Calcutta High Court
Hindustan Unilever Limited vs Utkarsh Somani & Anr on 1 February, 2019
Author: Soumen Sen
Bench: Soumen Sen
ORDER SHEET
GA No. 297 of 2019
With
CS No. 21 of 2019
IN THE HIGH COURT AT CALCUTTA
ORIGINAL SIDE
HINDUSTAN UNILEVER LIMITED
Versus
UTKARSH SOMANI & ANR.
BEFORE:
The Hon'ble JUSTICE SOUMEN SEN
Date 1st February, 2019.
Appearance:
Mr. Arunabha Deb, Adv.
Mr. Subhradip Roy, Adv.
The Court : In an action for infringement of plaintiff's registered trademark
and copyright this application is filed for interim reliefs.
The plaintiff claims to be the registered proprietor of the trade mark
"LIFEBUOY" as also the owner of the copyright in the art work as displayed in the
packing consisting of a combination of colours, the getup, style and colour
scheme whereof are distinctive of the products of the petitioner. It is stated that
the packet in which the "LIFEBUOY" soap is sold and distributed throughout
India has a distinctive style, getup and colour scheme and a large quantity of
soap has been sold in India in the said labels/packets by reason whereof the said
marks have become very well-known and has become distinctive of the soap of
the petitioner. The soap of the petitioner sold under the trade mark "LIFEBUOY"
has acquired a substantial reputation and goodwill in the market. The petitioner
has also given the figures of the All India annual sale of products of the petitioner
company with trade mark "LIFEBUOY" and expenses incurred in advertising.
Mr. Arunabha Deb, appearing on behalf of the petitioner submits that in
the month of January, 2019 in course of a market survey and investigation
2
carried out by the petitioner at Jaipur, Rajasthan, it was found that the
respondents were manufacturing, selling and distributing soap under the marks
"LIKEBOY"and "LOVEBOY" in packets having trade design, graphics and a colour scheme similar if not identical to the label in which the Petitioner's product "LIFEBUOY" is sold and distributed in India. A mere comparison of the labels/packets of the petitioner with those of the respondents would indicate an identical colour scheme as well as the infringing use of the petitioner's copyright subsisting in the labels in which its product "LIFEBUOY" is sold. Further, the petitioner is the registered proprietor of the word mark "LIFEBUOY" and the respondents are using the names "LIKEBOY" and "LOVEBOY", which are deceptively similar to the petitioner's registered word mark "LIFEBUOY".
It appears that the infringing packets in which the soaps of the respondents are sold are a colourable and deceptive imitation of the label of the petitioner's "LIFEBUOY" and the words "LIKEBOY" and "LOVEBOY" phonitically, visually and structually are deceptively similar to the petitioner's registered word mark "LIFEBUOY".
This Court is, prima facie, satisfied that the products sold by the defendants are in infringement of the petitioner's trade mark and copyright subsisting in the labels in which the petitioner's product "LIFEBUOY" is sold and are also in infringement of the petitioner's registered wordmark "LIFEBUOY". On the aforesaid prima facie satisfaction, in my view, a protective order is required to be passed, otherwise the infringing packets may be removed out of reach of the Court. In view thereof, there shall be an order in terms of prayer (b) of the application.
I appoint Mr. Tirthankar Nandi, Advocate of as Special Officer to immediately visit the godown and the outlet of the defendants to inventorize the infringing goods, if required, with the police assistance and keep the seized materials/goods at the place to be provided by the petitioner. The Special Officer shall be at liberty to break open padlock(s), if required, in presence of police 3 authorities in the event the respondent(s) or the godown owner(s) is unable to provide the key(s) to the Special Officer. The godown shall be resealed and the key(s) shall be kept in the custody of the Special Officer until further orders. The Special Officer shall be entitled to an initial remuneration of 2000 GMs. All arrangements for the Special Officer's travel, accommodation and the like shall be made by the petitioner and the expenses therefor. The Special Officer shall file a report on the returnable date.
Let this application appear on 25th February, 2019.
The petitioner is directed to communicate this order along with a copy of this application and a copy of the plaint upon the respondents by speed post with acknowledgement due within 5th February, 2019 and shall file affidavit of service on the adjourned date.
The interim order shall be for a period of ten weeks from date or until further orders, whichever is earlier.
The respondents shall be at liberty to apply for vacation, variation and/or modification of the interim order upon notice to the petitioner.
Urgent certified website copies of this order, if applied for, be urgently supplied to the parties subject to compliance with all requisite formalities.
(SOUMEN SEN, J.) sp/