Calcutta High Court
Hindustan Unilever Limited vs Ashok Kumar & Ors on 22 February, 2016
Author: Harish Tandon
Bench: Harish Tandon
GA No.3371 of 2015
CS No.273 of 2015
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
ORIGINAL SIDE
HINDUSTAN UNILEVER LIMITED
-Versus-
ASHOK KUMAR & ORS.
Appearance:
Mr. Siddhartha Mitra, Sr. Adv.
Mr. S. Datta, Adv.
Mr. U. Pramanick, Adv.
Mr. Domingo Gomes, Adv.
BEFORE:
The Hon'ble JUSTICE HARISH TANDON
Date : 22nd February, 2016.
The Court : The petitioner is a well-known company being the
subsidiary of the Unilever group. It is a registered owner of a trademark "Lakme"
and has assumed a good name, goodwill and reputation in the fast moving
consumer goods sector within and outside the country. It has an extensive
network both for marketing and distribution of the entire range of products
manufactured and marketed inside the country and have nearly a gross average
turnover of Rs.25,000 crores in last three years.
It is alleged that several persons whose identity could not be
disclosed are actively involved in selling their products with such trademark and
the product is a colourable imitation of the product of the petitioner.
2
At the time of moving the injunction application, the petitioner could
not disclose the names of the persons who are selling and marketing their
products in such trade name and invited the Court to pass "john doe" order.
Subsequently, the petitioner could disclose the name of four persons in the
supplementary affidavit and leave was granted to implead them as a party in the
proceedings.
The petitioner relies upon a judgment of the Delhi High Court in case
of Tej Television vs. Rajen Mandal reported in (2003) FSR 22 to impress upon the
Court that the international practice of passing a john doe has been applied and
accepted in the judicial system all over the country and prays for appointment of
the Court Commissioner to collect the necessary evidence and take possession of
the infringing goods not only from the disclosed persons but also from others
whose identity could not be ascertained. In the said report the allegation of
violation of the copyright was made by the plaintiff/petitioner therein against
several persons. Some of them could have identified and others could not. The
Court, prima facie, found the violation of a copyright and held that there is no
fetter or impediment upon the Court to pass such an order.
On bare examination of the original and the counterfeit produced by
the petitioner before this Court there is no hesitation, in my mind, that the
counterfeit product is a colourable imitation of the original both in its get up and
style but also the manner in which the trade mark is depicted therein. The
colours, size and the manner of writing the words are verbatim reproduction of
the original and, therefore, a clear case of infringement of the trademark as well
as copyright are made out.
3
There shall be an order in terms of prayers a) and (b) of the notice of
motion.
There shall also be an order in terms of prayer ( c ) of the notice of
motion.
Mr. Tapan Kumar Ray, Advocate, Bar Association Room No. 3, First
Floor, High Court, Calcutta is appointed as a special officer to enter into the
premises not only of the defendant nos. 1 to 4, but also of the others and shall
take possession of the goods containing the trademark 'Lakme' or 'Lakme nine to
five and shall keep the same at a place to be provided by the plaintiff in its
custody until further order.
The said special officer, if necessary, shall take assistance of the
local police station. The moment the receiver approaches the concerned officer-
in-charge of the police station, such officer shall render all the assistance in
carrying out the directions passed hereinabove.
The respondent nos. 1 and 4 and also the other respondents, if they
are found selling the product of the plaintiff, to file the affidavit-in-opposition to the application within six weeks from date. Reply, if any, shall be filed within two weeks thereafter. The matter will appear after eight weeks. The initial remuneration of the special officer is fixed at 2000 GMs.
(HARISH TANDON, J.) A/s./S.Chandra