Delhi District Court
Hindustan Unilever Ltd vs Pramod Gupta Ando Rs on 9 October, 2024
CS No.315/2019: Hindustan Unilever Limited V/s Pramod Gupta & Ors.: DOD: 09.10.2024
IN THE COURT OF VINOD YADAV:
DISTRICT JUDGE (COMMERCIAL COURT)-02:
NORTH-WEST DISTRICT: ROHINI COURTS: NEW DELHI
(FIVE YEARS OLD MATTER)
CNR No.DLNW01-003193-2019
CS (Comm.) No.315/2019
In the matter of:-
M/s Hindustan Unilever Limited,
A Company registered under the Companies Act, 1913,
Unilever House, B.D Sawat Marg Chakla,
Andheri East, Mumbai, Maharashtra-400 099.
Also At:
3rd Floor, Palika Bhawan,
Sector-13, R.K Puram, New Delhi-110066.
.....Plaintiff
(Through Ms.Tanvi Bhatnagar, Advocate)
Versus
1. Pramod Gupta,
House No.263, Near Gali No.4,
Ratan Vihar, Sultanpuri Road, Kirari, Delhi-110084.
Also At:
Mandir/Samadhi Wali Gali,
Gali No.8, Ratan Vihar, Furniture Market,
Sultanpuri Road, Kirari, Delhi.
Also At:
House No.74, Hari Enclave,
Part-I, Gali No.1, Sultanpuri, Delhi.
Also At:
House No.5, Matkewali Gali, Near City Life Mall,
Dundahera, Gurugram, Haryana.
.....Defendant No.1
(Ex-parte vide order dated 08.01.2020)
Page 1 of 39
CS No.315/2019: Hindustan Unilever Limited V/s Pramod Gupta & Ors.: DOD: 09.10.2024
2. Nand Lal,
House No.263, Near Gali No.4,
Ratan Vihar, Sultanpuri Road, Kirari, Delhi-110084.
Also At:
Mandir/Samadhi Wali Gali,
Gali No.8, Ratan Vihar, Furniture Market,
Sultanpuri Road, Kirari, Delhi.
Also At:
House No.74, Hari Enclave,
Part-I, Gali No.1, Sultanpuri, Delhi.
Also At:
House No.5, Matkewali Gali, Near City Life Mall,
Dundahera, Gurugram, Haryana.
.....Defendant No.2
(Ex-parte vide order dated 08.01.2020)
3. Unknown Firm/Company,
House No.263, Near Gali No.4,
Ratan Vihar, Sultanpuri Road, Kirari, Delhi-110084.
Also At:
Mandir/Samadhi Wali Gali,
Gali No.8, Ratan Vihar, Furniture Market,
Sultanpuri Road, Kirari, Delhi.
Also At:
House No.74, Hari Enclave,
Part-I, Gali No.1, Sultanpuri, Delhi.
Also At:
House No.5, Matkewali Gali, Near City Life Mall,
Dundahera, Gurugram, Haryana.
.....Defendant No.3
(Ex-parte vide order dated 08.01.2020)
Page 2 of 39
CS No.315/2019: Hindustan Unilever Limited V/s Pramod Gupta & Ors.: DOD: 09.10.2024
Date of Institution of Suit : 02.04.2019
Date of Transfer to this Court : 27.07.2023
Date of hearing arguments : 26.09.2024
Date of judgment : 09.10.2024
SUIT FOR INFRINGEMENT OF TRADEMARK AND COPYRIGHT,
PASSING OFF, DILUTION, RENDITION OF ACCOUNTS, DAMAGES,
DELIVERY UP, MISAPPROPRIATION ETC.
09.10.2024
JUDGMENT UNDER ORDER VIII RULE 10 CPC
1. By way of instant suit, plaintiff has sought a decree of
permanent injunction, restraining infringement of trademark(s), copyright,
passing off, delivery up, rendition of accounts, etc., against the
defendant(s).
2. The facts of the case in brief, as borne out from the record are
that plaintiff is a company, incorporated under the Companies Act 1913,
having its registered office at Unilever House, B.D. Sawant Marg,
Chakala, Andheri (E), Mumbai-400 099 and Branch Office at 3rd floor,
Palika Bhawan, Sector-13, R.K. Puram, New Delhi - 110066.
3. Plaintiff company claims itself to be India's largest fast
moving consumer goods company, with leadership in Home & Personal
Care Products and Foods & Beverages. It is stated that plaintiff also
produces and markets staple foods, snacks, fruit products, frozen desserts
and ice cream under house hold names such as Kissan, Cornetto, Lux,
Lifebuoy, Dove, Rin, Wheel, Surf Excel, Vim brands.
Page 3 of 39
CS No.315/2019: Hindustan Unilever Limited V/s Pramod Gupta & Ors.: DOD: 09.10.2024
FAIR & LOVELY:
4. (i) It is averred that plaintiff's well-known range of skin care
products is 'Fair & Lovely' fairness face cream which was introduced in
the year 1975 and the same was marketed under a unique and distinct
trademark, coined by the plaintiff. It is further averred that plaintiff's
"Fair & Lovely" product is packed in a packaging comprising of a unique,
artistic and attractive trade dress having a colour combination of pink and
white with purple colored lettering the brand of "Fair & Lovely". The said
packaging also contains the distinctive feature of a device of faces of two
women, one with a dark skin and the other with a fair skin, the face having
the dark skin silhouetted on the background of and overlapping the face
with the fair skin and the signature DNA helix embedded on the
packaging.
(ii) It is stated that there is a range of products now available
under the 'Fair & Lovely' brand including 'Fair & Lovely' Fairness cream,
'Fair & Lovely' Max Fairness Men, 'Fair & Lovely' Men's Instant
Fairness, "Fair & Lovely' Anti-marks cream, 'Fair & Lovely' Ayurvedic
care, 'Fair & Lovely' BB cream, 'Fair & Lovely' Fairness Facewash, 'Fair
& Lovely' Moisturizing Fairness Lotion, and 'Fair & Lovely' Advance
Multivitamin Cream, Daily Fairness Experts Face wash , Fair & Lovely
Winter Fairness Cream. The plaintiff re-launched the 'Fair & Lovely'
Multi-Vitamin cream in 2005.
Page 4 of 39
CS No.315/2019: Hindustan Unilever Limited V/s Pramod Gupta & Ors.: DOD: 09.10.2024
5. (i) The plaintiff company claims itself to be registered proprietor
of the 'Fair & Lovely' label mark under No.349209 with effect from
16.05.1979 in respect of "cosmetics and toilet preparations" being goods in
Class 3. It is stated that word 'Fair' and the word 'Lovely' have been
disclaimed individually, however, plaintiff has been granted the exclusive
rights in the combination of the said words which is unique and has
acquired a secondary meaning by virtue of continuous and extensive use
and promotion ever since its adoption. The details of the registration
obtained by plaintiff in respect of formative 'Fair and Lovely' trademarks
in India under Class 3 is provided hereunder:
S. Trade Mark Appl. No. Class Date of
No. Application
1. FAIR & LOVELY 349209 03 16/05/1979
2. FAIR AND LOVELY ALMON 1533011 03 21/02/2007
GOLD
3. FAIR AND LOVELY 1862574 03 15/09/2009
MAXFAIRNESS
4. FAIR & LOVELY AYURVEDIC 1709551 03 11/07/2008
BALANCE
5. Fair & Lovely (DEVICE OF 2292737 03 01/03/2012
WOMAN)
6. FAIR & LOVELY ANTI MARKS 3251895 03 05/05/2016
TREATMENT (STYLISED)
Page 5 of 39
CS No.315/2019: Hindustan Unilever Limited V/s Pramod Gupta & Ors.: DOD: 09.10.2024
(LABEL) 7.
