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Delhi High court Dismissed the petition filed by TV 18 Broadcast, seeking Interim injunction.

Title: TV 18 BROADCAST LTD. Vs BENNETT, COLEMAN AND COMPANY LIMITED

Judgement Delivered: 04.07.23

+ CS(COMM) 279/2022

CORAM: HON’BLE MR. JUSTICE AMIT BANSAL

Introduction

Delhi High Court dismissed the petition filed by TV 18 Broadcast, seeking interim injunction on the use of term “Bhaiyaji” under class 41.

Facts of the case

The plaintiff is a member of the largest media and entertainment conglomerate in India, the Network18 group. The plaintiff’s business operations include managing a number of television networks in India, including CNBC-TV18, CNN News18, and News18, which broadcast in fifteen different languages and 26 states across the nation. Additionally, the company operates entertainment and informational media channels as Colours, Nickelodeon, MTV, and History TV18. In addition of creating TV shows, the plaintiff is also involved in creating TV programme and one such program is named as “Bhaiyaji Kahin” and they adopted the device mark for the same with effect from 29th December 2016 under classes 38 and 41, Since then the show aired 1200 episodes and generated a revenue of Rs.16,26,42,000 alone in the year 2021-22.

The defendants used the trademark to launch “Bhaiya Ji Superhit” in January 2022, which was intended to use comedy and satire to highlight newsworthy topics. Due to the resemblance of the two parties’ trademarks and the nature of their respective shows, the plaintiff sent the defendant with a cease-and-desist letter dated January 10, 2022, ordering them to stop using the contested mark “Bhaiya Ji Superhit” among other things.

However, the defendant asked the plaintiff to drop the stop and desist letter, pointing out that there was no similarity between the defendant’s programme format and the plaintiff’s, nor was there any chance that the impugned mark and the plaintiff’s trademark would be confused.

Reiterating the arguments made in its initial cease and desist letter, the plaintiff once more sent the defendant a legal notice on February 24, 2022. The accusations mentioned in the notifications, however, were disputed by the defendant.

In order to prevent the defendant from violating the plaintiff’s trademarks, passing off, and other ancillary reliefs, the plaintiff brought the current lawsuit.

Analysis and Decision of the Court

The High Court held that, the “Bhaiyaji Kahin” mark used by the plaintiff is registered under classes 38 and 41. In contrast to the registration under class 38, the registration under class 41 contains a disclaimer about the term “Bhaiyaji”. There is no question in my opinion after reading the aforementioned classification that television shows, particularly those relating to news, belong in class 41 and not class 38. In reality, there is a blatant exclusion for television broadcasts in class 38. Telecommunication services, such as television transmission, are also included in class 38.

Therefore, names of television stations like Times Now, CNN News18, News18, and similar ones will be included in class 38. The subject of class 41 would be the titles of the shows that are shown on these networks. Therefore, class 41 would be the applicable class for finding infringement.

The name “Bhaiyaji” is the only commonality between the plaintiff’s and defendant’s marks. The terms “Kahin” used by the plaintiff and “Superhit” used by the defendant are not interchangeable. The plaintiff cannot prevent the defendant from using the term “Bhaiyaji” due to the disclaimer about the term under class 41. This is also made explicit by Section 28(2) of the Trade Marks Act, which states that all restrictions and conditions that are a part of the registration granted apply to the exclusive right to use a trademark.

In spite of this, the term “Bhaiyaji” is a well-known pronoun in several Indian states, such as Uttar Pradesh and Bihar, and it literally means “brother”; as a result, it lacks distinction. The defendant has also provided enough evidence to the court to demonstrate that the term “Bhaiyaji” is commonly used in trade in India and is used in a number of radio and television broadcasts. Thus, in my initial assessment, “Bhaiyaji” is a generic phrase that is in common usage, and nobody has the exclusive right to use such generic words. According to Section 17 of the Trade Marks Act, 1999, the plaintiff is not entitled to exclusive rights over the mark “Bhaiyaji” in light of the aforementioned.

