Calcutta High Court
Phonepe Pvt. Ltd vs Aniket Foods And Ors on 10 April, 2024
OCD-10
ORDER SHEET
IA NO: GA-COM/1/2024
CS-COM/654/2024
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
ORIGINAL SIDE
[Commercial Division]
PHONEPE PVT. LTD.
-VS-
ANIKET FOODS AND ORS.
BEFORE:
The Hon'ble JUSTICE KRISHNA RAO
Date : April 10, 2024.
Appearance:
Mr. Ranjan Bachawat, Sr. Adv.
Mr. Paritosh Sinha, Adv.
Mr. K. K. Pandey, Adv.
Mr. S. Roy Chowdhury, Adv.
Mr. K. Majumdar, Adv.
Ms. Enakshi Saha, Adv.
Mr. Dipro Dawn, Adv.
... for the plaintiff
1.The Court: Mr. Ranjan Bachawat, learned Senior Counsel, is appearing for the plaintiff.
2. Counsel for the plaintiff has filed the present application being GA-COM/1/2024 praying for ad interim injunction as well as for appointment of Special Officer for making inventory of the products of the defendant.
3. The plaintiff is a leading Financial Technology (Fintech) company based out of India and is engaged in offering financial services to its customers through smart mobile phone 2 application i.e. 'PhonePe/ facilitating finance transaction amongst consumers and merchants online and offline payment mode like Unified Payment Interface (UPI), Quick Response (QR) codes point -of-sale (POS) machines or through debit and credit cards etc. The plaintiff is registered itself with the Reserve Bank of India for prepaid payment instruments under the trade mark "PHONEPE".
4. The outreach of the plaintiff is also evident in the UPI Ecosystem Statistics as maintained by the National Payments Corporation of India, which lists PhonePe as the market leader in Customer Initiated Transaction having 6140.97 million transactions valued at 9,67,467.18 crores in February 2024 alone. The business of the plaintiff is carried on under the well known trade mark "PhonePe" which includes its device variants such as " and " and with the logo " " in a Devanagari Hindi script. Such trade mark of the plaintiff were coined and created at the instance of the plaintiff are unique. They are inherently distinctive trademarks, which have through extensive use come to be associated exclusively with the plaintiff.
5. The turnover of the plaintiff's business increased steadily and at present for the year 2022-2023 the turnover of the plaintiff is Rs.2,88,917/- lacs and the plaintiff has made expenses for advertisement for the year is Rs.35,323/- lacs. The business of the plaintiff under the trademark "PhonePe" which includes its 3 device variants such as " and " and with the logo " " in numerous prominent news and media across the country.
6. In the last week of March, 2024 the representative of the plaintiff came to know about the packaged snacks, namely chips and fryums offered under the identical trade mark "PhonePe". The said packaged snacks were manufactured and offered by the defendants in a purple colour pack and pink colour pack by copied the manner of representation of the trade mark " " of the plaintiff and has further included a representation of an ATM booth to portray a connection with the financial services offered by the plaintiff. The defendants have also used in one of the packs of the purple colour scheme which is prominently used by the plaintiff in its business. The defendants have copies each and every element of the said trade marks of the plaintiff, including the work mark PhonePe, writing style thereof, the " "set out page 16 logo in a rounded in Devanagari, placement of the mark/logo, colour combination etc.
7. Counsel for the plaintiff submits that due to the wrongful and illegal action of the defendants, the plaintiff is suffering loss and damages which continue to cause loss and damages of the petitioner. The plaintiff says that using trademark of the plaintiff " " as well as "PhonePe", the defendant is getting benefit for which the plaintiff is suffering damages in the business. 4
8. The plaintiff has relied on the judgment reported in (2002) 3 Supreme Court Cases 65 and submits that in an action of passing off it is the usual, rather essential, to seek an injunction temporary or ad interim. The principles for grant of such injunction are the same as in the case of any other action.
9. The plaintiff submits that it is the settled law that once a case of passing off is made out the practice is generally to grant a prompt ex parte injunction followed by appointment of local Commissioner, if necessary.
10. This Court finds that the plaintiff has made out a good prima facie case and the balance of convenience and inconvenience is in favour of the plaintiff with regard to passing off, infringement as well as copyright against the defendant.
11. In view of the above, this Court finds that the plaintiff is entitled to get ad interim injunction in terms of prayer
(a) of the present application. This Court restraining the defendants and each of them, their owners, officers, partners, servants, agents assigns, successor, legal representatives, stockiests, distributors, dealers and/or anyone claiming through or under them, from using the impugned packs of the defendants by using the wordmark or trademark of the plaintiff " " as well as "PhonePe".
12. This Court finds that the defendant is selling the said products in the open market and accordingly, it is necessary to safeguard the interest of the plaintiff, a Special Officer is 5 required to be appointed to make inventory of the said product of the defendants from the factory and godown of the defendants.
13. Accordingly, Mr. Shayak Mitra, Learned Advocate, Bar Library Club, 2nd Floor (Mobile No.8902005746) is appointed as Special Officer to make inventory of the product of the defendant from its godown/factory and to submit report before this Court.
14. It is made clear that if the Special Officer is required he can make request to the concerned Police Station for police help and if the Police Authority receives any request from the Special Officer, the concerned Police Officer shall immediately provide necessary police assistance by allowing the Special Officer to enter into the premises/factory/godown of the defendants and to make inventory of the product at the address Satapati, Malopara, Purba Satgachia, Burdwan-712512 West Bengal, and also from 91 Kumorpara, Krishnadevpur, Kalna 1, Bagnapara Station Road, Kalna, West Bengal, Pin 713409.
15. The ad interim order passed by this Court shall continue till 10th May, 2024.
16. The remuneration of the Special Officer is fixed at Rs.50,000/- for the present.
17. The Special Officer is directed to file report on the returnable date.
6
18. The plaintiff is directed to serve the copy of this application along with documents and the copy of the plaint to the defendant and to file affidavit of service on the next date.
(KRISHNA RAO, J.) S.De/sp3