Ashok M Bhatt vs Harichand Nagpal
- Court
- Bombay High Court
CNR No : HCBM020093232025
Digitally
signed by
VAIBHAV
NAMDEV
BARE
Date:
2026.07.15
19:36:38
+0530
5-IAL-9324-2025
VAIBHAV
NAMDEV
BARE
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
IN ITS COMMERCIAL DIVISION
INTERIM APPLICATION (L) NO. 9324 OF 2025
IN
COMMERCIAL IP SUIT NO. 378 OF 2021
ALONG WITH
NOTICE OF MOTION NO. 1269 OF 2016
IN
IN COMMERCIAL IP SUIT NO. 378 OF 2021
Dr. Ashok M. Bhat … Applicant/Org. Plaintiff
In the matter between:
Dr. Ashok M. Bhat
… Plaintiff
Versus
Harichand Nagpal & Ors.
… Defendants/Respondents
——
Mr. Hiren Kamod a/w. Ms. Rashi Thakur and Mr. Siddhant Gupta i/b. Vinod A.
Bhagat for the Applicant.
Mr. Alankar Kirpekar i/b. Jaya Manghwani for Respondent No. 1
——
CORAM : ARIF S. DOCTOR, J.
th
RESERVED ON : 7 MAY 2026
th
PRONOUNCED ON : 13 JULY 2026
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ORDER:
1. At the outset, since both the captioned Notice of Motion No. 1269 of 2016
and Interim Application (L) No. 9324 of 2025 are both filed under the
provisions of Order XXXIX Rule 2A of the Code of Civil Procedure, 1908,
th
and allege the willful breach and disobedience of the Order dated 24
November 2010, both applications were heard together and are being
disposed of by this common order. The parties in this order shall be referred
to as they are arrayed in Interim Application (L) No. 9324 of 2025.
2. The short question which arise for determination in the present Interim
Application is whether Respondent No. 1, having been injuncted from
using the trade mark ‘ NOVA ’ which is the Applicant’s registered mark and
the artistic work as set out in Table ‘ A ’ below, could have used the trade
mark ‘ NOVA MINI ’ and the artistic work depicted in the label which is
set out in Table ‘ B ’ below viz.
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Table A Table B
Applicant’s
registered artistic
work
Trade
Mark
Trade Mark Impugned
Label
NOVA
The facts, briefly stated:
3. It is not in dispute that the Applicant, i.e., the Plaintiff in the captioned Suit,
is the registered proprietor of the trade mark ‘ NOVA ’ and the artistic work
as set out in table ‘A’ above. It is also not in dispute that the Applicant’s
trade mark and artistic work are used for the manufacture and sale of a
brilliantine hair cream.
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4.
It is the Applicant’s case that in 2007, the Applicant discovered that
Respondent No. 1, who is the sole proprietor of M/s Ravi Industries, was
selling counterfeit products of the Applicant’s brilliantine hair cream using
the counterfeit label set out in Table 'C' alongside the Applicant's ‘ NOVA ’
label viz.
Table C
Counterfeit label
Applicant’s Label
The Applicant, therefore, filed the captioned Suit for infringement and
passing off, impugning the use by Respondent No. 1 and 2 of the trade
NOVA
mark ‘ ’ and the Applicant’s registered artistic work.
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5. The Applicant took out Notice of Motion (L) No. 323 of 2008 in the
captioned Suit in which the Applicant sought the following interim reliefs,
viz.
that pending the hearing and final disposal of the suit, the
“(a)
defendants by themselves, their proprietor/partners, their servants, assignees,
transferees and all those connected with them be restrained by an order and
injunction of this Hon'ble Court from in any manner manufacturing,
marketing, selling and/or using in relation to its cosmetic goods including
brillantine cream and other like goods the impugned counterfeit trade mark
NOVA or any trade mark deceptively similar thereto being identical to the
plaintiff's trade mark NOVA so as to infringe upon the plaintiff's said trade
mark registered under Nos. 126501, 126502, 1070856 and 1070857 all in
class 03;
(b) that the pending the hearing and final disposal of the suit, the defendants
by themselves, their proprietor/partners, their servants, assignees,
transferees and all those connected with them be restrained by an order and
injunction of this Hon'ble Court from in any manner from in any manner
manufacturing, marketing, selling and/or using in relation to its cosmetic
goods including brillantine cream and other like goods the impugned
counterfeit trade mark NOVA or any trade mark deceptively similar thereto
being identical to the plaintiff's distinctive and reputed trade mark NOVA so
as to pass off their goods and business or enable others to pass off the
defendant's business and goods as and for those of the plaintiff or in some
way connected therewith;
(c) that pending the hearing and final disposal of the suit, the
defendants by themselves, their proprietor/partners, their servants, assignees,
transferees and all those connected with them be restrained by an order and
injunction of this Hon'ble Court from in any manner manufacturing,
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marketing, selling and/or using in relation to their cosmetic goods including
brillantine cream and other like goods the impugned carton and label of
NOVA bearing a colour scheme, font of writing, lay-out, get-up, artwork, style
and representation which is identical with and/or is substantially similar to
the colour scheme, font of writing, lay-out, get-up, artwork, style and
representation of the plaintiff's original artistic carton and label of NOVA so
as to infringe upon the plaintiff's copyright registered under Nos. A-13658/75
and A-13659/75 dated 30.07.1975.”
(emphasis supplied)
th
This Court, by an order dated 24 order of
November 2010 (“
injunction ”), granted the Applicant, interim relief in terms of prayer
clauses ‘( a )’ to ‘( c )’ of the said Notice of Motion.
6. Hence, by virtue of the order of injunction, it is clear beyond the pale of
doubt that the Respondent No. 1 and 2 were restrained not only from using
the ‘ NOVA ’ mark or any trade mark deceptively similar thereto but also
the plaintiff's original artistic carton and label of NOVA so as
from using “
to infringe upon the plaintiff's copyright registered under Nos. A-13658/75
and A-13659/75 dated 30.07.1975.
”
7. It is the Applicant’s case that in December 2013, the Applicant became
aware that Respondent No. 1 was using the mark ‘ NONI ’ for the sale of
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brilliantine hair cream along with artistic work on the label, which was not
only virtually identical to the counterfeit label but also the Applicant’s
registered artistic work. The ‘ NONI ’ label, along with the Applicant’s
registered artistic work and the counterfeit ‘ NOVA ’ label, are set out in
Table ‘ D ’ below for ease of reference, viz.
Table D
Applicant’s
registered artistic
work
‘NONI’ Label
Counterfeit label
8. It was thus that the Applicant took out Notice of Motion No. 1269 of 2016
under the provisions of Order XXXIX Rule 2A of the Civil Procedure
Code, 1908 (“ the First Contempt Application ”) against Respondent No.
1 and for disobedience and breach of the order of injunction, and the same
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is pending before this Court. Though Respondent No. 2 is also a party to
this Notice of Motion, there is no specific allegation of contempt against
Respondent No. 2.
9. Thereafter, in February 2025, when the Court Receiver was executing an
Order passed in another Suit filed against Respondent No. 1, the Court
Receiver came across goods bearing the mark ‘ NOVA MINI ’ as well as
the ‘ NONI ’ label at the premises of Respondent No. 1. Crucially, the
Report of the Court Receiver records that Respondent No. 3, i.e., Mr.
Kamlesh Nagpal, who is the son of Respondent No. 1, introduced himself
as the proprietor of M/s. Ravi Industries. It was thus that the Applicant filed
Interim Application (L) No. 9324 of 2025 (“ the Second Contempt
Application ”) under the provisions of Order XXXIX Rule 2A of the Civil
Procedure Code, 1908 (“ CPC ”), in which the Applicant also joined Mr.