Attention has also been brought to the Plaintiff’s response to the examination report of the registry where they had applied for registration of the mark “Bhaiyaji Kahin” under class 41, while distinguishing it from “Bhaiya Aisa Kyun”, the Plaintiff has clearly taken a stand that their mark is not similar to the said mark and it is to be compared as a whole and cannot be dissected thus they cannot take contrary view on using of term “Bhaiyaji” by the defendant, it is not permissible to approbate and reprobate.

Plaintiff has placed reliance on Shree Nath Heritage Liquor Pvt. Ltd. v. M/s. Allied Blender & Distillers Pvt. Ltd., 2015 OnLine Del 10164,  wherein the court upheld the interim order of the division bench in respect of the defendant using the mark “Collector’s Choice” as against the plaintiff’s registered mark of “Officer’s Choice” in respect of alcoholic beverages, but this reliance is flawed as the dominant word was officer and their was no disclaimer but in the present case the dominant word is “Bhaiyaji” and there is a disclaimer present thus the aforesaid judgement does not advance the case of the plaintiff. Aditya Birla Fashion & Retail Ltd. v. Under Armour, Inc., 2023 SCC OnLine Del 2269, there was no disclaimer included in the registration issued in favour of the plaintiff as there is in the current case. as a result, the abovementioned judgement does not strengthen the plaintiff’s case.

Also, regarding the format of the show, the shows are quite different from each other both in terms of nature as well as the format. Therefore, in my prima facie view there is no likelihood of confusion between the two television shows. In view of the discussion above, the plaintiff has failed to make out a prima facie case for grant of interim injunction. Accordingly, the application is dismissed.

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Delhi High court rejected the Review petition filed by Statesman Limited seeks to review the judgement passed by the high court.

Title: The StatesMan Limited vs Govt. of NCT of Delhi & Ors.

Decision: 04.07.23

+ REVIEW PET. 516/2019 and CM APPL. 53531/2019, CM APPL. 12275/2022 in W.P.(C) 9497/2015

CORAM: HON’BLE MR. JUSTICE C. HARI SHANKAR

Introduction

The Delhi High court rejected the Review petition filed by Statesman Limited seeks to review the judgement passed by the high court dated 18.11.19 on the grounds that it does not address the issue of jurisdiction of the Authority under the Working Journalists and Other Newspaper Employees (Conditions of Service) and Miscellaneous Provisions Act, 1955, (“the Working Journalists Act”) to pass the order dated 21 July 2015 forming subject matter of challenge in WP (C) 9497/2015.

Facts of the case

The application made under Section 17(1) of the Working Journalists Act by a few members of the Statesman Mazdoor Union is resolved by the order dated July 21, 2015. The stated applicants requested payment of arrears in accordance with the Majithia Wage Board’s recommendations. The petitioner-Statesman disputed their obligation to pay the applicants in accordance with the Wage Board’s recommendations on the grounds that they had incurred significant cash losses three years prior to the implementation of those recommendations, exempting them from the requirement to pay arrears. The Court has carefully considered the applicants’ case and rejected the petitioner’s argument that it was not the petitioner’s responsibility to pay the applicants as recommended by the wage board.

The petitioner conceded to the Authority’s authority and objected to its need to compensate the applicants-workers on a merits-based basis. After losing before the Authority, the petitioner used the current writ petition to appeal to this Court.

Analysis and Decision of the court

The Delhi High Court held that Even in the current writ suit, there is not even the slightest hint of a challenge to the Authority’s authority to hear the workmen’s claims and issue the ruling of July 21, 2015. Instead, extensive and numerous submissions have been made in an effort to prove that the petitioner was, in fact, experiencing significant losses three years prior to the Wage Board’s recommendations and was not, therefore, required to pay the applicants-workmen in accordance with those recommendations. The petitioner submitted a response to the writ petition after the respondents submitted a counter affidavit. There isn’t even a claim that the Authority lacked the authority to decide the applications of the journalists in the response. Instead, the response outlines how the petitioner believes the Authority should have resolved the aforementioned arguments.

