$-37

IN THE HIGH COURT OF DELHI AT NEW DELHI

+ CS(COMM) 586/2023
KEI INDUSTRIES LIMTED Plaintiff
Through: Mr. Pallav Palit and Mr. Paritosh
Mandovra, Advs. (M:8588854470)

versus
ADESHWAR ELECTRICALS PVT LTD Defendant
Through: None.
CORAM:
JUSTICE PRATHIBA M. SINGH
ORDER
% 23.08.2023

1. This hearing has been done through hybrid mode.

LA. 15973/2023(exemption)
2. This is an application secking exemption from filing original
documents and certified copies of documents. Recording the Plaintif's
undertaking that the inspection of original documents shall be given, if
demanded, andthat the original documents shall be filed prior to the stage of
admission/denial, the exemption is allowed. Application is disposed of.
LA. 15974/2023 (for.exemption)
3. This is an application seeking exemption from filing
originals/lcleared/translated copies of documents, left side margins, etc.
Original documents shall eproduced/filed at the time of Admission Denial,
if sought, strictly as per the provisions of the Commercial Courts Act and
the DHC (Original Side) Rules, 2018. Exemption is allowed, subject to all
just exceptions. Application is disposed of.
1.A. 15976/2023.(exemption from advance service to the Defendant)

CS/COMM) 586/2023
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 parte ad-interim
4 In view of the fact that the Plaintiff has sought ex
Commissioner, the
injunction along with the appointment of the Local
Application is
exemption from advance service to the Defendant is granted.
disposed of.
CS(COMM) 586/2023
5 Let the plaint be registered as a suit.
6. Issue summons to the Defendant through all modes upon filing of
Process Fee.
7. The summons to the Defendant shall indicate thata written statement

to the plaint shall be positively filed within 30 days from date of receipt of
summons. Along with the written statement, the Defendant shall also file an
affidavit of admission/denial of the documents of the Plaintitf. without
which the written statement shall not be taken on record.
8 Liberty is given to the Plaintiff to file a replication within 15 days of
the receipt of the written statement(s). Along with the replication, if any,
filed by the Plaintiff, an affidavit of admission/denial of documents of the
Defendant, be filed by the Plaintiff;, without which the replication shall not
be taken on record. If any of the parties wish to seek inspection of any
documents, the same shall be sought and given within the timelines.
9 List before the Joint Registrar for marking of exhibits on 20 October.,
2023. It is made clear that any party unjustifiably denying documents would
be liable to be burdened with costs.
10. List before Court on 22d January, 2024.
ILA. 15972/2023 (u/O XXXIX Rules1& 2 CPC)
11. Issue notice.

12. The Plaintiff-KEI Industries Ltd. has filed the present suit seeking

CS(COMM) 586/2023 Page 2 of lI

 pleaded case is that the
protection of its registered trade mark 'KEI. The
been engaged in the
Plaintiff company was established in 1968 and has
high tension wires,
manufacture and sale of house wiring, low tension wires,
KEI was derived from the
rubber cables, specialty cables etc. The mark
Industries as the acronym of
name ofthe partnership firm Krishna Electrical
thereafter, converted to a public
the firm name. The partnership. firm was
Ltd. as on 31t December,
limited company namely M/s KEI Industries
has an artistic logo
1992. The Plaintiff apart. from using the. mark KEI also
KEas part of its brand,identity. As per the
Plaintiff, it has
deviçe i.e.,
approximately 5,500
more than 1900 dealers and distributors with
aso has presence in
employees across the country. The Plaintiff
than 60 countries of
international markets and is selling its products in more
Europe, Africa, middle
the world including North America, South America,
East Asia, Japan, South Asia, Australia, etc.
13. Apart from manufacturing capabilities in India
it has now expanded
cables of 400 kV as
its. cable, manufacturing capabilities into higher power
including a subsidiary
well. It also has. overseas offices in several countries
servicing a large
in Australia and South Africa. The Plaintiff has been
whose list has
number:of private and public corporations and companies
Some such client includes
been set out in the paragraph 11 of the plaint.
Delhi Metro Rail
Power Grid Corporation of India Limited (PGCIL),
Zone Limited
Corporation (DMRC), Mangalore Special Economic
(MSEZL), Indian Railway Construction Limited (IRCON) etc.
14. The Plaintiff also has.trademarkregistrations for the wordmark
KEI in
include electrical
classes 6, 9, 16, 35, 37 & 42. The broad range of products

