarks of the plaintiff, it is further submitted that KHADI, being a
type of fabric, was not registerable as a trade mark in Classes 24, 25,
3
35, 40 or 42 in view of Section 9(1)(a) and (b) of the Trade Marks
Act. They have also placed reliance, in this context, on Clauses (h),
4
(i) and (j) of Regulation 2 of the Khadi Mark Regulations, 2013 read
5
with Section 2(d) of the KVIC Act, which clearly identify Khadi as a

3
9. Absolute grounds for refusal of registration . –
(1) The trade marks –
(a) which are devoid of any distinctive character, that is to say, not capable of
distinguishing the goods or services of one person from those of another person;
(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;
(c) which consist exclusively of marks or indications which have become
customary in the current language or in the bona fide and established practices of the
trade,
shall not be registered:
Provided that a trade mark shall not be refused registration if before the date of
application for registration it has acquired a distinctive character as a result of the use made of it or
is a well-known trade mark.
4
2. Definitions . – In these regulations, unless the context otherwise requires,
*
(h) ―Khadi Mark‖ means a mark as specified by the Central Khadi Mark
Committee and registered under regulation 22 authenticating the genuineness of Khadi to
be used by a person or certified khadi institution on every item of khadi and khadi
products;
(i) ―khadi product‖ means any product made from or using khadi;
(j) ―Khadi and Village Industries Board‖ means a Khadi and Village Industries
Board established under a law for the time being in force;
5
2. Definitions . – In this Act, unless the context otherwise requires, –
*
(d) ―khadi‖ means any cloth woven on handlooms in India from cotton, silk or woollen yarn
handspun in India or from a mixture of any two or all of such yarns;
Digitally Signed
By:KAMLA RAWAT
Signing Date:23.03.2023
16:24:40
Signature Not Verified
CS(COMM) 244/2021 Page 11 of 45

Neutral Citation Number : 2023:DHC:2044
type of fabric. In view of the said provisions, the defendants also
assert that ―KHADI‖ as a trademark cannot be used for products other
than cloth. That apart, being publici juris , the KHADI word mark, it
is submitted, cannot be appropriated exclusively by the plaintiff.

5.5 The Paridhaanam project, asserts the written statement, was
envisaged only after meetings with the plaintiff and on the basis of the
decisions taken therein. The final such meeting, it is asserted, took
th
place on 25 November 2019.

5.6 Insofar as the PMEGP is concerned, the written statement
alleges that the plaintiff receives grants under the said Scheme from
the Ministry of MSME for the implementation of various programmes
and schemes for the development of Khadi and village industries, for
which the targets and financial allocations are fixed by the Ministry.

5.7 Intellectual property rights over the term ―Khadi‖, it is
submitted, would vest with every person who is associated with
Khadi.

5.8 The defendants claim to be vitally interested in promoting
purchase of Khadi fabric across the nation through authorized sales
outlets of the plaintiff and to have been making efforts, towards that
end, since 2016. For this purpose, it is asserted that several letters
were written by Defendants 1 to 3 to the plaintiff, seeking support and
requesting for issuance of workable guidelines to, inter alia , make
designers aware of the benefits of Khadi. Despite the absence of any
encouragement from the plaintiff, the defendants claim to have
continued promoting the Khadi concept, thereby also ameliorating the
rural and village sectors of the populace. The plaintiff, it is asserted,
Signature Not Verified
Digitally Signed
By:KAMLA RAWAT
Signing Date:23.03.2023
16:24:40
CS(COMM) 244/2021 Page 12 of 45

Neutral Citation Number : 2023:DHC:2044
was kept in the loop at every stage. The defendants claim to have
―invested their crucial hours in promoting, advertising, and educating
the concept of Khadi Fabric among the youth, college students,
designers, professors, and other stakeholders who are actively
involved to make Khadi a consistent National Pride‖. The Court has
been exhorted, by the defendants, to ensure that ―Khadi‖ be not vested
as a trade mark or copyright in favour of one particular institution.

5.9 The defendants have attempted to fault the plaintiff to have
claimed various user dates in their applications seeking registration of
the KHADI trademarks. Some applications, in fact, it is pointed out,
have been filed on a ―proposed to be used‖ basis.

5.10 The defendants have also, in their written statements, referred to
various events hosted and conducted by them, in which senior
personnel of the plaintiff, including the Chairman of the KVIC,
participated. Tacit acquiescence, to the activities of the defendants, it
is submitted, was always forthcoming from the plaintiff. The
defendants have, inter alia , referred to
(i) the auditions for the Miss India Khadi 2017 event
th
conducted by the defendants on 28 January 2017 in which, on
instructions of the State Director of KVIC, the Deputy Director,
KVIC and the CEO of UPKVIB participated as the Chief Jury
and Jury respectively,
th
(ii) the actual Miss India Khadi 2017 event held on 4
February 2017 in which the State Director, KVIC crowned the
winner of the Miss India Khadi Uttar Pradesh competition,
(iii) the participation, on invitation from the plaintiff KVIC,
of Defendant 3 Ankush Anami, CEO of Defendant 2 MIKF, at
the inauguration of the world‘s largest Charkha at Champaran
Signature Not Verified
Digitally Signed
By:KAMLA RAWAT
Signing Date:23.03.2023
16:24:40
CS(COMM) 244/2021 Page 13 of 45

Neutral Citation Number : 2023:DHC:2044
nd
Samaroh on 22 May 2017, during which Defendant 3
discussed various ideas to modernize Khadi clothes,
(iv) the Miss India Khadi Uttarakhand 2017 event organized
in Dehradun by Defendant 2 in which the State Director, KVIC,
participated,
(v) the grant of permission by the Rajasthan Khadi Board, on
th
30 August 2017, for the hosting of the Miss India Khadi
Rajasthan 2017 event,
(vi) the Miss India Khadi Chhattisgarh 2017 event conducted
th
by Defendant 2 on 8 November 2017, in which the CEO,
UPKVIB was the Chief Guest and judge,
(vii) the Miss India Khadi Odisha State Finale hosted by
th
Defendant 2 on 13 November 2017, in which the Assistant
Director of the plaintiff KVIC participated as the Chief Guest
and as member of the jury,
(viii) the Miss India Khadi Jharkhand 2017 event, which was
judged by the State Director, KVIC as one of the jury members,
th
(ix) communication dated 24 November 2017 from the
Chhattisgarh Khadi Board, appreciating the organisation, by
Defendant 2 of the Chhattisgarh Miss India Khadi Fashion
th
Show on 8 November 2017,
th
(x) letter dated 29 December 2017, from the plaintiff to
Defendant 2, appreciating the efforts of Defendant 2 in
promoting Khadi and permitting use of the KHADI marks of
the plaintiff, by Defendant 2, in its Miss India Khadi Grand
th
Finale to be held on 30 December 2017, and
th
(xi) letter dated 11 June 2018 from the Chhattisgarh KVIB,
permitting organisation of the Miss India Khadi Fashion Show
in Raipur, Chhattisgarh.

Signature Not Verified
Digitally Signed
By:KAMLA RAWAT
Signing Date:23.03.2023
16:24:40
CS(COMM) 244/2021 Page 14 of 45

Neutral Citation Number : 2023:DHC:2044
The defendants also rely on various occasions when officers of the
KVIC had meetings with the defendants and their officials or attended
the same events or functions.