The order dated July 21, 2015 lists the errors under the heading “Grounds for Setting Aside Impugned Order” in paragraph 11 of that document. In the aforementioned paragraph, the petitioner first explains why, in its opinion, it had actually experienced losses for three years; second, it explains why the petitioner’s net current assets could not be taken into account when determining whether the losses suffered by the petitioner were heavy; and third, it makes reference to Supreme Court decisions that, in the petitioner’s opinion, established the guidelines for identifying “heavy losses.”

Therefore, the written submissions do not only fail to raise any objections to the Authority’s competence or jurisdiction. decision on the petitions submitted by the applicant-journalists, but they also go so far as to assert that the Authority should have handled the cases differently than how it did. Therefore, there is a favourable claim regarding the Authority’s ability and authority to rule on the journalists’ application.

The petitioner also had approached the hon’ble SC with an SLP (C) 36133/2015 The Supreme Court did not interfere with the direction, of the learned Division Bench, to decide the writ petition expeditiously, and merely modified the order of pre-deposit by reducing it to ₹ 30 lakhs. This indicates that the argument of want of jurisdiction of the Authority to adjudicate on the claims of the respondent-workmen was not canvassed either before the Division Bench or even before the Supreme Court.

Even after reserving the judgement in 2018, the petitioner failed to file any written submission when given opportunity for the same. As a result, there was no challenge made to the Authority’s competence or jurisdiction to decide on the claims of the respondent-workmen in the writ petition’s only written submission.

Thus, neither the writ petition nor the response nor the written representations submitted by the petitioner contested the Authority’s competence or authority to decide on the claims of the respondent-journalists. In contrast, the petitioner made specific allegations in the written submissions it submitted to this court about how it believed the Authority should have handled the situation, even going so far as to request a remand to make sure the Authority handled the situation again properly. These allegations cannot be reconciled with the claim that the Authority lacked the authority to determine the respondents’ petitions; in fact, they are diametrically opposed to one another. It was in these circumstances that, in the judgment under review, this Court did not return any findings regarding the competence of the Authority to pass the order dated 21 July 2015.

In light of the above, this Court conducted a merits review of the case and determined that the defence of three years of continuous loss as a justification for not adhering to the Majithia Wage Board’s Award was inadmissible.

Ultimately, the Delhi High Court dismissed the petition and miscellaneous applications were disposed of accordingly.

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Delhi High court granted bail to an accused under the offence of Kidnapping, as per their authority under section 439 of CrPC.

Title: Shah Alam vs State Govt. of NCT Delhi

Reserved: 01.06.2023

Pronounced: 07.06.2023

BAIL APPLN. 1033/2023

CORAM: HON’BLE MR. JUSTICE VIKAS MAHAJAN

Introduction

Delhi High court granted bail to an applicant under section 439 of CrPC seeking regular bail in FIR No.394/2020 under Sections 364A/365/342/323/506/102B/34 IPC.

Facts of the case

The mother of the victim on 03.09.2020 made a complaint to the police at 10:02 p.m. that the victim, her daughter, aged about 24 years went to HDFC Bank, Sector-02, Noida, U.P at about 01:30 p.m. with her ATM, passbook and cheque book and she has not returned home and despite searching for her, the victim could not be found. She suspected that some unknown person has kidnapped her daughter by luring her. On the basis of the said complaint, FIR was registered under Section 365 IPC.

The father of the victim also produced few video recordings as well as Whatsapp messages regarding the demand for ransom. On the basis of the statement of the father, Sections 364A/506/342/323/120B/34 IPC were also added in the case.

Search was made for the victim with the help of location and CDR of victim’s mobile number and the victim was recovered on 04.09.2020 from the custody of accused persons namely, Simpal Srivastav and her boyfriend Shah Alam (petitioner herein) from Village Chhalera, Sector-44, Noida (U.P). The said accused persons were arrested on 04.09.2020.

During investigation statement under Section 164 CrPC of the victim was recorded wherein she alleged that she was kidnapped by both the accused persons for ransom and she was also beaten by them. Her mobile phone was also taken by the accused person from which the calls were made and Whatsapp messages were sent demanding ransom. She was also threatened by the accused person and was wrongly confined.

