Kiehberg Gmbh And Anr vs Capital Airgun Manufacturers Private Limited

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* IN THEHIGH COURTOF DELHIAT NEW DELHI

# CNR No. DLHC010625842024
+ CS(COMM) 808/2024, I.A. 39797/2024 & I.A. 11217/2025

Date of Decision: 13.10.2026
IN THE MATTER OF:



KIEHBERG GMBH
INDUSTRIESTRAßE 4,
56581 KURTSCHEID, DEUTSCHLAND .....PLAINTIFF NO. 1


SYNDICATE INNOVATIONS INTERNATIONAL LIMITED
G-365, PREET VIHAR
DELHI - 110092 .....PLAINTIFF NO. 2


( Through: Mr. Prithvi Singh, Mr. Prithvi Gulati and Mr. Ritwik
Marwaha, Advs. )


Versus

CAPITAL AIRGUN MANUFACTURERS
PRIVATE LIMITED
C- 188, NIARALA NAGAR NA,
LUCKNOW,
UTTAR PRADESH – 226020 .....DEFENDANT

( Through: None .)

CORAM:
HON'BLE MR. JUSTICE PURUSHAINDRA KUMAR KAURAV
J U D G E M E N T

PURUSHAINDRA KUMAR KAURAV, J. (ORAL)
Signature Not Verified
Signed By:PRIYA
Signing Date:17.10.2026
13:22:27
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Signed
By:PURUSHAINDRA
KUMAR KAURAV

1. The present suit has been filed for the following reliefs:
“(a) An order for a permanent injunction restraining the Defendant, its
Directors, employees, servants, agents and all others in active concert
with it from manufacturing, selling, offering for sale, advertising, directly
or indirectly dealing in products under the mark " KIEHBERG' or any
other trade mark and/or which is deceptively similar to the Plaintiff's trade
mark 'KIEHBERG' that would amount to passirig off of the Defendant's
products as those of the Plaintiffs.
(b) An order for rendition of accounts of profits directly or indirectly
earned by the Defendant from the illegal activities and wrongful conduct
and a decree for the amount so found due to be passed in favour of the
Plaintiff.
(c) An order for delivery up to the Plaintiffs for destruction/erasure, all
material bearing the mark KIEHBERG in the Defendant's possession as
well as in the possession of representatives or affiliates, including but not
limited to products, printing material, promotional material, brochures,
pamphlets, advertising material, stationery articles, letter-heads, business
cards, stickers, cartons or other articles bearing the said mark.
(d) A sum of Rs. 2,00,01,000/- for a decree of damages as valued for the
purposes of this suit towards loss of sales, reputation and goodwill of the
Plaintiff's trademarks caused by the activities of the Defendant;
(e) An order as to the costs of the proceedings; and (f) Any further order
as this Hon'ble Court may deem fit and proper in the facts and
circumstances of the case.”

2. Learned counsel appearing for the plaintiffs states that the plaintiffs
do not press the monetary reliefs of rendition of accounts and damages
claimed in prayers (b) and (d) of the plaint. He submits that the suit deserves
to be summarily decreed in exercise of the power under Order XIII-A Rules
3 and 6(1)(a) read with Order VIII Rule 10 and Section 151 of the Code of
Civil Procedure, 1908 (“CPC”), as applicable to commercial disputes. He
submits that the defendant’s right to file the written statement was closed by
the learned Joint Registrar vide order dated 06.02.2025, and that the
defendant was thereafter proceeded ex parte vide order dated 05.05.2025.
3. The proceedings shows that the suit was first listed on 19.09.2024,
when this Court granted an ex parte ad interim injunction in favour of the
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Signed By:PRIYA
Signing Date:17.10.2026
13:22:27
Signature Not Verified
Signed
By:PURUSHAINDRA
KUMAR KAURAV

