Madras High Court
Unknown vs Dhiren Krishna Paul on 4 October, 2021
Author: R.Subramanian
Bench: R.Subramanian
C.S.No.236 of 2007
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 04.10.2021
CORAM:
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
C.S.No.236 of 2007
Health & Glow Private Limited,
having registered Office at:
Site No.32/5, 2nd Floor, Ganapa Towers,
Hosur Main Road, NGR Layout,
Roopena Agrahara, Bangalore – 560058,
Karnataka, India rep by its
Authorised Signatory.
(Amended as per order dated 25.08.2021 in
Appln.No.2923 of 2021) ...Plaintiff
Vs.
1.Dhiren Krishna Paul,
trading as Health and Glow Clinic,
BA-43, Salt Lake City, Sector – 1,
Kolkata – 700 064.
2.Dr.PB's Health & Glow Clinic Private Limited,
BA-43, Salt Lake City, Sector – 1,
Kolkata – 700 064. ...Defendants
Prayer: Plaint filed under Order VII Rule 1 of C.P.C., r/w. Order IV Rule
1 of the Original Side rules and also Sections 29, 134 and 135 of the
Trademarks Act, 1999 and Sections 17, 51 and 55 of the Copyright Act,
1957, praying as follows:-
a) a permanent injunction restraining the Defendants, their
principal officers, servants, agents, their assigns in business, dealers,
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C.S.No.236 of 2007
stockists and others associated with them from using the words
“HEALTH & GLOW”or any other mark, name, logo, monogram or label
that is or may be identical with or deceptively similar to the registered 1)
HEALTH & GLOW and / or 2) HEALTH AND GLOW (DEVICE)
trademarks of the Plaintiff, or to market, sell, offer for sale, license,
advertise, directly or indirectly deal in any goods any / or services online
or offline amounting to the infringement of the Plaintiff's registered
trademark Nos.802306, 1315016 and 1315017 in classes 3 and 3 & 5
respectively;
b) a permanent injunction restraining the Defendants, their
principal officers, servants, agents, their assigns in business, dealers,
stockists and others associated with them from using as a domain name /
website address, marketing, selling, offering for sale, licensing,
advertising, either directly or indirectly dealing in any goods and / or
services bearing / using the words “HEALTH & GLOW” or any other
mark, name, logo, monogram or label that is or may be identical with or
deceptively similar to the HEALTH & GLOW / HEALTH AND GLOW
(DEVICE) trademarks of the Plaintiff, as may cause or be likely to cause
confusion or deception amounting to passing off of the Defendants'
goods and services as those of the plaintiff.
c) a permanent injunction restraining the defendants, their
principal officers, servants, agents, their assigns in business, dealers,
stockists and others associated with them from reproducing, using as
signage or otherwise, printing, publishing or distributing any label,
printed matter, stationery or packaging which is a colourable imitation or
substantial reproduction of the plaintiff's “HEALTH & GLOW” label as
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depicted in paragraph 13 of this plaint, amounting to infringement of
Plaintiff's copyright thereto.
d) a decree for delivery up to the plaintiff for destruction of all
packaging, labels, block, dyes, stickers, signage, advertising materials,
all types of stationary and brochures and all other infringing materials of
the Defendants bearing the words “HEALTH & GLOW,
e) a preliminary decree in favour of the plaintiff directing the
defendants to render account of profits made through use of the
HEALTH & GLOW mark and a final decree thereafter be passed in
favour of the plaintiff for the amount of profits that have been found to
be made by the defendants after it had rendered accounts, and
f) decree for damages to the tube of Rs.25,00,000/- to be
passed in favour of the plaintiff and against the defendants. Award costs
for the suit and to pass such further or other order or to grant such other
relief as the nature and circumstance of the case may require, that this
Hon'ble Court deems fit and proper.
For Plaintiff : Mr.N.C.Vishal for
Mr.Pravin Anand
For Defendants : Set exparte
JUDGMENT
The suit is one for infringement of a trademark “HEALTH & GLOW”. The plaintiff prays for injunctive reliefs relating to use of the mark “HEALTH & GLOW”, mandatory injunction seeking destruction of https://www.mhc.tn.gov.in/judis/ 3/11 C.S.No.236 of 2007 packing material, labels etc., accounts and profits, damages to the tune of Rs.25,00,000/- and for costs.