Analysis of the court and decision

The Delhi High Court held that it is Suffice it to state that only the Magistrate’s powers, while handling petitions for the grant of bail, are governed by the punishment specified for the offence for which the bail is requested. An offence under section 364A IPC is punished with death or life in prison. Generally speaking, the Magistrate lacks the authority to issue bail unless the case is covered by the provisos attached to section 437 of the Code if the punishment specified is the life sentence or death penalty and the offence is only triable by the Court of Session (Prahlad Singh Bhati v. State (NCT of Delhi)) There are no such restrictions limiting the High Court’s or the Court of Session’s authority while using the Section 439 CrPC’s authority.

It could also be appropriate to cite the Hon’ble Supreme Court’s ruling in Sanjay Chandra v. CBI, (2012) 1 SCC 40, which outlined the specific conditions under which a person facing trial’s freedom could be restricted as –

“The object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it can be required to ensure that an accused person will stand his trial when called upon. The Courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty. Detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some unconvicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, “necessity” is the operative test. In India, it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances. Apart from the question of prevention being the object of refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an unconvicted person for the propose of giving him a taste of imprisonment as a lesson.”

Thus, without getting into the specifics of the case at this time, the court believes that, in light of the explanation above, the petitioner has established a case for the granting of bail. As a result, the petition is granted, and upon presenting a personal bond in the amount of Rs. 20,000/- and one surety bond in the same amount, the petitioner is permitted to bail, subject to the satisfaction of the learned Trial Court, CMM, or Duty Magistrate.

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The Delhi High Court set aside the order of the Railway Claims Tribunal and granted compensation to the appellants.

Title: Sita Devi & Ors. vs UOI

Decided: 22.03.2023

Pronounced: 02.06.2023

FAO 46/2022

CORAM: HON’BLE MR. JUSTICE MANOJ KUMAR OHRI

Introduction

The Delhi High court set aside the order of Railway claims tribunal and remanded back to the Tribunal for awarding the amount of compensation in terms of the Act and for which purpose the matter shall be listed at the first instance before the Tribunal on 10.07.2023. it is to be decided and compensation is to be paid within two weeks thereafter.

Facts of the case

It was Vinod Kumar i.e., deceased undertook a train journey on 12.06.2017 from Shahdara to Faridabad by a local train and when the train reached at KM 1514/13-11 JNC Yard between Faridabad and Tughlaqabad Station, the deceased fell down from the train on account of sudden jerk and push of the passengers and died at the spot. The journey ticket along with other articles of the deceased including his bag were also lost.

A perusal of the record would show that the first information on the incident was received in the form of memo of Station Master of Faridabad Railway Station at about 9:00 am on 12.06.2017. It mentions about the dead body lying at KM 1514/13-11.

Based on the reports and testimony submitted, On 10.02.2021, the principal bench of Railway Claims Tribunal passed an order dismissing the claims of the appellants.

Court Analysis and Decision

The delhi high court was expedient to refer to the judgement of Supreme court at Union of India v. Rina Devi (2019) 3 SCC 572 para 29, Where it was held that, “mere presence of dead body on the railway tracks will not be conclusive to hold that injured or deceased was a bona fide passenger for which claim for compensation could be maintained. However, mere absence of ticket with such injured or deceased will not negative the claim that he was a bona fide passenger Initial burden will FAO 46/2022 Page 3 of 4 be on the claimant which can be discharged by filing an affidavit of the relevant facts and burden will then shift on the Railways and the issue can be decided on the facts shown or the attending circumstances. This will have to be dealt with from case to case on the basis of facts found. The legal position in this regard will stand explained accordingly.”

The court decided to avoid the DRM report for taking into consideration as it is being filed after 14 months of the incident especially in the view of final report submitted by the SHO, court referred to the judgement of its coordinate bench in Bhola v. Union of India 2018 SCC OnLine Del 13486. Accordingly, the deceased is held to be a bona fide passenger and the incident to be an ‘untoward incident’ under Section 123(c) of the Railway Claims Tribunal Act 1987. Consequently, the appeal is allowed and the impugned order is set aside. The matter is remanded back to the Tribunal for awarding the amount of compensation in terms of the Act and for which purpose the matter shall be listed at the first instance before the Tribunal on 10.07.2023. Let the compensation amount be paid to the appellants/claimants within two weeks thereafter.