Kamlesh Nagpal as Respondent No. 3. Thus, Respondents Nos. 1 and 3
shall be jointly referred to as the Respondents.
10. The Applicant has in the Second Contempt Application sought the
following reliefs, viz.
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“ (a) this Hon’ble Court be pleased to pass an order holding that the Respondent
Nos. 1 and 3 are guilty of having committed contempt of this Hon’ble Court by
willfully, deliberately, knowingly and contemptuously disobeying the order
passed by this Hon’ble Court dated 24.11.2010, as per the charge based on
documents annexed and more particularly set out in para 15 hereinabove, by
continuing to use the impugned mark NOVA mini and the impugned label mark
NONI depicted under a pirated artwork in relation to their brilliantine hair
and skin cream, cosmetic goods and any like preparations being in gross and
contumacious breach and violation of the orders passed by this Hon’ble Court;
(b) the Respondent Nos. 1 and 3 by themselves, their proprietor, legal heirs,
servants, agents, assignees, stockists, distributors, their representatives and all
other persons claiming under or through them be directed to comply with the
said order dated 24.11.2010 passed by this Hon’ble Court by stopping their
use of:
(i) the impugned trade mark NOVA mini / NOVA and / or any other trade
mark which is identical with and / or deceptively similar to the Applicant’s
trade mark NOVA in respect of goods same/similar/allied/ complimentary to
the goods covered by the Applicant’s NOVA trade mark registrations; and
(ii) the impugned label / artwork bearing the mark NONI as shown at Exhibit
C to the present Interim Application and / or any other label which is a
reproduction / substantial reproduction of and / or deceptively similar to the
Applicant’s NOVA label mark / artwork as shown at Exhibit D to the present
Interim Application;
(c) the Respondent Nos. 1 and 3 and such other person/s in charge of the day-
to-day business/affairs of Respondent No. 1, be punished with simple
imprisonment for the maximum period as prescribed by law or for such other
period as this Hon’ble Court may deem appropriate and the said Respondents
and such other persons in charge of Respondent No. 1’s day-to-day
business/affairs, be punished with an appropriate fine as this Hon’ble Court
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may deem appropriate or otherwise be appropriately dealt with in such manner
as this Hon’ble Court may deem it proper in the circumstances of the case;
(d) the Respondent Nos. 1 and 3 be required to disclose all their properties,
assets and such properties be ordered to be attached due to the disobedience
and breach of the said order dated 24.11.2010 passed by this Hon’ble Court;
(e) Strike off the entire defense of the Respondent No. 1/Original Defendant No.
1 in the Suit;
(f) pending the hearing and final disposal of the present Interim Application,
the Respondents by themselves, their proprietor, servants, agents, assignees,
stockists, distributors, their representatives and all other persons claiming
under them be directed to comply with the said order dated 24.11.2010 passed
by this Hon’ble Court by stopping their use of:
(i) the impugned trade mark NOVA mini / NOVA and / or any other trade
mark which is identical with and/or deceptively similar to the Applicant’s
trade mark NOVA in respect of goods same/similar/allied/complimentary to
the goods covered by the Applicant’s NOVA trade mark registrations; and
(ii) the impugned label/artwork bearing the mark NONI as shown at Exhibit
C to the present Interim Application and / or any other label which is a
reproduction / substantial reproduction of and / or deceptively similar to
the Applicant’s NOVA label mark / artwork as shown at Exhibit D to the
present Interim Application;”
Submissions on behalf of the Applicant:
11. Mr. Kamod, Learned Counsel appearing on behalf of the Applicant at the
outset, submitted that the limited scope of the inquiry by this Court in the
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present Interim Applications was to only determine whether Respondents,
NONI NOVA MINI
by using the ‘ ’ label and ‘ ’ mark, have acted in
disobedience and breach of the order of injunction and nothing more.
12. He submitted that a plain reading of the prayer clauses ‘( a )’ to ‘( c )’ of
Notice of Motion No. 323 of 2008 left no manner of doubt that Respondent
No. 1 was specifically restrained from using not only the ‘ NOVA ’ mark or
any other deceptively similar mark but was also restrained from using the
Applicant’s registered artistic work, which was registered under Nos A-
13658/75 and A-13659/75. He therefore submitted that all that had to be
NONI
done was to compare the ‘ ’ label with the Applicant’s registered
artistic work and the counterfeit label viz.
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Applicant’s
Registered Artistic
Work
Counterfeit Label
‘NONI’ Label
From the above, Mr. Kamod submitted that there could be no manner of
doubt that the ‘ NONI ’ label was not only deceptively similar to the
counterfeit label but was also virtually identical to the Applicant’s
registered artistic work, which Respondent No. 1 had been specifically
injuncted from using. He thus submitted that by using the Applicant’s
NONI
registered artistic work on the ‘ ’ label, Respondent No. 1 had plainly
disobeyed and breached the order of injunction.
13. Mr. Kamod submitted that the entire defence of Respondent No. 1 in the
present contempt proceedings continued as if Respondent No. 1 were
replying to, or defending, an application for the grant of interim relief under
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the provisions of Order XXXIX Rules 1 and 2 of the CPC and not an
Application for breach of an order of injunction. He submitted that it was
well settled that, in contempt proceedings, the only question which arises
for determination is whether the party against whom contempt is alleged
has committed a wilful breach of the order of which contempt is alleged
and nothing more.
14. Mr. Kamod submitted that, as long as the order of which contempt is
alleged remains operational, i.e., has not been vacated or modified, it must
be obeyed. He submitted that it is well settled that a party against whom
contempt is alleged cannot take the defence of justification to explain any
breach. He submitted that even if the legality of the order, which was the
basis for the alleged contempt, was in question, it was wholly irrelevant to
defend against an action of contempt as long as the order remained in force.
In support of his contention, he placed reliance upon the decision of the
Delhi High Court in the case of M/s. Indo-Keniyan Industrial Enterprises
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1
v. Metal Forgings (P) Ltd. in particular, paragraph 33 thereof, which read
thus:
As for the contention of the respondents that the original compromise
“33.
as also the order of the Court based upon it is vitiated and rendered illegal
on account of suppression of factum of partnership by the petitioner, suffice
it to say, that it is totally irrelevant so far contempt proceedings are
concerned. It is open to the respondents to challenge the original order on
this ground and seek appropriate relief from the concerned court, if so,
advised. Surely this Court cannot go into this question and cannot ignore
the fact of the respondents committing breach of the undertaking given to
the Court. As observed by Tek Chand, J. in Narain Singh v. S. Hardayal
Singh Jarika, AIR 1958 Punjab 180 : 1958 Cri LJ 970
“So long as the injunction order has not been vacated or modified by the
Court granting it, or has not been reversed on appeal, no matter how
unreasonable and unjust the injunction may be, the order must be obeyed.
Violation of the order of injunction cannot be excused on the ground that
though the Court acted within its jurisdiction but the order that it passed
was erroneous.
The order granting injunction might have been erroneous, or granted
improvidently, or obtained irregularly, that will not excuse the person
violating it. The only questions open for consideration in proceedings for
contempt for violating an injunction are, whether the Court had jurisdiction
to award the injunction, and whether it had in fact been violated. Further,
inquiry as to its advisability or legality is not called for. The Court, in
contempt proceedings, will not inquire into the merits of the case in which
the injunction was issued.
1
1986 SCC OnLine Del 136.
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That is the function of the Court granting the injunction and if that order is
challenged in appeal, then of the Court of appeal. If the question has been
determined wrongly by the trial Court, it can be re-examined only on
appeal. So long as the Court has an authority to determine the issue, its
order has to be obeyed, no matter how clearly it may be erroneous.”
