Delhi High Court - Orders
Documents) Dabur India Limited vs Marico Ltd on 14 July, 2020
Author: Mukta Gupta
Bench: Mukta Gupta
$~1
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(COMM) 253/2020
I.A. 5565/2020 (under Order XXXIX Rule 1 and 2 CPC)
I.A. 5566/2020 (exemption from filing original and clear copies of
documents)
I.A. 5567/2020 (exemption from filing attested affidavits)
I.A. 5568/2020 (exemption/extension to file court fee)
DABUR INDIA LIMITED ..... Plaintiff
Represented by: Mr. Chander Lall, Sr. Adv. with Ms.
Nancy Roy, Mr. Manish Kr. Mishra,
Ms. Akansha Singh, Mr. Nikhil
Sonkar, Advocates.
versus
MARICO LTD. ..... Defendant
Represented by: Mr. Amit Sibal, Sr. Adv. with Ms.
Anuradha Salhotra, Mr. Sumit
Wadhwa, Mr. Achal Shekhar, Mr.
Ryan Wilson, Advocates.
CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA
ORDER
% 14.07.2020 The hearing has been conducted through Video Conferencing. I.A. 5566/2020 (exemption from filing original and clear copies of documents)
1. Exemption allowed subject to just exceptions.
2. Original documents be filed within one week of the resumption of the normal Court functioning.
CS(COMM) 253/2020 Page 1 of 63. Application is disposed of.
I.A. 5567/2020 (exemption from filing attested affidavits) I.A. 5568/2020 (exemption/extension to file court fee)
1. By these applications the plaintiff seek exemption from filing the affidavits in support of the plaint and application as also the Court fees at this stage.
2. Considering the COVID-19 situation the plaintiff is permitted to file the affidavits in support of the plaint and application as also the Court fees within one week of the resumption of the normal Court functioning.
3. Applications are disposed of.
CS(COMM) 253/2020 & I.A. 5565/2020 (under Order XXXIX Rule 1 and 2 CPC)
1. Plaint be registered as suit.
2. Issue summons in the suit and notice in the application.
3. Ms. Anuradha Salhotra, learned counsel for the defendant accept summons in the suit and notice in the application. Learned counsel for the defendant says that the written statement and reply affidavit will be filed within two weeks. Replication and rejoinder affidavit be filed within two weeks thereafter.
4. Case of the plaintiff is that the plaintiff is manufacturing/ selling packaged honey since the year 1965. In the year 2013 plaintiff adopted a new label/trade-dress/get-up/packaging/jar/bottle for its Dabur Honey retaining the essential features of previous label/trade-dress/get up. The claim of the plaintiff is that the plaintiff's honey has been continuously and extensively commercially being sold in its new trade-dress/get-up/packaging CS(COMM) 253/2020 Page 2 of 6 since 2013.
5. Plaintiff in para 10 of the plaint has given the sales figures of Dabur honey being sold in the particular label/trade-dress/get-up/packaging which according to the plaintiff has acquired tremendous goodwill and reputation amongst the consumers. Sales figures show that from the year 2012-13 the sale from ₹222.82 crores has risen to ₹482.45 crores in the year 2019-20. The promotional expenses for this label/get-up/trade-dress has risen from ₹15.50 crores in the year 2012-13 to ₹39.40 crores in the year 2019-20.
6. Grievance of the plaintiff is that defendant is manufacturing its products under the brand 'Saffola' including oil, oats, packaged foods, etc., and now selling honey under the brand name Saffola honey. However, the trade-dress/label/packaging/get-up is being imitated from the plaintiff's product.
7. Illustratively, plaintiff has given the two packaging at page 30 and 32 of the plaint along with the similarities in the two packaging, reproduced hereunder:
CS(COMM) 253/2020 Page 3 of 6"
8. In view of this similarity and because of the fact that the defendant has just entered the market in June, 2020 with its honey product with almost similar packaging to that of the plaintiff, the plaintiff seeks ad-interim injunction.
9. Learned counsel for the defendant has filed a short reply. He objects to the grant of interim injunction and states that the prominent feature of the defendant's bottle is its brand name Saffola written in a heart shape yellow colour which is a typical feature followed by the defendant in all its CS(COMM) 253/2020 Page 4 of 6 products. The honeycomb get-up is common to trade and every manufacturer in its packaging is using the honeycomb feature in its label. The plaintiff is acknowledging that it sells honey in its various types of bottle and not in a particular bottle, and thus it is not clarified as to how this particular packaging has obtained distinctiveness. Further, no sales figures of this particular packaging has been given to show that over the years this particular trade-dress of the Dabur honey has acquired any goodwill. Reliance is placed on the decisions in 240 (2017) DLT 156 (DB) Britannia Industries Ltd. Vs. ITC Limited; 2018 (73) PTC 178 (Del) Godfrey Phillips India Limited Vs. P.T.I. Private Limited & Ors. and 174 (2010) DLT 279 Marico Limited Vs. Agro Tech Foods Limited. In regard to the bottle shape, learned counsel states that bottle shape of the defendant is octagonal and that of the plaintiff is almost square. The short reply filed by the defendant shows that everybody in the trade is using the honeycomb in the backdrop for the reason that is an essential feature to show a product.
10. As noted in the various decisions including Marico Vs. Agro Tech Foods and Godfrey Philips it is not a solitary factor which has to be looked into but an overall get-up of the packaging which makes the difference. A comparison of the two packaging as noted above would show that products looks almost similar with one being square and the other octagonal. Even though on the yellow cap Dabur is written and most of the other products are also using honeycomb but the same is not being used in the manner and fusion colour backdrop as that of the defendant's product. Though defendant has depicted Saffola as its product name in a heart shape manner in all its products, a perusal of the defendant's product would reveal that the same are in single colour and not in fusion colour as used in the packaging CS(COMM) 253/2020 Page 5 of 6 by the plaintiff. Further, descriptions of the products are also displayed in a honeycomb manner as is evident on page 33 of the plaint.
11. An overall comparison of the two product as noted above would prima facie show a similarity causing confusion in the minds of the buyer, even though the trade name Saffola is prominently noted on the bottle.
12. Consequently, this Court is of the considered view that the plaintiff has made out a prima facie case in its favour and in case no ad-interim injunction is granted, the plaintiff would suffer an irreparable loss. The balance of convenience also lies in favour of the plaintiff.
13. Consequently, an ad-interim injunction is granted in favour of the plaintiff and against the defendant in terms of the prayer as mentioned in Para 21 of the I.A. 5565/2020. It is clarified that this interim injunction would not apply to the products already sold by the defendant in the market and the defendant will maintain the accounts thereof which will be submitted to this Court.
14. List the suit and application on 18th August, 2020.
15. Order be uploaded on the website of this Court.
MUKTA GUPTA, J.
JULY 14, 2020 'ga' CS(COMM) 253/2020 Page 6 of 6