5.11 The defendants assert ―Khadi Designing Council of India‖ and
―Miss India Khadi Foundation‖, as also their respective acronyms
KDCI and MIKF, as the names of their Trust and the appellation
under which they conducted their activities. These names, it is
submitted, were adopted as the defendants are committed to
promoting and furthering the Khadi concept. The defendants assert
that they have never manufactured or sold any non-Khadi product as
Khadi and that all Khadi fabric used by them was sourced from
authorized outlets of the plaintiff, of which the plaintiff was kept
periodically aware.

5.12 In these circumstances, the defendants plead, in the written
statement, that the suit be dismissed.

6. Replication

6
6.1 In its replication, the plaintiff invokes Section 31 of the Trade
Marks Act to contend that there exists, in law, a presumption of
validity of a granted trade mark.

6.2 Adverting to the references, by the defendants, to the meetings,

6
31. Registration to be prima facie evidence of validity . –
(1) In all legal proceedings relating to a trade mark registered under this Act (including
applications under Section 57), the original registration of the trade mark and of all subsequent
assignments and transmissions of the trade mark shall be prima facie evidence of the validity
thereof.
(2) In all legal proceedings, as aforesaid a registered trade mark shall not be held to be
invalid on the ground that it was not a registrable trade mark under Section 9 except upon evidence
of distinctiveness and that such evidence was not submitted to the Registrar before registration, if it
is proved that the trade mark had been so used by the registered proprietor or his predecessor in title
as to have become distinctive at the date of registration.
Digitally Signed
By:KAMLA RAWAT
Signing Date:23.03.2023
16:24:40
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CS(COMM) 244/2021 Page 15 of 45

Neutral Citation Number : 2023:DHC:2044
shows, and other events attended by the plaintiff‘s personnel, it is
submitted that such presence and participation does not constitute
acquiescence, by the plaintiff, to the unauthorized use, by the
defendants, of the plaintiff‘s registered KHADI and Charkha trade
marks. Acquiescence to the use, by the defendants, of the plaintiff‘s
registered trade marks, it is submitted, is required, by the Trade Marks
Act, to be in writing. No such document, granting permission to the
defendants to use the plaintiff‘s registered trade marks, was cited by
the defendants. Apropos the e-mails addressed by the defendants to
the plaintiff, it is submitted that the plaintiff never responded to the
said e-mails, which remained, therefore, one-sided requests. Having
thus sought the plaintiff‘s permission, and failed to secure it, the
defendants could not unilaterally have proceeded to use, without
authorization, the plaintiff‘s registered trade marks for their own
activities. In fact, points out the replication, the plaintiff had addressed
as many as three legal notices to the defendants to cancel the National
Khadi Designers Award and Miss India Khadi events proposed to be
conducted by them, and to discontinue use of the plaintiff‘s registered
trade marks, but to no avail. The present suit was instituted only
thereafter.

6.3 The Paridhaanam website, contends the plaintiff, is an e-
commerce website of the defendant, similar to the e-khadiindia.com
website of the plaintiff, through which the defendant claimed to be
selling khadi fabric. However, on accessing the website, it was found
that machine woven fabric was being sold by the defendants. The
plaintiff rebuts the contention that the Paridhaanam website was
merely a proposed idea, and contends, per contra , that it is a fully
functional infringing website. The fabric sold on the Paridhaanam
website was neither certified by the plaintiff nor permitted by the
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Signing Date:23.03.2023
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Neutral Citation Number : 2023:DHC:2044
plaintiff to be sold under the KHADI trade marks. KHADI fabric had
necessarily to be purchased from sources authorised by the plaintiff or
licensed by the plaintiff to use the plaintiff‘s trade marks. The
plaintiff denies the defendants contention that they are selling KHADI
fabric on the Paridhaanam website.

6.4 By using the KDCI acronym, the plaintiff submits that the
defendant was seeking to convey a misleading impression of
association with the FDCI which, according to the plaintiff, was its
authorised partner for the Lakme Fashion week.

6.5 The plaintiff also denies the defendants‘ contention that the
registration of the KHADI marks was contrary to Section 9(1) of the
Trade Marks Act. The plaintiff submits, on the other hand, that
indiscriminate use of the KHADI marks, organising of fashion shows,
setting up of e-commerce portals and providing design courses under
the KHADI trade marks, or misrepresenting that the defendant was a
body authorised by the Government or the KVIC, was not permitted
either by Section 2(d) of the KVIC Act or by Regulation 2(h) or (j) of
the KMR.

6.6 Insofar as the providing, by it, of various dates of user while
applying for registration of the KHADI trade marks, the plaintiff
submits that the date of user varied depending on goods and services
in respect of which registration of the mark was sought.

6.7 Pointing out that the defendant was using the KHADI trade
marks in the charkha logos even while conducting the National Khadi
Designers Awards and the Miss India Khadi events in 2019, the
plaintiff, in its replication, reiterated the prayers in the suit.
Signature Not Verified
Digitally Signed
By:KAMLA RAWAT
Signing Date:23.03.2023
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CS(COMM) 244/2021 Page 17 of 45

Neutral Citation Number : 2023:DHC:2044

Rival submissions at the Bar

7. Detailed oral arguments were advanced by Ms. Shwetasree
Majumder on behalf of the plaintiff and Mr. Jatin Sharma, on
behalf of the defendant.

8. Submissions of Ms. Shwetasree Majumder

8.1 Ms. Majumder submits that, in view of the validity and
subsisting registrations held by the plaintiff in the KHADI marks as
well as the charkha logos, the defendants are disentitled, entirely, from
using the word ―KHADI‖ in any part of their marks. She invited my
attention to the webpage of Defendant 1, which contains, at the head,
the following representation:



8.2 Ms. Majumder submits that Defendant 1 was misusing official
government logos to seek to draw an association with the plaintiff.
Ms. Majumder further submits that the plaintiff held valid trade mark
registrations in, inter alia, Class 35, which dealt with, among other
things, ―organising shows, exhibitions and trade fares for commercial
th th
purpose‖, w.e.f. 27 November 2014 and valid till 27 November
2024 and Class 42, dealing with ―engineering services, scientific and
technological services, industrial research, designing and development
th
services, software development‖ w.e.f. 27 November 2014 and valid
Signature Not Verified
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By:KAMLA RAWAT
Signing Date:23.03.2023
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Neutral Citation Number : 2023:DHC:2044
th
till 27 November 2024.

8.3 These were both service marks registration of the plaintiff,
which also covered the types of activities in which the defendants
claimed to be involved.

8.4 Ms. Majumder further submits that the plaintiff used to
authorise various textile retail sellers, organisations, societies and
other institutions to sell products under the KHADI trade marks. In
order to be listed as an authorised user of the KHADI trade marks for
the purposes of sale and promotion of KHADI certified textile
products and services, she submits that each organisation has to apply
for recognition through the KIRCS. Without obtaining such
authorisation, she submits that no person can use the plaintiff‘s
registered KHADI trade marks. In order to obtain a valid certificate
from the plaintiff-KVIC, it is submitted that the applicant has to obtain
a certificate under Section 15(2)(k) of the KVIC Act read with
Regulation 24(2) of the KVIC Commission Regulations, 2007. It was,
inter alia , suggested in the regulation as to how the KHADI trade
marks were to be used by affixation or by other modes. The plaintiff
also claimed to be the Nodal Agency for implementation of the
PMEGP at the national level, under which financial assistance is
provided to new enterprises. At the State level, it is submitted that the
implementation of the PMEGP takes place through State KVIC
offices, State Khadi and Village Industry Board, District Industry
Centres and Banks. The subsidiary received from the government
under the PMEGP is stated to be routed by the plaintiff through
identified banks for eventual distribution to the beneficiaries or
entrepreneurs.

