Hell Energy Magyarorszag Kft vs Shri Brahm Shakti Prince Beverages Pvt ... on 2 June, 2022

[Cites 3, Cited by 1]

Delhi High Court - Orders

Hell Energy Magyarorszag Kft vs Shri Brahm Shakti Prince Beverages Pvt ... on 2 June, 2022

Bench: Prathiba M. Singh

                          $~10
                          *      IN THE HIGH COURT OF DELHI AT NEW DELHI
                          +               CS(COMM) 403/2022 & I.A. 9192-97/2022
                                 HELL ENERGY MAGYARORSZAG KFT                  ..... Plaintiff
                                              Through: Mrs. Bindra Rana, Mr. Nihit Nagpal
                                                        and     Mr.      Anuj         Jhawar,
                                                        Advocates.(M:9818202368)
                                              versus

                                 SHRI BRAHM SHAKTI PRINCE BEVERAGES PVT LTD
                                 & ORS.                                 ..... Defendant
                                                Through: None.
                                 CORAM:
                                 JUSTICE PRATHIBA M. SINGH
                                          ORDER

% 02.06.2022

1. This hearing has been done through hybrid mode.

I.A. 9194/2022(for exemption)

2. Allowed, subject to all just exceptions. I.A. 9194/2022 is disposed of. I.A. 9195/2022 (additional documents)

3. This is an application seeking leave to file additional documents under the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 (hereinafter, 'Commercial Courts Act'). The Plaintiff, if it wishes to file additional documents at a later stage, shall do so strictly as per the provisions of the Commercial Courts Act.

4. I.A. 9195/2022 is disposed of.

I.A. 9196/2022 (exemption from advance service to the Defendants)

5. The Court has noticed that this is the second suit filed by the Plaintiff against the same Defendants. In the earlier round of litigation in CS(COMM.) No. 254/2021 titled Hell Energy Magyarorszag Kft. v. Shri Signature Not Verified Digitally Signed CS(COMM) 403/2022 Page 1 of 11 By:DEVANSHU JOSHI Signing Date:08.08.2022 12:22:54 Brahm Shakti Prince Beverages Pvt. Ltd., the Defendants were injuncted vide order dated 01st June, 2021 from using the mark 'HELLxxx' for energy drinks. Vide settlement agreement dated 21st September 2021, the Defendants had agreed not to use any mark identical or deceptively similar to the Plaintiff's mark 'HELL'. The suit was finally decreed on 29th September, 2021. Despite the said position, the Defendants have launched the energy drink under the mark 'HILLxxx' in an identical writing style and with very little difference between the earlier injuncted mark and mark in question in the present suit. A contempt petition is also filed by the Plaintiff. Under these circumstances, and the fact the Plaintiff has sought ex parte ad- interim injunction along with the appointment of the Local Commissioner, exemption from advance service to the Defendants is granted.

6. I.A. 9196/2022 is disposed of.

I.A. 9197/2022(u/S 12A)

7. This is an application seeking exemption instituting pre-litigation mediation. In view of the orders passed in CS (COMM) 132/2022 titled Upgrad Education v. Intellipaat Software, I.A. 9197/2022 the exemption allowed and disposed of.

CS (COMM) 403/2022

8. Let the plaint be registered as a suit.

9. Issue summons to the Defendants through all modes upon filing of Process Fee.

10. The summons to the Defendants shall indicate that a written statement to the plaint shall be positively filed within 30 days from date of receipt of summons. Along with the written statement, the Defendants shall also file an affidavit of admission/denial of the documents of the Plaintiff, without Signature Not Verified Digitally Signed CS(COMM) 403/2022 Page 2 of 11 By:DEVANSHU JOSHI Signing Date:08.08.2022 12:22:54 which the written statement shall not be taken on record.

11. Liberty is given to the Plaintiff to file a replication within 15 days of the receipt of the written statement(s). Along with the replication, if any, filed by the Plaintiff, an affidavit of admission/denial of documents of the Defendants, be filed by the Plaintiff, without which the replication shall not be taken on record. If any of the parties wish to seek inspection of any documents, the same shall be sought and given within the timelines.

12. List before the Joint Registrar for marking of exhibits on 18th August, 2022. It is made clear that any party unjustifiably denying documents would be liable to be burdened with costs.

13. List before Court on 7th October, 2022.

I.A. 9192/2022 (u/O XXXIX Rules 1 & 2 CPC) 14 The Plaintiff has filed the present suit seeking protection of its trademark 'HELL' which is used for energy drinks. The Plaintiff is a Hungarian company which is engaged in the business of manufacture and sale of energy drinks. The Plaintiff adopted the mark in 2006 along with a unique logo, trade dress and artistic work. The Plaintiff's marks are 'HELL' 'HELL ENERGY', 'HELL ENERGY DRINK' which are used in various logo forms and variations. The colour scheme used by the plaintiff is red and black as is depicted below:

Signature Not Verified Digitally Signed CS(COMM) 403/2022 Page 3 of 11 By:DEVANSHU JOSHI Signing Date:08.08.2022 12:22:54

The Plaintiff also promotes its business through the domain name- www.hellenergy.com, which was registered by the Plaintiff on 11th June, 2006. The mark 'HELL' has been registered by the Plaintiff since 2007 for 'energy drinks and non-alcoholic beverages' vide international registration number 9333068 in several countries in class 32 as set out in the plaint. The said mark, 'HELL' is also registered in India under Trade Mark no. 3618893 under class 32 in the name of the Plaintiff since 2017 in respect of energy drinks. The Plaintiff's mark is extensively publicized in F-1 races and it enjoys global goodwill and reputation. The extensive sponsoring of various events as set out in the plaint shows that enormous investment has been carried out by the Plaintiff in promoting its mark.

