Delhi District Court
L Oreal India Private Limited vs Prashant Kumar on 6 March, 2024
~1~
In the court of Sh. Umed Singh Grewal, District Judge-
Commercial Court-05, Central District
Tis Hazari, Delhi.
CS (Comm) No.: 100/2020
In the matter of:
L'Oreal India Private Limited
A-wing, 8th Floor,
Marathon Futurex,
N. M. Joshi, Lower Parel,
Mumbai, Maharashtra. ..... Plaintiff
Vs
Sh. Prashant Kumar
H. No. 315, Laxmi Nagar,
Delhi - 110 096 (INDIA). ..... Defendant
Date of Institution : 14-01-2020
Date on which arguments were concluded : 27-02-2024
Date of pronouncement of order : 06-03-2024
Present: Sh. Saurabh Kumar Pandey, counsel for the
plaintiff.
Defendant is ex-parte vide order dated 15-09-2023.
EX-PARTE JUDGMENT:-
1.This is a suit for permanent injunction restraining infringement of trademark and copyright, passing off, delivery up, rendition of accounts etc. CS (Comm) No. 100/20 L'Oreal India Pvt. Ltd. Vs Prashant Kumar ~2~
2. The plaintiff company is incorporated under the laws of India and is engaged in the business of manufacture, distribution and sale of a wide range of cosmetics. It is wholly owned subsidiary of L'Oreal S.A., a society anonymous organized under the Law of France. Since its bonafide adoption in the first decade of 1900' it is using trademarks /labels L'ORÉAL, L'ORÉALPROFESSIONAL and L'ORÉALPARIS on its products continuously and extensively.
The goods under above trademarks/trade names are branded and sold in about 130 countries of the world including India directly or through a wide network of its associates, affiliates, subsidiary companies, licensees and through a wide marketing network including through retail as also through internet and e-commerce. The art work involved in various L'OREAL stylized, formative/ bearing and labels are original artistic works over which it holds copyright.
Plaintiff incurs huge amount of money in advertising and promotion of its various products under 'L'ORÉAL' marks across the globe. On account of good quality and standards of manufacturing and untiring efforts in advertising and marketing, the goods have acquired enviable reputation and goodwill in India. Its trademarks are registered in over hundred countries and across all continents and regions. In India, the trademark was registered on 14-09-1954 having user claim of 1936.
In the last week of December, 2019, it came to the knowledge of the plaintiff that defendant as an unknown person, CS (Comm) No. 100/20 L'Oreal India Pvt. Ltd. Vs Prashant Kumar ~3~ was fraudulently inducing innocent people by issuing emails and call letters for employment in the name of L'OREAL by issuing interview letters on imitated letterhead of L'OREAL on deposit of security of ₹ 8,650/- in Indian Overseas Bank and also promised to provide air/ train tickets and accommodation and duped candidates' hard earned money. To provide the look and feel of a genuine recruitment process, this unknown person started fake website with domain name www.hrloreal.co.in and email address [email protected]. Reference to a mobile no. +918800473950 has also been given. The date and venue of the interview were also fixed but it was found that the address given in the email communications sent to the selected candidates, was fake. Defendant had applied for privacy protection and disabled access of its information to the public through 'who is' report and only information available on www.whois.com is that the Registrar of the website was GoDaddy.com.
Defendant is cheating the general public as the plaintiff has not taken any such steps for recruitment in its company and instead has also cautioned the general public on its actual and real website. One mobile number given in the fake email ID sent to selected candidates is also found not responding. Plaintiff has no knowledge of the said unknown defendant and even has no knowledge of the bank particulars in which the amount had been deposited by aspirants.
3. The plaintiff moved an application under Order I Rule 10 CPC for impleading GODADDY INDIA WEB SERVICE PVT.
CS (Comm) No. 100/20L'Oreal India Pvt. Ltd. Vs Prashant Kumar ~4~ LTD. and vide order dated 05-12-2022, it was directed to furnish the detail of persons in whose name the domain name www.hrloreal.co.in was registered and also to furnish the details of owner of phone no. 8800473950. Thereafter, on application under Order I Rule 10 (2) r/w Section 151 CPC, defendant was impleaded vide order dated 24-05-2023.
4. Defendant was served on 03-06-2023 through whatsapp and email provided by the Registrar of Domain Name. But no one appeared on his behalf nor any written statement was filed and so, he was proceeded as ex-parte and his right to file written statement was closed vide order dated 15-09-2023.
5. In order to prove its case, plaintiff examined its Attorney holder, Sh. Anand Arya who tendered affidavit in evidence as Ex. PW1/A in which the contents of the plaint are repeated. He relied upon following documents:-
1. Ex. PW-1/1 is true representation of trademark of plaintiff:
2. Ex. PW-1/2 is LPC of registration under 165778 in Class-
03 (OSR) ;
3. Ex. PW-1/3 is current status of registration under no.
165778 in Class-03 ;
4. Ex. PW-1/4 are advertisements ;
5. Ex. PW-1/5 is fake appointment letter ;CS (Comm) No. 100/20
L'Oreal India Pvt. Ltd. Vs Prashant Kumar ~5~
6. Ex.PW-1/6 is Whois report of the defendant domain name www.hrloreal.co.in (which shows the details of website);
7. Ex. PW-1/7 is power of attorney dated 20-02-2023 in favour of the witness (OSR) ;
8. Ex. PW-1/8 is affidavit in compliance of Order XI Rule 6 of Commercial Courts Act ;
6. It has been deposed by PW-1 Sh. Anand Arya, authorized by plaintiff vide letter Ex. PW-1/8, that plaintiff has been using the trademark/ labels L'OREAL and various stylized labels and word/mark L'Oreal remains a key and material part thereof. He relied upon fake interview letters and emails Ex. PW-1/5 (colly).
