Delhi District Court
Bajaj Resources Limited And Anr vs Satish Kumar on 15 March, 2024
1
IN THE COURT OF MS. HEMANI MALHOTRA,
DISTRICT JUDGE (COMMERCIAL)-2, WEST,
ROOM NO.209,EXTENSION BLOCK,
TIS HAZARD COURTS DELHI
CIR NO.DLWT01-0063882020
CS (COMM) NO. 396/2020
IN THE MATTER OF :
1.M/S BAJAJ RESOURCES LIMITED (FORMERLY KNOWN AS BAJAJCONSUMER CARE LIMITED) 33, 2ND FLOOR, RATTRAP AGAR, MAYER VICAR, PHASE-I, DELHI-110091.
2. BAJAJCONSUMER CARE LIMITED (FORMERLY KNOWN AS BAJAJCONSUMER CARE LIMITED) OLD STATION ROAD, ASHRAM CHOLERA, JAIPUR, TRASHCAN-313001 .....PLAINTIFF VS.
SH. LATISH 2879/2 NEW MARKET, RADAR BAZAAR DELHI-110006 ......DEFENDANT Date of institution : 15.12.2020 Date of receiving by this Court : 06.07.2022 Date of conclusion of arguments : 06.03.2024 Date of announcement of judgment : 15.03.2024 EXPATRTE JUDGMENT
1. By this expatriate judgment, I shall dispose off the suit filed by plaintiff under Sections 134, 135 & 27 (2) Of The Trade CS (COMM)/396/2020 Page 1 / 13 2 Marks Act, 1999, Section 51 Of The Copyright Act, 1957 seeking permanent injunction restraining the infringement of trade mark, infringement of copyright, passing off, rendition of account delivery up etc.
2. Brief facts necessary for the disposal of the present suit are that the plaintiff Company ( formerly known as Bajaj Consumer Care Ltd. and Bajaj Corp Ltd.) is a duly incorporated company under The Companies Act,1913. In the year 2008, the Plaintiff entered into a Trademark Licensing Agreement dated March 12, 2008 (referred to as "the ALT") by virtue of which Plaintiff started manufacturing, marketing, distributing and selling various types of hair oil including under the brand 'Bajaj Almond Oil'. It is claimed that the plaintiff is the 2nd largest player in the overall hair oils segment with the Key brand - Bajaj Almond Drops Hair Oil. Since the year 1989, the plaintiff has continuously and extensively been using a distinctive label mark containing the word "BAJAJ ALMOND DROP" for selling its hair oil. The distinctive feature of the said label mark are : (a). a uniquely shaped label; (b) consisting of a brown background with a golden border; (c) with the words "BAJAJ ALMOND DROP"
written in gold in a stylized font; (d) with droplet replacing the letter "o" in the words "ALMOND" and "DROPS". The said distinctive label is used by the plaintiff in combination with a CS (COMM)/396/2020 Page 2 / 13 3 uniquely shaped bottle with a brown colored cap and taken together have become distinctive of the plaintiff.
3. It is also averred that plaintiff has been using trade marks/logos, BAJAJ ALMOND DROPS, ALMOND DROPS, , in relation to its said goods and has acquired worldwide goodwill, reputation and proprietary rights.
4. Plaintiff has also spent a considerable amount of money on the advertisement and promotion of hair oil under the mark BAJAJ ALMOND DROPS, ALMOND DROPS through various media. Plaintiff has also been promoting its said goods and business electronically through the said domain names www.BAJAJconsumercare.com, www.flipkart.com, www.amazon.in etc and also through various other inter meddler web-sites which is accessible in India. The Plaintiff is also active on the social media forum www.facebook.com and have their own Facebook page at https://www.facebook.com/BAJAJAlmondDropsHairOil/ https://www.facebook.com/BAJAJbrahmiAmlahairOil/ and their other variants also operate an Pentagram account.
CS (COMM)/396/2020 Page 3 / 13 4
5. It is alleged that defendant is engaged in the trade and business of manufacturing and marketing the infringed goods under the trade mark / trade name BAJAJ ALMOND DROP, ALMOND DROP in relation to its infringed goods and business, which are identical with and deceptively similar to the Plaintiff's said Trade Marks in each and every respect including phonetically, visually, structurally, color combination of Logo and in its basic idea, essential features.