(emphasis supplied)
15. Mr. Kamod then submitted that the contention of Respondent No. 1 that
NONI
the order of injunction did not cover the ‘ ’ label and was confined
NOVA
only to the mark ‘ ’ was not only factually incorrect but was also
patently dishonest. He submitted that, in order to demonstrate the
dishonesty on the part of Respondents, it was necessary to first examine
the facts leading to the institution of the present Suit which would clearly
establish that Respondents were, at all material times, fully aware that the
order of injunction squarely applied to the ‘ NONI ’ label as well. He then
invited my attention to the Plaint and took pains to point out that the
Applicant had, specifically, pleaded inter alia in paragraphs 11 and 12
therein that the Applicant, though aware of the trade mark registration No.
NONI
235004 in Class 3 for the mark ‘ ’, had not come across actual use of
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the mark in the market, and it was thus that the Applicant had not sought a
NONI
specific prayer to restrain the Respondents from using the ‘ ’ mark.
16. He, however, took pains to point out that prayer clause '( c )' of the Notice
of Motion specifically sought an injunction to restrain Respondent No. 1
from using the Applicant’s registered artistic work, which clearly appeared
on both the counterfeit label and the ‘ NONI ’ label. He submitted that the
order of injunction, having been passed in terms of prayer clauses ‘( a )’ to
c NONI
‘( )’, therefore plainly covered the ‘ ’ label, since Respondent No. 1
NONI
had, on the ‘ ’ label, plainly used the Applicant’s registered artistic
work.
17. He then submitted that the Applicant had, in the Plaint, made it abundantly
clear that the use of the Applicant’s registered artistic work, as shown on
the counterfeit label, formed a substantial part of the cause of action for the
filing of the present Suit. He pointed out that this Court had taken judicial
notice of the fact that there was a difference between coming across a trade
mark on the Register of Trade Marks and coming across actual use of the
trade mark in the market. He also submitted that it was well settled that the
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registration of a mark does not, by itself, predicate an intention to use such
mark. In support of his contention, he placed reliance upon the decisions
of this Court in the case of Skol Breweries Limited v. Jagpin Breweries
2
Limited ; and Sun Pharmaceutical Industries Ltd. v. Emcure
3
Pharmaceuticals Ltd. which he pointed out inter alia held that knowledge
of adoption of a mark and knowledge of the actual use of a mark are distinct
from each other, since there could be adoption without actual use.
18. Mr. Kamod, thus, submitted that in the absence of any evidence of actual
NONI
use by Respondent No. 1 of the ‘ ’ mark, there was no occasion for
the Applicant to seek a specific injunction restraining Respondent No. 1
from using the ‘ NONI ’ mark. He submitted that the Applicant had taken
the necessary steps to expunge/cancel the registration of the ‘ NONI ’ mark,
bearing the registered No. 235004, for which purpose the Applicant had
filed a rectification application before the Intellectual Property Appellate
Board (“ IPAB ”).
2
th
Order dated 7 February 2012 in Notice of Motion No. 92 of 2012 in Suit No. 56 of 2012
passed by Bombay High Court.
3
2012 SCC OnLine Bom 24.
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th
19. He then submitted that the IPAB, vide its order dated 4 May 2012, while
acknowledging that the rival marks and colour get-up were almost the
same, had dismissed the Applicant’s rectification application solely on the
basis that ‘ NONI ’ had been on record for a long time. He pointed out that
the decision of the IPAB was challenged by the Applicant in Writ Petition
No. 8419 of 2012, which was pending before this Court. Mr. Kamod,
however, submitted that the IPAB order was wholly irrelevant since,
subsequent to that, this Court had passed the order of injunction restraining
Respondent No. 1 from using the Applicant’s registered artistic work
NONI
which was virtually identical and/or deceptively similar to the ‘ ’
label.
20. He then took pains to point out that Respondent No. 1 had, in the Written
Statement, consistently referred to the ‘ NONI ’ label to defend the use of
the counterfeit ‘ NOVA ’ label and that the entire defence of Respondent
No. 1 to resist the order of injunction was predicated on Respondent No.
NONI
1’s alleged use of the ‘ ’ label. He submitted that Respondent No. 1
had claimed to have been using the Applicant’s registered artistic work in
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NOVA NONI
respect of both the labels, i.e., ‘ ’ and ‘ ’, since the year 1958,
4
as more particularly set out in the Written Statement . He therefore
submitted that, from a plain reading of the Written Statement, it was
apparent that Respondent No. 1 understood the case exactly as the
Applicant was now stating it in the present Interim Application, i.e., the
order of injunction clearly restrained the use of the Applicant’s registered
artistic work on the ‘ NONI ’ label.
21. Mr. Kamod then invited my attention to the order of injunction to point out
that the same was passed after considering all the contentions raised by
Respondent No. 1 in the Affidavit in Reply/Written Statement, including
Respondent No. 1’s claim of alleged user in respect of the ‘ NONI ’ label.
He submitted that it was only after these claims were considered and
rejected that this Court had proceeded to pass the order of injunction
restraining Respondent No. 1 from, inter alia, using the counterfeit label
4
Paragraphs 3, 15, 17 and 21 of the Written Statement filed by Respondent No. 1.
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and from using the Applicant’s registered artistic work which was used on
NONI
the ‘ ’ label.
22. Mr. Kamod was therefore at pains to point out that the defences now taken
by Respondent No. 1 had been considered during the course of the hearing
of Notice of Motion No. 323 of 2008 and before passing the order of
injunction. He further submitted that there could be no manner of doubt
that the order of injunction operated against Respondent No. 1’s use of the
NONI
‘ ’ label, since, even according to Respondent No. 1, the same artistic
NONI
work had been used by Respondent No. 1 in respect of the ‘ ’ label
since the year 1958.
23. He then submitted that it was only as a counterblast to the First Contempt
Application that Respondent No. 1 filed Notice of Motion (L) No. 67 of
2014 in Appeal (L) No. 619 of 2011, seeking a clarification/modification
of the order of injunction to the extent of exempting the mark ‘ NONI ’. He
pointed out that in the Affidavit filed in support of the Notice of Motion,
Respondent No. 1 had specifically stated that in the absence of a
clarification, Respondent No. 1 would be held in contempt of the order of
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injunction. He thus submitted that there could be no manner of doubt that
Respondent No. 1 was conscious and aware that the order of injunction
restrained Respondent No. 1 from using the artistic work used on both
labels, i.e., ‘ NONI ’ and ‘ NOVA ’.
24. He then pointed out that the Division Bench of this Court had, vide an order
th
dated 16 January 2014, disposed of the Appeal (L) No. 619 of 2011, inter
alia, by recording as follows:
“4. The appellant's mark is a label mark comprising inter alia of the word mark
and device which includes the artistic work.
5. It is not necessary for us to consider the appellant's contention qua the mark
NONI and whether he has committed a breach copyright by using the cartons
in which his products are sold under the mark NONI. Whether the same are
deceptively similar and infringe the Respondent's copyright, and are therefore,
in violation of the impugned order, are issues which the learned single Judge
hearing the application under Order XXXIX Rule 24 of the Code, must decide.
It is not necessary for the appellate court to decide whether the marks which
were not the basis of the suit, also infringe the Plaintiffs mark.
6. The appeal is therefore dismissed with the above clarification. The Notice of
motion is, accordingly disposed of.”
Basis the above, he submitted that it was evident that the ‘ NONI ’ label
includes the Applicant’s registered artistic work, which was the subject
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matter of the First Contempt Application. He also took pains to point out
that the Appellate Court had refused to clarify that the order of injunction
did not apply to the ‘ NONI ’ label.
25. In the aforesaid facts, Mr. Kamod submitted that it was evident that
Respondents were always aware and conscious of the fact that the order of
injunction applied equally to the artistic work used in the ‘ NONI ’ label.
