Delhi District Court
M/S Lancome Parfums Et Beaute & Cie vs M/S Astron Laboratories Ltd on 24 August, 2015
IN THE COURT OF SH. GURVINDER PAL SINGH
ADDITIONAL DISTRICT JUDGE (CENTRAL)01
TIS HAZARI COURTS, DELHI
TM102/2011
Unique I. D. No. 02401C0709872008
M/s Lancome Parfums Et Beaute & Cie
29, Rue DuFaubourg
SaintHonore,
75008, Paris
France.
......Plaintiff
Versus
M/s Astron Laboratories Ltd.,
1012A, Hemkunt Tower,
98, Nehru Place,
New Delhi10019
.......Defendant
Suit u/s(s) 134 & 135 of the Trade Marks Act, 1999 and u/s 51 of
Indian Copyright Act for Permanent Injunction to restrain passing
off, infringement of Trade Mark and Copyright, Delivery up and
Rendition of Accounts
TM102/2011 M/s Lancome Parfums Et Beaute & Cie vs. M/s Astron Laboratories Ltd., Page 1 of 11
Date of institution of suit : 09.05.2008
Date of reserving the judgment : 11.08.2015
Date of pronouncement of judgment : 24.08.2015
JUDGMENT
1. Plaintiff has filed this suit through its attorney Sh. Sheel Bansal against defendant seeking relief(s) of permanent injunction to restrain passing off, infringement of trade mark POEME (word mark) & POEME label, delivery up of all impugned finished and unfinished materials violative and deceptively similar trade mark and rendition of accounts.
2. In brief, the relevant facts of the case are that plaintiff, a company organized and incorporated under the laws of France, is engaged in the business of manufacture, distribution and trade of various cosmetics, perfumery, skin care and toilet preparations including perfumes, nonmedicated toilet waters and perfumes and perfume lotions, nonmedicated soaps, bath and shower forming compositions and gels and allied products. The plaintiff in the year 1994 adopted the word/mark POEME to its products and since then over a period of time has been TM102/2011 M/s Lancome Parfums Et Beaute & Cie vs. M/s Astron Laboratories Ltd., Page 2 of 11 creating various POEME stylized trade mark formats and various POEME bearing and formative labels and trade dresses of which the word/mark POEME word per se or stylized or artistic is an important key and distinguishing part. The said trade mark POEME word per se, label & formative of plaintiff are registered in India under Trade Mark Act, 1999 vide registration no. 625259. The plaintiff has been promoting its products under the said trade mark through various means and spending enormous amount of money thereon. It is further stated that plaintiff having proprietary rights in its goodwill and in its copyright, has exclusive right to use the same and nobody can be permitted to use the same or any other deceptively similar trade mark/copyrights thereto in any manner in relation to any specification of goods without the leave and licence of plaintiff.
3. It is further submitted in plaint that defendant is engaged in the business of manufacture and trade of wide range of cosmetics, toiletries, personal care and beauty products, having adopted the word/trade mark POEME as a trade mark in relation to its impugned goods, which is identical and deceptively similar to the plaintiff's trade TM102/2011 M/s Lancome Parfums Et Beaute & Cie vs. M/s Astron Laboratories Ltd., Page 3 of 11 mark 'POEME' phonetically, visually, structurally and in its basic features, thereby passing off their goods as that of plaintiff and diluting the proprietary rights therein. It is further averred that defendant is infringing the plaintiff's registered trade marks and violating the plaintiff's copyrights in the artistic features in trade mark and trade dress and due to the said act of defendant, plaintiff is suffering huge losses in its business as defendant's gains are the plaintiff's losses. The plaintiff in second week of February, 2007 learnt about the defendant and its impugned adoption from search report obtained from trade mark office depicting that defendant has got the impugned trade mark registered under no. 7516679 in class3; the application file by defendant was advertised in the trade mark journal no. 1328 S5 March 30 2005. The plaintiff immediately filed rectification on or around 12 March, 2007 to the impugned registration, which is pending adjudication. The plaintiff lodged enquiry in the market to ascertain defendant's activities under the impugned trade mark. The user of defendant thereunder utmost would be surreptitious, clandestine and extremely recent and defendant has all the intention to use the impugned trade mark if not already used. TM102/2011 M/s Lancome Parfums Et Beaute & Cie vs. M/s Astron Laboratories Ltd., Page 4 of 11
4. Summons of the suit were issued to defendant which could not be served upon defendant. Therefore, on application of plaintiff moved u/o V Rule 20 CPC defendant was directed to be served vide publication. Despite service through publication when none has appeared on behalf of defendant, order proceeding the defendant against exparte was passed on 07.03.2009 by my Ld. Predecessor.
