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Guillermo Horacio Pino vs Blissbury Care Pvt. Ltd. & Anr on 20 October, 2022

Author: Jyoti Singh

Bench: Jyoti Singh

                          $~21
                          *    IN THE HIGH COURT OF DELHI AT NEW DELHI
                          +     CS(COMM) 741/2022
                                GUILLERMO HORACIO PINO                   ..... Plaintiff
                                            Through: Mr. Vikas Khera, Mr. Vishal Sharan
                                            and Mr. Ved Prakash, Advocates.
                                                   versus

                                BLISSBURY CARE PVT. LTD. & ANR.                      ..... Defendants
                                             Through: None.

                                CORAM:
                                HON'BLE MS. JUSTICE JYOTI SINGH
                                                   ORDER

                          %                        20.10.2022
                          I.A. 17343/2022 (exemption)

1. Subject to the Plaintiff filing original copies of the documents with proper margins, which it may seek to place reliance on, within four weeks from today, exemption is granted.

2. Application is allowed and disposed of.

I.A. 17342/2022 (exemption from service to Defendants)

3. Since there is an urgency in the matter and the same is being heard today, Plaintiff is exempted from serving advance notice on Defendants.

4. For the reasons stated in the application, the same is allowed and disposed of.

I.A. 17344/2022 (Exemption from filing Court fees)

5. For the reasons stated in the application, Plaintiff is permitted to file requisite Court Fees within a period of two weeks from today.

6. Application is allowed and disposed of.

I.A. 17341/2022 (Section 12A of the Commercial Courts Act, 2015 seeking exemption from pre-institution mediation)

7. Present application has been preferred on behalf of the Plaintiff seeking exemption from instituting pre-litigation mediation, in accordance with Section 12A of the Commercial Courts Act, 2015.

8. For the reasons stated in the application, this Court is of the opinion that Plaintiff is entitled to consideration of the application seeking urgent relief in the present case and is, thus exempted from instituting pre-litigation mediation.

9. Application is allowed and disposed of.

CS(COMM) 741/2022

10. Let plaint be registered as a suit.

11. Upon filing of process fee, issue summons to the Defendants, through all permissible modes, returnable on 04.01.2023 before the learned Joint Registrar.

12. Summons shall state that the written statement shall be filed by the Defendants within 30 days from the receipt of summons. Along with the written statement, Defendants shall also file an affidavit of admission/denial of the documents filed by the Plaintiff.

13. Replication be filed by the Plaintiff within 15 days of the receipt of the written statement. Along with the replication, an affidavit of admission/denial of documents filed by the Defendants, shall be filed by the Plaintiff.

14. If any of the parties wish to seek inspection of any documents, the same shall be sought and given within the timelines.

I.A. 17340/2022 (under Order 39 Rules 1 and 2 CPC, by Plaintiff)

15. Present application has been preferred by the Plaintiff under Order 39 Rules 1 and 2 read with Section 151 of the Code of Civil Procedure, 1908 for grant of an ex-parte ad-interim injunction.

16. Issue notice to the Defendants through all prescribed modes, returnable on 23.02.2023, before the Court.

17. Plaintiff is engaged in the business of creating artistic works, cartoons, cinematograph works, videos, short films etc. and also providing inter alia services of streaming videos, audios, television broadcasting etc.

18. Plaintiff claims to have honestly and bonafidely adopted the trademark PLIM PLIM in the year 2011 and has been continuously, uninterruptedly and voluminously using the same since its inception. PLIM PLIM is an Argentine series of children's folk songs, i.e., premium quality 2D animation, on air Disney Junior Latin America, Discovery Family in U.S.A., Netflix, etc. in more than 35 countries worldwide.

19. It is averred that in the year 2011, Plaintiff created unique artistic work . The artistic work is an original work of the Plaintiff and it owns the copyright in it, entitling it to protection from infringement under the provisions of the Copyright Act, 1957.