Signature Not Verified
Digitally Signed
By:KAMLA RAWAT
Signing Date:23.03.2023
16:24:40
CS(COMM) 244/2021 Page 19 of 45

Neutral Citation Number : 2023:DHC:2044
8.5 Ms. Majumder disputes the applicability of Section 30(2)(a) of
the Trade Marks Act by submitting that the said provision applies only
to non-trade mark use. In this context, she has pointed out that the
language of Section 30(2)(a) is identical to the language of Section 9
(1)(b). The defendants are not, however, carrying on any such
business. She submits that any other interpretation, if accorded to
Section 30(2)(a), would render Section 29(5) otiose.

8.6 Without prejudice, Ms. Majumder submits that the defendant is
estopped from pleading Section 30(2)(a) as the defendant is itself
holding a registration for the KDCI mark. Ms. Majumder has also
referred me to the main object of Defendant 1, as set out on its
website, which is ―to promote, advance, increase, develop the export
of all types of khadi garments, including, woolen knitwear and
garments of leather , jute, and hemp.‖

8.7 The plaintiff KVIC, she submits, never deals with leather. As
such, she disputes the defendant‘s contention that it was merely
seeking to promote the object of the plaintiff. She further submits that
the use of the plaintiff‘s KHADI mark, by the defendant, for
conducting Miss India Khadi Beauty pageant could not be said to be
protected under Section 30(2)(a), as the KHADI marks could not be
regarded as descriptive of the activity of conducting the beauty
pageant.

8.8 Ms. Majumder also invites my attention to the website of
Defendant 1, in which the following depiction is to be found:
―HOW DOES ‗KDCI‘ WORK

1) EXPECTED MORE THEN 5000 DESIGNING
INSTITUTES IN INDIA

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Neutral Citation Number : 2023:DHC:2044
2) EXPECTED MORE THEN 1,00,000 STUDENT
PASSING EVERY YEAR FROM VARIOUS INSTITUTIONS

3) EVERY DESIGER WILLING TO PROMOTE THEMSELVE
AND WANT TO ESTABLISED THE CAREER IN DESIGNING

DESIGNERS ARE DEVIDED INTO FOUR MAZOR
CATEGORIES


CELEBRITY DESIGNERS

1. THOSE ARE CONNECTED WITH INTERNATIONAL
FASHION TRENDES AND DESIGNING THE GARMENTS ON
INTERNATIONAL LEVEL AND FOR CELEBRITY LIKE;
WENDELL RODRICKS, ANJU MODI, ROCKY S, MANISH
MEHROTRA ETC .

2. ROLE OF CELEBRITY DESIGINERS IN COMMITTEE
TO INVOLVE THE KHADI Fabric INTO THEIR COLLECTION
FOR BOLLYWOOD AND INTERNATIONAL PROGRAMS.

3. INSPIRE THE EMERGING DESIGNERS AND
UPCOMING DESIGNERS TO WORK ON KHADI LIKE THEM.

4. TO ADVICE THE EXCUTIVE BOARD AND
ENROLLED DESIGNER WITH LATEST AND
INTERNATIONAL FASHION TRENDS.

5. TO APPOINT THEM AS MENTOR AND GIVE THE
SEMINARS ON KHADI ATLEAST TWICE IN YEARS.

6. TO GIVE THE CERTIFICATION FOR UPCOMING
DESIGNERS.

7. TO MAKE THE KHADI AS FASHION AND COMFORT
SYMBOLE FOR NATIONAL AND INTERNATIONAL
BUYERS.

8. TO CONNECT WITH THE TOP UNIVERSITY OF
INDIA LIKE AMITY, GALGOTIA ETC TO ORGANIZED THE
Signature Not Verified
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By:KAMLA RAWAT
Signing Date:23.03.2023
16:24:40
CS(COMM) 244/2021 Page 21 of 45

Neutral Citation Number : 2023:DHC:2044
ZONE WISE SEMINAR ON KHADI AND KHADI DESIGNING
TO CONNECT THE YOUTHS.

9. INVOLVE THEM TO PROMOTE THE GOVERNMENT
BENEFITS PROGRAMS.

10. CELEBRITY DESIGNER WILL BE SUPPORT US TO
MAKE THE KHADI POPULOR IN CELEBRITY AND
YOUTHS.

(THIS LEVEL OF COMMITTEE ARE NOT PROPOSED FOR
ANY GOVT. SCHEME LIKE PMEGP, SKILL INDIA HENCE
THEY ARE NESASORY TO PROMOTE AND PASSIONATE
THE KHADI TOWARDS THE YOUTH.)‖


8.9 She has also drawn my attention to the objective of Miss India
Beauty Pageant as thus set out on the website of Defendant 1:

―MISS INDIA KHADI is associated with the Khadi Designing
Council of India and it is the only platform where you can learn
earn explore and establish yourself. Miss is a title of respect for a
woman, India is our proud nation and Khadi is a symbol of
nationalism, self-reliance, and equality. Khadi itself a versatile
fabric, it brings about a silent and sure revolution.

Woman itself is a versatile creation on earth and we are
empowering women within the country with the quality of the
pride of the nation ―KHADI‖ to bring the change.

Miss India Khadi is a National pageant, one of the only pageants
that work for the social cause and empowering women. It also
gives them confidence, leadership skills and it promotes social
values towards society.

We groom those qualities who work to promote the social
responsibility to become role models of the nation.

The purpose of Miss India Khadi is to find those personalities from
all over the nation who are not just beautiful but who can
accomplish the change with their work.

Our objective is to encourage the self-confidence, self-reliance, and
Independent, strong and positive self-image of a woman.

This pageant does not just give you the grace, proper
communication, building self-confidence, networking but it will
change your whole life by experiencing the real you by doing
social work like Plantation, Prohibition on Female foeticide (Beti
Signature Not Verified
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Signing Date:23.03.2023
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CS(COMM) 244/2021 Page 22 of 45

Neutral Citation Number : 2023:DHC:2044
Bachao- Beti Padhao), waste management, and a Clean and Green
Environment (Swachh Bharat Mission), teach others about
women‘s safety & Empowerment, stop body Shaming social task
activities.‖


8.10 Ms. Majumder further refers to the Paridhaanam website on
which it is stated that ―modern machinery is taking over traditional
methods of manual crafting‖. The use of modern machinery in crafting
of fabric, submits Ms. Majumder, is completely incompatible with the
KHADI philosophy. She has also drawn my attention to the publicity,
on the Paridhaanam website, regarding the KHADI mask, in respect of
which it is inter alia stated that thus:


(i) It has been made using many types of designer fabric and
hence it is available in many beautiful colours‖

(ii) The use of this KHADI facemask will ensure
compatibility for many small scale industries and village
industries and is a step towards a self-reliant India.

These recitals, submits Ms. Majumder, are not compatible with
organisations which is promoting the KHADI fabric and the KHADI
culture.

8.11 Ms. Majumder has next referred me to the following
advertisement, to be found on the website of Defendant 1:





Signature Not Verified
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By:KAMLA RAWAT
Signing Date:23.03.2023
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CS(COMM) 244/2021 Page 23 of 45

Neutral Citation Number : 2023:DHC:2044



By such an advertisement, Ms. Majumder submits that defendants are
clearly seeking to convey an impression that they are an government
organisation.

