Hindusthan Unilever Ltd vs Consefo International (Ind.) & Anr on 19 December, 2013

[Cites 1, Cited by 1]

Calcutta High Court (Appellete Side)

Hindusthan Unilever Ltd vs Consefo International (Ind.) & Anr on 19 December, 2013

This litigation would relate to infringement of the design. The appellant, a high mighty multinational, is involved in manufacture and sale, inter alia, Water Purifier and its equipments to be fitted with it. They also sell replaceable kit that they suggest to be replaced after taking 1800 litres of drinking water. The respondent initially goes for registration for identical design, having failed to obtain registration; they take registration of the same equipment in pest killing category, having a different class. Both the designs are similar to the other. Initially, the appellant objected to the design, inter alia, contending they were the registered owner of the design including the purifier. The respondent immediately changed the design. Such change was acknowledged by the appellant in their pleading before the Court below in their application for stay. Yet, the appellant approached the learned Judge of the Court below for an order of injunction for total stoppage of sale of the equipment by the respondent. The learned Judge declined. Hence this appeal.

We have heard Mr. Pratap Chatterjee, learned senior Advocate appearing for the appellant being assisted 2 by Mr. Ratnanko Banerjee, learned Advocate. We have also heard Mr. Joy Saha, learned Counsel appearing for the respondent. Mr. Chatterjee would contend, learned Judge erred in not appreciating the fact, the appellant was not the registered holder of the design as well as Trade Mark "Pure it" hence, the appellant deserves an order of injunction as it would not only involve financial loss to the appellant but also would impair the goodwill and reputation of the appellant that the appellant possessed in the commercial world as there would be every chance of using the kit sold by the respondent within the water purifier installed at the instance of the appellant.

Mr. Saha, however, on instruction acceedes to change the design. He, however, prays for four months time to do so. He is ready and willing to keep accounts in a sealed cover for sale of the equipment with the present design.

Mr. Chatterjee would rely upon the decision in the case of Midas Hygiene Industries Private Limited and Anr. Vs. Sudhir Bhatia and Ors. reported in 2004 Supreme Court Cases Volume-III Page-90. In the said case the plaintiff was the user of the mark "Laxman Rekha" whereas the defendant subsequently availed the mark of "Magic Laxman Rekha". Since the plaintiff was the prior user of the mark the Apex Court observed, it was a fit case to grant an Order of injunction. Citing the said decision Mr. Chatterjee would contend, since the appellant was the prior user of the mark "pure it" the respondent is not entitled to use the mark "purity" which has great resemblance with the former.

Per contra, Mr. Saha appearing for the respondent would contend, they were classified under a different category. In any event if the appellant has any objection to the mark they would be at liberty to challenge 3 the registration of the respondent before the appropriate forum.

We have considered the rival contentions. We have perused both the kits. We are prima facie convinced both these equipments would have great resemblance and there might be a chance of deception. Mr. Chatterjee would strenuously contend before us, the appellant would also sell this equipment separately, whereas Mr. Banerjee, while giving reply, would correct him. The packet shown to us in Court is much larger than the packet the respondent is using. The device is not individually sold by the appellant as contended by Mr. Banerjee, on instruction.

In such event, we would permit the respondent to sell equipment for three months only by submitting monthly statement before the Court below in sealed cover on the undertaking to change the design of the device, however, such device must be produced before the Court below before it is put to use. The same would be done within a period of 10 (ten) weeks from date so that the Court below upon hearing both the parties, may permit the respondent to change its design as contended by them.

Since, we have already gone into the merits of the matter to consider the prayer for interim injunction, we would expedite the hearing of the suit. The written statement must be filed within a period of two weeks after reopening of the Court after Christmas Vacation. The parties would be at liberty to disclose additional documents, if any, within two weeks thereafter.

We would humbly request the learned Judge for fixing an early date of hearing of subject to his preoccupation and convenience.

With these observations the appeal is disposed 4 of along with the application for injunction.

No fruitful purpose would be served by keeping the injunction application pending, the same is disposed of accordingly by treating the same as on day's list. Since no affidavit has been called for the allegations contained in the said application as well as the present application for stay would be deemed to have not been admitted by the respondents.

There would be no order as to costs.

Urgent certified copy of this order, if applied for, be given to the parties, on priority basis.

( Banerjee, J. ) ( Debangsu Basak, J.)

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Calcutta High Court (Appellete Side)