Delhi District Court
Also At vs Pappu Gupta @ Kalia Gupta on 11 November, 2022
IN THE COURT OF MS SAVITA RAO, DISTRICT JUDGE
COMMERCIAL COURT-04, SHAHDARA,
KARKARDOOMA COURTS, DELHI
CNR No. DLSH01-000906-2020
CS (Comm) No. 166/2020
In the matter of :-
Hindustan Unilever Limited
A Company Registered under the Companies Act, 1913
Unilever House, B.D. Sawant Marg, Chakala
Andheri (East), Mumbai - 400 099
Also at:-
3rd Floor, Palika Bhawan
Sector- 13, R.K. Puram
New Delhi - 110066
............Plaintiff
Vs.
Pappu Gupta @ Kalia Gupta
Gupta Cosmetics
5121, First Floor, Near Hanuman Mandir
Rui Mandi, Sadar Bazar, Delhi
Also At 2263/64/65/66, Maid Ganj
Anaj Mandi, Sadar Bazar, Delhi
And also at 355, Behind Mahaveer Bazar
Teliwara, Sadar Bazar, Delhi
And also at 2404, Opposite V.G. Marketing Pvt. Ltd.
Pahiyewali Gali, Teliwara, Sadar Bazar, Delhi
.........Defendant
Date of institution of the case : 29.01.2020
Date of final arguments : 04.11.2022
CS (Comm) No. 166 of 2020 1 /10
Date of judgment : 11.11.2022
EX-PARTE JUDGMENT
1.This is suit for permanent injunction restraining infringement of trademark and copyright, passing off, dilution, rendition of accounts, damages, delivery up and misappropriation etc., filed by plaintiff against the defendant.
2. As stated, plaintiff is a company duly incorporated under Indian Companies Act having its registered office in Andheri (E), Mumbai. Plaintiff operates and carries on its business in Delhi through its branch office in R.K. Puram, Delhi. As submitted, present case is regarding the dishonest adopting and misuse by the defendant through their unscrupulous act of manufacturing/selling of the counterfeiting goods in relation to LAKME, LAKME NINE TO FIVE, " NINE TO FIVE", " 9 to 5" and "Fair & Lovely" brand of the plaintiff.
3. As stated, defendant is infringing the rights of plaintiff by adopting the identical trademarks, trade dress/packaging as that of plaintiff. In fact, defendant is blatantly copying the whole trade dress/artistic work in the packaging of plaintiff's well known trade name Hindustan Unilever Limited and trade marks LAKME, LAKME NINE TO FIVE, " NINE TO FIVE", " 9 to 5" and "Fair & Lovely" of plaintiff including printing the name of manufacturer, address and all details of the plaintiff on the impugned goods. The above act of infringement and/or counterfeiting by the defendant in the course of their business activities, as stated, is without due cause, taking undue advantage of and to the detriment of the distinctive character and repute of said well known trademark LAKME, LAKME NINE TO FIVE, " NINE TO FIVE", " 9 to 5"
CS (Comm) No. 166 of 2020 2 /10and Fair & Lovely and trade name/trade mark HINDUSTAN UNILEVER LIMITED. As further stated, plaintiff's well known products and defendant's impugned counterfeit products are being sold in the same shop and market and in these circumstances, consumers are bound to be confused and deceived and sub-standard quality of defendant's products are bound to be attributed to the plaintiff which in turn is bound to cause immense and irreparable harm to the plaintiff's goodwill and reputation and also pose a risk to the safety, health and well being of the consumers.
4. The defendant, as stated, has earned illegal profits on account of unlawful use of the name and trademark of the plaintiff and thus has caused loss to the Plaintiff on account of sale of infringing/counterfeiting products which may be huge and can be ascertained only on rendition of accounts of the defendant and the plaintiff is entitled to such damages after ascertaining the business loss on rendition of account of the Defendants. As further stated, if the defendant is not restrained from continuing the same, plaintiff shall continue to have irreparable losses of business as well as the said act will injure the goodwill of plaintiff's trademarks. Hence, the instant suit was filed alongwith application under order 39 rules 1 & 2 CPC r/w section 151 CPC and application under order 26 Rule 9 r/w sec. 151 CPC. Coloured copies of representations of trademarks/label/packaging/trade dress of the plaintiff which as stated have been infringed/counterfeited by the defendant also placed on record.
5. After filing of the suit, vide order dated 13.02.2020 ex- parte injunction was granted in favour of plaintiff and against the defendant and Local Commissioners were appointed for seizure of goods having the trademarks/label/packaging/trade CS (Comm) No. 166 of 2020 3 /10 dress/logo/trade name identical with the plaintiff's trade mark/label. The matter was listed for issuance of summons and notice of applications to the defendant for 13.02.2020. On the next date of hearing i.e. on 13.02.2020, counsel for defendant appeared and POA was also filed on behalf of defendant. Time was sought to file written statement which was filed on 02.03.2020. Thereafter defendant stopped appearing in the matter and was proceeded ex-parte vide order dated 15.12.2020 by Predecessor of this court.