8.12 Referring once again to the material on the website of
Defendant 1 relating to the Paridhaanam project, Ms. Majumder has
emphasised the following recitals to be found therein, with respect to
the Paridhaanam website:
― This e-commerce panel is exclusive for khadi & swadeshi
products (i.e handmade jewelry, handicrafts made by students).
Under this program, all students from your institute will get their
own exclusive e-commerce store among 1.54 million established
reach that can help them to connect with the audience to sell their
products & become an entrepreneur.

Following are the perks and incentive which you will be getting for
your participation in the Khadi Designer Awards & in association
with Miss India Khadi Foundation-

1. The designer who is going to associate/participate with
Miss India Khadi Foundation will get an exclusive e-commerce
store to sell their garments directly to the customers.
Signature Not Verified
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By:KAMLA RAWAT
Signing Date:23.03.2023
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Neutral Citation Number : 2023:DHC:2044

2. If your garments qualify all our selection parameters in the
competition, then your LABEL will get khadi certication( Miss
India Khadi Certified).

3. When your designing label becomes Khadi certified, you
will get an e-commerce store for selling your khadi garments every
year.

Certificate from Goa Khadi Board (Government of Goa).

6. Fashion Designers will get the opportunity to showcase
their collection free of cost in Domestic Fashion shows (2 to 3
shows) every year organized by our foundation.

7. Your logo will be published on our website. ‖


8.13 Ms. Majumder next refers me to the constitution of the
Corporate Committee of Defendant 1, as is thus reflected on its
website:
― CORPORATE COMMITTEE

The corporate Committee will work as advisors, financial support
as donations, CSR, and sponsors for different projects of council
and social activities.‖

1. They are responsible for formulating key policies about the
direction and strategy of the organization in keeping with the
nonprofit‘s mission and stated purpose.

2. Promotion of Khadi Designing Council projects in the
corporate sector.

3. Inspire corporate employees to wear khadi.

4. Fund Raising and corporate collaboration.

5. They works for the Celebrity Sponsors.

6. Separate space for Khadi Promotion.

Signature Not Verified
Digitally Signed
By:KAMLA RAWAT
Signing Date:23.03.2023
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CS(COMM) 244/2021 Page 25 of 45

Neutral Citation Number : 2023:DHC:2044


8.14 She has also referred to the rules and regulations for registration
of participants for the Miss/Mrs. India KHADI contest conducted by
Defendant 1, especially to the following recitals, to be found therein:
―Right of refund for any denomination are reserve with Miss India
Khadi foundation. There would be no any legal claim will be
accepted against any cause. ‖

Ms. Majumder submits that the very concept of refund implies that the
Defendant 1 is recovering payment from participants for participating
in the Miss India Khadi Contest, which indicate that the defendants
are working purely for profit as a commercial enterprise.

8.15 Ms. Majumder has final referred me to the following
promotional advertisement for Miss/Mrs India Khadi 2021 pageant, to
be conducted by Defendant 1:
Signature Not Verified
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Signing Date:23.03.2023
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Neutral Citation Number : 2023:DHC:2044


Ms. Majumder has also drawn my attention to photographs of Miss
India Khadi event conducted by Defendant 1, as they appear on the
Facebook page of Defendant 1, and submits that a glance at the attires
worn by the models and other persons attending the event featuring in
photograph clearly indicate that they are not made of KHADI.

8.16 Ms. Majumder has also invited my attention to para 5 of order
th
dated 26 July 2022 passed by a coordinate Bench of this Court in the
present proceedings, in which it has been noted that ―The mark
'KHADI' along with the 'Charkha logo' have become well-known and
have, in fact, been protected in several proceedings before this Court,
as also, in several administrative proceedings.‖ .

8.17 Ms. Majumder has placed reliance on paras 8 and 10 of the
judgments of the Supreme Court in Laxmikant V. Patel v.
7
Chetanbhai Shah , Bengal Waterproof Ltd. v. Bombay Waterproof
8
Manufacturing Company , Midas Hygiene Industries (P) Ltd. v.
9
Sudhir Bhatia and Jagdish Gopal Kamath v. Lime & Chilli

7
( 2002) 3 SCC 65
8
(1997 1 SCC 99
9
(2004) 28 PTC 121 (SC) : (2004) 3 SCC 90
Digitally Signed
By:KAMLA RAWAT
Signing Date:23.03.2023
16:24:40
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CS(COMM) 244/2021 Page 27 of 45

Neutral Citation Number : 2023:DHC:2044
10
Hospitality Services as well as the judgments of this Court in
11
Bloomberg Finance LLP v. Prafull Saklecha , B.K. Engineering
12
Co. v. UBHI Enterprises , Montari Overseas Ltd v. Montari
13
Industries Ltd. and the judgment of High Court of Bombay in Hem
14
Corporation v. ITC Limited .

9. Submissions of Mr Jatin Sharma:

9.1 Responding to the submissions of Ms. Majumder, Mr. Jatin
Sharma, learned Counsel for the defendants, drew my attention to para
35 of the plaint, which sets out the cause of action for instituting the
suit. He submits that, in the said paragraph, the plaintiff asserts that it
th
came to know of the defendants‘ activities on 19 December 2019.
There is no reference to any earlier knowledge or connection with the
defendant.

th
9.2 Adverting, next, to the internal communication dated 19
December 2019, of the plaintiff, thereafter, he has referred me to
th
internal communication dated 19 December 2019 of the plaintiff, in
which it is noted that, during the visit of the plaintiff at the venue of
the proposed Miss India Khadi event in 2019, no logo or mark of the
plaintiff was found therein. On the same day, vide another internal
communication of the plaintiff, it was noted that the plaintiff had
obtained, from Defendant 3, an oral assurance that he would not use
the KHADI marks of the plaintiff, in the proposed event. He has also
referred me to various other communications from the plaintiff to the
defendants in which they appreciated the work being carried out by

10
(2015) 62 PTC 23 (Bom) : 2015 SCC OnLine Bom 531
11
(2014) 207 DLT 35
12
(1985) 27 DLT 120 (DB) : AIR 1985 DEL 210
13
(1996) 16 PTC 142
14
(2012) 52 PTC 600 (Bom) : (2012) SCC OnLine Bom 551
Digitally Signed
By:KAMLA RAWAT
Signing Date:23.03.2023
16:24:40
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CS(COMM) 244/2021 Page 28 of 45

Neutral Citation Number : 2023:DHC:2044
the defendant. Mr. Sharma submits that the defendant continued to
use the KHADI mark, despite want of permission from the plaintiff
but that the plaintiff never objected to the said use at any point of time.


9.3 He submits that all usages, by the defendant, of the KHADI
marks were with the knowledge of the plaintiff and had resulted in
accumulation of the considerable goodwill in the defendants, of which
the plaintiff could not, at this stage, seek to deprive the defendants.
He submits that the defendant had conducted over 200 events using
KHADI fabric with the plaintiff‘s permission and refers me, in this
nd
context, to email dated 22 October 2018, from the defendant to the
plaintiff, in which it is so stated. He has further relied on letter dated
th
7 December 2018 from defendant to the plaintiff and other associated
communications which clearly depict the appreciation, by the plaintiff,
to the manner in which the defendants had organised the Miss India
Khadi Fashion show in Orissa.