2.According to the plaintiff, it is the registered proprietor of the trademark “HEALTH & GLOW”. It is stated that the device mark was registered with Registration No.8023206, while the label mark with the dancing figure was registered in Trademark Nos.1315016 & 1315017 in Class 3 and 5 of the schedule. Claiming that the defendants are carrying on business with the name “Health & Glow Clinic” and “Dr.PB's Health and Glow Clinic Private Limited” and such action of the defendants would amount to infringement of the trademark of the plaintiff, the plaintiff has come forward with the above suit.
3.Though served, the defendants have not chosen to appear either in person or through counsel. Hence, the defendants were set exparte and the matter was referred to the learned Additional Master for recording of evidence.
4.Before the learned Additional Master one Mr.J.Madhusudhan, has been examined as P.W.1 and Exs.P1 to P40 have https://www.mhc.tn.gov.in/judis/ 4/11 C.S.No.236 of 2007 been marked. The said Madhusudhan filed a proof affidavit reitrating averments contained in the plaint. From the proof affidavit, it is seen that the plaintiff has been using the trademark “Health & Glow”, since 31.03.1999 and the turnover of the plaintiff has been on steady increase.
The turnover, which was about Rs.7,25,23,463/- as on 31.03.1999 has swelled to Rs.366,59,41,000/- as on 31.03.2019.
5.It is also seen from the proof affidavit that the plaintiff has spent huge sums for advertisement and popularisation of the mark “HEALTH & GLOW”. For the year ending 31.03.2019, the plaintiff had spent Rs.6,70,23,000/- towards advertisement. The plaintiff has also got a registered trademark and it carries on business in various cities across the country in the same trade name. The plaintiff has produced the trademark registration certificates and the legal user certificates as Exs.P12 to P31. It is also seen that apart from Clause 3 and 5, the plaintiff has got registration under Class 35 and 44 of the schedule to the Trademarks Act also.
6.From the above evidence, it is clear that the plaintiff is entitled to protection of its trademark and for accounting as well as https://www.mhc.tn.gov.in/judis/ 5/11 C.S.No.236 of 2007 damages. The evidence that is placed on record would demonstrate that the plaintiff is the registered proprietor of the trademark and the user of the names “Health & Glow Clinic” and “Dr.PB's Health & Glow Clinic Private Limited” by the defendants would definitely amount to infringement of the trademark of the plaintiff.
7.In view of the above, this suit is decreed as prayed for with costs.
04.10.2021 kkn Internet:Yes Index:No Speaking List of witness examined on the side of the plaintiff:
Mr.J.Madhusudhan (PW1) List of documents filed on the side of the plaintiff:
S.No Description of Documents Exhibits
1 The Board Resolution authorising Mr.J.Madhusudhan to depose Ex.P1
on behalf of the plaintiff dated 23.09.2016. 2 The print of Fresh Incorporation certificate of the plaintiff Ex.P2 consequent to change of name dated 13.06.2018. 3 The photocopy of Business Transfer Agreement between Health & Ex.P3 Glow Retailing Pvt. Ltd., and Food World Supermarkets Pvt. Ltd., dated 29.12.2014.
https://www.mhc.tn.gov.in/judis/ 6/11 C.S.No.236 of 2007 S.No Description of Documents Exhibits 4 The photocopy of Deed of Assignment of Trademarks between Ex.P4 Health & Glow Retailing Pvt. Ltd., and Food World Supermarkets Pvt. Ltd., dated 09.01.2015.
5 The original annual report for the year 1998 dated 24.03.1998. Ex.P5 6 The photocopy of the annual report for the year 2001 dated Ex.P6 24.08.2001.
7 The photocopy of the annual report for the year 2003 dated Ex.P7 24.09.2003.
8 The photocopy of the annual report for the year 2004 dated Ex.P8 24.07.2004.
9 The photocopy of the annual report for the year 2005 dated Ex.P9 25.08.2005.
10 The photocopy of the annual report for the year 2006 dated Ex.P10 22.11.2006.
11 The plaintiff's certificate certifying the turnover details and Ex.P11 advertisement cost dated 13.10.2020.
12 The Trademark certificate for use in Legal Proceedings for the Ex.P12 mark “HEALTH & GLOW” under No.1315016 in Class 03 & 05 with renewal certificate dated 04.12.2018. 13 The Trademark certificate for use in Legal Proceedings for the Ex.P13 mark “HEALTH & GLOW” under No.1315017 in Class 03 & 05 with renewal certificate dated 04.12.2018. 14 The Trademark certificate for use in Legal Proceedings for the Ex.P14 mark “HEALTH & GLOW” under No.1420632 in Class 42 dated 10.02.2006.