(ii) It is further stated that plaintiff had also applied for trade mark
registrations of other 'Fair & Lovely' formative and device marks
representations which are presently stated to be pending and in the process
of being registered. Moreover, the Plaintiff Company has applied for
trademark registration in the mark 'Fair &' bearing application number
2268531 which is currently pending. The Plaintiff craves leave to rely on
these marks when registered.
6. It is claimed that in overseas market, word mark 'Fair &
Lovely', the stylized trademark 'Fair & Lovely' (Label) and other 'Fair &
Lovely' formative marks are registered in Class 3 in favour of Unilever
Plc. / Unilever N.V. (which forms part of the Unilever group of companies
to which the Plaintiff belongs) in various countries such as the United
Kingdom, Bahrain, The Netherlands, Benelux, Brunei, China, Indonesia,
South Africa, Jordan, Japan, Thailand, Kuwait, Lebanon, LAO P.D.R.,
Liberia, Malawi, Malaysia, Morocco, Papua New Guinea, Qatar,
Singapore, Tanzania, UAE, Vietnam, Zaire.
Page 6 of 39
CS No.315/2019: Hindustan Unilever Limited V/s Pramod Gupta & Ors.: DOD: 09.10.2024
7. It is contended that plaintiff is the first owner of the copyright
subsisting in the artistic work comprising in the logo script
(of the words 'Fair & Lovely') which is duly registered the same under the
provisions of the Copyright Act, 1957 as an original artistic work under
No.A-39619/83 dated 03.05.1983.
8. It is averred that popularity, reputation and goodwill acquired
by the products sold under 'Fair & Lovely' can be estimated from its sales
turnover which runs into crores of rupees (details as lying mentioned in
para No.29 of the plaint), including the expenses of Crores of rupees
incurred on advertisement/sales promotion through press, TV,
hoardings/billboards, plaintiff's websites www.hul.co.in as well as its own
website http://www.fairandlovely.in/.
LAKME:
9. (i) It is stated that in the year 1952, The Tata Oils Mills Company
Limited independently adopted the trademark LAKMÉ for use on and in
relation to skin care and cosmetic products with a view to distinguish the
said goods from those of others as well as inter-se. Subsequently, vide a
Deed of Assignment dated 04.11.1957 between The Tata Oil Mills
Company Limited and Lakme Private Limited, the said The Tata Oil Mills
Company Limited assigned and transferred unto the said Lakme Private
Limited the trade mark LAKMÉ. Thereafter, in or around the year 1965,
the said Lakme Private Limited was renamed as Lakme Limited.
Thereafter, vide a Deed of Assignment dated 02.05.1996 between the said
Page 7 of 39
CS No.315/2019: Hindustan Unilever Limited V/s Pramod Gupta & Ors.: DOD: 09.10.2024
Lakme Limited and Lakme Brands Limited, the said Lakme Limited
assigned and transferred the said Lakme Brands Limited, the trade mark
LAKMÉ. Further, vide a Deed of Assignment dated 13.08.1998, by and
between the Lakme Brands Limited and the the plaintiff, Lakme Brands
Limited assigned and transferred unto the plaintiff the rights in and to the
trade mark LAKMÉ.
(ii) Thus, plaintiff claims itself to be the registered proprietor of
the LAKMÉ trademark under registration number 253062 with effect from
13.08.1998 in respect of "soaps, lipsticks and non-medicated toilet
preparations of all kind" being goods in Class 3. It is claimed that LAKMÉ
was the first Indian brand to introduce colour to Indian women in the form
of nail enamel, lipsticks, eye shadows etc.
(iii) It is contended that plaintiff is also holding various other
registrations for LAKMÉ and Lakmeeyeconic, which are stated to be valid
and subsisting as on date, details of same are given hereunder:
S. No. Trademark Appl. No. Class Date of Application
1. LAKMÉ 253062 03 27/11/1968
2. LAKMÉ LAVENDER BEAUTY 275854 03 29/10/1971
TALC
3. LAKMÉ 488774 03 07/04/1988
4. LAKMÉ SATIN RINSE 511524 03 08/06/1989
5. LAKMÉ COLORKOHL 520520 03 30/11/1989
6. LAKMÉ 604703 03 23/08/1993
Page 8 of 39
CS No.315/2019: Hindustan Unilever Limited V/s Pramod Gupta & Ors.: DOD: 09.10.2024
7. 782606 03 17/12/1997
LAKMÉ (LABLE)
8. LAKMÉ , WOMEN FACE 874356 03 01/09/1999
9. LAKMÉ (LOGO) TRAINING 1330997 99 10/01/2005
ACADEMY
10. LAKMÉ Pure Defense 1537007 03 05/03/2007
11. LAKMÉ SPA LINE 1678791 03 22/04/2008
12. LAKMÉ COLOR LOCK 1706559 03 03/07/2008
TECHNOLOGY
13. LAKMÉ NINE TO FIVE 1706560 03 03/07/2008
14. LAKMÉ SKIN PERFECT 1745477 03 20/10/2008
15. LAKMÉ SALON (LABEL) 1765977 99 19/12/2008
16. LAKMÉ PRECISION DUO 1950676 03 15/04/2010
17. LAKMÉ PLUMP AND SHINE 2168392 03 30/06/2011
18. LAKMÉ 2188730 99 10/08/2011
19. LAKMÉ INTENSE WHITENING 2225490 03 25/10/2011
Page 9 of 39
CS No.315/2019: Hindustan Unilever Limited V/s Pramod Gupta & Ors.: DOD: 09.10.2024
20. LAKMÉ ABSOLUTE WHITE 2225491 03 25/10/2011
INTENSE
21. LAKMÉ EYECONIC 2227603 03 01/11/2011
22. LAKMÉ CLEAN UP 2618511 99 25/10/2013
23. LAKMÉ NOURISHING GLOW 2618613 03 25/10/2013
24. LAKMÉ LIP LOVE 2740511 03 20/05/2014
25. LAKMÉ RUNWAY RITUALS 2946833 99 21/04/2015
26. LAKMÉ RUNWAY SECRETS 2947708 99 22/04/2015
27. LAKMÉ SALON RUNWAY 3218639 99 23/03/2016
REWARDS (STYLISED) &
DEVICE
28. LAKMÉ 9TO5 NATURALE 3707467 03 20/12/2017
29. LAKMÉ 1241320 42 06/10/2003
10. (i) It is stated that plaintiff adopted and has been using, its
trademark LAKMÉ in a distinctive logo script , design,
font, layout, get up as its trade dress/label and the said trade dress/logo
has become exclusively associated with its products. The plaintiff's
LAKMÉ logo script constitutes an original artistic
work within the meaning of Section 2(c) of the Copyright Act, 1957.