5. Sh. Sheel Kumar Bansal, Authorised Representative of plaintiff company was partly examinedinchief on 10.04.2012 before my Ld. Predecessor and his further crossexamination was deferred as the witness PW1 stated that he had the originals and would produce the originals of documents relied upon and would produce the same on subsequent date of hearing. PW1 was again not brought in the witness box to complete his examination by plaintiff and incomplete testimony of PW1 as such cannot be read in evidence. Originals of documents relied upon by PW1 were not produced in course of plaintiff evidence.
6. On application of plaintiff for change of authorised representative, my Ld. Predecessor permitted the plaintiff accordingly TM102/2011 M/s Lancome Parfums Et Beaute & Cie vs. M/s Astron Laboratories Ltd., Page 5 of 11 and Ms. Surbhi Bansal was substituted as new authorised representative vide order dated 15.04.2013. Ms. Surbhi Bansal was examined as PW2 vide affidavit Ex. PW2/A in plaintiff evidence and she relied upon documents i.e. ResolutioncumAuthority Letter dated 06.08.2010 in her favour as Ex. PW2/1 and its Notarized Certificate as Ex. PW2/2 and copy of certificate for registered Trade Mark Poeme under no. 625259 in class3 as Ex. PW2/3. Thereafter, plaintiff evidence was closed.
7. I have heard Sh. Navin Bhargav, ld. counsel for plaintiff and have gone through the record including evidence and relied upon precedents. Ld. counsel has argued in terms of the averments of plaint and relied upon (1) Lancome Parfums ET Beaute and CIE vs Navin & Anr. 2015 (61) PTC 507 (Del); (2) Century Traders vs. Roshan Lal Duggar & Co., AIR 1978 Dehi 250; (3) Glaxo Group Limited & Ors. vs. Rajesh Bansal & Ors., 2013(53) PTC 441 (Del.); (4) CibaGeigy Limited & Anr. vs. Surinder Singh & Ors., 1998 PTC (18); (5) Cisco Technology, Inc vs. Santosh Tantia & Ors., 2014(59) PTC 356 (Del); (6) Delhi Public Society vs. D.P.S. Trust; 2013(53) PTC 449 (Del.); (7) L'Oreal vs. Dushyant Shah, 2011 (48) PTC 240 (Del.); (8) Mysore TM102/2011 M/s Lancome Parfums Et Beaute & Cie vs. M/s Astron Laboratories Ltd., Page 6 of 11 Saree Udyog rep. its Prop. Mr. Pukhraj S Talera & Ors. vs. Mysore Silk Udyog by its Prop. Mrs Gomti Paramashivam; 1999 PTC (19) 389; (9) Pratyush Kumar Jana & Anr. vs. New Howrah Bakery(Bapuji) Private Ltd., 2009 (40) PTC 442 (Cal.) (DB); (10) Midas Hygiene Industries P. Ltd & Anr. vs. Sudhir Bhatia & Ors., 2004(28) PTC 121 (SC); and (11) Mars Incorporated vs. Kumar Krishna Mukherjee & Ors., 2003(26) PTC 60 (Del.).
