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Beiersdorf Ag vs Rsh Global Private Limited & Anr on 11 April, 2023

Author: C.Hari Shankar

Bench: C.Hari Shankar

                  $~6(Original)
                  *    IN THE HIGH COURT OF DELHI AT NEW DELHI
                  +      CS(COMM) 48/2021 & I.A.17078/2022
                         BEIERSDORF AG                                ..... Plaintiff
                                      Through: Mr. Pravin Anand, Mr. Dhruv
                                      Anand and Mr. Nimrat Singh, Advs.

                                                versus

                         RSH GLOBAL PRIVATE LIMITED & ANR.        ..... Defendants
                                      Through: Mr. Amit Sibal, Sr. Adv. with
                                      Mr.Hemant Daswani, Ms. Saumya Bajpai,
                                      Mr.Rishab Sharma and Mr. Saksham Dhingra,
                                      Advs.

                         CORAM:
                         HON'BLE MR. JUSTICE C.HARI SHANKAR
                                                ORDER

% 11.04.2023 I.A.17078/2022 (under Order XXXIX Rule 2A of the CPC)

1. This is an application by the plaintiff under Order XXXIX Rule 2A of the Code of Civil Procedure, 1908, alleging disobedience, by the defendants, of the order dated 28th January 2021, which was made absolute on 11th April 2022.

2. Para 11 of the order dated 28th January 2021 and paras 2 to 5 of the order dated 11th April 2022 may be reproduced thus:

"Para 11 of order dated 28th January 2021

11. In view thereof, till the next date of hearing, the defendants, their directors, wholesalers, distributors, partners, or proprietor as the case may be, its officers, servants and agents are restrained from using, manufacturing, selling, exporting, importing, offering for sale, distributing, advertising, directly or indirectly dealing in cosmetic products, especially body cream, lotion or goods that are deceptively Signature Not Verified Digitally Signed CS(COMM) 48/2021 Page 1 of 4 By:KAMLA RAWAT Signing Date:13.04.2023 18:22:18 similar to the plaintiffs distinctive trade dress, amounting to an infringement of the plaintiffs registered trademarks as stated in paragraph 12 of the plaint, particularly Trademark Registration Nos. 2912562 and 3289787; infringement of the plaintiffs copyright in the artistic work of the plaintiffs "NIVEA" label, trade-dress as also passing off their products as emanating from the plaintiff. "

Paras 2 to 5 of order dated 11th April 2022

2. Pursuant to the previous order dated 16*^ March, 2022, Mr. Sibal, Id. Senior Counsel under instructions from the Defendants has handed over to the Court two alternative artworks, in the colours 'PANTONE 279C' and 'PANTONE 2718 C that the Defendants intend to adopt for their product branded as 'JOY INTENSE MOISTURE DRYNESS REPAIR BODY LOTION' as the proposed containers for manufacture and sale. He submits that PANTONE 279C is the one which the Defendants wish to adopt. The same is depicted below:

manner identical or deceptively similar to the Plaintiff's 'NIVEA' container, which is the subject matter of the present suit. Accordingly, the Defendants are free to adopt the container in the colour 'PANTONE 279 C for products of their manufacture and sale, as an interim arrangement during the pendency of the suit.

4. It is made clear that the adoption of the container in the colour 'PANTONE 279 C' shall be without prejudice to the rights and contentions of the Defendants' in the present suit, in respect of the monopoly as claimed by the Plaintiff, over the blue coloured containers.

5. IA. 1366/2021 and I.A. 8662/2021 are disposed of."

3. Mr. Anand's contention is that, despite the aforesaid orders continuing to be in force, the impugned product of the defendants is still available on various third party e-commerce websites, to the extent that, even as of last evening, the impugned product of the defendants, which specifically stands injuncted by the order dated 28th January 2021, was available on Snapdeal and other websites.

4. Mr. Amit Sibal, learned Senior Counsel for the defendants has drawn my attention to the averments contained in the reply to this application, in which the defendants have specifically stated that they have written to each and every website, on which the impugned product was found to be available for sale and to which the plaintiff has drawn their attention, asking them to stop displaying or selling the impugned product of the defendants. Mr. Sibal submits that the e-commerce websites do not sell the products after obtaining permission from the defendants and that, therefore, all that the defendants can do is to write to the said websites directing them to take down the said products as and when the attention of the defendants is drawn to this fact. He submits that this has been done in the case of each e-commerce website to which Signature Not Verified Digitally Signed CS(COMM) 48/2021 Page 3 of 4 By:KAMLA RAWAT Signing Date:13.04.2023 18:22:18 the plaintiff has drawn their attention.

5. Mr. Anand seeks a short adjournment in order to address further submissions on this aspect.

6. Re-notify on 18th April 2023.

C.HARI SHANKAR, J APRIL 11, 2023/kr Signature Not Verified Digitally Signed CS(COMM) 48/2021 Page 4 of 4 By:KAMLA RAWAT Signing Date:13.04.2023 18:22:18