(ii) The plaintiff claims itself to be the first owner of the artistic
Page 10 of 39
CS No.315/2019: Hindustan Unilever Limited V/s Pramod Gupta & Ors.: DOD: 09.10.2024
work in the "L logo" represented as as well as the artistic
work in the packaging of the Lakme Eyeconic packaging, represented as
.
11. It is claimed that on account of bonafide adoption, prior and continuous use of the LAKMÉ trademark since 1952, plaintiff has acquired significant and substantial common law rights to the exclusive use of the aforesaid label mark/ trademark 'LAKMÉ' and the product packaging/ trade dress/ colour combination of its products. Some of the plaintiff's most popular LAKMÉ products are LAKMÉ CC Cream, LAKMÉ Absolute Illuminating Eye Shadow Palette, LAKMÉ Absolute Kohl Ultimate, LAKMÉ Eyeconic Mascara, LAKMÉ Eyeconic Eyeliner, etc. in addition to its eye conic 9 to 5 range, details of which are stated to be available on the website of www.lakmeindia.com.
12. Defendant No.1/Shri Pramod Gupta along with defendant No.2/Shri Nand Lal are stated to be engaged in the business of manufacturing, packaging, distribution and sale of plaintiff's counterfeit products, through defendant No.3, which is an unknown firm/proprietorship concern. It is claimed that the impugned counterfeit Page 11 of 39 CS No.315/2019: Hindustan Unilever Limited V/s Pramod Gupta & Ors.: DOD: 09.10.2024 goods and products dealt with by the defendants use the plaintiff's registered trademarks and identical unique packaging albeit in an inferior version of the plaintiff's products, thereby violating the trademark, trade dress and copyright of the plaintiff in their "Fair & Lovely" and "LAKMÉ" product(s).
13. It is stated that during a market survey conducted in the first week of February' 2019, plaintiff came to know about the infringing activities of defendants. The plaintiff accordingly appointed an independent investigator for conducting an investigation into the infringing activities of defendant and pursuant to the investigation conducted by him, it was revealed as under:
(i) Defendant No.1/Pramod Gupta was found running a manufacturing unit in a double storey building over an area of 250-
300 square yards at House No. 263, Ratan Vihar, Sultanpuri Road, Kirari, Delhi where the counterfeit products were being manufactured and packaged;
(ii) Defendant No.1 was found operating through defendant No.2/Nand Lal the above premises, where about 5-10 employees were being employed.
(iii) At the aforesaid premises, the counterfeit Fair & Lovely and LAKMÉ products including face creams, face wash, foundations, powder, lipsticks, etc. are being manufactured, packaged and supplied;
(iv) These counterfeit products are laden in tempo vehicles which Page 12 of 39 CS No.315/2019: Hindustan Unilever Limited V/s Pramod Gupta & Ors.: DOD: 09.10.2024 regularly come to the premises/building of the defendants and further transported/distributed to various suppliers and shops in Delhi in surreptitious manner very secretly including in Sadar Bazaar, Delhi.
14. It is averred that by indulging in aforesaid counterfeiting activities, the defendants have not only been violating the trademark, trade dress and copyright of the plaintiff qua "Fair & Lovely" and "LAKMÉ" products, but its activities are also whittling away and eroding the distinctive character of the plaintiffs' 'Fair & Lovely' and 'LAKMÉ' trademarks.
15. As such, the plaintiff company has filed the instant suit against the defendant, inter alia praying a decree of permanent injunction, restraining the infringement of trademark 'Fair & Lovely' and 'LAKMÉ; permanent injunction restraining infringement of copyright; permanent injunction restraining passing-off; permanent injunction restraining unfair competition; permanent injunction restraining dilution and tarnishment of the plaintiff's mark 'Fair & Lovely' and 'LAKMÉ; rendition of account; delivery up; and damages.
16. (i) It is worthwhile to note that alongwith the suit, plaintiff also preferred two applications, one U/o 39 Rule 1 & 2 CPC, seeking ad- interim ex-parte injunction against the defendants and another U/o 26 Rule 9 CPC, inter alia seeking appointment of "Local Commissioner" in the Page 13 of 39 CS No.315/2019: Hindustan Unilever Limited V/s Pramod Gupta & Ors.: DOD: 09.10.2024 matter to visit the premises of defendant(s) and and seize the counterfeit/infringed goods recovered therefrom.
(ii) Vide order dated 03.04.2019, both the aforesaid applications were allowed. An ad-interim ex-parte injunction order was passed, thereby restraining the defendants from manufacturing, selling (a) Fair & Lovely Multi-Vitamin Cream; (b) Fair & Lovely Face Wash; and (c) Lakme Eyeconic Kajal, thereby using the trademark and copyright of plaintiff till further orders.
(iii) Further, Shri Shwetank Sharma, Advocate was appointed as "Local Commissioner" with the directions to visit the premises of defendants at House No.263, near Gali No.4, Ratan Vihar, Sultanpuri Road, Kirari, Delhi with the directions to search and seize infringed goods therefrom.
17. (i) During the course of proceedings, plaintiff moved an application U/o VI Rule 17 CPC, inter alia seeking certain amendments in the plaint. Vide order dated 24.04.2019, the said application was allowed.
(ii) It is noted that during the course of proceedings, plaintiff moved another application U/o 26 Rule 9 CPC for appointment of Local Commissioner afresh on the ground that defendants had suddenly changed their premises and further enquiries were being made to ascertain the exact whereabouts of defendants. Vide detailed order dated 29.04.2019, the learned Predecessor of this Court was pleased to dismiss the said application. Further, on account of non-compliance of provisions of Order 39 Rule 3 CPC by the plaintiff, the ex-parte ad-interim injunction granted Page 14 of 39 CS No.315/2019: Hindustan Unilever Limited V/s Pramod Gupta & Ors.: DOD: 09.10.2024 in favour of plaintiff vide order dated 03.04.2019 was also recalled.
(iii) Aggrieved by the order dated 29.04.2019 of this Court, plaintiff preferred an appeal against the same before the Hon'ble High Court of Delhi, being FAO No.198/2019, titled as, "Hindustan Unilever Limited V/s Pramod Gupta & Ors.". Vide order dated 06.05.2019, passed in the aforesaid FAO, the Hon'ble High Court of Delhi was pleased to set aside the order dated 29.04.2019 and further pleased to appoint three advocates namely Shri Shwetank Sharma, Advocate; Shri Aman S. Bakshi, Advocate; and Shri Diwankar Sethi, Advocate as the "Local Commissioners" with the direction to execute the commission at the given address(es). For ready reference, the operative part of the aforesaid order dated 06.05.2019, passed by the Hon'ble High Court is re-produced hereunder:
xxxxx
11. The impugned order dated 29.04.2019 is set aside and the ex-parte injunction granted on 03.04.2019 is restored. Mr.Shwetank Sharma, Advocate, Local Commissioner appointed by the order of the Trial Court dated 03.04.2019 is directed to execute the commission at Mandir/Samadhiwali Gali, Gali No.8, Ratan Vihar, Furniture Market, Sultanpuri Road, Kirari, Delhi. In addition, Mr.Aman S. Bakshi, Advocate, r/o J-9/37, Rajouri Garden, New Delhi-110027, Mob.No.9873737382 and Mr.Diwankar Sethi, Advocate, r/o 185, Raja Garden, New Delhi, Mob.No.8006627614, who are present in Court are appointed as Local Commissioners to execute the commission at the two other addresses disclosed by the appellant.