8. Affidavit Ex. PW2/A of PW2 dated 01.07.2013 inter alia embodies her age to be 21 years and the fact of she being resident of 96, Sukhdev Vihar, Mathura Road, Delhi25 besides the fact of having become the authorised representative of plaintiff company vide resolutioncumauthority letter dated 06.08.2010 and the earlier constituted attorney of plaintiff company i.e. Sh. Sheel Kumar Bansal having left the plaintiff company. On examination before my Ld. Predecessor on 18.10.2014, PW2 stated her age to be 22 years. Accordingly, on the date when alleged cause of action as per the plaint had arisen in favour of plaintiff against the defendant i.e. about second week of February, 2007, PW2 herself was minor and in the fact of the TM102/2011 M/s Lancome Parfums Et Beaute & Cie vs. M/s Astron Laboratories Ltd., Page 7 of 11 matter, it cannot be assumed, for want of evidence, that PW2 was in service of plaintiff or was authorised representative of plaintiff, to be in the knowledge of facts with respect to business of manufacturing, distribution and trade of plaintiff company and complained acts of the defendant, as on the date when cause of action had allegedly arisen or in the period prior to it. PW2 has simply relied upon the Notarized certificate Ex. PW2/2 whose bare perusal reveals it to be not in English language but apparently in French language whose true English translation has neither been filed nor proved in plaintiff evidence. The certified copy of legal proceedings certificate for the registered trade mark Poeme under no. 625259 in class3 has been relied upon as Ex. PW2/3 by PW2. It is own version of PW2 in her affidavit Ex. PW2/A that plaintiff company had downloaded from internet copies of Ex. PW1/4 on page no. 92 to 130 and Ex. PW1/6 on page no. 1 to 4 vide list of documents dated 15.04.2010, as were tendered on 10.04.2012 and these copies were generated from the computer maintained by her counsel from his office. None amongst any documents Ex. PW1/4 or Ex. PW1/6 is accompanied by requisite certificate u/s 65B of Evidence Act incorporating prerequisites of subsections (2) & (4) of Section 65B TM102/2011 M/s Lancome Parfums Et Beaute & Cie vs. M/s Astron Laboratories Ltd., Page 8 of 11 of Evidence Act to make the said secondary evidence pertaining to electronic record admissible in evidence in absence of primary evidence, in terms of law laid in the case of Anvar P.V vs P.K Basheer & Ors. (2014) 10 SCC 473. Per se Ex. PW1/4 and/or Ex. PW1/6 are inadmissible in evidence.
9. Bald assertion of partly examined PW1 having left the service of plaintiff company has been asserted in Ex. PW2/A of PW2. Fact remains that the affidavit of PW1 and affidavit of PW2 Ex. PW2/A both reveal of PW1 as well as PW2 to be resident of House No. 96, Sukhdev Vihar, Mathura Road, Delhi25. It was for plaintiff company to complete the examination of PW1 and to prove the relevant facts by direct oral evidence in accordance with Sec. 60 of Evidence Act, 1872 as to whatever facts were seen, heard and perceived by PW1 but it cannot simplictor rely upon hearsay version on any relevant facts stated by PW2. In the absence of complete testimony of PW1, it was open to the plaintiff company to examine any other relevant witness with permission of the Court and bring on record and prove by direct oral evidence, the relevant facts which could have been seen, heard or TM102/2011 M/s Lancome Parfums Et Beaute & Cie vs. M/s Astron Laboratories Ltd., Page 9 of 11 perceived by such other relevant witness. For want of any admissible cogent evidence, oral or documentary, direct or circumstantial, plaintiff company has miserably failed to prove alleged infringement by defendant in the alleged business of plaintiff company of manufacturing, distribution and trade of various cosmetics, perfumery, skin care and toilet preparations including perfumes, nonmedicated toilet water and perfumes and perfume lotions, nonmedicated soaps, bath and shower forming compositions and gels and allied products or defendant having adopted the word POEME as trade mark in relation to its goods to be identical and deceptively similar to the plaintiff's trade mark 'POEME' phonetically, visually, structurally and in its basic features. Plaintiff company has also miserably failed to prove that it was prior user of trade mark in question or that defendant was liable for rendition of accounts or any claimed relief(s) including that of delivery up of any goods or restraint from use, sale or passing off and violation of plaintiff's rights, for want of any cogent admissible evidence in that regard. In this fact of the matter the relied upon precedents (1) Lancome Parfums ET Beaute and CIE (supra); (2) Century Traders (supra); (3) Glaxo Group Limited & Ors.(supra); (4) CibaGeigy Limited (supra); (5) Cisco TM102/2011 M/s Lancome Parfums Et Beaute & Cie vs. M/s Astron Laboratories Ltd., Page 10 of 11 Technology, Inc (supra); (6) Delhi Public Society (supra); (7) L'Oreal (supra); (8) Mysore Saree Udyog (supra); (9) Pratyush Kumar Jana & Anr. (supra); (10) Midas Hygiene Industries P. Ltd & Anr. (supra); and (11) Mars Incorporated (supra) are of no help to plaintiff company to get relief(s) claimed for.
10. The suit of plaintiff is dismissed. No order as to costs. Decree sheet be prepared and file be consigned to record room.
Announced in open Court (GURVINDER PAL SINGH) on 24th Day of August, 2015. Addl. Distt. Judge(Central)01, Tis Hazari Courts, Delhi.
TM102/2011 M/s Lancome Parfums Et Beaute & Cie vs. M/s Astron Laboratories Ltd., Page 11 of 11