Plaintiff has also relied upon Whois report Ex. PW-1/6 of defendant's domain name www.hrloreal.co.in which shows that the defendant had prohibited everyone from knowing his detail. Upon directions of the court, goddayindia.com LLC filed the detail of the person in whose name website www.hrloreal.co.in is registered and he is none else than defendant.
The letters Ex. PW-1/5 (colly) show that the candidates were called for interview on deposit of refundable security amount of ₹ 8,650/-.
PW-1 has placed on record the photograph of plaintiff's trademark/ label as Ex. PW-1/1 and its comparison with trademark/ label appear on Ex. PW-1/5 (colly) shows that trademark on the interview letters is identical/ similar. Plaintiff has proved that by issuing fake interview letters, the defendant is trying to cheat unemployed person.
CS (Comm) No. 100/20L'Oreal India Pvt. Ltd. Vs Prashant Kumar ~6~
7. Plaintiff has prayed for rendition of accounts as defendant is riding on its publicity and making huge money constantly without break.
Ex. PW-1/5 (colly) are the letters sent by defendant to the job seekers for appearing L'Oreal India Pvt. Ltd., Lahori Gate, New Delhi on 11-01-2020 and 13-01-2020. The word "L'Oreal"
is appearing on the top of both letters and that word is the registered trademark of the plaintiff. The said word has been mentioned to make job seekers to believe that the interview letters were issued by the plaintiff. The aspirants were promised salary from ₹ 39,700/- to ₹ 5,20,000/-. It is next mentioned that for attending the interview, the aspirants shall be provided air & train tickets and accommodation by the plaintiff. An extra person was allowed with each female candidate. A note is written in bold letters that the candidates shall have to deposit a refundable security amount of ₹ 8,650/- by NEFT/RTGS/IMPS /UPI into Indian Overseas Bank. Next it is mentioned that the company was not charging anything from the candidates and that the said amount was refundable and it was being charged just for the surety that candidate should not skip the interview. It is reiterated at the end that the said amount was a refundable security. At the end, it bears the name of the defendant and on the left side it has been purportedly signed by the authorized signatory on behalf of the plaintiff.
A person namely Sh. Gajjela Shashidhar was doubtful of the email received by him from the defendant and hence, he sent CS (Comm) No. 100/20 L'Oreal India Pvt. Ltd. Vs Prashant Kumar ~7~ email dated 03-01-2020 to one Ms. Pandit Priya of the plaintiff to know whether the interview letters and mails being sent by the defendant to job aspirants were genuine or not and said lady responded that all those were fake.
8. Above discussion shows that there was no vacancy for any post advertised by the plaintiff and hence, there was no reason for the defendant to send interview letters/ emails to the job aspirants.
By sending interview letters and emails on the letter head bearing the name of the plaintiff, the defendant was attempting to cheat the persons asking them to deposit an amount of ₹ 8,650/- with Indian Overseas Bank without mentioning the account number. There is nothing on the record to suggest that any person came under his influence and deposited the money with the bank. Even if any money has been deposited, the same is booty which the defendant can be said to have come into possession by committing offence. In such kind of proceeds, it is quite strange, the plaintiff is seeking some share which can not be granted to it because, if any money has been deposited, the same has been acquired by the defendant by committing crime and only the cheated person has right to claim back that amount. So, the prayer for rendition of account and damages is dismissed.
9. There is no mis-use of trademark of the plaintiff by the defendant by selling the goods and hence, there can be no relief of delivery up. But the plaintiff is definitely entitled to permanent CS (Comm) No. 100/20 L'Oreal India Pvt. Ltd. Vs Prashant Kumar ~8~ injunction and directions to the department of Telecommunication.
10. Consequent to above decision, following is held:-
1. Defendant by himself and through his individual proprietors/ partners, agents, representatives, distributors, assigns, heirs, successors, stockists etc. is permanently restrained from using website www.hrloreal.co.in and e-mail address [email protected].
2. The department of Telecommunication is directed to block the access of website operating from the domain name www.hrloreal.con.in or any other website which is either re-
directed from login to the domain name.
3. The department of Telecommunication is further directed to block the mobile number 8800473950.
11. Decree sheet be prepared accordingly. File be consigned to record room.
Digitally
signed by
Pronounced in the open court UMED
on the 6th day of March, 2024 UMED SINGH
SINGH Date:
2024.03.06
14:52:53
+0530
(UMED SINGH GREWAL)
District Judge- Commercial Court-05
Central District, Delhi.
CS (Comm) No. 100/20
L'Oreal India Pvt. Ltd. Vs Prashant Kumar