plaintiffs. Summons was served upon the defendant on 15.10.2024. The
defendant has, however, chosen not to appear. Since the defendant, despite
service, has neither filed its written statement nor defended the action, there
is no real prospect of the defendant successfully defending the claim. In
view of the aforesaid, the matter is being decided.
4. The facts of the case indicate that plaintiff no. 1 is a company
registered and existing in Germany, incorporated on 06.12.2011. Plaintiff
no. 2 is a company incorporated on 29.11.2011 under the Indian Companies
Act, 1956. The plaintiffs are among the largest distributors, stockists and
dealers of high-quality sports and outdoor shooting equipment. The
plaintiffs conceptualised the trademark KIEHBERG in 2011 and have used
the KIEHBERG trademarks in India since 21.03.2012. The plaintiffs jointly
promote KIEHBERG in India. They focus on providing quality shooting
equipment and accessories from Germany and other European countries.
The plaintiffs claim that, on account of their efforts, the trademark has
become immensely popular among traders and consumers, who exclusively
associate it with the plaintiffs and their products. They claim that the
trademark is renowned and respected in India.
5. Plaintiff no. 1, through plaintiff no. 2, has used the trademark/trade
name KIEHBERG in India since 21.03.2012. Its applications for the mark,
being application nos. 6490574 to 6490577 dated 21.06.2024, claim use
since 21.03.2012 and are pending before the Trade Marks Registry. Plaintiff
no. 2 began with gun care products and is now one of the prominent
importers, distributors and manufacturers of shooting equipment in India. Its
products include air rifles, air pistols, pellets and shooting accessories.
6. Plaintiff no. 2 holds exclusive Indian distributorships for well-known
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Signed By:PRIYA
Signing Date:17.10.2026
13:22:27
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Signed
By:PURUSHAINDRA
KUMAR KAURAV

European manufacturers. It is also one of the 19 companies selected to
manufacture small arms and ammunition at the Defence Corridor, Aligarh.
According to the Chartered Accountant’s certificate, the sales turnover from
Financial Year 2012-13 to 2023-24 is approximately INR 5.45 billion, and
the promotional expenditure is approximately INR 173 million. Plaintiff No.
2 has also operated the website www.kiehberg.in since 2012.
7. The plaintiffs, however, contend that the defendant filed Application
No. 6103985 for the mark KIEHBERG in Class 13 with mala fide intent.
The application was filed on 11.09.2023 on a “proposed to be used” basis
and proceeded to registration on 26.05.2024. The plaintiffs came to know of
it in July 2024, and have also filed a petition seeking its cancellation, being
C.O. (COMM.IPD-TM) 187/2024. The plaintiffs further state that the
defendant is their trade competitor, and that one of its directors is related to
Sial Manufacturers Private Limited. That company had intervened, through
CM APPL. 41728/2022, in W.P.(C) 10143/2022, which plaintiff No. 2 had
filed before this Court. Those proceedings concerned shipments imported by
plaintiff No. 2, which included products bearing the KIEHBERG trademark.
8. The plaintiffs then made enquiries among members of the trade to
find out whether the defendant’s products bearing the mark KIEHBERG
were available in the market, and found that they were yet to be launched.
During these enquiries, the plaintiffs came across the website
www.camstarsports.com , which carries the defendant’s registered office
address. Its terms and conditions state that the content and products on the
website are provided by the defendant. The website shows that the defendant
deals in air rifles, air pistols and related accessories, although it does not yet
list any product under the mark KIEHBERG. The plaintiffs, therefore,
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Signed By:PRIYA
Signing Date:17.10.2026
13:22:27
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Signed
By:PURUSHAINDRA
KUMAR KAURAV