6. Matter was fixed up for ex-parte final arguments while placing reliance upon Parsvanath Developers Ltd v. Vikram Khosla, CS Comm No. 618 of 2019 and C.M No. 8431 of 2020, decided on 03.03.2021, 2021 SCC Online DEL 3147 and Merck Sharp and Dohme Corp. v. Mr. Munish Thakur, 2017 SCC Online Del 11226, wherein it was held that " where the plaint has been verified and also supported with the affidavit/statement of truth on behalf of the plaintiff and the defendant having being proceeded ex-parte, no purpose would be served if the plaintiff is directed to lead ex-parte evidence. Arguments are to be addressed straightway and the judgment is to be passed on the basis of the material on record " . Relevant documents were given exhibit numbers.
7. I have heard Ld. Counsel for plaintiffs and have carefully perused the record.
8. Plaintiff, in support of its claim, has relied upon following documents:
1. Letter of Authorization in favour of Mr. Priyank mangal by plaintiff is Ex. P-1 CS (Comm) No. 166 of 2020 4 /10
2. Legal Proceedings Certificates of Plaintiff's registered trademark is Ex. P-2 (pages 2 to 35) (Colly)
3. Colour printout of Comparative analysis of representation of plaintiff's and defendant's products is Ex. P-4 ( page 1 to 4)
4. Copy of fresh certificate of incorporation issued by Registrar of Companies, Maharashtra in respect of change of name from Hindustan Lever Ltd. to Hindustan Unilever Ltd. is Ex. P-5
5. Copies of General Power of Attorney in favour of Ms. Swati Majumdar is Ex. P-63
6. Copies of regstration certifcates, online status and journal copy of the registered trademarks " LAKME" "
LAKME NINE TO FIVE" , " NINE TO FIVE" , " 9 TO 5"
of the plaintiff is Ex. P-7.
7. Copies of registration Certificates, online status and journal copy of the registered trademarks " FAIR & LOVELY" and its different representations of the plaintiff is Ex. P-8
8. Copies of Registration Certificates of trademarks "
FAIR & LOVELY" granted to the plaintiff in different countries is Ex. P-9
9. Copies of copyright Registration Certificates of " FAIR & LOVELY" of the plaintiff is Ex. P-10
10. Copy of Deed of Assignment dated 13.08.1998 between Lakme Brands Limited and Hindustan Lever Limited is Ex. P-11
11. Copy of Deed of Assignment of Trade Marks Registered in foreign countries dated 13.08.1998 between CS (Comm) No. 166 of 2020 5 /10 Lakme Brands Limited and Hindustan Lever Limited is Ex. P-12
12. Copy of Deed of Assignment of Copyright dated 10.11.2014 alongwith relevant doucments are Ex. P-13 (page 112 to 241) (Colly).
13. Printout of promotional material showing usage of the "FAIR & LOVELY" product is Ex. P-14
14. Online extract from the website of the plaintiff showing different brands of the plaintiff is Ex. P-15
15. Printout from the website of Forbes showing the plaintiff to be rated at the eighth position under the world's most Innovative Companies 2018 and Print out of the article related to the history of LAKME brand of plaintiff are Ex. P-16 (colly)
16. Printout from the website of Lakme showing different LAKME products of the plaintiff is Ex. P-17
17. Copies of the news articles published in the leading magazines regarding the plaintiff's world famous brands and accolades received by the plaintiff is Ex. P-18
18. Infrinfing FAIR & LOVELY products that have been restrained by the Hon'ble High Court is Ex. P-19
19. Copies of orders of various Hon'ble High Court and District Courts obtained by the plaintiff is Ex. P-20.
9. As already noted, defendant after appearing on some dates stopped appearing before the court and therefore was proceeded ex- parte. Written statement though was filed on record wherein it was submitted that defendant has nothing to do with the instant suit . As stated, plaintiff is wrongly claiming the CS (Comm) No. 166 of 2020 6 /10 dishonest adoption and mis-use by the defendant for manufacturing/selling of counterfeiting goods in relation to LAKME, LAKME NINE TO FIVE, " NINE TO FIVE", " 9 to 5"
and Fair & Lovely. As further stated, defendant is not the user/adopter of the marks/trade dress as mentioned in the plaintiff and allegations levelled by the plaintiff against the defendant are totally baseless and misconceived. It was further stated that plaintiff has failed to place on record any shred of document in support of sale of their goods under their alleged trademark in India or abroad, plaintiff has not filed the name of copyright owner and has wrongly filed the instant suit and therefore plaintiff is not entitled for any relief as prayed for.
10. The averments made in the plaint (which is supported with the affidavit and statement of truth) remained uncontroverted, unrebutted and unchallenged for the failure of defendant to contest the matter after filing of the written statement.
