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2018 DIGILAW 531 (CAL)

Hindustan Unilever Limited v. Jaswinder Pal Singh

2018-08-01

SOUMEN SEN

body2018
JUDGMENT : This is an interlocutory application in aid of the reliefs claimed in a suit for infringement of plaintiff’s copyright. 2. The plaintiff claims to be the registered proprietor of the trade mark “SURF/SURF EXCEL” as also the owner of the copyright in the art work as displayed in the packing consisting of a combination of colours, the getup, style and colour scheme whereof are distinctive of the products of the petitioner. It is stated that the packet in which the detergent powder “SURF EXCEL” is sold and distributed throughout India has a distinctive style, getup and colour scheme and a large quantity of such detergent soap/powder has been sold in India in the said labels/packets by reason whereof the said marks have become very well-known and has become distinctive of the detergent powder of the petitioner. The detergent powder of the petitioner sold under the trade mark “SURF EXCEL” has acquired a substantial reputation and goodwill in the market. The petitioner has also given the figures of the All India annual sale of products of the petitioner company with trade mark “SURF” word/brand along with sub-brand Excel-matic, Surf Excel Powder, Surf Excel Bar, Surf Perfume, on starfish or white rays in blue background on carton, poly-pack on button device and expenses incurred in advertising of these brand detergents. 3. The plaintiff also claims to be the registered proprietor of the trade mark “WHEEL”, “ACTIVE WHEEL” as also the art work as displayed in the packing consisting of a combination of colours, the getup, style and colour scheme whereof are distinctive of the products of the petitioner. It is stated that the packet in which the detergent power “ACTIVE WHEEL” is sold and distributed throughout India has a distinctive style, getup and colour scheme and a large quantity of such detergent soap/powder has been sold in India in the said labels/packets by reason whereof the said mark has become very well-known and has become distinctive of the detergent powder of the petitioner. 4. The detergent powder of the petitioner sold under the trade mark “ACTIVE WHEEL” has acquired a substantial reputation and goodwill in the market. The petitioner has also given the figures of the All India annual sale of products of the petitioner company with trade mark “WHEEL” word/brand along with sub-brand “ACTIVE WHEEL” and expenses incurred in advertising of these brand detergents. 5. Mr. The petitioner has also given the figures of the All India annual sale of products of the petitioner company with trade mark “WHEEL” word/brand along with sub-brand “ACTIVE WHEEL” and expenses incurred in advertising of these brand detergents. 5. Mr. Arunabha Deb, appearing on behalf of the petitioner submits that in the month of July, 2018 in course of a market survey and investigation carried out by the petitioner at Ludhiana, in the State of Punjab, it was found that the respondent was manufacturing, selling and distributing detergent soap under the marks “ARENO QUICK WASH” and “SUPER WHITE EASY WASH” in packets having Trade design, graphics and a colour scheme similar if not identical to the label in which the Petitioner’s product Surf Excel is sold and distributed in India. A mere comparison of the labels/packets of the petitioner with those of the respondent would indicate an identical colour scheme as well as the infringing use of the petitioner’s copyright subsisting in the label in which its product “SURF EXCEL” is sold. 6. Mr. Deb submits that the respondent is also manufacturing, selling and distributing detergent soap under the mark “ARENO WINNER” in packets having trade design, graphics and a colour scheme similar if not identical to the label in which the petitioner’s product “ACTIVE WHEEL” is sold and distributed in India. 7. The packet of the product “SURF EXCEL” of the petitioner and the infringing wrappers of the defendant, namely “ARENO QUICK WASH” and “SUPER WHITE EASY WASH” are produced before this Court. 8. It appears that the infringing packets in which the detergent powder of the respondent is sold are a colourable and deceptive imitation of the label of the petitioner’s “SURF EXCEL” of which the petitioner is the owner of the copyright. 9. The packet of the product “ACTIVE WHEEL” of the petitioner and the infringing wrapper of the defendant, namely “ARENO WINNER” are produced before this Court. 10. It appears that the packets in which the detergent powder of the respondent is sold are a colourable and deceptive imitation of the label of the petitioner’s “ACTIVE WHEEL” of which the petitioner is the owner of the copyright. 11. 10. It appears that the packets in which the detergent powder of the respondent is sold are a colourable and deceptive imitation of the label of the petitioner’s “ACTIVE WHEEL” of which the petitioner is the owner of the copyright. 11. This Court is, prima facie, satisfied that the products sold by the defendant are in infringement of the petitioner’s copyright subsisting in the labels in which the petitioner’s product “SURF EXCEL” is sold and are deceptively similar to those in which the product “SURF EXCEL” is sold and are also in infringement of the copyright subsisting in the labels in which the petitioner’s product “ACTIVE WHEEL” is sold and are deceptively similar to those in which the product “ACTIVE WHEEL” is sold. On the aforesaid prima facie satisfaction, in my view, a protective order is required to be passed, otherwise the infringing packets may be removed out of reach of the Court. In view thereof, there shall be an order in terms of prayers (c), (d) and (e) of the application. 12. I appoint Sarosij Dasgupta, Advocate of Bar Library Club as Special Officer to immediately visit the godown and the outlet of the defendant to inventorize the infringing goods, if required, with the police assistance. The Special Officer shall also ensure that no sale of goods takes place. The Special Officer shall be at liberty to break open padlock(s), if required, in presence of police authorities in the event the respondent or the godown owner is unable to provide the key(s) to the Special Officer. The godown shall be resealed and the key(s) shall be in the custody of the Special Officer until further orders. The Special Officer shall be entitled to an initial remuneration of 2500 GMs. All arrangements for the Special Officer’s travel, accommodation and the like shall be made by the petitioner and the expenses therefor. The Special Officer shall file a report on the returnable date. 13. Let this application appear 22nd August, 2018. 14. The petitioner is directed to serve a copy of this application along with a copy of this order upon the respondents by speed post and shall file affidavit of service on the adjourned date. 15. The interim order shall be for a period of ten weeks from date or until further orders, whichever is earlier. 16. 14. The petitioner is directed to serve a copy of this application along with a copy of this order upon the respondents by speed post and shall file affidavit of service on the adjourned date. 15. The interim order shall be for a period of ten weeks from date or until further orders, whichever is earlier. 16. The respondent shall be at liberty to apply for vacation, variation and/or modification of the interim order upon notice to the petitioner. 17. Urgent certified website copies of this order, if applied for, be urgently supplied to the parties subject to compliance with all requisite formalities.