apprehend that the defendant is about to launch identical goods under the
identical mark, and have filed the present suit as a quia timet action.
9. Learned counsel places reliance on the decisions in S. Syed Mohideen
1
v. P. Sulochana Bai , N.R. Dongre and Ors. v. Whirlpool Corporation and
2 3
Anr. , Laxmikant V. Patel v. Chetanbhai Shah and Anr. , MilmetOftho
4
Industries and Ors. v. Allergan Inc. , B.K. Engineering Co. v. UBHI
5
Enterprises (Regd.) & Anr. , Su-Kam Power Systems Ltd. v. Kunwer
6
Sachdev and Anr. , Satya Infrastructure Ltd. & Ors. v. Satya Infra &
7
Estates Pvt. Ltd. , and Merck Sharp & Dohme Corporation & Anr. v.
8
Aprica Pharmaceuticals Pvt. Ltd.
10. I have heard learned counsel for the plaintiffs and perused the record.
11. The plaint is verified and supported by the affidavit and statement of
truth of the constituted attorney of the plaintiffs. The averments in the plaint,
and the documents filed with it, remain unrebutted. This Court is, however,
conscious that the failure of a defendant to file a written statement does not
9
by itself entitle the plaintiff to a decree. In Balraj Taneja v. Sunil Madan ,
the Supreme Court cautioned that the court should be a little cautious in
proceeding under Order 8 Rule 10 CPC. The same view has been reiterated
10
in Asma Lateef v. Shabbir Ahmad , which holds that the provision is
permissive and not mandatory. The Court must therefore be satisfied, on the

1
(2016) 2 SCC 683
2
(1996) 5 SCC 714
3
(2002) 3 SCC 65
4
(2004) 12 SCC 624
5
1984 SCC OnLine Del 288
6
2019 SCC OnLine Del 10764
7
2013 SCC OnLine Del 508
8
2017 SCC OnLine Del 11695
9
(1999) 8 SCC 396
10
(2024) 4 SCC 696
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Signed By:PRIYA
Signing Date:17.10.2026
13:22:27
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Signed
By:PURUSHAINDRA
KUMAR KAURAV

basis of the pleadings and documents, that the plaintiffs have made out their
case.
12. Order XIII-A of the CPC, as applicable to commercial disputes,
permits the Court to give a summary judgment where the defendant has no
real prospect of successfully defending the claim and there is no other
compelling reason why the claim should not be disposed of before recording
oral evidence. In Su-Kam Power Systems Ltd . (supra), this Court held as
under:
“90. To reiterate, the intent behind incorporating the summary judgment
procedure in the Commercial Court Act, 2015 is to ensure disposal of
commercial disputes in a time-bound manner. In fact, the applicability of
Order XIIIA, CPC to commercial disputes, demonstrates that the trial is
no longer the default procedure/norm.
91. Rule 3 of Order XIIIA, CPC, as applicable to commercial disputes,
empowers the Court to grant a summary judgement against the defendant
where the Court considers that the defendant has no real prospects of
successfully defending the claim and there is no other compelling reason
why the claim should not be disposed of before recording of oral evidence.
The expression “real” directs the Court to examine whether there is a
“realistic” as opposed to “fanciful” prospects of success. ...”
13. Similarly, in Satya Infrastructure Ltd. (supra), this Court observed
that no useful purpose is served by directing the plaintiff to lead ex parte
evidence in such cases:
5. I am of the opinion that no purpose will be served in such cases by
“
directing the plaintiffs to lead ex parte evidence in the form of affidavit by
way of examination-in chief and which invariably is a repetition of the
contents of the plaint. The plaint otherwise, as per the amended CPC,
besides being verified, is also supported by affidavits of the plaintiffs. .. . ”
14. Having regard to the pleadings and the material on record, the
questions which fall for consideration are whether the plaintiffs are the prior
users of the trademark KIEHBERG with goodwill in it, whether the
defendant’s registration bars the present action for passing off, and whether
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Signed By:PRIYA
Signing Date:17.10.2026
13:22:27
Signature Not Verified
Signed
By:PURUSHAINDRA
KUMAR KAURAV