6. Plaintiff has also furnished details of registration of its trade mark in India and same are as under:
S. Name of Trade Application Class Status Validity No. Applicant Mark No. Date User Date:
1. BAJAJ BAJAJ 1560098 3 Registered 21/05/2027 RESOURC ALMOND ES DROPS LIMITED (LABEL)
2. BAJAJ BAJAJ 989680 3 Registered 12/02/2021 RESOURC AMLA ES (DEVICE) LIMITED
3. BAJAJ BAJAJ 989679 3 Registered 12/02/2021 RESOURC ALMOND ES DROPS LIMITED (LABEL)
4. BAJAJ BAJAJ 841363 3 Registered 16/02/2029 RESOURC CS (COMM)/396/2020 Page 4 / 13 5 ES (DEVICE) LIMITED
5. BAJAJ BAJAJ 1560101 3 Registered 21/05/2027 RESOURC ALMOND ES DROPS LIMITED (LABEL)
6. BAJAJ BAJAJ 1560099 3 Registered 21/05/2027 RESOURC AMLA ES SHIKAK LIMITED AI (LABEL)
7. BAJAJ BAJAJ 4138744 3 Registered 05/04/2029 RESOURC ALMOND ES DROPS LIMITED (LABEL)
8. BAJAJ BAJAJ 2722286 3 Registered 22/04/2024 CONSUM NOMAR ER CARE KS LIMITED (LABEL)
9. BAJAJ BAJAJ 2722288 3 Registered 22/04/2024 CONSUM NOMAR ER CARE KS LIMITED (LABEL)
10. BAJAJ BAJAJ 3701243 3 Objected CORP Coco LIMITED Jasime
7. Plaintiff came to know about the defendant infringed trade mark in the last week of November, 2020 when the plaintiff came across the infringed goods of the defendant in New Delhi market. On inquiry in the market, it was revealed that the defendant had just about in the month of November, 2020, adopted and starting using the infringed trademarks/label in CS (COMM)/396/2020 Page 5 / 13 6 relation to their infringed goods. The plaintiff also came to know that the defendant is carrying on its infringed activities under the infringed trade mark in a clandestine and surreptitious manner from its premises and that too without issuing formal sale bills. It is also alleged that defendant is not only making the retail sales but is also supplying the infringed goods bearing the infringed trademarks to various other dealers/shopkeepers/retailers in New Delhi. The Defendant has misrepresented and has been passing off the infringed Trade Mark as that of the Plaintiff's said Trade Mark. It is also alleged that the resemblance between the counterfeit products and original is so close that it can hardly occur except by deliberate imitation. The said products are also an exact imitation of the Plaintiffs registered trademark and due to the defendants' infringed activities, the plaintiffs are suffering huge losses both in business and in reputation and such losses are incapable of being assessed in monetary terms. Hence, the present suit.
8. Alongwith the suit, plaintiff also filed applications under Order XXXIX Rule 1 and 2 CPC r/w Section 135 of Trade Mark Act,1999 and under Order XXVI Rule 9 CPC r/w Section 135 of Trade Mark Act,1999.
9. Both the applications were disposed off vide order dated 17.12.2020 passed by Learned Predecessor of this Court with CS (COMM)/396/2020 Page 6 / 13 7 observation that prima facie case of infringement of trademark, copyright and passing off was made out in favour of the plaintiff and defendant & all other acting on his behalf were restrained from using, selling, soliciting, exporting, displaying, advertising or by any other mode or manner dealing in or using the infringed trade mark namely BAJAJ ALMOND DROPS, ALMOND DROPS, BAJAJ AMLA, BAJAJ COCO JASMINE, BAJAJ KAILASH PARBAT, BAJAJ AMLA SHIKAKAI or any other variant of the plaintiff's trademark/label/trade dress which may be identical with and/or deceptively similar to the plaintiff's trademark/label/trade dress namely BAJAJ ALMOND DROPS, ALMOND DROPS, BAJAJ AMLA, BAJAJ COCO JASMINE, BAJAJ COOL ALMOND DROPS, BAJAJ BRAHMI AMLA, BAJAJ COOL ALMOND DROPS, BAJAJ BRAHMI AMLA, BAJAJ KAILASH PARBAT, BAJAJ AMLA SHIKAKAI. Local Commissioner was also appointed vide order dated 17.12.2020 of Learned Predecessor to seize infringed goods, accessories, packaging material and all other material bearing the falsified trade mark. Whereafter, the learned Local Commissioner filed his report dated 6.1.2021 (Ex.PW1/5).