15. The grievance of the Plaintiff in the present case is that the Defendants were initially using the mark 'HELLxxx' in respect of energy drinks. The Defendant No.1 had also filed a trademark application in 2021 for 'HALL ENERGY DRINKS' bearing no. 4909717 in respect of energy drinks, soft drinks, and aerated drinks. A suit was filed by the Petitioner being CS(COMM) 254/2021 titled Hell Energy Magyarorszag Kft. v. Shri Brahm Shakti Prince Beverages Pvt. Ltd. In the said suit, the Court had Signature Not Verified Digitally Signed CS(COMM) 403/2022 Page 4 of 11 By:DEVANSHU JOSHI Signing Date:08.08.2022 12:22:54 granted an ex parte ad interim order of injunction vide order dated 1st June, 2021 in the following terms:

"9. The Plaintiff seeks ex-parte ad-interim injunction against the defendant. This Court is satisfied that the Plaintiff has a strong prima facie case; balance of convenience is in favour of the Plaintiff and they will suffer irreparable loss if the ex-parte ad-interim injunction is not granted against the defendant.

10. The defendant, its directors, agents, licensees, franchisees, representatives, employees, affiliates, stockists, distributors or anyone claiming under them are hereby restrained from manufacturing, marketing, selling, storing and advertising the trade mark HELLxxx and HALL Energy drink;

from infringing the plaintiff's trade mark HELL and its variations thereof and the plaintiff's copyright in its product packaging/trade dress and/or using any trade mark, copyright, trade dress deceptively similar to the plaintiff's trade mark, copyright, trade dress and/or passing off their goods as that of the Plaintiff till the next date of hearing."

16. Two Local Commissioners were also appointed in the said matter vide the same order who seized large amounts of infringing products from the Signature Not Verified Digitally Signed CS(COMM) 403/2022 Page 5 of 11 By:DEVANSHU JOSHI Signing Date:08.08.2022 12:22:54 premises of the Defendants. The parties had, thereafter, settled their disputes under the aegis of the Delhi High Court Mediation and Conciliation Centre and had entered into a settlement agreement dated 21st September, 2021. The said settlement agreement clearly records that the Defendants acknowledged the Plaintiff's rights in the mark 'HELL' 'HELL ENERGY' and other variants. The Defendants also confirmed and undertook that they would not manufacture, sell or advertise products under the impugned mark 'HELLxxx', 'HELL ENERGY DRINK' or any other confusingly or deceptively similar trademark. The relevant terms of the settlement agreement are set out below:

"1. The Second Party hereby acknowledges and recognizes the First Party to be the prior adopter, user, and the rightful owner/proprietor of the trademark "HELL", and its variations thereof, and the Second Party does not claim any right over the said trademark or any mark, which is confusingly or deceptively similar, in any manner to the trademark of the First Party.

2 The Second Party hereby acknowledges and recognizes the First Party's sole and exclusive copyright and other proprietary rights and interests in the First Party's packaging and trade dress, Signature Not Verified Digitally Signed CS(COMM) 403/2022 Page 6 of 11 By:DEVANSHU JOSHI Signing Date:08.08.2022 12:22:54 which are subject matter of this suit.

3. The Second Party agrees, undertakes and confirms that in future the Second Party shall never:

i. manufacture, market, sell, store and advertise by using the impugned mark "Hellxxx"/ "HALL ENERGY DRINK/ "and/ or any other confusingly or deceptively similar trade mark in respect of their beverages, goods and business, by themselves, their directors, partners, proprietors, agents, servants, licensees, sub-licensees, franchisees, subfranchisees representatives, employees, affiliates, stockists, distributors, sub-distributors, dealers, sub-dealers, retailers or anyone claiming under them, directly or indirectly;"

17. On the basis of the said settlement agreement the suit was decreed in favor of the Plaintiff vide order dated 29th September, 2021. Despite this being the position, it is the case of the Plaintiff that the Defendants were found to be in violation of the terms of settlement and they launched another product by the name 'HILLxxx' which is shown as under:

Signature Not Verified Digitally Signed CS(COMM) 403/2022 Page 7 of 11 By:DEVANSHU JOSHI Signing Date:08.08.2022 12:22:54

It is also argued by ld. Counsel for the Plaintiff that the Defendants are habitual infringers of various well-known products. A market survey was conducted by the Plaintiff which revealed that the Defendants had flooded the market with their products under the mark 'HILLxxx'. Photographs of various stores are placed on record showing stacking of the Defendants' products along with the Plaintiff's products. Ld. counsel for the Plaintiff submits that in the contempt petition being Contempt Petition No. 290/2022 titled Hell Energy Magyarorszag Kft. v. Mr. Yash Tekwani & Ors., the stand of the Defendant in reply to the contempt is that the mark 'HILLxxx' is a coined mark and is structrually, phoneticcally, and visually different from Plaintiff's marks 'HELL' and 'HELL ENERGY'.