He submitted that, despite this, the Respondents brazenly continued to use
NONI
the said artistic work on the ‘ ’ label and were therefore acting in
clear breach and disobedience of the order of injunction. He reiterated that
Respondent No. 1’s contention that the injunction order did not apply to
the ‘ NONI ’ label was plainly dishonest and an afterthought.
26. Mr. Kamod then submitted that the dishonesty of Respondents was also
plainly evident from the fact that Respondent No. 1 had, in the Affidavit in
Reply, suppressed the stand taken in the Appeal proceedings and that
Respondent No. 3 had not even chosen to file any Reply much less deny
the allegations of contempt against him. He submitted that had it not been
for the Applicant pointing out the fact that Respondent No. 1 had, in the
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NONI
Appeal proceedings, specifically sought exemption of the ‘ ’ mark
from the effect of the order of injunction, that would have gone completely
unnoticed. He also pointed out that Respondents had failed to provide any
justification for continuing to use the ‘ NONI ’ label, despite being well
aware that the order of injunction applied to it.
27. Without prejudice to the above, he submitted that even assuming, while
denying, that the order of injunction did not specifically refer to the
NONI
‘ ’ label, the order of injunction nonetheless clearly restrained the
Respondents from using Applicant’s registered artistic work, and therefore
not only was Respondent No. 1 restrained from using the Applicant’s
registered artistic work but also from using any artistic work which was
similar to the Applicant’s registered artistic work. He then invoked the
‘Safe Distance Rule’ to point out that once a party infringes on another’s
trade mark or trade dress, the confusion sown is not magically remedied by
de minimis fixes, and such a party is required to maintain a ‘safe distance'
from the mark or the artistic work to which the injunction pertains. In
support of his contention, he placed reliance upon the decision in the case
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5
of Pidilite Industries Ltd. v. Raghunath Chemicals & Ors. ; and
6
Aventisub LLC and Another v. Healing Pharma India Pvt. Ltd. and ors. .
28.
Mr. Kamod submitted that Respondent No. 1’s contention that the mark
‘ NOVA MINI ’ was mistakenly used by an employee of Ravi Industries,
which is a proprietary concern of Respondent No. 1, was as preposterous
as it was untenable. He submitted that Respondents were evidently a
habitual infringer who had no qualms about violating the law and had no
regard for the Orders passed by this Court. He submitted that a bare perusal
of the present Interim Application (L) No. 9324 of 2025, along with the
documents at Exhibits “D” and “E” to the Interim Application
demonstrated the manner in which Respondents had been systematically
manufacturing and selling the infringing products, which violate the
intellectual property rights of not only the Applicant but also those of other
third parties. He submitted that the contention of Respondent No. 1, namely
5 th
Order dated 30 June 2023 in Contempt Petition (L) No. 30589 of 2021 in Suit No. 729 of
2015 passed by Bombay High Court.
6
rd
Order dated 3 February 2025 in Contempt Petition (L) No. 21571 of 2022 in Commercial
IP Suit No. 139 of 2021 passed by Bombay High Court.
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that a new employee unilaterally decided to open a box containing labels
NOVA
bearing the mark ‘ ’ and then proceeded to affix these labels to the
cartons, as shown at Exhibit “D” to the present Interim Application, was
hardly believable.
29. He submitted that the mala fides of Respondent No. 1 were also evident
from the fact that Respondent No. 1 had, not only breached and disobeyed
the order of injunction but had also made statements on oath which were
ex facie false to the knowledge of Respondent No. 1. He thus submitted
that it was plainly clear that the order of injunction passed by this Court
had been deliberately, wilfully and craftily disobeyed by Respondent No.
1.
30. Mr. Kamod then submitted that the Suit being a Commercial Suit, is
governed by the provisions of the Commercial Courts Act, 2015
(“ Commercial Courts Act ”), according to which this Court, under Section
35 of the CPC, as amended by the Commercial Courts Act, had the
discretionary power to direct the Respondents to pay costs to the Applicant,
including legal fees and any other expenses incurred in connection with the
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proceedings. He pointed out that Section 35(3) of the Commercial Courts
Act specifically stipulates that when granting costs, the Court shall have
regard to, inter alia , the conduct of the parties.
31. Mr. Kamod submitted that the material placed on record by the Applicant,
coupled with Respondents’ own documents, makes unequivocally clear
that Respondents had wilfully disobeyed and breached the order of
injunction. He submitted that the conduct of Respondents shows that they
have scant regard for the authority and dignity of this Court. He submitted
that, notwithstanding their contumacious conduct, the Respondents had not
even tendered an apology to this Court. He further submitted that the
material on record also established that Respondents had been economical
with the truth in their pleadings and affidavits before this Court and could
therefore claim no equities.
32. Mr. Kamod further submitted that from the incomplete statement produced
th
by the Respondent No. 1 during the hearing held on 7 May 2026, it is
evident, even on Respondent No. 1’s own showing, that Respondent No. 1
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had sold the impugned products, amounting to approximately Rs. 83.46
lakhs during the past seven years, i.e., from 2019 onwards. He submitted
that when this admitted figure is viewed in the context of the order of
injunction and the fact that the Respondents had continued to use the
artistic work deceptively similar to the Applicant’s registered artistic work
despite the injunction, it necessarily follows that the Respondents must
have effected sales worth several crores over the last seventeen years in
deliberate and conscious violation of this Court’s order. He submitted that
the quantum of sales made in breach of an injunction is a relevant and
significant factor to be considered by this Court in adjudicating an
application under Order XXXIX Rule 2A of the CPC. In support of this
contention, he placed reliance upon the decision in Pfizer Inc. & Ors. v.
7
Triveni Interchem Private Limited & Ors . .
33. Mr. Kamod then submitted that it was an admitted position that
Respondents had continued to use the artistic work identical to the
7
2023 SCC OnLine Del 363.
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Applicant’s registered artistic work for all these years despite having been
restrained by the order of injunction from doing so. He submitted that apart
from constituting a clear breach and disobedience of the injunction Order,
such continued use of both the counterfeit mark and the Applicant’s
registered artistic work has caused serious loss and irreparable injury to the
goodwill, reputation and distinctiveness associated with the Applicant’s
registered artistic work, in which the Applicant enjoys statutory as well as
common law rights.
34. He further submitted that the Applicant had incurred expenses of
approximately Rs. 32,42,868/- in prosecuting the present proceedings. He,
therefore, submitted that the present case was eminently fit for this Court
to exercise powers under Section 35 of the CPC, as amended by the
Commercial Courts Act, as well as under Section 151 of the CPC, and to
direct the Respondents to disclose on oath the complete accounts of sales
of the infringing goods bearing the artistic work deceptively similar to the
Applicant’s registered artistic work and to thereafter award appropriate
compensatory and punitive costs to the Applicant.
28
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35. Mr. Kamod further submitted that apart from the statutory regime relating
to costs under the Commercial Courts Act, this Court also possesses
inherent powers under Section 151 of the CPC to impose exemplary costs
in appropriate cases. He submitted that the Court should exercise such
powers in the present case, as Respondents had acted contumaciously,
deliberately violated the orders of this Court, and sought to mislead the
Court by filing false pleadings and affidavits. He submitted that it was also
a well-settled principle of law that in cases involving mala fides and
contumacious conduct, the Court ought to exercise its inherent jurisdiction
to impose exemplary costs in order to discourage parties from attempting
to play a fraud upon the Court.