20. Plaintiff avers that it maintains a website www.plimplim.tv and YouTube channel PLIM PLIM - Nursery Rhymes & Kids songs. YouTube channel has more than 8,37,000 subscribers as on 14.10.2022. Plaintiff has also developed a mobile application under PLIM PLIM which is available on Google Play Store. The rhymes and songs of PLIM PLIM animated series are available over various musical apps and Signature Not Verified Digitally Signed CS(COMM) 741/2022 Page 3 of 6 By:KAMAL KUMAR Signing Date:27.10.2022 15:36:13 Plaintiff is stated to have considerable presence on various social networking platforms.

21. In order to secure statutory rights over the trademarks PLIM PLIM, and , Plaintiff has applied for registrations in various countries, which are pending. Plaintiff's revenue under the trademark PLIM PLIM has consistently increased due to considerable investment in brand building and marketing expenses as well as the high quality services offered by the Plaintiff. The trademarks have acquired enviable goodwill and reputation throughout India and the public associates Plaintiff's services exclusively with the trademark PLIM PLIM. The sales turnovers are evidence of the goodwill and popularity of the Plaintiff and for the year 2021 alone, the worldwide turnover is USD 65,673,870.

22. It is averred that to the knowledge of the Plaintiff, Defendant No. 1 deals in manufacturing and trading of diaper pads for babies and is selling the product under the trademark PLIM PLIM / whereas Defendant No. 2 owns and maintains an e-commerce website, providing a platform to Defendant No. 1 to sell its products. Defendants are, thus, commercially and in the course of trade adopting and using a trademark identical/deceptively similar to the Plaintiff's trademarks for same class of consumers i.e. children and parents. A bare perusal of the artistic work on the impugned products would show that Defendant No. 1 has made every effort to come as close as possible to the Plaintiff's artistic work and the purpose is solely to confuse the consumer and encash on the goodwill and the reputation of the Plaintiff.

23. It is further averred that Defendant No. 1 has filed an application for registration of the impugned mark bearing no. 4876455 in class 05 on 23.02.2021 and the same is opposed by the Plaintiff, wherein it has claimed user since 27.01.2021, which is totally false.

24. It is contended that by using the impugned mark for similar class of consumers, Defendant No.1 is intending to misrepresent to the public that its goods have a connection or association with the Plaintiff and the acts amount to passing off as well as infringement of Plaintiff's copyright. It is a settled law that in a claim for passing off, once the elements of misrepresentation by using a deceptively similar mark in the course of trade, calculated to injure another person's goodwill and reputation are satisfied, similarity in rival goods is not a sine qua non.

25. Having heard learned counsel for the Plaintiff, this Court is of the view that Plaintiff has made out a prima facie case for grant of ex parte ad- interim injunction. Balance of convenience lies in favour of the Plaintiff and it is likely to suffer irreparable harm in case the injunction, as prayed for, is not granted.

26. Accordingly, Defendant No. 1 by itself as also through its individual proprietors, partners, directors, agents, representatives, distributors, assigns, heirs, successors and all others acting for and on its behalf are restrained from selling, using, importing, exporting, soliciting, displaying, promoting, advertising and dealing in or using the impugned mark/logo PLIM PLIM and and/or any other mark/word identical with and/or deceptively similar to that of Plaintiff's trademark PLIM PLIM/ Signature Not Verified Digitally Signed CS(COMM) 741/2022 Page 5 of 6 By:KAMAL KUMAR Signing Date:27.10.2022 15:36:13 in relation to baby diapers, cloth diapers, textile diapers, incontinence diapers, baby diaper-pants, disposable pads for diaper changing, disposable pads for nappy changing, amounting to passing off or infringement of copyright of the Plaintiff in the said artistic work/logo, till the next date of hearing.

27. Plaintiff shall comply with the provisions of Order 39 Rule 3 CPC within two weeks from today.

JYOTI SINGH, J OCTOBER 20, 2022/rk/shivam Signature Not Verified Digitally Signed CS(COMM) 741/2022 Page 6 of 6 By:KAMAL KUMAR Signing Date:27.10.2022 15:36:13