9.4 Mr. Sharma also contests the entitlement of the Khadi marks of
the plaintiff to registration. He submits that, as Khadi is a type of
fabric, it is incapable of registration under Classes 24, 25, 33, 40 and
42, in view of Section 9(1) of the Trade Marks Act. He further
submits that the usage, by the plaintiff, of the trademark KHADI in
respect of goods other than cloth violates Section 2(d) of the KVIC
Act read with Regulations 2(h) and (j) of the KMR. He further pleads
that, as the plaintiff was aware of the use, by the defendant, of the
KHADI mark since 2016, the plaintiff must be deemed to have
acquiesced to such use. Moreover, submits Mr. Sharma, the KMR
does not entitle the plaintiff to monopolise the mark KHADI. With
respect to the various functions, events and pageants hosted by the
defendants, Mr. Sharma contends that the Khadi fabric, sourced for
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each such event was purchased from authorised outlets of the plaintiff
and that the plaintiff was kept in the loop.

Analysis

10. Many of the aspects around which arguments at the bar
revolved are, in my opinion, really peripheral to the real issue at hand.
These proceedings are in the nature of civil commercial proceedings
governed by the CPC as amended by the Commercial Courts Act.
Pleadings are, therefore, everything. The Court is required, in all such
cases, to examine the rival contentions, as pleaded, and assess for
itself whether they justify grant, or denial, of the prayers of the
plaintiff.

11. The plaintiff is, undisputedly, the proprietor of the registered
15
KHADI and Charkha marks/logos in several classes. Section 28(1)
of the Trade Marks Act confers, on the registrant of a valid trade
mark, the right to :
(i) exclusive use of the mark in relation to the goods or
services in respect of which it is registered and
(ii) obtain relief against infringement of the said mark.

12. Challenge to validity of the plaintiff‘s marks:

12.1 The use of the words ―if valid‖, in Section 28(1), assumes
importance, as the defendant has questioned the validity of the
plaintiff‘s KHADI trade marks as being non-registerable by virtue of

15
28. Rights conferred by registration . –
(1) Subject to the other provisions of this Act, the registration of a trade mark shall, if valid,
give to the registered proprietor of the trade mark the exclusive right to the use of the trade mark in
relation to the goods or services in respect of which the trade mark is registered and to obtain relief
in respect of infringement of the trade mark in the manner provided by this Act.
Digitally Signed
By:KAMLA RAWAT
Signing Date:23.03.2023
16:24:40
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Neutral Citation Number : 2023:DHC:2044
Section 9(1)(a) and (b). It would be necessary to consider, at the
outset, the extent to which such a challenge can be raised by the
defendant in the present case. In the process, two important
provisions come up for consideration – Sections 31 and 124 of the
Trade Marks Act.

12.2 Section 31(1) ordains that, in all legal proceedings relating to a
registered trade mark under the Trade Marks Act – which would
include, needless to say, infringement proceedings – the registration of
the mark shall be prima facie evidence of the validity thereof . These
words are of signal significance, when examining an application for
interlocutory injunctive relief under Order XXXIX Rules 1 and 2 of
the CPC. The grant of relief under Order XXXIX is subject to
satisfaction of the troika considerations of a prima facie case, balance
of convenience and irreparable loss to the applicant were interlocutory
relief not to be granted. Once, therefore, Section 31(1) declares, as a
matter of legislative fiat, that the registration of a mark shall be prima
facie evidence of the validity thereof, the first of the three
requirements which govern grant of interim relief already stands
satisfied, insofar as the issue of validity of the asserted mark of the
plaintiff is concerned. Ordinarily, therefore, there is no occasion, in
the face of such a clear statutory diktat , for the Order XXXIX Court to
examine, on merits, the challenge to the validity of the plaintiff‘s
mark, if the mark is registered. The use of the words ―shall be‖
enforce this legal position, as they indicate the sequitur of registration
of the mark, at the prima facie stage, to be mandatory in nature. In
16
U.O.I. v. A.K. Pandey , the Supreme Court approved the following
exposition of the legal position, as contained in Crawford‘s
―Mandatory and Directory or Permissive Words‖:
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―Ordinarily the words "shall" and "must" are mandatory, and the
work "may" is directory, although they are often used inter-
changeably in legislation. This use without regard to their literal
meaning generally makes it necessary for the courts to resort to
construction in order to discover the real intention of the
legislature. Nevertheless, it will always be presumed by the court
that the legislature intended to use the words in their usual and
natural meaning. If such a meaning, however, leads to absurdity,
or great inconvenience, or for some other reason is clearly
contrary to the obvious intention of the legislature, then words
which ordinarily are mandatory in their nature will be construed
as directory, or vice versa. In other words, if the language of the
statute, considered as a whole and with due regard to its nature and
object, reveals that the legislature intended the words "shall" and
"must" to be directory, they should be given that meaning.‖
(Emphasis supplied)

According, to the words ―shall be‖, as employed in Section 31(1) their
normal etymological mandatory connotation does not result in any
absurdity or great inconvenience; nor can it be said to be contrary to
the legislative intent. Ergo, applying the test in the above passage
8
from A.K. Pandey , the words have to be regarded as mandatory. The
consequence is, therefore, that, at the Order XXXIX stage, the Court
would treat a registered trade mark as valid. Embarking into the
merits of a challenge to the validity of the mark, in the written
statement of the defendant, would do violence to the legislative intent
manifested in Section 31(1).

17

12.3 Sub-sections (1), (2) and (5) of Section 124 of the Trade

16
(2009) 10 SCC 552
17
124. Stay of proceedings where the validity of registration of the trade mark is questioned, etc . –
(1) Where in any suit for infringement of a trade mark—
(a) the defendant pleads that registration of the plaintiff's trade mark is invalid; or
(b) the defendant raises a defence under clause (e) of sub-section (2) of Section 30
and the plaintiff pleads the invalidity of registration of the defendant's trade mark,
the court trying the suit (hereinafter referred to as the court), shall, -
(i) if any proceedings for rectification of the register in relation to the plaintiff's or
defendant's trade mark are pending before the Registrar or the High Court, stay the suit
pending the final disposal of such proceedings;
(ii) if no such proceedings are pending and the court is satisfied that the plea
regarding the invalidity of the registration of the plaintiff's or defendant's trade mark
is prima facie tenable, raise an issue regarding the same and adjourn the case for a period
of three months from the date of the framing of the issue in order to enable the party
concerned to apply to the High Court for rectification of the register.
(2) If the party concerned proves to the court that he has made any such application as is
referred to in clause (b)(ii) of sub-section (1) within the time specified therein or within such
Digitally Signed
By:KAMLA RAWAT
Signing Date:23.03.2023
16:24:40
Signature Not Verified
CS(COMM) 244/2021 Page 32 of 45

