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2006 DIGILAW 674 (DEL)

HINDUSTAN LEVER LIMITED v. RATAN LAL CHAWLA

2006-04-17

body2006
SANJAY KISHAN KAUL, J. ( 1 ) THE plaintiff is a company incorporated and registered under the Companies act, 1956 and is stated to be a leader in the fast moving consumer goods with special emphasis on home and personal care products as also foods and beverages. The plaintiff is stated to have established in India in 1933 and is a subsidiary of Unilever Private Limited Company. ( 2 ) THE present suit is concerned with the plaintiff s trademark ANNAPURNA (hereinafter referred to as the said trademark ) used by the plaintiff for marketing large range of packaged edible goods. The plaintiff is stated to have applied for registration of the said trademark and various labels, devices and combination marks comprising of the said trademark as the essential feature in various classes being Class 29, 30 and 32. ( 3 ) THE plaintiff claims to have first adopted and used the said trademark to the exclusion of all others. Not only that the plaintiff claims that the product is packaged in special packages which were designed and modified for the plaintiff from time to time by artists employed by the plaintiff through advertising agency. An example of this is the sale of iodized salt with the word Kissan written in artistic blue font and underlined with a red wavy pattern followed by the word annapurna written in red. The bottom half of the package comprised the device of a muscular man in a blue and purple outfit with the words iodine and k15 written across his chest and his right index finger pointing to his head. This packaging is stated to have been modified twice and the plaintiff is stated to possess the copyright in the artistic work. ( 4 ) THE plaintiff claims that it has a reputation for quality which is maintained and the plaintiff spends large amounts running into crores of rupees in advertising alone. The details of the sales and advertising expenses have been given in Para 12 of the plaint which show that for the last year 2002 the sale figures were 168. 61 crores and the plaintiff spent an amount of Rs 20. 25 crores on advertising. The said trademark is thus stated to be associated by traders and members of public exclusively with the plaintiff. 61 crores and the plaintiff spent an amount of Rs 20. 25 crores on advertising. The said trademark is thus stated to be associated by traders and members of public exclusively with the plaintiff. The plaintiff came to know in the month of December, 2002 about large scale illegal use of the trademark by the defendants who are situated in the city of Phalodi which is known as a salt city in Rajasthan on account of huge volume of the said commodity produced in that city. The defendants are stated to be engaged in the trade of salt under the trademark annopurna which is stated to be deceptively similar to the plaintiff s trademark. The packaging used by the defendant is stated to be substantial reproduction of the artwork in the plaintiff s packaging and the similarity in the packaging have been set out as under: annopurna a white package with blue wavy stripes running across the front of it a white package with blue diagonal stripes running across the front of it. A yellow device with a red border and orange stripes on the top half of the packet. A yellow device with a red border and orange stripes on the top half of the packet. The word kissan written in blue and underlined with a red wavy pattern in the top half of the device. The word uttam written in a black rectangle and underlined with a red wavy pattern in the top half of the device. The word annapurna written in red in the bottom half of the device. The word annopurna written in red in the bottom half of the device. The words iodized SALT written underneath the device in white in a red box. The words iodized SALT written underneath the device in white in a red box. An illustration of a muscular man in the bottom half of the package with a finger pointing to his head, wearing a blue and violet outfit and with IODINE k15 written in a device on his chest. Jars of salt in yellow, orange and red are in the backdrop. An illustration of a muscular man in the bottom half of the package with a finger pointing to his head, wearing a brown and violet outfit and with IODINE 30 ppm written in a device on his chest. Jars of salt in yellow, orange and red are in the backdrop. An illustration of a muscular man in the bottom half of the package with a finger pointing to his head, wearing a brown and violet outfit and with IODINE 30 ppm written in a device on his chest. Jars of salt in yellow, orange and red are in the backdrop. The phrase with IODINE K15 - The Right Level of Iodine" written in red in a yellow box at the bottom of the packet. The phrase Free Flowing, Iodized Slat in red in a yellow box at the bottom of the packet. ( 5 ) THE plaintiff s product is stated to retain almost 100 pc required iodine content by virtue of innovative safeguard on its part while defendants goods are stated to have no comparable safeguards against deterioration by way of loss of the iodine content. ( 6 ) THE summons were issued in the suit and notice in the interim application but only defendant no. 1 put in appearance. Defendants no. 2 and 3 were thus proceeded ex parte vide order dated 09. 