the threat posed by the defendant is real and imminent so as to justify a quia
timet injunction.
15. The material placed on record clearly shows that the plaintiffs were
the prior users and lawful owners of the KIEHBERG trademark, both in
India and abroad. The plaintiffs have used the trademark continuously and
without interruption since 21.03.2012. This is supported by the Chartered
Accountant’s certificate of sales, sample invoices, website extracts with
WHOIS records, social media extracts and third-party articles filed on
record. The documentary evidence shows that the plaintiffs are the prior
users of the mark and have the benefit of its goodwill and reputation. The
defendant’s application, on the other hand, was filed only on 11.09.2023,
and on a “proposed to be used” basis. It was filed more than eleven years
after the plaintiffs began using the mark in India.
16. The Supreme Court in MilmetOftho Industries (supra) held that, as
between rival claimants, the ultimate test should be, who is first in the
market. The plaintiffs are clearly first in the market.
17. The fact that the defendant holds a registration for the mark
KIEHBERG does not defeat the plaintiffs’ claim. Section 27(2) of the Trade
Marks Act, 1999 expressly preserves the right of action for passing off.
Section 34 provides that nothing in the Act entitles a registered proprietor to
interfere with the rights of a prior user. In S. Syed Mohideen (supra), the
Supreme Court, after reading Sections 27, 28 and 34 of the Act together,
held as under:
“30.4. ... Thus, the scheme of the Act is such where rights of prior user are
recognised superior than that of the registration and even the registered
proprietor cannot disturb/interfere with the rights of prior user. The overall
effect of collective reading of the provisions of the Act is that the action for
passing off which is premised on the rights of prior user generating a
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Signing Date:17.10.2026
13:22:27
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Signed
By:PURUSHAINDRA
KUMAR KAURAV

goodwill shall be unaffected by any registration provided under the Act. ...”
18. In N.R. Dongre (supra), the defendants had obtained registration of
the mark WHIRLPOOL on a proposed-user basis. The Supreme Court
upheld the injunction granted in favour of the prior user in a passing off
action, observing in paragraph 20 that an injunction in a passing off action,
which is based on a common law right distinct from the statutory right, can
be granted even against the owner of a registered trade mark in an
appropriate case. Following these decisions, this Court in Vinita Gupta v.
11
Amit Arora , held that the defendant’s registration is irrelevant in an action
for passing off. The present case is squarely covered by this line of
authority. The defendant’s registration, obtained on a “proposed to be used”
basis long after the plaintiffs’ adoption and use, gives the defendant no right
to pass off its goods as those of the plaintiffs.
19. The plaintiffs have stated that the defendant’s goods under the mark
KIEHBERG were not in the market when the suit was filed. This Court is
mindful that a mere application for registration of a trade mark does not, by
itself, give rise to a cause of action. In Deepak Kumar Khemka v. Yogesh
12
Kumar Jaiswal & Ors. , a Division Bench of this Court held so. The
Division Bench, however, also clarified in paragraph 21 that “ if there is
material to indicate that, apart from merely applying for registration of the
mark, the defendant also intends to use the mark, whether before or after its
registration, it would certainly suffice to maintain a quia timet action .”
20. In the present case, the material on record goes well beyond the mere
filing of an application. The defendant has obtained registration for the

11
2022 SCC OnLine Del 3249
12
RFA(COMM) 381/2025, decided on 28.07.2025
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Signed By:PRIYA
Signing Date:17.10.2026
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By:PURUSHAINDRA
KUMAR KAURAV

identical mark KIEHBERG in Class 13 on a “proposed to be used” basis,
which itself shows its intention to use the mark. It is also already selling air
rifles, air pistols and accessories through its website
www.camstarsports.com, which are the very goods the plaintiffs deal in
under the mark KIEHBERG. KIEHBERG is not a common or descriptive
word. It is the corporate name of plaintiff no.1, and its adoption by a trader
in identical goods cannot be a mere coincidence.
21. It is further seen that one of the defendant’s directors is related to Sial
Manufacturers Private Limited. That company was an intervener in W.P.(C)
10143/2022, which plaintiff No. 2 had filed and which concerned shipments
that included KIEHBERG products. This shows that the defendant was
aware of the plaintiffs’ mark. Despite service of summons and the injunction
order dated 19.09.2024, the defendant has not entered appearance to explain
why it adopted the mark, or to state that it does not intend to use it.
22. Taken together, these circumstances show that the plaintiffs’
apprehension is real and imminent. The law does not require a prior user to
wait until the infringing goods reach the market. In Laxmikant V. Patel
(supra), the Supreme Court held as under:
“10. ... The law does not permit any one to carry on his business in such a
way as would persuade the customers or clients in believing that the goods
or services belonging to someone else are his or are associated therewith. It
does not matter whether the latter person does so fraudulently or otherwise.
The reasons are two. Firstly, honesty and fair play are, and ought to be, the
basic policies in the world of business. Secondly, when a person adopts or
intends to adopt a name in connection with his business or services which
already belongs to someone else it results in confusion and has propensity
of diverting the customers and clients of someone else to himself and
thereby resulting in injury.”
23. In paragraph 13 of the same decision, the Supreme Court noted that
the plaintiff does not have to prove actual damage in a passing off action,
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Signing Date:17.10.2026
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By:PURUSHAINDRA
KUMAR KAURAV