Mr.Aman S. Bakshi will execute the commission at Page 15 of 39 CS No.315/2019: Hindustan Unilever Limited V/s Pramod Gupta & Ors.: DOD: 09.10.2024 House No.74, Hari Enclave, Part-1, Gali No.1, Sultanpuri, Delhi and Mr.Diwankar Sethi at House No.05, Matkewali Gali, near City Life Mall, Dundahera, Gurugram. Each of the Local Commissioners shall have the powers mentioned in the order of the Trial Court dated 03.04.2019 and shall be paid the same fees, payable in advance by the plaintiff. The commissions may be executed within one week from today. The plaintiff shall comply with the provision of Order 39 Rule 3 CPC within three days after the execution of the commission.
12. The reports of the Local Commissioners shall be placed before the Trial Court. The appeal is disposed of in terms of the above.
xxxxx
18. At this stage, it would be appropriate to mention here the details of counterfeit goods seized by the said three Local Commissioners from the premises of defendants, in terms of the directions passed by Hon'ble High Court of Delhi vide order dated 06.05.2019:
S. No. Particulars Quantity
In Possession
Of
1. Fair & Lovely Empty Tubes - 50gm 1653.85 KGs Plaintiff
2. Fair & lovely - Outercarton 146.4 KGs Plaintiff
3. Fair & lovely - Caps 396.5 KGs Plaintiff
4. Fair & Lovely Empty Tubes - 25gm 72 KGs Plaintiff
5. Fair & Lovely Face Wash - 100 gm 132 KGs Plaintiff
6. Fair & Lovely Finished product - 25 10944 Pcs Plaintiff gm (New Pack)
7. Fair & Lovely Finished product - 50 2025 Pcs Plaintiff gm (Old Pack)
8. Machinery for manufacture 1 Pc Defendants Page 16 of 39 CS No.315/2019: Hindustan Unilever Limited V/s Pramod Gupta & Ors.: DOD: 09.10.2024
19. Thereafter, vide order dated 07.08.2019, the defendants were ordered to be served at their all available addresses, including the address where the Local Commission was executed. Despite being duly served by way of affixation on 23.09.2019, no appearance was put forth on behalf of defendants in the Court. Accordingly, vide order dated 08.01.2020, all the defendants were proceeded "ex-parte" and the matter was notified for ex- parte PE.
20. Thereafter, instead of leading ex-parte PE, plaintiff preferred an application U/o XIII-A CPC, inter alia praying for passing of summary judgment in the matter. Since, the defendants were already lying proceeded ex-parte vide order dated 08.01.2020 and even there was no written statement on their behalf on record, accordingly, vide order dated 13.12.2021, the application of plaintiff U/o XIII-A CPC was dismissed by my learned Predecessor.
21. It is made out from the record that though the plaintiff filed affidavit by way of evidence of PW Ms.Swati Majumdar on record, however, the same was never tendered in Court and instead the plaintiff preferred an application U/s 151 CPC, thereby seeking exemption from appearance of the witness(es) of plaintiff. The learned counsel for the plaintiff further prayed for passing of judgments in terms of Order VIII Rule 10 CPC as well as on the basis of reports of three learned Local Commissioners filed on record.
Page 17 of 39CS No.315/2019: Hindustan Unilever Limited V/s Pramod Gupta & Ors.: DOD: 09.10.2024
22. I have heard the learned counsel for the plaintiff and perused the entire material on record. I have also gone through the reports of learned Local Commissioners lying on record.
23. The scope of Order VIII Rule 10 CPC in commercial suits particularly under the New Commercial Courts, Commercial Division and Commercial Appellate Division of the High Court Act, 2015 has been examined by Hon'ble High Court of Delhi in case reported as, "235(2016)DLT 354", titled as, "Nirog Pharma Pvt. Ltd. vs. Umesh Gupta & Anr.", whereby the Hon'ble High Court has been pleased to lay down as under:
xxxxx "11. Order VIII Rule 10 has been inserted by the legislature to expedite the process of justice. The courts can invoke its provisions to curb dilatory tactic, often resorted to by defendants, by not filing the written statement by pronouncing judgment against it. At the same time, the courts must be cautious and judge the contents of the plaint and documents on record as being of an unimpeachable character, not requiring any evidence to be led to prove its contents.
..........
28. The present suit is also a commercial suit within the definition of the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 and it was the clear intention of the legislature that such cases should be decided expeditiously and should not be allowed to linger on. Accordingly, if the defendant fails to pursue his case or does so in a lackadaisical manner by not filing his written statement, the Page 18 of 39 CS No.315/2019: Hindustan Unilever Limited V/s Pramod Gupta & Ors.: DOD: 09.10.2024 courts should invoke the provisions of Order VIII Rule 10 to decree such cases."
xxxxxx
24. (i) Further the power and authority of the Courts to straightway decree a suit on the basis of averments made in plaint in terms of Order VIII Rule 10 CPC, in the absence of a written statement filed by the defendant is well settled by the Hon'ble Supreme Court in case reported as, "(1999) 8 SCC 396", titled as, "Balraj Taneja V/s Sunil Madan".
(ii) Furthermore, the Hon'ble High Court of Delhi in case reported as, "CS (Comm.) No.618/2019", titled as, "Parsvnath Developers Limited V/s Vikram Khosla" (DOD: 03.03.2021), has been pleased to lay down as under:
xxxxx
9. Having heard the learned counsel for the plaintiff, it is noted that the defendant has not cared to appear before this Court and was proceeded ex-
parte. The law with regard to Order VIII Rule 10 CPC is clear, which stipulates that where any party from whom a written statement is required under Rule 1 or Rule 9, fails to present the same within time permitted or fixed by the Court as the case may be, the Court shall pronounce judgment or make such orders in relation to the suit as it thinks fit and on the pronouncement of same, the decree sheet shall be drawn up. Accordingly, in view of the provisions of order VIII Rule 10 CPC, I proceed to decide the present suit. Further, I am in agreement with the judgments of the Coordinate Benches of this Court as relied upon by the plaintiff in paragraph 8 on the issue that in ex-parte matters no purpose would be served if evidence is directed to Page 19 of 39 CS No.315/2019: Hindustan Unilever Limited V/s Pramod Gupta & Ors.: DOD: 09.10.2024 be led. There being no written statement filed, the averments in the Plaint being unrebutted, the same are deemed to be correct.
xxxxx
(iii) Recently, the Hon'ble High Court of Delhi in case reported as, "CS (Comm.) No.72/2022", titled as, "Kleenoil Filtration India Pvt. Ltd. V/s Udit Khatri & Ors." (DOO: 05.01.2023) has been pleased to clear the air regarding power and authority of Court to straightway decree the suit under Order VIII Rule 10 CPC.
25. Further, on the aspect of Order VIII Rule 10 CPC, I am also duly conscious of the observations made by Hon'ble Supreme Court of India in case reported as, "Civil Appeal No.9695/2013", titled as, "Asma Lateef & Anr. V/s Shabbir Ahmad & Ors." (DOD: 12.01.2024), whereby the Hon'ble Apex Court has been pleased to categorically observe that a Court is not supposed to pass a mechanical judgment invoking Rule 10 of Order VIII CPC, merely on the basis of plaint, upon the failure of defendant to file a written statement. I am further conscious of the fact that a judgment, if pronounced by a Court under Rule 10 of Order VIII CPC, must satisfy the requirements of Rule 4(2) or Order XX CPC and thereby conform to its definition provided in Section 2(9) thereof.