10. Vide order dated 17.12.2020, the Learned Predecessor of this Court also issued summons of the suit and notice of accompanying application to defendant through various modes including emode. The defendant eventually stood CS (COMM)/396/2020 Page 7 / 13 8 served on 3.6.22. However, despite service neither defendant appeared nor written statement on behalf of defendant was filed. Resultantly, vide order dated 18.8.2022, defence was struck off and defendant was proceeded exparte.
11. In support of its claim, plaintiff examined Sh. Dilip Kumar Mallo, AR of plaintiff as PW1. PW1/Dilip Kumar Mallo, in his evidence by way of affidavit (Ex. PW1/A) reiterated the contents of the plaint and relied upon the following relevant documents:
1. Board Resolution dated 09.03.2020 (Ex. PW1/1);
2. Copy of Trademark certificates (Ex.PW1/2) (colly);
3. True representation of trademark or label of plaintiff (Ex.PW1/3);
4. True representation of trademark or label of defendant (Ex.PW1/4).
5. Report of Local Commissioner (Ex.PW1/5) (colly.)
12. It was argued by learned counsel for plaintiff that as no written statement on behalf of defendant has been filed, hence, the averments of the plaintiff remained unchallenged and unrebutted, hence, judgment be passed. Learned counsel for plaintiff also relied upon cases titled as DISNEY ENTERPRISE INC. & ANR. VS. RAJESH BHARTI AND ORS (CS (OS) No. 1878 of 2009; IMAGINE MARKETING PRIVATE LIMITED VS. M/S GREEN ACCESSORIES AND ANR. (CS (COMM) NO.564 OF 2020; CHRISTIAN LOUBOUTIN SAS VS. ASHISH BANSAL & ORS. (CS (COMM) 503 OF 2016); JOCKEY CS (COMM)/396/2020 Page 8 / 13 9 INTERNATIONAL INC. AND ORS. VS. R. CHANDRA MOHAN AND ORS. (CS (OS) NO.253 OF 2012; DISNEY ENTERPRISES INC. & ANR. VS. PANKAJ AGGARWAL & ORS. (CS (COMM) 449/2016; PUMA SE VS ASHOK KUMAR (CS (COMM/703/2022) & MODICARE LIMITED VS. MAA ADISHAKTI MULTI TRADE ENTERPRISES & ORS. (CS (COMM)/532/2019 PASSED BY HON'BLE DELHI HIGH COURT.
13. I have heard Sh. Ankush Aggarwal , learned counsel for plaintiff and have carefully perused the record including the report of learned Local Commissioner and the infringed goods which were seized.