36. He therefore concluded by submitting that from the record it was evident
that Respondents had, despite knowing fully well that the order of
injunction covered even the use of the Applicant’s registered artistic work,
wilfully used the Applicant’s registered artistic work on the ‘ NONI ’ label
NONI NOVA
and continued to use both the ‘ ’ label and the ‘ ’ mark. He
submitted that the conduct of the Respondents was mala fide and dishonest
29
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and that the Respondents had made substantial sales of the brilliantine hair
cream for the last 16 years in the teeth of the order of injunction. He thus
submitted that the Applicant had made out a clear case for this Court to
exercise its powers and discretion under Order XXXIX Rule 2A read with
Section 35 of the CPC as amended by Commercial Courts Act and Section
151 of the CPC and to grant relief under prayer clauses ‘( a) ’ to ‘( e) ’ of the
present Interim Application, along with exemplary costs.
th
37. Mr. Kamod then pointed out that by the email dated 11 April 2026,
Respondent No. 1 had undertaken to abstain from using the green colour,
NONI
the diamond device and the geometric design on the ‘ ’ label, and
th
such undertaking was specifically recorded by this Court on 15 April
th
2026. He also pointed out that this Court had, vide the Order dated 15
April 2026, directed Respondent No. 1 to place on record, by way of an
affidavit, the chartered accountant-certified sales figures from 2009 till
th
date in respect of the impugned ‘ NONI ’ products. However, on 6 May
2026, instead of complying with the specific directions of this Court,
Respondent No. 1 had merely produced a purported statement of sales
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figures only from financial years 2019-20 till 2025-26; and that too, not on
th
affidavit. He submitted that only on 7 May 2026, Respondent No. 1 placed
on record an affidavit containing alleged sales figures only from 2019-20
till 2025-26 with a frivolous justification that Respondent No. 1 does not
maintain accounts for more than the past seven years.
38. Mr. Kamod submitted that in the opposition proceedings relating to
Respondent No. 1’s application No. 1247935 for registration of the label
NOVA
mark ‘ ’, Respondent No. 1 had placed on record the sales figures
for the financial years 1993-94 till 2005-06, viz., for more than seven years.
He submitted that the total sales disclosed therein amounted to
approximately Rs. 1,31,67,485/- and that in the aforesaid facts and
circumstances, Respondent No. 1’s failure to fully disclose the sales
figures, despite repeated opportunities and directions by this Court, was
clearly deliberate, dishonest and mala fide, with the sole intent of
concealing the same from this Court.
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Submissions on behalf of the Respondent No. 1:
39. Mr. Kirpekar, learned Counsel appearing on behalf of the Respondent No.
1, at the outset submitted that the entire foundation of the Applicant’s case
was fundamentally misconceived. He submitted that the present
proceedings, filed under the provisions of Order XXXIX Rule 2A of the
CPC, proceeded on the erroneous assumption that the order of injunction
extended to the ‘ NONI ’ label, which was plainly misconceived. He
submitted that a plain reading of the Plaint, the Notice of Motion, and the
order of injunction made clear that the order of injunction was confined
NOVA
only to the impugned ‘ ’ label, i.e., Exhibits “I” and “I-1” to the
Plaint, and did not extend to Respondent No. 1’s registered label mark
th
‘ NONI ’, bearing Registration No. 235004 dated 29 April 1966.
40. Mr. Kirpekar, in the context of the above, submitted that the following
questions would arise for determination in the present proceedings:
i. Whether the Order of injunction is only in relation to the impugned
NOVA NONI
label mark ‘ ’ or it also covers the ‘ ’ label, which is
specifically excluded from the Plaint?
32
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NONI
ii. Whether by using Respondent No. 1's registered mark of ‘ ’ under
th
Trade Mark No. 235004 dated 29 April 1966, Respondent No. 1 is
committing the act of wilful disobedience of the Order injunction?
iii. Whether Applicant is entitled to claim that use of registered label mark
‘ NONI ’ is infringement of Copyright, Trade Mark or passing off,
having regard to specific provisions of Sections 28(3), 29 and 30(2)(e)
of the Trade Marks Act, 1999?
iv. Whether the Applicant is estopped from alleging that the use of the
registered label mark ‘ NONI ’ amounts to infringement, as order of
th
IPAB dated 4 May 2012 is binding on the Applicant and also on this
Hon’ble Court having regard to Section 124 (4) of the Trade Marks
Act, 1999?
v. Whether the rights under the Copyrights Act, 1957 are to be read de
hors the Trade Marks Act, 1999, and binding Orders of IPAB, despite
there being a clear intention of the legislature under Section 45 of the
Copyright Act, 1957, to harmonise the two acts and grant registration
of copyright only to those labels that receive “No Objection” from the
Registrar of Trade Marks?
33
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41. Mr. Kirpekar then submitted that it was an admitted position that the
NOVA
present Suit was instituted in respect of the label mark ‘ ’ and the
products depicted at Exhibits “I” and “I-1” to the Plaint and not in respect
of the ‘ NONI ’ label. He therefore submitted that the Applicant, while
expressly acknowledging the existence of the ‘ NONI ’ registration, had
consciously not sought any relief in respect of the ‘ NONI ’ mark. He
submitted that the Applicant, having elected not to challenge the actual use
NONI
of the ‘ ’ mark, could not now seek to expand the scope of the
injunction order and that too, in contempt proceedings.
42. Mr. Kirperkar, then also from paragraph 11 of the Plaint pointed out that
the Applicant had specifically pleaded that although the Applicant had
come across Registration No. 235004 for ‘ NONI ’, and because the
Applicant was unable to locate products bearing the ‘ NONI ’ mark in the
market, the Applicant had filed rectification proceedings before the IPAB.
He submitted that this pleading was crucial since it demonstrated that the
NONI
Applicant had consciously excluded the ‘ ’ label from the scope of
the Suit. He submitted that what was excluded from the Plaint could not be
34
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covered by the order of injunction and could not form the basis of contempt
proceedings.
43.
Mr. Kirpekar submitted that the Applicant’s assertion that the Applicant
first became aware of use of the ‘ NONI ’ label in November 2013 was also
demonstrably false. He pointed out that Respondent No. 1’s registration of
‘ NONI ’ itself has claimed user since 1958 and that the same was registered
th
on 29 April 1966 under Registration No. 235004 by the Trade Marks
Registry. He also submitted that there were advertisements, invoices,
manufacturing licences and other contemporaneous documents, all of
NONI
which evidenced continuous use of the ‘ ’ label over several decades.
He submitted that the invoices and licences produced by Respondent No.
1 showed use of the ‘ NONI ’ label well before the institution of the Suit
and even during the year 2008.
th
44. Mr. Kirpekar then submitted that the IPAB had, vide the Order dated 4
May 2012, dismissed the rectification application filed by the Applicant
after considering the rival contentions and had expressly recognised that (i)
NONI
the ‘ ’ label had been in existence and had been used over a long
35
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period of time; (ii) both parties had concurrently traded in Maharashtra
under their respective labels; and (iii) notwithstanding such prolonged
concurrent use, there was no evidence of confusion or deception in the
marketplace. He submitted that, having regard to these findings, the IPAB,
in exercise of its discretion under Section 12 of the Trade Marks Act, 1999,
had permitted Respondent No. 1’s registration to remain on the Register as
a special circumstance. He submitted that the said Order of the IPAB would
continue to bind the parties and cannot be disregarded in the present
collateral contempt proceedings.
45. Mr. Kirpekar, then in dealing with the order of injunction, submitted that
prayer clause ‘( a )’ was confined only to the infringement of the Applicant’s
registered trade mark ‘ NOVA ’. He submitted that the statutory scheme
under Sections 28(3), 29 and 30(2)(e) of the Trade Marks Act, 1999, makes
it abundantly clear that use by one registered proprietor of its own
registered trade mark cannot ordinarily constitute infringement vis-à-vis
NONI
another registered proprietor. He therefore submitted that since the ‘ ’
label enjoys a subsisting registration, Respondent No. 1 is entitled to the
36
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protection afforded under Section 29 of the Trade Marks Act, 1999. He
NONI
therefore submitted that any use of the ‘ ’ label cannot amount to
contempt.