26. Further in case reported as, "CS (OS) No.559/2010", titled as, "Indian Performing Rights Society Limited V/s Gauhati Town Club"
(DOD: 30.01.2013), the Hon'ble High Court of Delhi has been pleased to observe that where the defendant is "ex-parte" and the material before the Page 20 of 39 CS No.315/2019: Hindustan Unilever Limited V/s Pramod Gupta & Ors.: DOD: 09.10.2024 Court is sufficient to allow the claim of the plaintiff, then the time of the Court should not be wasted in directing ex-parte evidence to be recorded and which mostly is nothing, but a repetition of the contents of the plaint.
27. Now, coming back to the facts of instant case. From the material placed on record by the plaintiff, it is clearly evident that the impugned counterfeit products of the defendants uses plaintiff's registered trademarks and the identical unique packaging albeit in an inferior version, of the plaintiff's products, thereby violating the trademark, trade dress and copyright of the plaintiff in its "Fair & Lovely" and "LAKMÉ" products. The said fact is also evident from the details given in the table below, which clearly demonstrates the manner of use of infringing trademarks and packaging by the defendants for Fair & Lovely Multi-Vitamin product and LakmeEyeconicKajal:
Comparison of Fair & Lovely Product:
PLAINTIFF'S FAIR & LOVELY DEFENDANT'S FAIR & LOVELY PRODUCT PRODUCT Name: Fair & Lovely Name: Fair & Lovely Product Name Stylization: Italicized words 'Fair' Product Name Stylization:Italicized words 'Fair' and 'Fairy' in Pink, and the symbol '&' in Grey and 'Fairy' in Pink, and the symbol '&' in Grey Product Packaging: Product Packaging:Page 21 of 39
CS No.315/2019: Hindustan Unilever Limited V/s Pramod Gupta & Ors.: DOD: 09.10.2024 I. Has pink and white colour scheme in theX. Has pink and white colour scheme in the background; background;
II. Uses the purple/dark pink coloured lettering for brand name with the ampersand sign in silverXI. Uses purple/dark pink coloured lettering for brand grey color; name with the ampersand sign in silver grey color;
III. The word mark "Fair & Lovely" is printed below the writing 'our best formula' within XII. a The counterfeit product has the word mark "Fair pink/dark pink linear rectangular box which & Lovely" is printed below the writing 'our appears on the top of the packaging; best formula' within a pink/dark pink linear rectangular box which appears on the top of the IV. Below the word mark 'Fair & lovely', the words packaging;
'Advanced is written and Multi Vitamin is Page 22 of 39 CS No.315/2019: Hindustan Unilever Limited V/s Pramod Gupta & Ors.: DOD: 09.10.2024 written below it within a pink/dark pink XIII. The counterfeit product also has below the word rectangular box; mark 'Fair & lovely', the words 'Advanced is written and Multi Vitamin is written below it V. Has device of faces of two women, one with dark within a pink/dark pink rectangular box' skin and other with fair skin the latter silhouetted on the background of XIV. & The counterfeit product also has device of faces of overlapping with the earlier face; two women, one with dark skin and other with fair skin the latter silhouetted on the VI. Below the faces of the two women there appears background of & overlapping with the earlier a helix DNA structure which is in silver grey face; color outer border with pink inner border on the upper left-hand side and lower part of XV. The counterfeit product also has the faces of the right-hand side of the said Helix DNA two women below which there appears a helix structure; DNA structure which is in silver grey color outer border with pink inner border on the VII. The words 'Expert fairness solution' is written in upper left-hand side and lower part of right-
dark pink capital fond towards the end of the hand side of the said Helix DNA structure; pack/tube on the right-hand side to the DNA helix structure; XVI. The words 'Expert fairness solution' is written in dark pink capital fond towards the end of the VIII. The cap is pink/dark pink with a silver grey band pack/tube on the right-hand side to the DNA at the topmost part of the band; helix structure;
IX. In the original goods batch number, date of XVII.
use The cap is pink/dark pink with a silver grey band before and the MRP is engraved on the tube. at the topmost part of the band;
XVIII. In the counterfeit products, MRP is printed on the tube.
Comparison of Lakme product:
PLAINTIFF'S LAKMÉ PRODUCT DEFENDANT'S LAKMÉ PRODUCT
Name: LAKMÉ EyeconicKajal Name: LAKMÉ EyeconicKajal
Product Name Stylization: LAKMÉ Product Name Stylization: LAKMÉ
Eyeconic Kajal Black Eyeconic Kajal Black
Product Packaging: Product Packaging:
Page 23 of 39
CS No.315/2019: Hindustan Unilever Limited V/s Pramod Gupta & Ors.: DOD: 09.10.2024 XIX.The packaging is blue and black in colour;XXVII.The packaging is blue and black in colour; XX.The packaging has the word 'EYECONIC' XXVIII.The packaging has the word 'EYECONIC' written prominently in black followed by written prominently in black followed by the word 'KAJAL' in in black in relatively the word 'KAJAL' in in black in smaller lettering; relatively smaller lettering; XXI. The packaging has the words 'No Smudge', XXIX. The packaging has the words 'No Smudge', 'Waterproof', 'Ophthalmologist tested' 'Waterproof', 'Ophthalmologist tested' and 'Suitable for contact lens users'; and 'Suitable for contact lens users'; XXII.The packaging has the words 'Deep Black' XXX.The packaging has the words 'Deep Black' written in white on a black background. written in white on a black background.
XXXI.The packaging is blue, black and white XXIII.The packaging is blue, black and white colour scheme;
colour scheme; XXXII.The packaging has the trademark "LAKME" XXIV.The packaging has the trademark "LAKME" written in black on a blue background and Page 24 of 39 CS No.315/2019: Hindustan Unilever Limited V/s Pramod Gupta & Ors.: DOD: 09.10.2024 written in black on a blue background and the word "Kajal" written below it; the word "Kajal" written below it; XXXIII.The packaging has an image of an eye XXV.The packaging has an image of an eye sketched in black and white colours;
sketched in black and white colours;XXXIV.The back side of the packaging has XXVI.The back side of the packaging has instructions on "how to use", "tips" and instructions on "how to use", "tips" and "how to remove" the product in white "how to remove" the product in white colour on a black background. colour on a black background.
28. The comparison of the two products as tabulated above clearly and unerringly suggest that the defendants have dishonestly adopted the identical registered trademarks and trade dresses with a view to infringe and pass off its products as that of plaintiff. Further, in doing so, the defendants have infringed not only the plaintiff's proprietary trademark 'Fair & Lovely' and 'LAKMÉ', but have also infringed the copyright in the artistic work (product package layout and design) vested with the plaintiff. It is further evident that from the aforesaid action, the defendants have strained every nerve to pass off their products as those of the plaintiff's products by adopting visually, structurally and phonetically identical trademarks, trading name, packaging, trade dresses, etc. of the plaintiff's products, which in all probability is likely to confuse and deceive the consumers, thereby causing immense and irreparable harm to the plaintiff's goodwill and reputation as also pose a risk to the safety, health and well being of the consumers.