14. During the course of arguments, it transpired that the learned counsel for plaintiff failed to produce the original goods and infringed products for comparison before the Court. Hence, vide order dated 10.1.2024, learned counsel for plaintiff was directed to produce the original products and infringed products on 30.1.2024. On 30.1.2024, learned proxy counsel for plaintiff produced original products i.e. one bottle of 50ml+3ml and second bottle of 95 ml+13ml of BAJAJ Almond Drops. He also produced one bottle of 100 ml of BAJAJ Almond Drops alleged to be one of the infringed products which were seized by learned Local Commissioner from the premises of defendant. Report of learned Local Commissioner shows that beside infringed bottles of BAJAJ Almond Drops , learned LC had also seized cartons, tape of CS (COMM)/396/2020 Page 9 / 13 10 BAJAJ mark and also infringed sachets of BAJAJ Almond Drops. Accordingly, vide order dated 30.1.2024, learned proxy counsel for plaintiff was granted a month's time at his request to produce entire inventory of seized products alongwith cartons and tape of BAJAJ mark. On the next date of hearing i.e. 6.3.2024, Learned counsel for plaintiff produced one box of cardboard sealed with the tape of BAJAJ Corp. Ltd. allegedly containing infringed product/bottles of Bajaj Almond Drops and one transparent polythene containing 80 sachets of Adobe Almond Oil. The cardbox was opened and it was found containing only 50 bottles of Bajaj Almond Drops alleged to be the infringed goods which were seized from the premises of defendant. It is rather strange that the inventory of goods seized by Learned LC shows that 850 pieces of Bajaj Almond Drops and 4,800 pieces of Bajaj Almond Oil (Rs.1/-) (look alike) were seized. Despite direction to the learned counsel for plaintiff, instead of producing the entire inventory of seized products, learned counsel for plaintiff produced only 50 bottles of BAJAJ Almond Drops. In so far as 80 sachets of adobe almond oil is concerned, the same do not find mention in the inventory of goods seized. Also, no 4800 BAJAJ Almond Oil (Rs.1/-) look alike were produced by the learned counsel for plaintiff.
CS (COMM)/396/2020 Page 10 / 13 11
15. Thus, the learned counsel for plaintiff, despite repeated directions, did not produce the complete inventory of seized products which as per the report of the learned Local Commissioner were given on superdari to learned counsel for plaintiff despite the fact that same had to be released on superdari to defendant in terms of order dated 17.12.2020 passed by Learned Predecessor on application under Order XXVI rule 9 CPC. Such non compliance of the order dated 17.12.2020 of Learned Predecessor further creates a doubt over the authenticity of alleged infringed goods produced before the Court by learned counsel for plaintiff. It will also not be out of place to mention here that there appears to be an active connivance between the Learned Local Commissioner and the learned counsel for plaintiff as the Learned Local Commissioner did not release the goods to defendant but released the goods to learned counsel for plaintiff; and learned counsel for plaintiff despite having a knowledge of the order dated 17.12.2020 also willingly accepted the seized goods by issuing a superdarinama.
16. Be that as it may, since the infringed products produced by the learned counsel for plaintiff on the face of it appeared to be exact replica of the original product of the plaintiff, this Court scanned the bar code given on the infringed products and observed that it led to the information and barcode list of the product of the plaintiff only which is as follows:
CS (COMM)/396/2020 Page 11 / 13 12 In view of the aforesaid observation, this Court is of the opinion that if the goods seized from the premises of defendant were infringed products of plaintiff, the barcode on the alleged infringed bottles of BAJAJ Almond Drop would not have led to the result as demonstrated above. It is also very significant to mention here that there is no mention of adobe almond oil in the inventory of seized products by the learned LC. It is a settled legal proposition that to prevail on a claim of trademark infringement, a plaintiff must establish that it has a valid mark entitled to protection; and that the CS (COMM)/396/2020 Page 12 / 13 13 defendant used the same or a similar mark in commerce in connection with the sale or advertising of goods or services without the plaintiff's consent. Since the plaintiff has failed to establish that the goods seized from the premises of defendant were infringed goods of plaintiff , the suit is dismissed with cost of Rs.50,000/- out of which Rs.25,000/- be deposited with PM Relief Fund and Rs.25,000/- be deposited with Bar Council Of Delhi Indigent & Disabled Lawyers Fund, IDBI Bank A/C NO.010104000183451, IFSC Code No.IBKL0000010. Decree sheet be drawn accordingly. File be consigned to record room.Digitally signed
ANNOUNCED IN THE OPEN COURT by HEMANI
ON 15.03.2024. HEMANI MALHOTRA
MALHOTRA Date:
2024.03.15
16:13:25 +0530
(HEMANI MALHOTRA)
DISTRICT JUDGE (COMMERCIAL COURT)-02/WEST, TIS HAZARI COURTS EXTN. BLOCK, DELHI CS (COMM)/396/2020 Page 13 / 13