Page 3 of !!
CS(COMM) 586/2023
 products, wires and cables, telecommunication cquipment, electrical
applianceS and related services. The details of the registrations are set out in
paragraplh 14 of the plaint. The revenue figures and advertisement &
marketing expenditure of the Plaintiff since 1992 have also been set out in
the plaint. As of the last financial year, i.e., 2022-23 the
revenue earned by
the Plaintiff is over Rs.6,900 crores, with more than Rs 21
crore being spent
on advertising and marketing. In addition, the Plaintiff has also
given its
sales revenue through international exports. Export revenues have
been
growing and is more than Rs.700 crores in the last financial year. The mark
'KEI and the Plaintiffs business has been promoted
through sponsorship of
various sporting events and engagement of brand ambassadors such as
Bollywood celebrities, cricket players, etc. The Plaintiff is also stated to
have received several awards and accolades, including the
'Super brand'
status. It has also taken action to protect the mark 'KEI by
filing several
suits in which injunctions have been granted. Some of the said
decisions by
which the 'KEI' mark has been protected are set out below:
S. No. Case Number Cause Title
Date of Order
1
CS(COMM) KEI Industries Ltd v. Koyo 12h July, 2023
453/2023 Lubricants Ltd v Ors.
2
CS(COMM) KEI Industries Limited v. Bharat 9th February, 2023
70/2023 Singh &Anr.
3
CS(COMM) KEI Industries Limited v. Manoj l 29th July, 2019
384/2019 Jain & Anr.

15. The Plaintiff's grievance is that sometime in July, 2023 it

came across
the Defendant - M/s Adeshwar Electricals Pvt.
Ltd's trademark application
for the mark 'KEICABLE' bearing Trade Mark
application No. 5983324, in

CS(COMM) 585/2023
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class 9 on a 'Proposed to be used' basis. The current status of the mark is
reflected as 'Formalities Check Pass. Mr. Pallav, ld. Counsel for the Plaintiff
has appointed out that the Defendant has a registration under the MSME
Act, 2006 and in the said registratión the Defendant claims to be
manufacturing cables, wires including cables, wires including insulated wire
and cable made of steel, copper, aluminium. The trademark application is in
class 9 which is an identical class as:that of the Plaintiff. Ld. Counsel also
points out that despite issuing a cease and desist notice, the Defendant has
failed to comply with the requisitions of the Plaintiff.
16. At this stage, the Courtqueried the ld. Counsel for the Plaintiff as to
how this Court has.territotialjurisdiction. In response to the said query, ld.
Counsel relies upon Section: 134 of the Trade Marks Act, 1999 (hereinafter
the Act).
17. The Court has:.perused: the record, and heard ld. Counsel for the

Plaintiff. The registrations. of the Plaintiff are not in dispute; neither is the
long and extensive use ofthe mark KEI. Various orders which have been
passed in favour of the Plaintiff leave no doubt in the ownership of the mark
"KEI by the Plaintiff. The sales turnover and the extensive investment on
promotional-activities also:shows that.KEI being an invented mark, is prima
facie linked onlyto the Plaintiff.
18. A perusal of the Trade:Mark application of the Defendant shows that
the same is without any territorial limitation. The Defendant also has a
website www.adeshwarelectricals.com, wherein the Defendant claims to be
one of the topmost industrial suppliers for RCCB, MCCB,wires and cables,
industrial meters, switches & sockets, light and fittings, etc. All these
products overlap with the business of the Plaintiff. Moreover, the Defendant,