15 The Trademark certificate for use in Legal Proceedings for the Ex.P15 mark “HEALTH & GLOW” under No.2680703 in Class 35 dated 02.11.2008.
16 The Trademark certificate for use in Legal Proceedings for the Ex.P16 mark “HEALTH & GLOW” under No.2680704 in Class 44 dated 02.11.2018.
17 The Trademark certificate for use in Legal Proceedings for the Ex.P17 mark “HEALTH & GLOW” under No.2680705 in Class 35 dated 02.11.2018.
18 The Trademark certificate for use in Legal Proceedings for the Ex.P18 mark “HEALTH & GLOW” under No.2680706 in Class 44 dated 02.11.2008.
19 The Trademark Registration certificate for the mark “Glow” under Ex.P19
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S.No Description of Documents Exhibits
No.2939257 in Class 16 dated 09.04.2015.
20 The Trademark Registration certificate for the mark “Glow” under Ex.P20 No.2939258 in Class 35 dated 09.04.2015.
21 The Trademark Registration certificate for the mark “Glow” under Ex.P21 No.2939259 in Class 09 dated 09.04.2015.
22 The Trademark Registration certificate for the mark HEALTH & Ex.P22 GLOW under No.3279428 in Class 35 dated 08.06.2016. 23 The Trademark Registration certificate for the mark HEALTH & Ex.P23 GLOW BOTANIC under No.3940766 in Class 35 dated 10.09.2018.
24 The Trademark Registration certificate for the mark HEALTH & Ex.P24 GLOW BOTANIC under No.3940765 in Class 35 dated 10.09.2018.
25 The Trademark Registration certificate for the mark HEALTH & Ex.P25 GLOW the beauty destination of India under No.4058878 in Class 35 dated 17.01.2019.
26 The Trademark Registration certificate for the mark HEALTH & Ex.P26 GLOW the beauty destination of India under No.4058877 in Class 5 dated 17.01.2019.
27 The Trademark Registration Certificate for the mark h&g under Ex.P27 No.3940772 in Class 3 dated 10.09.2018.
28 The Trademark Registration Certificate for the mark h&g under Ex.P28 No.3940774 in Class 35 dated 10.09.2018.
29 The Trademark Registration Certificate for the mark h&g under Ex.P29 No.3940775 in Class 44 dated 10.09.2018.
30 The Trademark Registration Certificate for the mark health & Ex.P30 glow under No.4191621 in Class 44 dated 30.05.2019. 31 The Trademark Registration Certificate for the mark health & Ex.P31 glow under No.4191623 in Class 5 dated 30.05.2019. 32 The Extract of the plaintiff's website and screenshots of the Ex.P32 plaintiff's mobile application.
33 The orders passed by the Hon'ble Delhi High Court in C.S(Comm) Ex.P33 No.1171 of 2018 dated 09.10.2018 and 07.12.2018. 34 The orders passed by this Hon'ble Court in C.S.No.315 of 2020 Ex.P34 dated 11.11.2020.
35 The Advertisement in Trademark Journal No.1334 suppl. (1), of Ex.P35 Defendants “HEALTH & GLOW” Label dated 15.09.2005.
https://www.mhc.tn.gov.in/judis/ 8/11 C.S.No.236 of 2007 S.No Description of Documents Exhibits 36 The Investigation of Mr.Phiroze Edulji, Advocate, Kolkata dated Ex.P36 04.03.2007. 37 The Internet extract regarding the poor service of the defendants Ex.P37
https://www.complaintboard.in/complaints-reviews/h-amp-g- clinic-gk-i-new-delhi-166031.html dated 30.07.2021. 38 The internet extract regarding the poor service and dishonest trade Ex.P38 practice of the defendant https://www.consumercomplaints.in/hg- clinic-b102453 dated 30.07.2021.
39 The Web page from defendant's web site Ex.P39 www.healthandglowclinic.com dated 19.03.2007. 40 The affidavit under Section 65 A&B of the Evidence Act, 1872 Ex.P40 dated 22.09.2021.
List of witness and documents filed on the side of the defendants:
Nil 04.10.2021 kkn https://www.mhc.tn.gov.in/judis/ 9/11 C.S.No.236 of 2007 R.SUBRAMANIAN, J.
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