29. I further find substance in the submissions of learned counsel for the plaintiff that instant is also a case of dilution and unfair competition as the defendants' activities are whittling away and eroding the distinctive character of the plaintiff's 'Fair & Lovely' and 'LAKMÉ' trademarks.
Page 25 of 39CS No.315/2019: Hindustan Unilever Limited V/s Pramod Gupta & Ors.: DOD: 09.10.2024
30. In the instant case, the defendants have chosen to stay away from the proceedings. The execution of the Local Commission by three learned Local Commissioners at the different premises of defendants and the preparation of inventory thereof leaves no manner of doubt that the defendants had been well aware of the filing of instant suit against them by the plaintiff.
31. The defendants cannot be allowed to piggy bag upon the reputation of plaintiff. The Hon'ble High Court of Delhi in a case involving somewhat similar facts, i.e in case reported as, "1992 SCC Online Del 122", titled as, "The Tata Iron & Steel Company Ltd. V/s Mahavir Steels & Ors." (DOD: 25.02.1992), has been pleased to hold as under:
xxxxx
14. .........An imitation remains an imitation whether it is done by one or by many. It acquires no legitimacy. A wrong is not righted by the following it musters. Infringement of trade mark by a trader cannot be justified on the ground that there are others like him who are doing the same. There is a growing tendency to copy the trade marks to cash upon some one else's business reputation . The pirates of trade marks are like parasites clinging to others for their growth. Imitators of trade marks have the sole object of diverting the business of others. This tendency must be curbed in the interest of the trade and the consumers.
xxxxx Page 26 of 39 CS No.315/2019: Hindustan Unilever Limited V/s Pramod Gupta & Ors.: DOD: 09.10.2024
32. From the material produced on record, the defendants appear to be fly by night operators, who seems to be fully aware of the illegality of their activities and therefore, in their attempts to escape any legal actions and their consequent liability, consistently move the base of their operations form one location to another. Same is also apparent from the fact when the Hon'ble High Court of Delhi appointed three different lawyers as Local Commissioners in the matter.
33. In case reported as, "CS (Comm.) No.126/2022", titled as, "M.L Brother LLP V/s Mahesh Kumar Bhuralal Tanna" (DOD:
12.05.2022), the Hon'ble High Court of Delhi has been pleased to lay down that Local Commissioner's report can be read in evidence in terms of Order XXVI Rule 10(2) CPC. For ready reference, the said observations are re-produced as under:
xxxxx
10. Order 26 Rule 10(2) CPC stipulates that the report of the Commissioner and the evidence taken by the Commissioner shall be evidence in the suit and shall form part of the record. The said provision reads as under:
10. Procedure of Commissioner.-- (1) The Commissioner, after such local inspection as he deems necessary and after reducing to writing the evidence taken by him, shall return such evidence, together with his report in writing signed by him, to the Court.
(2) Report and depositions to be evidence in suit. Commissioner may be examined in person.--The report of the Commissioner and the evidence taken by him (but not the Page 27 of 39 CS No.315/2019: Hindustan Unilever Limited V/s Pramod Gupta & Ors.: DOD: 09.10.2024 evidence without the report) shall be evidence in the suit and shall form part of the record;
but the Court or, with the permission of the Court, any of the parties to the suit may examine the Commissioner personally in open Court touching any of the matters referred to him or mentioned in his report, or as to his report, or as to the manner in which he has made the investigation."
11. In Levi Strauss & Co. v. Rajesh Agarwal 2018 IAD (Delhi) 622, this Court examined the said provision and held that once the Commissioner has filed the evidence along with his report, it becomes evidence in the suit itself. Under Order 26 Rule 10(2) CPC it is not mandatory to examine the Commissioner to admit the report of the Commissioner as evidence in the suit. The relevant observations are as under:
8. The Local Commissioner is in fact a representative of the Court itself and it is for this reason that Order 26 Rule 10 (2) of CPC clearly provides that once the Commissioner has filed the evidence along with his report the same shall be treated as evidence in the suit and shall form part of the record.
xxx xxx xxxx
10. The rationale behind Order 26 Rule 10 (2) of CPC is clear i.e. the Commissioner is appointed as a representative of the Court and evidence collected by the Commissioner along with the report of the Commissioner would be evidence in the suit, subject to any objection raised by any party. If any party has any objection to Commissioner's report or to the evidence, such party has an option to examine the Commissioner personally in Page 28 of 39 CS No.315/2019: Hindustan Unilever Limited V/s Pramod Gupta & Ors.: DOD: 09.10.2024 open Court. Such examination is however, neither compulsory nor required especially in cases where the party does not challenge the report. In the present case, a perusal of the written statement filed by the Defendant clearly reveals that the Defendant does not challenge the Commissioner's report. Para of the written statement is set out below..."
12. This position of law has been reiterated by this Court in Vinod Goel v. Mahesh Yadav [RFA 598/2016 decided on 23rd May, 2018] wherein the Court observed as under:
"7. It is the settled proposition in law that when a Commissioner is appointed, he acts as the officer of the Court and it is not necessary for the Commissioner to be examined. This is clearly laid down by the Supreme Court in Misrilal Ramratan & Ors. Mansukhlal & Ors. v. A.S. Shaik Fathimal & Ors., 1995 Supp (4) SCC 600, wherein the Court held as under:
"It is now settled law that the report of the Commissioner is part of the record and that therefore the report cannot be overlooked or rejected on spacious plea of non-examination of the Commissioner as a witness since it is part of the record of the case."
8. Even this Court, recently in Levis Strauss v. Rajesh Agarwal [RFA 127/2007 decision dated 3rd January, 2018], held as under
"11. The rationale behind Order 26 Rule 10 (2) of CPC is clear i.e. the Commissioner is appointed as a representative of the Court and evidence collected by the Commissioner alongwith the report of the Commissioner would be evidence in the suit, subject to any objection raised by any party. If any party has Page 29 of 39 CS No.315/2019: Hindustan Unilever Limited V/s Pramod Gupta & Ors.: DOD: 09.10.2024 any objection to Commissioner's report or to the evidence, such party has an option to examine the Commissioner personally in open Court. Such examination is however, neither compulsory nor required especially in cases where the party does not challenge the report."
9. Mr. Prag Chawla clearly concedes that there may be no requirement to examine the Local Commissioner once the Commissioner is appointed by a Court.
10. Under these circumstances, since the Commissioner had visited the suit property and had submitted the report, it is deemed appropriate that the matter is remanded back to the Trial Court to decide the matter afresh after taking into consideration the report of the Local Commissioner, Mr. Y.D. Nagar dated 5th January, 2000 in Suit No.2198/1999.
13. In view of Order 26 Rule 10(2) CPC and the judgments discussed above, the settled legal position that emerges is that the report of the Local Commissioner can be treated as evidence in the suit where it is not challenged by any party. Accordingly, in the present case the report of the Local Commissioner and the contents therein can be relied upon by the Court as evidence as the same is unchallenged.
xxxxx (underlining which is mine emphasized)
34. Further, on the settled position that Local Commissioner's report can be read in evidence, I also reminded of the following judgments:
Page 30 of 39CS No.315/2019: Hindustan Unilever Limited V/s Pramod Gupta & Ors.: DOD: 09.10.2024
(a) Case reported as, "CS (Comm.) No.1203/2018", titled as, "AKTIEBOLAGET VOLVO & Ors. V/s Gyan Singh & Anr."
