* IN THE HIGH COURT OF DELHI AT NEW DELHI + CS rOSl No. 72/2004 Judgmentdeliveredon:24.02.2^06 M/S BIKANERVALA .... Plaintiff versus AGGARW AL BIKANER W ALA ... .Defendant Advocates who appeared in this case;- For the Plaintiff : Mr Amit Sindhwani For the Defendants : None CORAM:- HON'BLE MR JUSTICE BADAR DURREZ AHMED 1. Whether the Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not? 3. Whether the judgment should be reported in the Digest? BADAR DURREZ AHMED. J (ORAL^ 1. The defendant was directed to be proceeded with ex parte by an order dated 15.4.2004. Thereafter, the plaintiff led its ex parte evidence by filing an affidavit by way of evidence of one Mr Raj Kumar Shah who is the duly constituted attorney of the plaintiff firm. The plaintiff has also filed various documents which have been exhibited as Exhibits PWl/1 to PWl/93. The plaintiff has also filed an affidavit of the said Mr Raj Kumar Shah on 22.2.2006 vide diary No.5436. That affidavit is not on record. A copy of the same has been placed before me. The registry shall ensure that the affidavit is brought on record. The affidavit of 22.2.06 was necessitated because in the meanwhile the CS(OS) 72/2004 PageNo. 1 of3 Digitally Signed By:AMULYA Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. Signature Not Verified /J plaintiff has been issued the registration certificate in respect of the trade mark "BIKANERVALA" in class 30 in respect of sweets, namkeens, biscuits, cakes, pastry, ice-creams, confectionary etc. The application for the same was made on 1.1.2004 which was advertised in the Trade Marks Journal on 13.12.2004. A copy of the registration certificate issued by the Trade Marks Registry, Mumbai dated 17.10.2005 is annexed with the said affidavit of 22.2.2006. Accordingly, the case of the plaintiff becomes quite straight forward inasmuch it is the owner of the registered trademark "BIKANERVALA" and the defendant has been using the trademark "AGGARWAL BIKANER WALA" . 2. The plaintiff has been able to establish through its pleadings and evidence on record that the plaintiff is the proprietor of the trademark "BIKANERVALA". The plaintiffhas also establishedthat it has been usingthe same even prior to its registrationsince 1981. The plaintiff has also been able to establish that the defendant has started using the trade name "AGGARWAL BIKANER WALA". According to the learned counsel for the plaintiff, the trade name used by the defendantis virtuallythe same as that of the plaintiff except that the word "AGGARWAL"has been pre-fixed. The plaintiffhas objectionto the use of the word "BIKANERWALA" and has no objectionto the word "AGGARWAL" being suffixed by any expression other than "BIKANER WALA" and / or an expression which is deceptively similar to "BIKANERVALA". It is pertinent to mention that on 15.4.2004itself, this court had grantedan injunctionrestrainingthe defendantfrom using the word "BIKANER WALA" or any other similar name either independentlyor in CS(OS) 72/2004 . PageNo.2of3 conjunction with any other word in respect of its sweet meats / food products. 3. Considering the averments and the evidence on record, I feel that this order should be made in the suit also. The suit is accordingly decreed with costs. The decree sheet be prepared accordingly. BADAR DURREZ AHMED (JUDGE) February 24,2006 f- M CS(OS) 72/2004 PageNo. 3of3