12. 2005. The defendant no. 1 having entered appearance was delaying the suit and not filing the written statement and thus this court exercised its jurisdiction under Order 8 Rule 10 of the Code of Civil procedure, 1908 to pass a decree against defendant no. 1 in terms of prayer clause 20 (i), (ii) and (v ). However insofar as the defendants no. 2 and 3 are concerned, plaintiffs were granted two weeks time to file affidavits of evidence. ( 7 ) THE plaintiff has filed the affidavits of evidence of Mr. Vikramjit Singh, legal manager and authorised representative of the company and has proved the authority in his favour as Expw1/1. The plaint was instituted through Ms preetika Singh and the power of attorney executed in her favour by the plaintiff company duly notarized and dated 03. 05. 2000 has been proved as Expw1/2. The power of attorney was issued in pursuance to the resolution of the Board of directions dated 26. 04. 2000. The copies of the trademark application pending consideration have been exhibited as Expw1/4. A copy of the assignment deed in respect of copyright dated 02. 07. 2002 has been exhibited as Expw1/5. The said trademark annapurna labels have been exhibited as Expw1/6. 04. 2000. The copies of the trademark application pending consideration have been exhibited as Expw1/4. A copy of the assignment deed in respect of copyright dated 02. 07. 2002 has been exhibited as Expw1/5. The said trademark annapurna labels have been exhibited as Expw1/6. The offending packaging with the marks annopurna have been exhibited as Expw1/8. ( 8 ) A comparison of the two packagings makes the copying of the packagings quite obvious. In order to appreciate the same, the packagings of the plaintiff and the defendant are re-produced herein as under: ( 9 ) THE defendants have copied the design and the colour scheme of the plaintiff and have chosen names which are deceptively similar to that of the plaintiff with the objective of passing of its goods as that of the plaintiff. In fact the test to be applied in such a case is not a side by side visual comparison of the two marks and packagings but to apply the test of a common consumer. The nature of product is also important. Being iodized salt, such a product is utilised by all strata of society including uneducated persons. Chances of deception are thus even more. ( 10 ) THE phonetic similarity is also there and the complete effect of the trademark and the packaging shows a clear attempt to pass off the goods as that of the plaintiff and to ride piggy back on the reputation of the plaintiff established over a period of time for its iodized salt on which the plaintiff spends crores of rupees each year for advertising. ( 11 ) IN view of the aforesaid, there can be little doubt that the plaintiff is entitled to a decree of injunction. ( 12 ) THE last aspect to be considered is one of damages. Two defendants have chosen to stay away in the proceedings in court. As to what view the court should take in such a situation has been considered by this court in Hero Honda motors Ltd v. Shree Assuramji Scooters ; 125 (2005) DLT 504. ( 12 ) THE last aspect to be considered is one of damages. Two defendants have chosen to stay away in the proceedings in court. As to what view the court should take in such a situation has been considered by this court in Hero Honda motors Ltd v. Shree Assuramji Scooters ; 125 (2005) DLT 504. ( 13 ) THIS court has taken a view that where a defendant deliberately stays away from the proceedings with the result that an enquiry into the accounts of the defendant for determination of damages cannot take place, the plaintiff cannot be deprived of the claim for damages as that would amount to a premium on the conduct of such defendant. The result would be that parties who appear before the court and contest the matter would be liable to damages while the parties who choose to stay away from the court after having infringed the right of the plaintiff, would go scotfree. This position cannot be acceptable. ( 14 ) NO doubt it is not possible to give an exact figure of damages on the basis of actual loss, but certain token amounts on the basis of the sales of the plaintiff can certainly be made. The plaintiff is unnecessarily dragged into litigation and the defendants must bear consequences thereof. In fact in such a case both compensatory and punitive damages ought to be granted apart from the costs incurred by the plaintiff on such litigation. In view of the given sales figure of the plaintiff, I consider it appropriate to grant a decree of damages in favour of the plaintiff and against the defendants for a sum of Rs 3 lakh apart from costs of the suit. ( 15 ) A decree is passed in favour of the plaintiff and against the defendant in terms of Prayer Clause 20 (i), (ii) and (v) of the plaint. The plaintiff is also further held entitled to a decree for damages in the sum of Rs. 3 lakh. The plaintiff is also entitled to costs. Decree sheet be drawn up accordingly. .