Safiya Malik

The High Court of Delhi Division Bench of Justice C. Hari Shankar and Justice Om Prakash Shukla dismissed appeals challenging the threshold rejection of trademark and passing-off suits filed by the managing society of a gated farmhouse colony in south Delhi against neighbouring farmhouse owners. Upholding the Commercial Court’s orders, the Bench held that the mere display of “WESTEND GREENS” on residential nameplates or signboards outside the defendants’ farmhouses did not, on the pleadings, amount to trademark infringement because the use was not shown to be in the course of trade. The court found that the plaints did not disclose material facts linking the signage to any commercial dealing or services so as to found a cause of action.

The appeals arose from orders of the Commercial Court rejecting plaints filed by a residential welfare society claiming infringement and passing off of its registered trademark “WESTEND GREENS.” The appellant society asserted registration of the mark in Class 45 for welfare-related services and alleged that the respondents, who were residents of an adjoining residential society, had installed signboards outside their farmhouses displaying the mark. According to the appellant, such display misrepresented affiliation with the appellant society and was intended to enhance property value for leasing or sale.

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The respondents denied any commercial use of the mark and contended that the display merely reflected geographical identification within the Westend Green Farms area. They sought rejection of the plaint under Order VII Rule 11(a) CPC, asserting absence of material facts constituting a cause of action for infringement or passing off. The Commercial Court accepted this contention and rejected the plaints, leading to the present appeals.

The Division Bench examined the scope of Order VII Rule 11(a) CPC and recorded that “the application has to be decided on a demurrer, assuming the facts stated in the plaint to be correct” and that “only the averments in the plaint and the documents filed therewith can be looked into.”

On trademark infringement, the Court observed that “there can be no infringement outside Section 29 of the Trade Marks Act” and that “use in the course of trade is an indispensable sine qua non for infringement.” It noted that the plaint itself described both parties as residential welfare societies and that “except for one bald sentence alleging commercial activity, the plaint is completely silent as to the nature of any trade.”

The Bench stated that “enhancing the value of one’s property cannot constitute use in the course of trade, absent trade in the property,” and further recorded that “there is nothing in the plaint to show that the respondent has put the property to sale, lease, or any commercial dealing.”

On the allegation of commercial activity, the Court observed that “there is no disclosure of the nature of such activity nor any linkage between the alleged activity and the use of the mark.” It held that “mere display of a name on a signboard outside a residence does not amount to commercial use.”

With respect to passing off, the Court recorded that while goodwill, misrepresentation, and damage are essential elements, “the plaint does not disclose material facts demonstrating misrepresentation in the course of trade or likelihood of damage.” It concluded that “artful pleadings cannot be permitted to create an illusion of a cause of action where none exists.”

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The Court directed that “as the plaint does not contain the necessary averments as would disclose existence of the material facts which could make out a cause of action for the appellant to sue the respondents, for infringement and passing off, the learned Commercial Court correctly allowed the respondents’ application under Order VII Rule 11(a) of the CPC and rejected the plaint. The above reasoning and conclusion applies mutatis mutandis to all the appeals. The appeals are, therefore, dismissed with no orders as to costs.”

Advocates Representing the Parties

For the Appellants: Mr. Abhinav Mukerji, Senior Advocate, with Mr. Sumit Gehlot, Mr. T.S. Thakran, Mr. Abhishek Singh and Ms. Manju Gehlot, Advocates

For the Respondents: Mr. Rakesh Lakra, Ms. Shivani Kher, Mr. Akash Kumar and Mr. Bhavya Sharma, Advocates; Mr. Rajiv Tyagi and Mr. Rohit Gupta, Advocates

Case Title: Westend Green Farms Society v. Vicky Kakkar & Ors.
Neutral Citation: 2025:DHC:11652-DB
Case Number: RFA (COMM) 196/2025 and connected matters
Bench: Justice C. Hari Shankar, Justice Om Prakash Shukla