Neutral Citation Number : 2023:DHC:2044
Marks Act, read conjointly, lead to the same interpretative sequitur.
While Sections (1) and (2) of Section 124 envisage, in the event of a
defendant raising a challenge to the validity of the plaintiff‘s mark in
an infringement suit, framing of an issue by the Court regarding the
validity of the plaintiff‘s mark and grant of time to the defendant to
apply for rectification of the register of trade marks under Section 57,
staying further proceedings in the suit in the interregnum, sub-section
(5) is clear in its mandate that the stay of the suit would not preclude
the Court from granting an interlocutory injunction. The legislative
intent is clear and unmistakable. The Court, seized of an application
under Order XXXIX of the CPC seeking an interlocutory injunction in
the suit, may proceed to decide the application even though a
challenge to the validity of the asserted mark of the plaintiff has been
raised by the defendant to defend the infringement allegation.
Inasmuch as Section 124 envisages (i) consideration, by the Court, of
the tenability of the challenge to the validity of the plaintiff‘s mark as
raised by the defendant in its written statement, (ii) if the challenge is
found to be tenable, framing of an issue by the Court, (iii)
adjournment of the suit by three months and (iv) institution, by the
defendant, of rectification proceedings during that period, and,
nonetheless, directs that adjudication of the Order XXXIX application
of the plaintiff would not be affected by the said exercise, it is clear
that the Order XXXIX Court would not pre-empt the exercise of

extended time as the court may for sufficient cause allow, the trial of the suit shall stand stayed until
the final disposal of the rectification proceedings.
(3) If no such application as aforesaid has been made within the time so specified or within
such extended time as the court may allow, the issue as to the validity of the registration of the trade
mark concerned shall be deemed to have been abandoned and the court shall proceed with the suit
in regard to the other issues in the case.
(4) The final order made in any rectification proceedings referred to in sub-section (1) or sub-
section (2) shall be binding upon the parties and the court shall dispose of the suit conformably to
such order in so far as it relates to the issue as to the validity of the registration of the trade mark.
(5) The stay of a suit for the infringement of a trade mark under this section shall not
preclude the court from making any interlocutory order (including any order granting an injunction,
directing account to be kept, appointing a receiver or attaching any property), during the period of
the stay of the suit.

Digitally Signed
By:KAMLA RAWAT
Signing Date:23.03.2023
16:24:40
Signature Not Verified
CS(COMM) 244/2021 Page 33 of 45

Neutral Citation Number : 2023:DHC:2044
challenge to validity of the plaintiff‘s mark by returning any finding
thereon at that stage. The Order XXXIX Court would, therefore,
proceed on the basis of the statutory presumption, engrained in
Section 31(1), of validity of the plaintiff‘s mark.

12.4 That said, it is also equally trite that the legislature cannot bind
the hands of the Court in exercising the jurisdiction that the legislature
vests in it. If, therefore, in an extreme case, the Court, even at the
Order XXXIX stage, finds the challenge to the validity of the
plaintiff‘s mark, as raised by the defendant, to be so substantial as to
merit consideration, there can be no legislative hurdle on the Court
proceeding to examine the issue. That, however, in my opinion, has
to be restricted to extreme cases, and cannot be a matter of routine, if
Sections 31 and 124 are to be allowed full play.

12.5 I have, therefore, in deference to the submissions advanced at
the Bar, considered the prima facie sustainability of the challenge, by
the defendant, to the validity of the plaintiff‘s KHADI and Charkha
marks. The only ground urged by the defendant in that regard,
expressed in multifarious ways in the pleadings in the written
statement, which can be said to merit some consideration, is that
‗KHADI‘ is descriptive of a variety of cloth and cannot, therefore, be
registered as a mark for fabrics. Though the defendant has, alongside,
also extolled the virtues of Khadi, the manner in which Khadi
originated from the thoughts and teachings of Mahatma Gandhi and of
its being a ―national pride‖, these submissions cannot, needless to say,
inhibit the entitlement of the mark to registration, as they do not
constitute either absolute or relative grounds of refusal as envisaged in
Sections 9 and 11 of the Trade Marks Act.

Signature Not Verified
Digitally Signed
By:KAMLA RAWAT
Signing Date:23.03.2023
16:24:40
CS(COMM) 244/2021 Page 34 of 45

Neutral Citation Number : 2023:DHC:2044
12.6 Insofar as the challenge to the entitlement of the KHADI mark
to registration as being descriptive in nature is concerned, the
challenge remains incomplete as there is no absolute proscription to
registration of a descriptive mark. The proviso to Section 9(1) permits
registration of a descriptive mark if, before the date of application for
registration of the mark, it has acquired a distinctive character as a
result of the use made of it, or is a well-known trade mark (within the
18
meaning of Section 2(1)(zg) of the Trade Marks Act). The onus
would, therefore, be on the defendant, challenging the validity of the
plaintiff‘s mark, to positively aver, with corroborative material, that
the plaintiff is not entitled to the benefit of the proviso to Section 9(1),
i.e., that, before the date of registration of the mark, it had not
acquired a distinctive character as a result of the use made of it and
was not a well-known trade mark.

12.7 There is, however, no such assertion in the written statement.
That being so, the challenge to the validity of the registration of the
plaintiff‘s KHADI trade marks, as urged by the defendants, does not
prima facie appeal, or defeat the statutory presumption of validity
contained in Section 31(1), at least at the Order XXXIX stage.

13. Besides, as Ms. Majumder correctly points out, the plaintiff is
the holder of a valid and subsisting trade mark registration in Class
35, which covers ―organizing shows, exhibitions, and trade fairs for
commercial purposes‖. The defendant has not questioned the validity
of the said registration.


18
(zg) ―well-known trade mark‖, in relation to any goods or services, means a mark which has become so
to the substantial segment of the public which uses such goods or receives such services that the use of such
mark in relation to other goods or services would be likely to be taken as indicating a connection in the course
of trade or rendering of services between those goods or services and a person during the mark in relation to
the first-mentioned goods or services.
Digitally Signed
By:KAMLA RAWAT
Signing Date:23.03.2023
16:24:40
Signature Not Verified
CS(COMM) 244/2021 Page 35 of 45

Neutral Citation Number : 2023:DHC:2044
14. The aspect of infringement

14.1 Once the doubt that the defendants have attempted to cast on
the validity of the plaintiff‘s KHADI and Charkha marks is thus
dispelled, the defendants have not, quite advisedly, sought to seriously
submit that they do not use the plaintiff‘s registered trade marks. The
impugned
,
,
and
marks of the
defendant all use, prominently, either KHADI as a word or the
Charkha as an emblem. They have, admittedly, been used by the
defendant to designate its activities relating to use, display and
promotion – as they would contend – of the Khadi fabric and the
Khadi culture and, in fact, the activities of the plaintiff itself. The
submissions advanced by the defendants in their defence, therefore,
themselves vouchsafe their intent to create an association with the
plaintiff KVIC, by using the impugned marks. The fact that the use of
the impugned marks by the defendants would lead to an impression of
association between the defendants and the plaintiff, therefore, stands
conceded by the defendants .

14.2 Infringement of registered trade marks is covered by Section 29
19
of the Trade Marks Act, more particularly sub-sections (1) to (5) and

19
29. Infringement of registered trade marks . –
(1) A registered trade mark is infringed by a person who, not being a registered proprietor or
a person using by way of permitted use, uses in the course of trade, a mark which is identical with,
or deceptively similar to, the trade mark in relation to goods or services in respect of which the
trade mark is registered and in such manner as to render the use of the mark likely to be taken as
being used as a trade mark.
(2) A registered trade mark is infringed by a person who, not being a registered proprietor or
a person using by way of permitted use, uses in the course of trade, a mark which because of—
(a) its identity with the registered trade mark and the similarity of the goods or
services covered by such registered trade mark; or
(b) its similarity to the registered trade mark and the identity or similarity of the
goods or services covered by such registered trade mark; or
(c) its identity with the registered trade mark and the identity of the goods or
services covered by such registered trade mark,
is likely to cause confusion on the part of the public, or which is likely to have an association with
the registered trade mark.
Digitally Signed
By:KAMLA RAWAT
Signing Date:23.03.2023
16:24:40
Signature Not Verified
CS(COMM) 244/2021 Page 36 of 45

Neutral Citation Number : 2023:DHC:2044
(7) to (9) thereof, of which sub-sections (7) to (9) are not of particular
relevance to the present dispute.