and that the likelihood of damage is sufficient. A Division Bench of this
Court in B.K. Engineering Co. (supra) held as under:
“46. It is not necessary to prove that any members of the public were
deceived. An action will lie where it is to be expected that in due course the
act of the defendant would be calculated to cause confusion in the minds of
the purchasing public ...”
24. In Merck Sharp & Dohme Corporation (supra), this Court decreed a
quia timet suit where the impugned product had not yet been commercially
sold, but there was a reasonable apprehension of its launch. The Court relied
13
upon Mars Incorporated v. Kumar Krishna Mukerjee , where it was
observed that “ to expect the aggrieved party to wait and watch for the
opening of business or manufacturing or sale or goods under the
apprehended infringement of trade mark is too much. A stitch in time always
saves nine and that is what is the essence of Quia Timet Action ”.
25. In the present case, the marks are identical, the goods are identical and
the class of consumers, namely the shooting sports community, is the same.
If the defendant is allowed to sell goods under the mark KIEHBERG, buyers
are bound to believe that the goods come from the plaintiffs or are connected
with them. This would amount to misrepresentation, and the injury to the
plaintiffs’ goodwill is evident. All the elements of passing off, namely
goodwill, misrepresentation and likelihood of damage, are made out.
26. There is nothing on record to justify or rebut the aforesaid aspects.
The defendant has no real prospect of successfully defending the claim, and
there is no other compelling reason why the claim should not be disposed of
without recording oral evidence.
27. It is also pertinent to note that, by a separate order of even date passed

13
(2003) 26 PTC 60 (Del)
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Signing Date:17.10.2026
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By:PURUSHAINDRA
KUMAR KAURAV

in C.O. (COMM.IPD-TM) 187/2024 between the same parties, this Court
has allowed the plaintiffs’ petition under Section 57 of the Trade Marks Act,
1999. By that order, the Court has directed the cancellation of the
defendant’s Registration No. 6103985 for the mark KIEHBERG in Class 13
and its removal from the Register of Trade Marks. The defendant, therefore,
has no subsisting registration for the said mark.
28. Accordingly, the suit is decreed under Order XIII-A Rules 3 and
6(1)(a) of the CPC read with Commercial Courts Act, 2015, in the following
terms:
i. A decree of permanent injunction is passed in favour of the
plaintiffs and against the defendant, in terms of prayer (a) of the
plaint. The defendant, its directors, employees, servants, agents
and all others acting in active concert with it are restrained from
manufacturing, selling, offering for sale, advertising, or directly or
indirectly dealing in products under the mark KIEHBERG, or any
other mark deceptively similar to the plaintiffs’ trademark
KIEHBERG, so as to pass off the defendant’s goods as those of
the plaintiffs;
ii. A decree of delivery up is passed in terms of prayer (c) of the
plaint. The defendant shall deliver up to the plaintiffs, for
destruction or erasure, all material bearing the mark KIEHBERG
in its possession or in the possession of its representatives or
affiliates, if any;
iii. Prayers (b) and (d) of the plaint are dismissed as not pressed.
29. Accordingly, the suit stands decreed in the aforesaid terms.
30. The Registry is directed to draw up the decree sheet.
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Signed By:PRIYA
Signing Date:17.10.2026
13:22:27
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Signed
By:PURUSHAINDRA
KUMAR KAURAV

31. The civil suit, along with the pending applications, stands disposed of.

(PURUSHAINDRA KUMAR KAURAV)
JUDGE
OCTOBER 13, 2026/p/SA






Signature Not Verified
Signed By:PRIYA
Signing Date:17.10.2026
13:22:27
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Signed
By:PURUSHAINDRA
KUMAR KAURAV