(DOD: 25.04.2023);
(b) Case reported as, "CS (Comm.) No.478/2019", titled as, "Sandisk LLC V/s Amit & Ors." (DOD: 01.03.2023);
(c) Case reported as, "CS (Comm.) No.564/2020", titled as, "Imagine Marketing Private Ltd. V/s M/s Green Accessories Through Its Proprietor & Anr." (DOD: 21.03.2022);
(d) Case reported as, "CS (Comm.) No.675/2019", titled as, "Dhani Loans And Services Limited & Anr. V/s WWW.Dhanifinance.Com & Ors." (DOD: 12.10.2022);
(e) Case reported as, "CS (Comm.) No.929/2018", titled as, "Sanofi & Anr. V/s Faisal Mushtaq & Ors." (DOD: 16.11.2018);
(f) Case reported as, "CS (Comm.) No.413/2021", titled as, "LT Foods Limited V/s Saraswati Trading Company" (DOD:
11.11.2022);
(g) Case reported as, "CS (Comm.) No.1219/2018", titled as, "Shri Ved Prakash Garg Trading As M/s Parul Food Products V/s M/s Gurudev Industries" (DOD: 20.12.2018) and;
(h) Case reported as, "CS (OS) No.3466/2012", titled as, "Disney Enterprises Inc. & Anr. V/s Balraj Muttneja & Ors." (DOD:
20.02.2014).
35. In case reported as, "AKTIEBOLAGET VOLVO" (supra), the Hon'ble High Court of Delhi has been pleased to observe as under:
xxxxx
10. At the hearing on 19thApril, 2023, the counsels for the defendants on instructions submitted that the defendants were agreeable to a decree of permanent Page 31 of 39 CS No.315/2019: Hindustan Unilever Limited V/s Pramod Gupta & Ors.: DOD: 09.10.2024 injunction being passed against the defendants.
Counsel for the plaintiffs also pressed for costs and damages of Rs.10,00,000/- to be apportioned between the defendants.
xxxxx xxxxx
17. I am of the opinion that no purpose would be served by directing the plaintiffs to lead evidence by filing examination-in-chief by way of affidavit. The defendants have no reasonable prospect of succeeding in the present suit. Therefore, in my opinion, this is a fit case where a Summary Judgment in terms of Order XIII-A of the CPC, as applicable to commercial disputes of a specified value, read with Rule 27 of the IPD Rules, deserves to be passed in favour of the plaintiffs and against the defendants.
xxxxx
36. The Hon' ble High Court, thereafter in paragraphs No.22 and 23 of the aforesaid judgment has been pleased to lay down as under:
xxxxx
22. Clearly, the customers are being misled by the defendants and the entire effort is deliberate and dishonest. This amounts to dilution of the reputation and goodwill of the plaintiffs' marks and causing loss to the plaintiffs in business and reputation. The members of the public are bound to confuse bicycles manufactured and sold by the defendants under the mark VOLVO as emanating from the plaintiffs. The defendants have been making unlawful gains at the expense of the plaintiffs. I am convinced that this is nota case of innocent adoption by the defendants. The Court cannot ignore such flagrant misuse of the plaintiffs' marks by the defendants. Even though the claim of the plaintiffs for damages, based on the recoveries made at the premises of the defendant no.2 Page 32 of 39 CS No.315/2019: Hindustan Unilever Limited V/s Pramod Gupta & Ors.: DOD: 09.10.2024 and the invoices placed on record, is close to Rs.20,00,000/-, I deem it appropriate to award a sum of Rs.10,00,000/-towards damages and costs to the plaintiffs.
23. Taking into account that the defendants no. 3 and 4 are the manufacturers and suppliers of the aforesaid goods and the defendants no.1and 2 were selling the goods supplied by the defendants no.3 and 4, out of the aforesaid amount, the defendants no.3 and 4 shall be liable to pay Rs.6,50,000/- in favour of the plaintiffs and the defendants no.1 and 2 shall be liable to pay Rs.3,50,000/- in favour of the plaintiffs.
xxxxx
37. After considering the facts and circumstances of the case in totality, I am of the considered opinion that there is no real prospect of defendant succeeding in proving its defence because of the aforesaid discussion. No useful purpose would be served by allowing the proceedings to meander mindlessly in Court and to clog the justice delivery system. Therefore, in my opinion, present is a fit case where the Summary Judgment in terms of Order VIII Rule 10 CPC, as applicable to commercial disputes, deserves to be passed in favour of the plaintiff and against the defendant.
38. Considering the present case on the touchstone of the law laid down in the above referred judgments, I find that no useful purpose would be served, firstly by framing the issue with regard to grant of damages & cost and then asking the plaintiff to lead evidence in the matter. I am further of the considered opinion that there is no defence available on record on part of defendant which debars the plaintiff from claiming decree Page 33 of 39 CS No.315/2019: Hindustan Unilever Limited V/s Pramod Gupta & Ors.: DOD: 09.10.2024 in the matter, as there is no real prospect of the defendant successfully defending its claim.
39. As regards the damages claimed for by the plaintiff, it is noted that The Delhi High Court Intellectual Property Rights Division Rules, 2022 provide guidance on the manner in which the damages could be calculated in such cases. Rule 20 of the IPD Rules, 2022 is set out below:
xxxxx "20. Damages/Account of profits:A party seeking damages/account of profits, shall give a reasonable estimate of the amounts claimed and the foundational facts/account statements in respect thereof along with any evidence, documentary and/or oral led by the parties to support such a claim. In addition, the Court shall consider the following factors while determining the quantum of damages:
(i) Lost profits suffered by the injured party;
(ii) Profits earned by the infringing party;
(iii) Quantum of income which the injured party may have earned through royalties/license fees, had the use of the subject IPR been duly authorized;
(iv) The duration of the infringement;
(v) Degree of intention/neglect underlying the infringement;
(vi) Conduct of the infringing party to mitigate the damages being incurred by the injured party; In the computation of damages, the Court may take the assistance of an expert as provided for under Rule 31 of these Rules.
xxxxx
40. Further, on the aspect of damages, in case reported as, "2019:DHC:2185", tilted as, "Koninlijke Philips and Ors. V/s Amazestore Page 34 of 39 CS No.315/2019: Hindustan Unilever Limited V/s Pramod Gupta & Ors.: DOD: 09.10.2024 & Ors.", the Hon'ble High Court of Delhi has been pleased to lay down certain standards for grant of damages in following terms:
xxxxx
"41. Keeping in view the aforesaid, this Court is of the view that the rule of thumb that should be followed while granting damages can be summarised in a chart as under:--
# Degree of malafide conduct Proportionate award
(i) First time innnocent infringer Injunction
(ii) First-time knowing infringer Injunction + partial costs
(iii) Repeated knowing infringer which Injunction + costs + partial causes minor impact to the plaintiff damages
(iv) Repeated knowing infringer which Injunction + costs+ causes major impact to the plaintiff compensatory damages
(v) Infringement which was deliberate Injunction + Costs + and calculated Aggaravated damages (gangster/scam/mafia) + wilfful (compensatory + additional contempt of Court damages)
42. It is clarified that the above chart is illustrative and is not to be read as a statutory provision. The Courts are free to deviate from the same for good reason."
xxxxx
41. (i) It is a matter of record that the learned Local Commissioners had seized 10944 packs of the defendants "Fair & Lovely" cream in the 25 gm packaging. This cream had been priced by the defendants at Rs.50/-. It is claimed that the infringing products of the defendants, that were seized by the plaintiff amounts to Rs.5,47,200/-.