20
14.3 Sub-section (6) of Section 29 facilitates application of the
Section by precisely delineating the ambit of the concept of use of a
registered mark, as envisaged therein. Section 29(6) has, however, to
21
be read in conjunction with 2(2)(b) and (c) , which, in fact, define the
concept of ―use of a mark‖, of which Section 29(6) merely delineates
certain particular instances.

14.4 Section 29(1) is a somewhat ambiguously worded provision.
Pared down to its ingredients, Section 29(1) envisages the existence of
infringement where (i) a registered trade mark of one person, or one
deceptively similar thereto, (ii) is used by another, (iii) who has
neither proprietorial nor permissive rights for such use, (iv) ―in the

(3) In any case falling under clause (c) of sub-section (2), the court shall presume that it is
likely to cause confusion on the part of the public.
(4) A registered trade mark is infringed by a person who, not being a registered proprietor or
a person using by way of permitted use, uses in the course of trade, a mark which—
(a) is identical with or similar to the registered trade mark; and
(b) is used in relation to goods or services which are not similar to those for which
the trade mark is registered; and
(c) the registered trade mark has a reputation in India and the use of the mark
without due cause takes unfair advantage of or is detrimental to, the distinctive character
or repute of the registered trade mark.
(5) A registered trade mark is infringed by a person if he uses such registered trade mark, as
his trade name or part of his trade name, or name of his business concern or part of the name, of his
business concern dealing in goods or services in respect of which the trade mark is registered.
20
(6) For the purposes of this section, a person uses a registered mark, if, in particular, he—
(a) affixes it to goods or the packaging thereof;
(b) offers or exposes goods for sale, puts them on the market, or stocks them for those
purposes under the registered trade mark, or offers or supplies services under the registered trade
mark;
(c) imports or exports goods under the mark; or
(d) uses the registered trade mark on business papers or in advertising.
21
(2) In this Act, unless the context otherwise requires, any reference—
*
(b) to the use of a mark shall be construed as a reference to the use of printed or
other visual representation of the mark;
(c) to the use of a mark, -
(i) in relation to goods, shall be construed as a reference to the use of the
mark upon, or in any physical or in any other relation whatsoever, to such
goods;
(ii) in relation to services, shall be construed as a reference to the use of
the mark as or as part of any statement about the availability, provision or
performance of such services

Digitally Signed
By:KAMLA RAWAT
Signing Date:23.03.2023
16:24:40
Signature Not Verified
CS(COMM) 244/2021 Page 37 of 45

Neutral Citation Number : 2023:DHC:2044
course of trade‖, (v) in relation to goods or services in respect of
which the mark is registered (vi) ―in such manner as to render the use
of the mark likely to be taken as being used as a trade mark‖. This
last ingredient (vi) is, without meaning any disrespect to the
legislature, vague as vague can be. In what circumstances is the use
of mark ―likely to be taken as being used as a trade mark‖? The
statute proffers no answer. Perhaps one may glimpse some vestige of
a hint to understanding the provision in the definition of ―trade mark‖,
as contained in Section 2(1)(zb), which defines ―trade mark‖ as
meaning ―a mark capable of being represented graphically and which
is capable of distinguishing the goods or services of one person from
those of others and may include shape of goods, their packaging and
combination of colours; and
(i) in relation to Chapter XII (other than Section 107), a
registered trade mark or a mark used in relation to goods or
services for the purpose of indicating or so as to indicate a
connection in the course of trade between the goods or services,
as the case may be, and some person having the right as
proprietor to use the mark; and
(ii) in relation to other provisions of this Act, a mark used or
proposed to be used in relation to goods or services for the
purpose of indicating or so to indicate a connection in the
course of trade between the goods or services, as the case may
be, and some person having the right, either as proprietor or by
way of permitted user, to use the mark whether with or without
any indication of the identity of that person, and includes a
certification trade mark or collective mark‖.

Signature Not Verified
Digitally Signed
By:KAMLA RAWAT
Signing Date:23.03.2023
16:24:40
CS(COMM) 244/2021 Page 38 of 45

Neutral Citation Number : 2023:DHC:2044
I do not deem it necessary to devote further time to Section 29(1), as a
prima facie case of infringement is, in my view, made out even by
applying the other provisions in Section 29.


14.5 Section 29(2) applies in three situations, of which clause (b)
would, prima facie , apply to the facts on hand. Let us identify its
ingredients. Section 29(2)(b) envisages infringement of a registered
trade mark as having taken place where
(i) in the course of trade,
(ii) a person who is neither its registered proprietor nor a
person entitled permissively to use it,
(iii) uses another, identical mark which is either identical (in
which case clause (a) or (c) would apply) or similar (in
which case clause (b) would apply),
(iv) in respect of goods or services which are either identical,
or similar to the goods in respect of which the mark is
registered,
(v) and, because of such identity or similarity of the marks
and the goods or services covered thereby,
(vi) there is likelihood of either
(a) confusion on the part of the public, or
(b) an association with the registered trade mark.
That the defendants are using the impugned marks ―in the course of
trade‖ is admitted, as their own stand is that they use it to promote
commercial use of the KHADI mark of the plaintiff. Inasmuch as (i)
the impugned marks use the word KHADI, (ii) the word KHADI also
forms part of the names of both defendant 1 and 2, and (iii) the
logo of the defendants prominently features a ― charkha ‖
in association with the word ‗KHADI‘, the marks under which the
Signature Not Verified
Digitally Signed
By:KAMLA RAWAT
Signing Date:23.03.2023
16:24:40
CS(COMM) 244/2021 Page 39 of 45

Neutral Citation Number : 2023:DHC:2044
defendants carry out their activities are similar to the registered
KHADI marks of the plaintiff. The activities in relation to which the
defendants use the mark are similar to those in respect of which the
KHADI and Charkha marks are registered in the plaintiff‘s favour, as
the defendants themselves admit that their activities are interlinked; in
fact, that the defendants‘ aim is to promote the use of Khadi, in which
the plaintiff is admitted by the defendants to be the nodal organization.
The conjoint use of the impugned marks, in relation to such activities
is also admitted, by the defendants, to be intended to infer an
association between the defendants and the plaintiff. Once the very
intent to create an association stand acknowledged by the defendants,
the likelihood of inference of such association, thereby, in the minds
of the consuming public, and the possibility of confusion thereby, also
stands admitted. Section 29(2), thereby, squarely applies, and a prima
facie case of infringement, under the said provision, therefore, exists.

14.6 Section 29(4), inasmuch as it deals with usage of the impugned
mark in respect of goods or services other than those in respect of
which the mark is registered in the plaintiff‘s favour, would not apply.
However, a prima facie case of infringement would also be made out
under Section 29(5), as the defendants are using the registered KHADI
word mark of the plaintiff as part of ―Khadi Design Council of India‖
and ―Miss India Khadi‖, which are both their trade names, as well as
the names of their business concerns, which deal with goods and
services in respect of which the KHADI word mark stands registered
in favour of the plaintiff. A prima facie case of infringement under
Section 29(5) is also, therefore, made out in the present case.

