Calcutta High Court
Hindustan Unilever Ltd vs Md Munna on 18 April, 2022
Author: Ravi Krishan Kapur
Bench: Ravi Krishan Kapur
ODC-14
IA NO. GA/1/2022
In CS/75/2022
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
ORIGINAL SIDE
HINDUSTAN UNILEVER LTD
Vs
MD MUNNA
BEFORE:
The Hon'ble JUSTICE RAVI KRISHAN KAPUR
Date : 18th April, 2022.
Appearance:
Mr. Ranjan Bachawat, Adv.
Mr. Satyaki Mukherjee, Adv.
Mr. Shounak Mitra, Adv.
Ms. Vaibhavi Pandey, Adv.
Mr. Aakash Mukherjee, Adv.
The Court:- The petitioner seeks an ex parte ad interim order on the
ground that if notice of this application is given, the respondent would further
flood the market with the infringing goods and cause irreparable damage to the product of the petitioner. This suit is for protecting the intellectual property rights of the petitioner.
The petitioner company is one of India's largest fast moving consumer goods (FMCG) company. The products of the petitioner are distributed through a wide network all across the country. The gross turnover of the petitioner was approximately Rs.45,996 crores for the year ending 31st March, 2021.
The petitioner is also engaged in the business of manufacturing and distribution of soaps, and detergents. Since 1959, the petitioner has honestly conceived and adopted an associate mark 'SURF' in relation to detergent 2 powders. Thereafter, in 1996, the petitioner had also adopted the trade mark 'EXCEL' and 'SURF EXCEL' which is also a detergent powder. The goods of the petitioner have their distinct trade mark and artistic label, artwork, getup, packaging and trade dress. The colour combinations of the products of the petitioner also have their distinctiveness. The petitioner is also the owner of the copyright subsisting in the said artistic packaging /trade dress of the products of the petitioner. The products of the petitioner have also a striking unique, unusual colour combination. The particulars of the different trade mark registrations in Class 3 belonging to the petitioner are morefully tabulated at paragraph 10 of the petition. The petitioner has also caused extensive publicity of its products and substantial sums of money are spent annually on advertisements.
It is alleged that in or about February, 2022, the petitioner came to learn that the respondent was selling detergent powder under the brand name 'EXCEL' being primarily sold in and around Kolkata, West Bengal. It is alleged that the impugned packaging /trade dress adopted by the respondent is a substantial reproduction and deceptively similar to the packaging and trade dress of the product 'SURF EXCEL' of the petitioner. It is also alleged that the impugned packaging /trade dress adopted by the respondent has an identical similar combination of blue, dark blue and orange colour background. Moreover, the impugned mark has been written in a circular device with an identical/similar splat logo appearing behind the impugned mark. Further particulars of the deceptively similar packaging which has been adopted by the 3 respondent morefully appear from paragraph 18 of the petition. In this background, the petitioner has been compelled to file this suit and pray for appropriate reliefs.
In my view, at this prima facie stage, the respondent's impugned packaging /trade dress of their product "EXCEL" is a slavish and flagrant imitation of the artistic packaging /trade dress of the petitioner's product "SURF EXCEL". Prima facie, the adoption appears to be nothing less than dishonest and in bad faith. The "get up" and "trade dress" adopted by the respondent is also deceptively similar to the "get up" and "trade dress" of the product of the petitioner. I also find that the adoption is a deliberate attempt on the part of the respondent to come as close as possible to the product of the petitioner. There appears to be gross and deliberate infringement by the respondent of the products manufactured and sold by the petitioner. A substantial part of the artistic work of the product of the petitioner also appears to have been copied. It appears that the respondent is guilty of attempting to filch the petitioner's goodwill and reputation in seeking to sell its products as those manufactured and sold by the petitioner.
Accordingly, I am of the view that the petitioner has been able to make out a strong case for infringement. The petitioner also has a strong case on merits, the balance of convenience and irreparable injury also warrant passing of orders in favour of the petitioner. In view of the aforesaid, I direct that there shall be orders in terms of prayers (a) and (d) of the Notice of Motion. 4
Mr. Prabhakar Chowdhury, Advocate and a member of the Bar Library Club is appointed as a Special Officer at a remuneration of 3000gms to implement this order. The petitioner shall also bear all expenses of the Special Officer and provide the Special Officer with befitting accommodation. The Special Officer is also directed to file a Report on the returnable date. Liberty is also granted to the Special Officer to take police assistance, if the circumstances so warrant.
The matter is made returnable on 27 April 2022.
(RAVI KRISHAN KAPUR, J.) D.Ghosh