Calcutta High Court
Hindustan Unilever Ltd vs Arvind & Ors on 11 May, 2016
Author: Harish Tandon
Bench: Harish Tandon
GA No. 1382 of 2016
with
CS No. 131 of 2016
IN THE HIGH COURT AT CALCUTTA
ORDINARY ORIGINAL CIVIL JURISDICTION
Hindustan Unilever Ltd.
Versus
Arvind & Ors.
Before:
The Hon'ble Justice HARISH TANDON
Date: 11th May 2016
Appearance:
Mr. Ratnanko Banerjee, Sr. Advocate
Mr. D. Gomes, Advocate
Mr. A. Deb, Advocate
for the plaintiff/petitioner
The Court: The petitioner is a well-known company being the subsidiary
of the Unilever group. It is a registered owner of a trademark "Lakme" and has
assumed a good name, goodwill and reputation in the fast moving consumer
goods sector within and outside the country. It has an extensive network both
for marketing and distribution of the entire range of products manufactured and
marketed inside the country and have nearly a gross average turnover of
Rs.25,000 crores in last three years.
It is alleged that several persons whose identity could not be disclosed are
actively involved in selling their products with such trademark and the product is
a colourable imitation of the product of the petitioner.
At the time of moving the injunction application, the petitioner could not
disclose the names of the persons who are selling and marketing their products
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in such trade name and invited the Court to pass "john doe" order.
Subsequently, the petitioner could disclose the name of four persons in the
supplementary affidavit and leave was granted to implead them as a party in the
proceedings.
The petitioner relies upon a judgment of the Delhi High Court in case of
Tej Television vs. Rajen Mandal reported in (2003) FSR 22 to impress upon the
Court that the international practice of passing a john doe has been applied and
accepted in the judicial system all over the country and prays for appointment of
the Court Commissioner to collect the necessary evidence and take possession of
the infringing goods not only from the disclosed persons but also from others
whose identity could not be ascertained. In the said report the allegation of
violation of the copyright was made by the plaintiff/petitioner therein against
several persons. Some of them could have identified and others could not. The
Court, prima facie, found the violation of a copyright and held that there is no
fetter or impediment upon the Court to pass such an order.
On bare examination of the original and the counterfeit produced by the
petitioner before this Court there is no hesitation, in my mind, that the
counterfeit product is a colourable imitation of the original both in its get up and
style but also the manner in which the trade mark is depicted therein. The
colours, size and the manner of writing the words are verbatim reproduction of
the original and, therefore, a clear case of infringement of the trademark as well
as copyright are made out.
There shall be an order in terms of prayers (a) and (b) of the notice of
motion.
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There shall also be an order in terms of prayer (c) of the notice of motion.
Ms. Anita Deb, Advocate, Bar Association, Room No. 2, High Court,
Calcutta is appointed as a special officer to enter into the premises not only of
the defendant nos. 1 to 4, but also of the others and shall take possession of the
goods containing the trademark 'Lakme' or 'Lakme nine to five and shall keep the
same at a place to be provided by the plaintiff in its custody until further order.
The said special officer, if necessary, shall take assistance of the local
police station. The moment the receiver approaches the concerned officer-in-
charge of the police station, such officer shall render all the assistance in
carrying out the directions passed hereinabove.
The respondent nos. 1 and 4 and also the other respondents, if they are
found selling the product of the plaintiff, to file the affidavit-in-opposition to the application within six weeks from date. Reply, if any, shall be filed within two weeks thereafter. The matter will appear after eight weeks. The initial remuneration of the special officer is fixed at 2000 GMs.
(HARISH TANDON, J.) R. Bose AR(CR)