18. Heard, ld. Counsel for the Plaintiff. A perusal of the record as also the physical products which have been handed over to the Court leave no manner of doubt in the mind of the Court that the mark 'HILLxxx' used by the Defendants is almost identical to the trademark 'HELLxxx' which was earlier being used by the Defendants and was injuncted by this Court. The Signature Not Verified Digitally Signed CS(COMM) 403/2022 Page 8 of 11 By:DEVANSHU JOSHI Signing Date:08.08.2022 12:22:54 product 'HILLxxx' cannot be stated to be different from the product 'HELLxxx' which was in turn found by the Court to be deceptively similar to the mark 'HELL' of the Plaintiff. Moreover, the Plaintiff being the proprietor of the trademark 'HELL' in India, it enjoys both statutory and common law rights in the said mark. In the opinion of the Court, the new mark adopted by the Defendants is also almost identical to the mark of the Plaintiff. Further, the Defendants are prima facie in violation of a decree passed by this Court.

19. The Plaintiff has, thus, made out a prima facie case for grant of interim injunction. Balance of convenience is in favour of the Plaintiff and against the Defendants. Irreparable harm would be caused if the order of injunction is not granted. Moreover, even to maintain the integrity of the decree already granted against the Defendants, it is necessary to injunct the Defendants. Accordingly, the Defendants are restrained from manufacturing, selling, offering for sale, distributing, promoting or advertising or in any manner dealing in any beverages or energy drinks or any cognate or allied goods under the mark 'HILLxxx' or any other mark which is identical or deceptively similar to the Plaintiff's mark 'HELL' 'HELL ENERGY', etc.

20. Compliance of Order XXXIX Rule 3 CPC be done within one week after the execution of the Commission.

I.A. 9193/2022 (u/O XXVI Rule 9 CPC)

21. The Plaintiff has prayed for the appointment of a Local Commissioner to visit the premises of the Defendants. The Court has considered the merits of the Plaintiff's case and has granted an ex parte ad interim injunction in I.A. No.9192/2022 as recorded above. In the facts and circumstances of the case, Mr. Naman Garg Advocate (M:8506838148), is appointed as the Local Signature Not Verified Digitally Signed CS(COMM) 403/2022 Page 9 of 11 By:DEVANSHU JOSHI Signing Date:08.08.2022 12:22:54 Commissioner to visit the premises of the Defendant at D-13 M G Road, Near Essar Petrol Pump, Dhaulana, Hapur, Uttar Pradesh -245101 which is the godown/warehouse/premises of the Defendants. Two representatives of the Plaintiff, which may include a lawyer, are permitted to accompany the Local Commissioner during the execution of the Commission. The mandate of the Local Commissioner is as set out below:

i. The Local Commissioner shall visit the said premises and make an inventory of all goods and products whether manufactured, or semi-manufactured bearing the mark 'HILLxxx' or 'HELLxxx' or any other mark which is identical or deceptively similar to the Plaintiff's mark 'HELL'. All packaging material, bottles, cans, labels etc. shall also be seized. All the seized products shall be handed over to the Plaintiff's representatives on superdaari owing to the prima facie contumacious conduct of the Defendants.

ii. The machinery which is being used by the Defendants for the manufacture of energy drinks shall also be sealed in order to ensure that the infringing activity of Defendant is not continued any further and the Defendants are repeat infringers. iii. The accounts of the Defendants shall be inspected by the Local Commissioner. If any password is required for access to computer which contains accounts of the Defendants in electronic form, the same shall be given by the Defendant to the Local Commissioner.

iv. The Local Commissioner shall take the assistance of SHO of the local police station. The SHO is directed to send adequate Signature Not Verified Digitally Signed CS(COMM) 403/2022 Page 10 of 11 By:DEVANSHU JOSHI Signing Date:08.08.2022 12:22:54 number of police personnel in order to assist in the execution of the Commission.

v. The Local Commissioner shall also serve a copy of this order along with the paperbook to the Defendants.

22. The Commission shall be executed on or before 15th June, 2022.

23. The fee of the Local Commissioner is fixed at Rs.1,00,000/-.

24. The Report of the Local Commissioner shall be filed within two weeks after the execution of the Commission.

25. Order Dasti.

26. List before Court on 7th October, 2022.

27. The present order shall not be uploaded for a period of two weeks for enabling the execution of the commission.

PRATHIBA M. SINGH, J.

JUNE 02, 2022 dj/sk Signature Not Verified Digitally Signed CS(COMM) 403/2022 Page 11 of 11 By:DEVANSHU JOSHI Signing Date:08.08.2022 12:22:54

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Delhi High Court - Orders