DEEPAK KUMAR KHEMKA vs YOGESH KUMAR JAISWAL & ORS.

Judgment text excerpt

$~50 * IN THE HIGH COURT OF DELHI AT NEW DELHI + RFA(COMM) 381/2025, CM APPL. 42135/2025 DEEPAK KUMAR KHEMKA .....APPELLANT Through: Mr. Rishi Bansal and Mr. Mankaran Singh, Advs. versus YOGESH KUMAR JAISWAL & ORS. .....RESPONDENTS Through: CORAM: HON'BLE MR. JUSTICE C. HARI SHANKAR HON'BLE MR. JUSTICE OM PRAKASH SHUKLA JUDGMENT (ORAL) % 28.07.2025 C. HARI SHANKAR, J. 1. This appeal assails order dated 4/5 June 2025, passed by the learned District Judge (Commercial Court-02)1 in CS (Comm) 391/2024. 2. By the impugned order, the learned Commercial Court has dismissed CS (Comm) 391/2024, instituted by the appellant, under Order VII Rule 11 of the CPC2, on the ground that it did not disclose any sustainable cause of action, on the basis of which the suit could be maintained. 3. The facts are not in dispute. 1 “the learned Commercial Court” hereinafter Signature Not Verified Digitally Signed By:AJIT RFA(COMM) 381/2025 Page 1 of 15 KUMAR Signing Date:29.07.2025 19:27:19 4. The appellant claimed to be manufacturing and selling articles of tobacco, matchboxes, supari, pan masala, mouth freshener, aerated water and non-alcoholic drinks, among other goods, under the trade marks “SHUDH, SHUDH PLUS and SHUDH PLUS ULTRA LABEL”. The plaint refers to these marks, collectively, as the “SHUDH formative trademarks/labels”. 5. The cause of action for instituting the plaint, as per the recitals therein, was an application filed by the defendant for registration of the trade mark/label ATS SHUDH in Class 34 of the Nice Classification3. The appellant claimed to have learnt of the filing of the said application by the respondent in the third week of March 2024. The application was filed for tobacco, chewing tobacco, zarda, khaini and other smokers articles, on proposed to be used basis. The