46. In dealing with prayer clause ‘( b )’, Mr. Kirpekar submitted that the relief
granted therein concerns passing off arising from use of the mark ‘ NOVA ’
or any deceptively similar mark. He submitted that the prayer was in
respect of the word mark and not to the artistic features or trade dress of
NONI
the ‘ ’ label. He therefore submitted that the injunction granted in
b
terms of prayer clause ‘( )’ cannot be extended to a registered label which
was never the subject matter of adjudication.
47.
With regard to prayer clause ‘( c )’, Mr. Kirpekar submitted that the
injunction relates to the impugned carton and label of ‘ NOVA ’ shown at
Exhibits “I” and “I-1” to the Plaint. He submitted that the Division Bench
th
of this Court had, by the Order dated 16 January 2014, confined its
findings only to the counterfeit label and not the ‘ NONI ’ label. He thus
submitted that there was no finding anywhere in the order of injunction that
NONI
the ‘ ’ label infringes the Applicant’s copyright, nor was there any
37
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NONI
adjudication that the use of the ‘ ’ label constituted an infringement
NOVA
of the Applicant’s registered mark ‘ ’.
48. Mr. Kirpekar submitted that what the Applicant was now attempting to do
was to read into the order of injunction something which was, in fact, never
adjudicated upon and did not form a part of the order. He submitted that
the ‘Safe Distance Rule’ cannot be invoked to bring within the sweep of an
order of injunction a label or a mark which was specifically known to the
Applicant and was consciously kept outside the scope of the Suit. He
submitted that the ‘Safe Distance Rule’ applies to post-injunction
modifications of an infringing mark and cannot be used to enlarge an
injunction to cover an entirely separate registered label which was in the
Applicant’s knowledge and had never been adjudicated upon.
49. Mr. Kirpekar further submitted that the Applicant’s own conduct
demonstrated that the order of injunction did not operate against the
‘ NONI ’ label. In support of his contention, he invited my attention to the
First Contempt Application filed by the Applicant to point out that the
NONI
Applicant had sought to restrain Respondents from using the ‘ ’ label.
38
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He submitted that if, according to the Applicant, the order of injunction had
NONI
already restrained the Respondents from using the ‘ ’ label, there
would have been no need for the Applicant to seek the same relief again.
He submitted that the very fact that such reliefs were sought made it
implicit that the order of injunction did not operate against the ‘ NONI ’
label. He submitted that the Applicant's conduct in now contending that the
order of injunction applied to even the ‘ NONI ’ label clearly amounted to
approbation and reprobation, which was legally impermissible.
50. Mr. Kirperkar then submitted that contempt jurisdiction is quasi-criminal
in nature and therefore requires proof beyond reasonable doubt. In support
of his contention, he placed reliance upon the decision in
N. Ramadas v.
8
Inspector of Police v. Dr. C. A. Mohamed Abdul Huq . He submitted that
where any order is consciously silent on a subject matter due to express
exclusion in the Plaint, contempt cannot arise, and that silence or exclusion
in an order cannot be converted into prohibition by interpretative
expansion.
8
2015 SCC OnLine Mad 14155.
39
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51. Mr. Kirpekar reiterated that the order of injunction did not contain any
NONI
express restraint against use of the ‘ ’ label. He submitted that at the
highest, the Applicant was attempting to tendentiously construe the order
of injunction by contending that the same also operated against Respondent
No. 1’s registered mark ‘ NONI ’ and that such an exercise was
impermissible in contempt jurisdiction. He submitted that contempt
proceedings were intended to enforce orders, not to expand or rewrite them.
52.
Mr. Kirpekar then placed reliance upon the decision of the Hon’ble
Supreme Court in the case of State of Uttarakhand and Ors. v. Mandir Sri
9
Laxman Sidh Maharaj to submit that Courts can only grant reliefs that
are based on the pleadings and that, since the ‘ NONI ’ label was
consciously excluded from the Suit, the order of injunction could never
have applied to the ‘ NONI ’ label. Consequently, the question of
Respondents, having committed contempt of the order of injunction did not
arise.
9
AIR 2017 SC 4472.
40
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5-IAL-9324-2025
53. In dealing with the contention that the discovery of the products bearing
RAVI NOVA MINI
the mark ‘ ’ also amounted to a breach of the order of
injunction, he submitted that Respondent No. 1 had filed an Affidavit dated
th
17 April 2025, explaining that a recently appointed employee of Ravi
Industries, the proprietary concern of Respondent No. 1, had mistakenly
affixed the old printed labels bearing the mark ‘ NOVA MINI ’ on the
products. He also pointed out that the Applicant had not produced any
RAVI NOVA MINI
evidence of actual sales of the products bearing the ‘ ’
mark in the marketplace. He thus submitted that the explanation furnished
by Respondent No. 1 in the said Affidavit was clearly bona fide and
sufficiently addressed the allegation of any deliberate disobedience by the
Respondent of the order of injunction.
54. Mr. Kirpekar further submitted that Respondent No. 3, Mr. Kamlesh
Nagpal, had been unnecessarily impleaded as a party to the present Interim
Application. He submitted that Mr. Nagpal had no connection whatsoever
with the business of Respondent No. 1 and pointed out that Mr. Nagpal
neither manages nor controls the affairs of M/s. Ravi Industries nor has he
41
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derived any benefit from the business activities of M/s. Ravi Industries. He
then also pointed out there was no evidence establishing any nexus between
Mr. Nagpal and the alleged acts of contempt complained of by the
Applicant and reiterated that mere allegations were insufficient to sustain
proceedings of a quasi-criminal nature.
55. Without prejudice to the above, Mr. Kirpekar submitted that if this Court
were to nonetheless arrive at a prima facie conclusion that Respondent No.
1 had violated the order of injunction, Respondent No. 1 was willing to (i)
NONI
stop use of the ‘ ’ label unless permitted by this Court, (ii) change the
NOVA
label to a different label without any similarity to the ‘ ’ label, and
(iii) pay an amount of Rupees 2 lakhs to the Tata Memorial Hospital to
purge the contempt. He, however, clarified that the aforesaid submissions
made by Respondent No. 1 were to settle the entire Suit.
56. Mr. Kirpekar concluded by submitting that Respondents had throughout
acted on the bona fide understanding that the use of the ‘ NONI ’ label fell
outside the scope of the order of injunction. He thus submitted that the
Applicant had not made out any case of wilful or deliberate disobedience
42
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of the order of injunction, and the Interim Applications therefore must be
dismissed.
Submissions in Rejoinder:
57. Mr. Kamod reiterated that the Respondent No. 1 had only pleaded
justification as a defence and nothing more and that none of the decisions
upon which reliance was placed by Respondent No. 1 would assist in any
manner since the same deal with interlocutory injunctions, validity of
registrations or the requirement of pleadings. He submitted that none of
those decisions would apply to the present proceedings, namely, Interim
Application (L) No. 9324 of 2025 and Notice of Motion No. 1269 of 2016,
which were filed under Order XXXIX Rule 2A. He also submitted that in
the facts of the present case, the principle of extending the benefit of the
doubt to Respondents would not apply, as Respondents were fully aware
that the order of injunction applied to the artistic work on the ‘ NONI ’ label,
and hence, such conduct allows for only one conclusion. He thus submitted
43
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that the decision in the case of N. Ramadas v. Dr. C.A. Mohamed Abdul
Huq would not apply.
58. Mr. Kamod submitted that Respondent No. 3, was impleaded as a party to
the Interim Application since the Site Report annexed at Exhibit “E”,
prepared by the Additional Receiver, had mentioned that upon arriving at
the premises, Mr. Kamlesh Nagpal introduced himself as the proprietor of
M/s. Ravi Industries and had therefore been properly impleaded. Mr.