14.7 I may note, here, that the manner in which the KHADI word is
used by the respondent amounts to ―use of the mark‖ within the
Signature Not Verified
Digitally Signed
By:KAMLA RAWAT
Signing Date:23.03.2023
16:24:40
CS(COMM) 244/2021 Page 40 of 45

Neutral Citation Number : 2023:DHC:2044
meaning of the Trade Marks Act both under Section 2(2)(b) and (c) as
well as Section 29(6)(a), (b) and (d) thereof, inasmuch as
(i) the defendants use KHADI in its printed form as well as
its visual representation (thereby attracting Section 2(2)(b)),
(ii) the goods displayed and sold by the defendants bear the
KHADI mark (thereby attracting Section 2(2)(c)(i)),
(iii) the services provided by the defendants in the form of
exhibitions, fashion shows, beauty pageants, and the like, too,
use KHADI as part of the statement about the availability,
provision and performance of such services (thereby attracting
Section 2(2)(c)(ii)),
(iv) the KHADI mark is affixed on the Khadi goods in which
the defendants profess to deal (thereby attracting Section
29(6)(a)),
(v) the various activities of the defendants involve putting up
and exposing goods for sale, and offering of services, under the
registered KHADI word mark of the plaintiff (thereby attracting
Section 29(6)(b)), and
(vi) the defendants prominently use KHADI in their business
papers in advertisements, to many of which Ms. Majumder
alluded, and which already stand noted hereinbefore (thereby
attracting Section 29(6)(d)).

14.8 Resultantly, the use of the word KHADI, as well as the
impugned marks, by the defendant, prima facie infringe, within the
meaning of Section 29(2) and (4) of the Trade Marks Act, the word
mark KHADI, in which the plaintiff has valid and subsisting
registrations in Classes 1, 2, 4, 5, 6, 7, 8, 14, 16, 18, 19, 20, 21, 22, 23,
24, 25, 26, 27, 29, 30, 32, 34, 35, 38 and 42 and also infringe, in fact,
Signature Not Verified
Digitally Signed
By:KAMLA RAWAT
Signing Date:23.03.2023
16:24:40
CS(COMM) 244/2021 Page 41 of 45

Neutral Citation Number : 2023:DHC:2044
the device mark
of the plaintiff, which stands registered in the
plaintiff‘s favour in Classes 1, 2, 3,4, 5, 6, 7, 8, 14, 16, 18, 19, 20, 21,
22, 23, 24, 25, 26, 27, 29, 30, 32, 34, 35, 38 and 42, as ‗KHADI‘
forms a prominent part of the said mark, as well as of the impugned
,
and
marks of the defendants.

15. Passing off:


15.1 The line of defence adopted by the defendants in the present
case also makes out, prima facie , a case of passing off, by the
defendants, of their services as being associated with the plaintiff.
The defendants admit that their activities are intended to draw an
association with Khadi, to the extent that they also claim to be
promoting the mark of the plaintiffs. The case set up by the
defendants is that they are sourcing fabric manufactured by the
plaintiff, and bearing the plaintiff‘s marks, from authorized outlets and
stockists, and placing the fabrics on display, inter alia by using them
in designer clothing, beauty pageants, and the like. The intent to
associate the activities of the defendants with those of the plaintiff is,
therefore, not only apparent but admitted. Inasmuch as the plaintiff
has granted no authority, whatsoever, to the defendant to do so, these
attempts amount, prima facie , to passing off, by the defendants, of
their services as those of the plaintiff or, at the very least, drawing an
association between the two.

16. Acquiescence and permissive use

Signature Not Verified
Digitally Signed
By:KAMLA RAWAT
Signing Date:23.03.2023
16:24:40
CS(COMM) 244/2021 Page 42 of 45

Neutral Citation Number : 2023:DHC:2044
16.1 ―Permitted use‖ is a complete defence to an allegation of
infringement, under each of the sub-sections of Section 29. The
reason is obvious; one cannot, on the one hand, permit use, by
another, of its registered trade mark and, on the other hand, allege
infringement as a consequence of such use. Permissive use would
also, therefore, constitute a defence to a claim of passing off, as, if the
use of the plaintiff‘s mark, by the defendant, is with the plaintiff‘s
permission, the defendant cannot very well be alleged to have sought
to pass off its goods or services as those of the plaintiff, by doing so.

16.2 ―Permitted use‖ has, however, to be understood in the manner
22
in which it stands defined in clause (r) of Section 2(1). The
interspersing ―and‖ between the various sub-clauses (a) to (d) in
Section 2(1)(r)(i) and (ii) make it clear that the indicial of clauses (a)
to (d) is, in each case, to be cumulatively satisfied before a case of
―permitted use‖ can be said to exist.

16.3 Sub-clause (i) in Section 2(1)(r) obviously does not apply as the
defendants are not registered users of the plaintiff‘s marks. Apropos
sub-clause (ii), as Ms. Majumder correctly points out, consent of the
registered trade mark holder has to be in the form of a written
agreement. No such written agreement exists in the present case;

22
(r) ―permitted use‖, in relation to a registered trade mark, means the use of trade mark –
(i) by a registered user of the trade mark in relation to goods or services—
(a) with which he is connected in the course of trade; and
(b) in respect of which the trade mark remains registered for the time being; and
(c) for which he is registered as registered user; and
(d) which complies with any conditions or limitations to which the registration of
registered user is subject; or
(ii) by a person other than the registered proprietor and registered user in relation to goods or
services—
(a) with which he is connected in the course of trade; and
(b) in respect of which the trade mark remains registered for the time being; and
(c) by consent of such registered proprietor in a written agreement; and
(d) which complies with any conditions or limitations to which such user is subject and to
which the registration of the trade mark is subject;
Digitally Signed
By:KAMLA RAWAT
Signing Date:23.03.2023
16:24:40
Signature Not Verified
CS(COMM) 244/2021 Page 43 of 45

Neutral Citation Number : 2023:DHC:2044
ergo, the defendants cannot, prima facie , plead that they were using
the KHADI and Charkha marks as permitted users thereof.

17. None of the other submissions advanced at the Bar need, in my
opinion, to be considered, as a prima facie case of infringement and
passing off stands made out against the defendants and in favour of
the plaintiff.

Conclusion

18. Resultantly, the defendants as well as all others acting on their
behalf shall stand restrained, during the pendency of the suit, from
using, directly or indirectly, the mark KHADI, either as a word or as
part of its trade name or name of its business concern, as well as from
using the impugned marks
, or any
other mark identical or deceptively similar thereto. The defendants
shall also stand restrained from operating any social media web page,
including but not restricted to Facebook, Instagram and Youtube, in
the name of Defendants 1 or 2, or from reflecting, on the
www.paridhanam.com website, the mark KHADI or any of the
impugned marks.

19. Needless to say, all observations and findings in this judgment
are prima facie , and are not tantamount to any final expression of
opinion on any of the issues in controversy.

Signature Not Verified
Digitally Signed
By:KAMLA RAWAT
Signing Date:23.03.2023
16:24:40
CS(COMM) 244/2021 Page 44 of 45

Neutral Citation Number : 2023:DHC:2044
20. I.A. 6811/2021 stands allowed accordingly.

CS(COMM) 244/2021


th
21. Re-notify on 16 May 2023.



C.HARI SHANKAR, J
MARCH 22, 2023
rb/dsn
Signature Not Verified
Digitally Signed
By:KAMLA RAWAT
Signing Date:23.03.2023
16:24:40
CS(COMM) 244/2021 Page 45 of 45