11. In terms of report of Local Commissioner placed on record, counterfeit goods bearing the impugned trade name/names/words HINDUSTAN UNILEVER and/or the trade mark/label/logo/trade dress LAKME, LAKME NINE TO FIVE, " NINE TO FIVE", " 9 to 5" and "Fair & Lovely" and other trade mark identical with and deceptively similar to that of plaintiff company were found during the search of premises of defendant. Inventory of Goods seized from the premises of defendant was also placed on record.
12. This court does not find any reason to disbelieve the version of the plaintiff and the averments made in the plaint supported by the documents on record and the report of Local Commissioners. Coloured pictures of the original goods and fake goods have also been filed alongwith the plaint. From the perusal of documents on CS (Comm) No. 166 of 2020 7 /10 record, it is clear that the defendant has knowingly, intentionally and dishonestly infringed the impugned trademark/label/trade dress of plaintiff; passed of its goods and business as that of the plaintiff; infringed the plaintiff's copyright in the said Trademark/Label/Trade dress by using, publishing, reproducing the same and defendant apparently is guilty of falsification and unfair trade practices. The mis conduct of the defendant is in complete violation of plaintiff's statutory and common law rights and amounts to infringement of the registered trademark/label and copyright of the plaintiff.
13. As regards rendition of accounts of profits earned by the defendant, no document/material has been placed on record by the plaintiff . Hence, no order in this respect is passed.
14. Instant suit is accordingly decreed with cost (inclusive of the cost incurred for payment to Local Commissioners) in favour of the plaintiff and against the defendant, thereby :
(1) defendant is restrained by itself as also through its individual partners/proprietors, directors, agents, representatives, distributors, dealers, assigns, heirs, successors, stockists and all other acting for and on behalf of defendant from manufacturing, counterfeiting, using, selling, soliciting, exporting, displaying, advertising, importing/exporting or by any other mode or manner dealing in all types of cosmetic goods especially Fairness/Face Creams, Face Wash, Moisturizing Lotions, Soaps and other related/allied products bearing the trade name/names/words HINDUSTAN UNILEVER and the trade mark/lable/logo/trade dress LAKME, LAKME NINE TO FIVE, " NINE TO FIVE", " 9 to 5" and "Fair & Lovely" or any other name/words/mark/trade mark/label/packaging /trade dress identical with and /or deceptively similar to the plaintiff's trade CS (Comm) No. 166 of 2020 8 /10 name HINDUSTAN UNILEVER and trade mark/label/trade dress namely LAKME, LAKME NINE TO FIVE, " NINE TO FIVE", "
9 to 5" and "Fair & Lovely" and/or any other trade name/name/words/trademarks/trade dress of the plaintiff in relation to all types of cosmetic goods especially Fairness /Face Creams, Face Wash, Moisturizing Lotions, Soaps and other cognate/allied goods and from doing any other acts or deeds amounting to or likely to:
(i) infringement of the plaintiff's registered trade marks/trade name HINDUSTAN UNILEVER and/or trade mark/label/trade dress/logo LAKME, LAKME NINE TO FIVE, " NINE TO FIVE", " 9 to 5" and "Fair & Lovely" of the plaintiff.
(ii) passing off and violation of the plaintiff's trade marks/trade name/names/words HINDUSTAN UNILEVER and/or trade mark/label/trade dress/logo LAKME, LAKME NINE TO FIVE, "
NINE TO FIVE", " 9 to 5" and "Fair & Lovely" of the plaintiff.
(iii) Infringement and/or violation by passing off the plaintiff's copyright involved in the well known stylized name HINDUSTAN UNILEVER LIMITED and trade mark/label/trade dress/packaging LAKME, LAKME NINE TO FIVE, " NINE TO FIVE", " 9 to 5"
and "Fair & Lovely" of the plaintiff.
2. For delivery up of all the impugned finished and unfinished material of defendant bearing the name/words HINDUSTAN UNILEVER and impugned trade mark/label/trade dress/logo LAKME, LAKME NINE TO FIVE, " NINE TO FIVE", " 9 to 5"
and "Fair & Lovely" including any other logo/name/mark/label/packaging/trade dress identical with and deceptively similar to it including blocks and labels, display boards, CS (Comm) No. 166 of 2020 9 /10 sign boards, trade literature, advertisement material, wrapper, trade dress, packaging etc.
15. Decree sheet be prepared accordingly. After completion of formalities, file be consigned to record room.
SAVITA Digitally signed
by SAVITA RAO
RAO Date: 2022.11.14
15:54:41 +0530
Announced in the open (SAVITA RAO)
court on this 11th day DISTRICT JUDGE
of Nov 2022 (COMMERCIAL COURT)-04
SHAHDARA, KKD COURTS,
DELHI
CS (Comm) No. 166 of 2020 10 /10