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Karnataka High Court Declares Notice and Assessment Order in the Name of Non-Existing Company as Illegal and Lacking Jurisdiction

Karnataka High Court

COFFEE DAY RESORTS (MSM) PVT. LTD. V. THE DEPUTY COMMISSIONER OF INCOME-TAX

WRIT PETITION NO. 9594 OF 2023 (T-IT)

Bench- HON’BLE MR JUSTICE S SUNIL DUTT YADAV

Decided On 01-06-2023

Facts of the case-

Coffee Day Resorts (MSM) Pvt. Ltd. (hereinafter referred to as the petitioner) has raised concerns regarding the validity of the reassessment proceedings initiated against them. The petitioner, formerly known as Shankar Resources Pvt. Ltd., was a non-banking financial company (NBFC) that underwent a merger with the petitioner company pursuant to an order of amalgamation by the National Company Law Tribunal (NCLT).

Subsequently, the respondent, referring to the provisions of Section 148A (b) of the Income Tax Act, 1961, issued a notice to Shankar Resources Private Limited, seeking an explanation as to why a notice under Section 148 of the said Act should not be issued.

In response, the petitioner submitted a reply stating that the company to which the notice under Section 148A (b) was directed, namely M/s. Shankar Resources (P) Ltd., had been amalgamated with M/s. Coffee Day Resorts (MSM) Pvt. Ltd. Consequently, as of April 1, 2018, M/s. Shankar Resources (P) Ltd. ceased to exist, and there was no longer any assessable entity under the name of M/s. Shankar Resources (P) Ltd. for the assessment year 2019-20.

It is imperative to analyze the legal implications of the aforementioned facts. The merger of Shankar Resources Pvt. Ltd. with Coffee Day Resorts (MSM) Pvt. Ltd. has been carried out in accordance with the order of amalgamation issued by the NCLT. Such an amalgamation signifies the consolidation of both entities, resulting in the cessation of the existence of Shankar Resources Pvt. Ltd. from the effective date of the amalgamation, i.e., April 1, 2018.

Therefore, the petitioner contends that the notice issued under Section 148A (b) is misplaced, as it is directed towards an entity, M/s. Shankar Resources (P) Ltd., that no longer exists. The petitioner, now known as Coffee Day Resorts (MSM) Pvt. Ltd., is the only surviving and accessible entity following the merger.

In light of these facts, the petitioner asserts that there is no valid basis for the reassessment proceedings for the assessment year 2019-20 to be conducted against them. The amalgamation has effectively dissolved the identity and legal existence of Shankar Resources Pvt. Ltd., leaving Coffee Day Resorts (MSM) Pvt. Ltd. as the only relevant entity subject to assessment.

Consequently, the petitioner seeks legal redress and challenges the validity of the reassessment proceedings, arguing that the notice issued under Section 148A (b) is untenable given the amalgamation and the subsequent cessation of Shankar Resources Pvt. Ltd.

Judgement

The Court has ruled that a notice and assessment order issued in the name of a non-existent company is fundamentally illegal and lacks jurisdiction. The Court specifically noted that M/s. Shankar Resources (P) Ltd., which had merged with the petitioner company, no longer existed at the time the notice was issued. As a result, the notice issued under Section 148A(b) is declared null and void.

The Court emphasized that the tax department is entitled to initiate appropriate proceedings, as permissible by law, against the petitioner company based on the contents of the notice under Section 148A(b). However, such proceedings must be in accordance with the relevant legal provisions. The Court clarified that the petitioner company is still subject to assessment and can be subjected to lawful actions by the tax department.

Therefore, the Court sets aside the notice issued under Section 148A(b) in relation to M/s. Shankar Resources (P) Ltd., while affirming that the tax department retains the authority to commence appropriate proceedings against the petitioner company, Coffee Day Resorts (MSM) Pvt. Ltd., in compliance with the applicable laws.

JUDGEMENT REVIEWED BY ABHAY SHUKLA

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