Kamod pointed out that Respondent No. 3 was the son of Respondent No.
1 and had not even chosen to file any Affidavit to oppose the present
Interim Application much less deny the allegations of contempt which
were made against him. He thus submitted that Respondent No. 3 had been
properly impleaded, as he was actively assisting in and facilitating the
breach of the order of injunction, as was clear from what had been recorded
in the site report.
59. Mr. Kamod then further submitted that the decision of the Hon’ble
Supreme Court in State of Uttarakhand & Anr. v. Mandir Sri Laxman
Sidh Maharaj was also equally inapplicable since, unlike the facts in that
44
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case, the Applicant in the present proceedings had not sought any relief
beyond the scope of the pleadings. He submitted that the continued use of
a deceptively similar mark and artistic work by Respondents, despite being
specifically restrained from doing so by the Court, constituted a clear and
deliberate act of contempt. He therefore urged the Court to take appropriate
action against the Respondents for their wilful disobedience of the Court’s
order.
Reasons and Conclusions:
60. Having heard the learned counsel for the parties and having considered the
rival contentions as also the case law upon which reliance is placed, I do
not have the slightest hesitation in holding that Respondents have not only
acted in breach of the Orders of this Court but have done so in a wilful,
deliberate and calculated manner. The conduct of Respondents is as brazen
as it is patently dishonest. It is clear that the Respondents are colluding to
hoodwink this Court and defeat the Orders of injunction. I say so for the
following reasons:
45
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5-IAL-9324-2025
A. It is clear that Respondent No. 1 is a habitual counterfeiter who has
scant regards for the orders passed by this Court. This is evident not
only from the facts of the present case but also from the order dated
8th January 2025, passed against Respondent No. 1, in Commercial
IP Suit No. 2107 of 2025, which found that Respondent No. 1 was
also found to have manufactured and sold counterfeit products of
“VASELINE”. Crucially, Respondent No. 1 has not even denied this
in the Affidavit in Reply. Respondent No. 3 is admittedly the son of
Respondent No. 1 and has specifically represented to the Receiver that
he is the sole proprietor of Ravi Industries. What is indeed most
crucial to note is that Respondent No. 3 has not even denied the
allegations of breach and disobedience of the order of injunction.
Respondent No. 3 is therefore plainly firing from the shoulders of his
ninety-year-old father and is clearly complicit in the breach of the
order of injunction.
B. It is well settled, and as held in the case of M/s. Indo-Kenyan
Industrial Enterprises v. Metal Forgings (P) Ltd. , the scope of an
46
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enquiry in an application under the provisions of Order XXXIX Rule
2A of the CPC is limited and confined solely to determining whether
there has been any disobedience or breach of an order of injunction.
Contentions regarding the correctness of the order of injunction, the
merits of the rival claims in the Suit, or the ultimate rights of the
parties are all matters which fall wholly outside the limited remit of
proceedings under Order XXXIX Rule 2A of the CPC. Simply put, so
long as an order of injunction remains in force, it is binding and must
be obeyed. Accordingly, the only question that arises for
determination in the present Application is whether Respondents
have, by using the mark ‘ NOVA MINI ’ and the Applicant’s
registered artistic work on the ‘ NONI ’ label acted in breach of the
order of injunction.
C. Therefore, all that Respondents were required to do was to satisfy this
Court that Respondents had neither used the trade mark ‘ NOVA ’, nor
the Applicant’s registered artistic work or any label deceptively
similar to the Applicant’s registered artistic work after the order of
47
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injunction was passed. However, Respondents have not even
attempted to do so, and for good reason. All the contentions raised by
Respondent No. 1 are in the nature of defences seeking to justify the
use of the ‘ NONI ’ label, which, as already noted, are impermissible
in proceedings under Order XXXIX Rule 2A of the CPC.
D. In the aforesaid context, it is not in dispute that, by the order of
injunction, Respondent No. 1 was specifically restrained from using
the counterfeit label and the Applicant’s registered artistic work.
NONI
Despite this, Respondent No. 1 has, in the ‘ ’ label, admittedly
used artistic work which is virtually identical to and/or deceptively
similar to the Applicant’s registered artistic work, as is evident from
the following comparison viz.
48
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Applicant’s
Registered Artistic
Work
Counterfeit Label
‘NONI’ Label
From the above, it is clear that Respondents have adopted the same
green colour scheme and a geometric design on the ‘ NONI ’ label,
which is virtually identical to the Applicant’s registered artistic work
and also the counterfeit label, both of which Respondents were
restrained from using.
E. It is not in dispute that Respondent No. 1 has neither challenged the
order of injunction nor sought its vacation. Crucially, Respondent No.
1 specifically sought a clarification that the order of injunction did not
extend to the ‘ NONI ’ label, expressly on the ground that Respondent
No. 1 had adopted and obtained registration of the mark ‘ NONI ’ in
the year 1958 and its livelihood would be adversely affected if the
49
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NONI
injunction were made applicable to the ‘ ’ mark. The Division
Bench, however, declined to grant the clarification sought. Thus, the
order of injunction was never modified in any manner. It is, therefore,
evident that Respondent No. 1 itself understood the injunction as
extending to the artistic work used on the ‘ NONI ’ label.
F. Respondent No. 1’s justification for using the ‘ NONI ’ label, namely
that the ‘ NONI ’ label was not the subject matter of the Suit and that
the IPAB had rejected the Applicant’s rectification proceedings, is, in
my view, a red herring since both these contentions are not only
defences on the merits and pleas of justification but have also already
been considered and rejected by this Court. In any event, and as
already noted, such defences cannot constitute a valid justification for
disobeying an order of injunction. Once the order of injunction was
passed, the question of not obeying the same did not arise. The Order
of the IPAB cannot be used as a shield to defeat an order of this Court.
G. Also, the contention that the order of injunction did not apply to the
NONI
‘ ’ label is, in my view, as untenable as it is patently dishonest.
50
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First, there can be no manner of doubt that the order of injunction
extended to the Applicant’s registered artistic work, which, as noted
in paragraph ( ) above, is virtually identical to the artistic work
D
appearing on the ‘ NONI ’ label. Secondly, Respondent No. 1 itself
has, in the Written Statement, referred to the impugned mark as the
‘ NONI ’ mark and has defended its use of the counterfeit label on the
basis that it had adopted and used the ‘ NONI ’ mark since 1958.
Thirdly, and most significantly, Respondents were fully conscious
NONI
that the order of injunction extended to the ‘ ’ label, as is evident
from the fact that it specifically sought a clarification from the
Division Bench that the injunction did not apply to the ‘ NONI ’ mark.
That clarification was expressly refused by the Division Bench of this
th
Court by an order dated 16 January 2014 passed in the Appeal (L)
No. 619 of 2011. Had the order of injunction not extended to the
‘ NONI ’ label, there would have been no occasion whatsoever to seek
such clarification, but more so, because Respondent No. 1 was acutely
NONI
aware of the fact that the order of injunction applied to the ‘ ’
51
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label, Respondent No. 1 sought a clarification. In these admitted
circumstances, there can be no doubt that the order of injunction
applied to the ‘ NONI ’ label and that Respondent No. 1 was fully
aware of the same.
H. Therefore, in the context of what has been noted in paragraph ( F )
above, the contention that the Applicant had consciously excluded the
‘ NONI ’ mark while seeking interim relief needs only to be stated to
NONI
be rejected. The Plaint clearly explains why the ‘ ’ mark was not
included in the prayer clauses. The Applicant’s explanation that
NONI
products bearing the ‘ ’ mark were not then available in the
market is both plausible and consistent with the material on record. In
this context, the Applicant’s reliance on the decisions in Skol
Breweries Limited and Sun Pharmaceutical Industries Ltd. is
entirely apposite.