CS/COMM) 586/2023 Page 5 of I

on its website claims some common customers as that of the Plaintiff.
however, it is not clear as to whether the said international customers which
are claimed by the Defendant, are actually its customers.
19. In the facts and circumstances, presuming the same to be true, the
present case is one where the triple identity test is satisfied,
the mark is identical,
" the goods on which the mark is used are identical and the
customers/trade channel would also be identical.
The said test has been also been relied upon by a ld. Single Judge of this
Court in Sumeet Research and Holdings (P) Lid. v. Sipra Appliances,
2018:DHC:5984, to assess the similarity between two marks and the
likelihood of confusion amongst the public. Moreover, the website is an
interactive website where people can post queries and contact the Defendant
for supplies all over India, including in Delhi. Thus, the tests as laid down in
the judgement of the Division Bench of this Court in Banyan Tree Holding
(P) Ltd. v. A. MuraliKrishna Reddy & Anr., 2009:DHC:4919-DB is also
satisfied.
20. The Court has also perused the reply email and the reply to the cease

and desist notice which has been placed before the Court. In response to the
notice which has been issued by the Plaintiff and the attempts made by
Plaintiff, to engage with the Defendant including by talking to the
Defendant's promoter, the reply of the Defendant has been completely
inexplicable. The email reply of the Defendant reads as under:
11July 2023 at 23:57
Adeshwar Electricals <adeshwarl21 @yahoo.com>
Reply-To: Adeshwar Electricals
<adeshwarl21 (@yahoo.com>

CS/COMM) 586/2023 Page 6 of 11

 To: Pallav Palit <pallav@palitco.com>
Cc: Kishore Kunal <kunal@kei-ind.con>, Sagar
Gupta <sagar.gupta@kei-ind.com>, Paritosh
Mandovra
<paritosh@palitco.com>, IPR | Palit & Co
<ipr@palitco.com>, Palit & Co
<contact@palitco.com>
Dear sir
We are using the name of kei cable
Not kei ok sir wehaye got TM, and sir youare sending
the mail to us on what ground basis Ok this natter is in
the Court you can make objection in the Court not us
we got TM we can,use it Mr patiliyouare giving
instructions to us or sirplease under stand and better
understand
Note: Mr patil sir
We can use trade mark you can't stop us when Court
say to stop we can stop noton your words
Adeshwar Electricals p ltd"
21. Ld: Counsel has handed across.the reply to the cease and desist notice,
receivedby the Defendant yesterday, where again the stand of the Defendant
is unclear as to when it adopted the mark KEI and what is the extent of use
of the mark 'KEI by the Defendant. The Defendant has explicitly refused to

stop the,usage of the mark "KEI' despite clear information having been given
to the Defendant. that Plaintiff is the registered proprietor of the mark 'KEI.
Moreover, the Defendant's application for registration has also been filed on
17h June, 2023 on a proposed to be used basis. A perusal of the Defendant's
website also shows that there is no use of the mark KEI on the website,
which gives the Court the impression that the adoption itself is extremely
recent as claimed in the trademark application.
22. In the overall facts and circumstances of this case, the Defendant is

CS(COMM) 586/2023
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prima facie infringing the trade mark of the Plaintiff, as already established
by the Triple Identity Test. If the Defendant is allowed to continue to market
and sellproducts with the 'KEl' mark, it would lead to a situation where the
Defendant encashes upon the reputation of the Plaintiff's mark for its
monetary advantage, which cannot be permissible. Therefore, the balance of
convenience is also clearly in favour of the Plaintiff. Irrevocable harm
would be caused not only to the Plaintiff but also to the public at large if the
Defendants continue to market, sell or promote products with the 'KE> mark
or branding. All these facts lead the Court to the primafacie conclusion that
the Plaintiff is entitled toan ex parte ad-interim injunction. Accordingly, till
the next date of hearing, the Defendant is restrained from manufacturing,
selling, ofering for sale or in any manner dealing with electrical products
including RCCBs, MCCBs, wires and cables, industrial meters, switches &
sockets, light and fittings or any other allied and cognate goods under the
mark 'KEI' or any other mark which is identical or deceptiveBy similar
thereto.
LA. 15975/2023(for appointment of Local Commissioner)
23. This is an application filed by the Plaintiff seeking appointment of a
Local CCommissioner. The Court has considered the merits of the Plaintiff's
case and has granted an ex parte ad interim injunction as recorded above in
LA. No.15972/2023. Accordingly, in order to ensure that the injunction is
fully complied with, it is deemed appropriate to appoint Local
Commissioner to visit and inspect the premises of the Defendant, as also to
ascertain the nature and extent of use of the mark 'KEI by the Defendant.
The details of the Local Commissioner appointed and the location of the
premises, where the commission has to be executed is set out below:

CSCOMM) S86/2023
Page 8 fl!
 S. No. Defendant's premises LocalCommissioner
No. 4, Kashivishweshwara Sarthak Karol, Advocate
Temple Street (K.V. Street) Enrolment No.: D/5643-A/2017
Sourastrapet, Bangalore,
Karnataka- 560029 Mob: 9810900987

24. The mandate of the Local Commissioner is as under:

i) The Local Commissioner shall visit the premises of the
Defendant, as per.the above address mentioned above, to
inspect the infringing products including, packaging
materials, pamphlets, brochures,semi- manufactured and
fully- manufactured products including RCCBs, MCCBs,
wires and cables, industrial meters, switches & sockets,
light and fittings, etc bearing the mark 'KEI as also
imitative labels, get-ups/artworks/labels as that of the
Plaintiff and shall prepare a complete inventory of the
same;
ii) The Local Commissioner shall also obtain the details
from where the infringing products are being sourced by
the Defendant, and the period since when infringing
products were sold.by the Defendant, and obtain copies
of the accounts. The Defendant shall cooperate and give
password(s) of any computer/electronic files containing
the accounts, if the same is on a computerised software;
iii) After preparation of the inventory, the infringing goods
including packaging materials, pamphlets, brochures,
semi- manufactured and fully- manufactured products,

CS/COMM) S86/2023 Page 9 of l!

 RCCB, MCCB, wires and cables, industrial meters,
switches & sockets, light and fittings, ctc bearing the
mark KEI, found at the Defendant's premises shall be
sealed by the Local Commissioner and the same shall be
given to the Defendant on Superdari basis. The
Defendant shall furnish an undertaking to produce the
sealed goods as and when directed by this Court;
iv) Upon being requested, the concerned SHO and Police
Officials, under whose jurisdiction the aforementioned
location falls, shall provide full assistance to the Local
Commissioner in executing the commission at the
Defendant's premises, in accordance with this order;
v) The Local Commissioner, with the assistance of the
Police, may break open the locks and/or seal in case any
of the premises of the Defendant is found locked and /or
sealed. The Local Commissioner shall record specific
reasons for the decision to break open the locks;
viì) The Local Commissioner are also permitted to visit any
other premises, of which they acquire knowledge during
the execution of the commission, which according to
them, may be storing or selling the counterfeit or look
alike products of the Plaintif:
vii) The Local Commissioner is permitted to take
photographs or videos of the proceedings if deemed
appropriate. Two representatives of the Plaintiff, which
would include a lawyer, are permitted to accompany the

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CS(COMM) 586/2023
 Local Commissioner;

viii) The Local Commissioner, while executing the

commission, shall ensure that there is no disruption to the
business of the Defendant, except for the purposes of the
execution of the commission. The commission shall be
executed in a peaceful manner;
ix) The order passed today shall be communicated by the
Local Commissioner to the Defendant. Copy of the order
and complete paper book shall be served by the Local
Commissioner upon the Defendant at the time of
execution of the commission.

25. The fee of all the Local Commissioner is fixed at Rs.1,50,000/- plus
Commission
out-of-pocket expenses, to be borne by the Plaintiff. The Local
shallbe executed within a period of two weeks from today.
26. The Local Commissioner shall file their respective report within two
weeks of the execution of the commission.
weeks to
27. The.present order shall not be uploaded fora period of two
enable the execution of the commission.
the
28. Compliance of Order XXXIX Rule 3 CPC within a week after
execution of the commission.
29. List the application before the Court on the date above fixed.
30. Order Dasti.
-Sdl
PRATHIBA M. SINGH, J

AUGUST 23, 2023

dilam

CS(COMM) 586/2023
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