(ii) It is further a matter of record that 2025 packs of defendants Page 35 of 39 CS No.315/2019: Hindustan Unilever Limited V/s Pramod Gupta & Ors.: DOD: 09.10.2024 "Fair & Lovely" cream in the 50 gm packaging were also recovered. It is claimed that the same were priced at Rs.130/-, thereby amounting to Rs.2,63,250/-.
42. The learned counsel for the plaintiff during the course of arguments alongwith the written submissions has annexed "Statement of Costs" as Annexure-B, as per which the plaintiff had incurred an amount of Rs.4,45,210/- as cost of the proceedings. For ready reference, the said statement of cost, in verbatim, is re-produced hereunder:
------------------------------------------------------------------------------------------
ANNEXURE -B STATEMENT OF COSTS
1. The Plaintiff has paid the following court fees under the Suits Valuation Act, 1887 as per the Commercial Courts Act, 2015:
A. Official Fees / Court Fees:
S.No. Particulars Charges (in INR)
1. Towards purchase of court fee payable to the Delhi Rs.13,000.00
District Courts in the above mentioned matter.
Total: Rupees One Lakh Ninety Thousand only Rs.13,000.00
2. The expenses incurred by the Plaintiff in the suit, including photocopying expenses, travel expenses, Fees of Local Commissioners, etc. has been billed to the Plaintiff by the Plaintiff's counsel. The details of the said bills are given below:
B. Expenses incurred:
S.No. Particulars Charges (in INR)
1. Towards photocopying, compliance, dispatching of Rs.1,92,210.00 Court Notices, investigation, Fees of Local Commissioners and other miscellaneous expenses incurred for typing, and filing process fee, professional fees, and other miscellaneous expenses.
Page 36 of 39CS No.315/2019: Hindustan Unilever Limited V/s Pramod Gupta & Ors.: DOD: 09.10.2024 Total Expenses: Rupees Three Lakhs Thirty-Three Thousand and Rs.1,92,210.00 Fifty-One and twenty four paise only
3. The Plaintiffs have also borne legal fees towards drafting, preparing, filing the lawsuit and other miscellaneous applications/pleadings, coordination and communication and appearances held time to time during the pendency of the present suit before this Hon'ble Court which has been billed to it by their Counsels. Details of the same are provided herein below: -
C. Legal Fees Incurred:
S.No. Particulars Charges (in INR)
1. Towards receiving instructions; reviewing, analysing Rs.2,40,000.00
and perusing the documents; coordinating, drafting and filing the plaint including injunction application and miscellaneous applications along with supporting affidavits and compilation of documents in the matter and towards drafting miscellaneous pleadings in the matter Total Fee - Rupees Two Lakhs Forty Thousand only Rs.2,40,000.00 Total (A+B+C) Rs.4,45,210.00 ____________________________________________________________________________________
43. Accordingly, suit of the plaintiff is decreed as under:
(i) A decree of permanent injunction is hereby passed in favour of plaintiff and against the defendant, thereby restraining the defendants, their partners or proprietor, their principal officers, servants and agents etc., from manufacturing, packaging, selling, offering for sale or distribution, exporting, advertising, directly or indirectly dealing in cosmetics, especially fairness/face creams or goods of any description bearing the marks 'Fair & Lovely' and 'LAKMÉ', Lakme Eyeconic and/or any marks that are identical to the Plaintiff's trademark "Fair & Lovely" or Page 37 of 39 CS No.315/2019: Hindustan Unilever Limited V/s Pramod Gupta & Ors.: DOD: 09.10.2024 comprising of the words "Fair &" and/or "& Lovely" or in conjunction with any other word or "LAKMÉ","Lakme Eyeconic" or which are deceptively similar to the Plaintiff's 'Fair & Lovely' and/ or 'LAKMÉ', "Lakme Eyeconic" trademarks amounting to infringement of Plaintiff's registrations under nos. 349209 and 2292737for Fair & Lovely; and nos.
488774 253062 and 1241320for Lakme; and no. 2227603 for Lakme Eyeconic;
(ii) The defendants their partners or proprietor, principal officers, servants and agents etc. are hereby further restrained from reproducing, printing or publishing any label or packaging, including cartons, tubes and caps including any packaging for the purpose of exports, which are a colorable imitation or substantial reproduction of any of the Plaintiff's 'Fair & Lovely' and/ or 'LAKMÉ', Lakme Eyeconic artistic packaging, amounting to infringement of copyright in the artistic works which are the subject matter of the deed of assignments dated April 16, 2010 & July 5, 2012 and/or and 'LAKMÉ' logo script thereto including that of the 'Fair & Lovely' logo scriptregistered as copyright No.A-39619/83;
(iii) The defendants their partners or proprietor, their principal officers, servants and agents etc. are hereby further restrained from manufacturing, packaging, making, selling, offering for sale, exporting, advertising, and in any manner, directly or indirectly, using the trademark 'Fair & Lovely' and 'LAKMÉ', Lakme Eyeconic or any other mark comprising of the words "Fair &" and/or "& Lovely" per se and/or in a logo script and/ or 'LAKMÉ' , Lakme Eyeconic which is deceptively similar to or a reproduction of the Plaintiff's 'Fair & Lovely' logo script Page 38 of 39 CS No.315/2019: Hindustan Unilever Limited V/s Pramod Gupta & Ors.: DOD: 09.10.2024 and/ or 'LAKMÉ' logo script and taking any other features of any of the Plaintiff's various product packaging in any manner, in respect of skin care / cosmetic products and/or any other products and doing any other thing, thereby leading to passing off and unfair competition of their goods as those of the plaintiff;
(iv) A decree of damages in the sum of Rs.8,10,450/- (Rupees Eight Lakhs Ten Thousand Four Hundred Fifty Only) (Rs.5,47,200/- for 10944 packs of 25 gm each of counterfeit "Fair & Lovely" cream + Rs.2,63,250/- for 2025 packs of 50 gm each of counterfeit "Fair & Lovely" cream) is hereby passed in favour of plaintiff and against the defendants jointly and severally;
(v) Plaintiff is also entitled to cost of the proceedings, which is quantified as Rs.4,45,210/- as per the "Statement of Costs" filed on behalf of plaintiff alongwith the written submissions. Needless to say, the Statement of Costs include expenses incurred by the plaintiff in the suit, including photocopying expenses, travel expenses, fees of learned Local Commissioners, fees of learned counsel and other miscellaneous expenses.
44. Decree Sheet be prepared accordingly.
45. File be consigned to Record Room after completion of necessary formalities.
VINOD Digitally signed
by VINOD YADAV
YADAV Date: 2024.10.09
17:14:20 +0530
Dictated & Announced in the (Vinod Yadav)
open Court on 09.10.2024 District Judge (Commercial Court)-02
North-West/Rohini Courts
Page 39 of 39