I. The decision in the State of Uttarakhand & Ors. v. Mandir Sri
Laxman Sidh Maharaj does not assist Respondent No. 1. Equally, the
decision in N. Ramadas v. Dr. C.A. Mohamed Abdul Huq would, in
52
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my view, also have no application to the facts of the present case, since
the suggestion that the order of injunction was capable of two possible
interpretations is wholly untenable and stands belied by the very
conduct of Respondents. Therefore, in my view, there can be no
manner of doubt that Respondents have, in a deliberate, calculated and
wilful manner, disobeyed and breached the order of injunction. The
conduct of Respondents is not only dishonest but also plainly intended
to undermine the authority of this Court. Such conduct cannot, and
will not, be countenanced.
J. Even otherwise, and assuming that the Applicant had not specifically
impugned Respondent No. 1’s use of the ‘ NONI ’ label, once the order
of injunction was passed, Respondent No. 1 could not have used or
even continued to have used a label which was in any manner
deceptively similar to the Applicant’s registered artistic work, which
Respondent No. 1 was specifically restrained from using by virtue of
the order of injunction since Respondent No. 1 was required to
maintain a ‘safe distance' from the Applicant’s registered artistic work
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as held in the case of Pidilite Industries Ltd. v. Raghunath Chemicals
& Ors. and Aventisub LLC and Another v. Healing Pharma India
Pvt. Ltd. and Ors . Plainly, Respondent No. 1 has failed to do so, as is
evident from the following comparison:
Applicant’s Registered Artistic
Work
‘NONI’ label
K. Further, having regard to the conduct of the Respondents as noted
above, I am unable to accept the contention that the labels bearing the
NOVA MINI
‘ ’ were printed by a former employee of Ravi Industries
by mistake. Respondent No. 1 has admitted before this Court that
products bearing the impugned mark and the Applicant’s registered
artistic work were sold from the year 2019 onwards to the extent of
approximately Rs. 83.46 lakhs. Despite repeated opportunities,
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Respondent No. 1 has failed to place on affidavit its sales figures for
the financial years 2019-20 to 2025-26. In my view, this omission is
deliberate and assumes significance, particularly because Respondent
No. 1 had disclosed sales of Rs.1,31,67,485/- in relation to its use of
the ‘ NOVA ’ mark before the Trade Marks Registry. The selective
disclosure of material by Respondent No. 1 casts serious doubt on the
true extent of the sales effected in breach of the order of injunction
and appears to be an attempt to conceal the full extent of its sales of
NONI NOVA MINI
products bearing the ‘ ’ label and the ‘ ’ mark.
L. The Respondents have, therefore, acted with impunity in wilfully
breaching and disobeying the order of injunction. Respondents have
therefore knowingly violated the order of injunction and
commercially exploited the Applicant’s goodwill and intellectual
property while doing so. In this context, the Applicant’s reliance upon
Pfizer Inc. & Ors. v. Triveni Interchem Private Limited & Ors . ,
which recognises that profits earned through acts committed in breach
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of an injunction are relevant considerations in determining the
consequences of contempt, is entirely apposite.
M. Also, the fact that Respondent No. 1 is the registered proprietor of the
‘ NONI ’ mark and that the Applicant’s rectification proceedings were
dismissed is of no consequence. As already noted in paragraphs ( E )
and ( G ) above, once the order of injunction was passed, it was
incumbent upon Respondents to obey the order in both letter and
spirit. Respondents have plainly failed to do so. There can, therefore,
NONI
be no gainsaying that the registration of the ‘ ’ mark or label
does not, ipso facto , entitle Respondents to act in wilful breach of an
order of injunction which, by its plain terms and as understood by
Respondent No. 1, extended to the ‘ NONI ’ label.
N. As already noted above, the Interim Application contains specific
allegations against Respondent No. 3, i.e., Mr. Kamlesh Nagpal.
However, Respondent No. 3 has never entered appearance in the
present proceedings, nor has he filed any reply to the allegations made
against him. In fact, Respondent No. 1 himself has stated in his Reply
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that Respondent No. 3 assists him in conducting business. Also as
already noted above Respondent No. 3 has held himnself out to be the
proprietor of M/s. Ravi Industries. This, coupled with Respondent No.
3’s failure to enter appearance and defend the allegations against him,
can leave no manner of doubt that Respondent No. 3 is complicit in
the breach of the order of injunction.
O. Hence, for the aforesaid reasons, I answer the questions framed by Mr.
Kirpekar as set out above in paragraph 40 above as follows. Questions
( i ), ( ii ) and ( iii ) are answered in the affirmative. Question ( iv ) is
answered in the negative, as the Applicant is not estopped from taking
action against the use of the ‘ NONI ’ label in light of the subsisting
order of injunction and given it contains the Applicants registered
artistic work mark. Insofar as question ( v ) is concerned, there can be
no doubt that the Copyright Act, 1957, and the Trade Marks Act, 1999,
must be interpreted harmoniously. However, the issue of obtaining a
‘no objection’ under Section 45 of the Copyright Act, 1957, was never
raised by Respondent No. 1 in the Affidavit in Reply but more
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crucially, even assuming it had been, such contention would not be a
relevant consideration or justification for breach of the order of
injunction for the reasons already noted in ( ) above. Hence, question
F
( v ) is answered accordingly.
62. Hence, for the reasons recorded above in ( A ) to ( P ), I pass the following
Order:
i. The Interim Application is allowed in terms of prayer clauses ( a ),
( b ) and ( d ).
ii. Though Respondent No. 1 has acted in wilful breach and
th
disobedience of the order dated 24 November 2010, I am, for
the present, not inclined to pass any order in terms of prayer
clause ( ), having regard to the age of Respondent No. 1.
c
iii. The Applicant shall be entitled to legal costs of Rs. 32,42,868/-
(Rupees Thirty-Two Lakhs Forty-Two Thousand Eight Hundred
Sixty-Eight only) on details of the same being placed on record,
by way of an Affidavit. The same shall be paid by the Respondent
No. 1 within a period of four weeks from being furnished with
the details on Affidavit.
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iv. In addition to the aforesaid legal costs and for the reasons set out
above, given the conduct of Respondent No. 1 in particular and
what has been set out in ( A ), ( I ) and ( K ) above, I find that this is
a fit case for the grant of exemplary costs under the provisions of
Section 35 as well as Section 151 of the Code of Civil Procedure,
1908, as amended by the Commercial Courts Act, 2015. Hence,
Respondent No. 1 shall pay the Applicant cost of Rs. 50,00,000/-
(Rupees Fifty Lakhs only) within a period of four weeks from
today.
v. Respondent No. 1 shall also disclose, on oath, a complete account
of the sales effected in respect of goods sold under the counterfeit
NONI NOVA MINI
label, the ‘ ’ label and the ‘ ’ mark/label. Such
disclosure shall be made within a period of four weeks from
today. Upon such disclosure being made, this Court shall
determine the amount to be deposited by Respondent No. 1 in
this Court pending the hearing and final disposal of the Suit.
vi. In the event Respondent No. 1 does not comply with what is set
out above in ( iii ) to ( v ), the Interim Application shall also be
allowed in terms of prayer clause ( e ), and the defence of
Respondent No. 1 shall be struck off.
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th
vii. Stand over to 10 August 2026 for further directions.
[ARIF S. DOCTOR J.]
After pronouncement:
63. Mr. Kirpekar at this stage, has prayed that this Order be stayed for a period
of six weeks. This request is rejected for two reasons. Firstly, having noted
the conduct of Respondents, and secondly, Respondents have already been
granted a period of four weeks to comply with the present Order, and no
action can be taken before that period expires.
[ARIF S. DOCTOR J.]
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