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2018 DIGILAW 536 (CAL)

Hindustan Unilever Limited v. Trilok Sharma

2018-08-03

SOUMEN SEN

body2018
JUDGMENT : This is an interlocutory application in aid of the reliefs claimed in a suit of infringement of plaintiff’s copyright. The plaintiff 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. 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. 2. 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 in Islampura, Morena Madhya Pradesh, it was found that the respondent was manufacturing, selling and distributing detergent soap under the mark “SURAJ” in packets having trade design, graphics and a colour scheme similar if not identical to the label and the trade mark in which the petitioner’s product “ACTIVE WHEEL” is sold and distributed in India. 3. The packet of the product “ACTIVE WHEEL” of the petitioner and the infringing wrapper of the defendant, namely “SURAJ” are produced before this Court. 4. 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. 5. This Court is, prima facie, satisfied that the products sold by the defendant are deceptively similar to those in which the petitioner’s product “ACTIVE WHEEL” is sold. 5. This Court is, prima facie, satisfied that the products sold by the defendant are deceptively similar to those in which the petitioner’s product “ACTIVE WHEEL” is sold. The petitioner is the owner of the copyright subsisting in the distinctive and fanciful getup, colour scheme and in the artistic work in the labels used by the petitioner in relation to detergent powder. On the aforesaid prima facie satisfaction, in my view, an ex parte order is justified. Otherwise the infringing packet may be removed out of reach of the Court. There shall be an order in terms of prayer (b) of the application. However, this order shall not prevent the respondent to use the word SURAJ in relation to its business of detergent power in any manner not same and/or similar to the infringing wrappers. 6. I appoint Sananda Mukhopadhyay, Advocate of Bar Library Club, 1st Floor 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. 7. Let this application appear on 22nd August, 2018. 8. 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. 9. The interim order shall be for a period of ten weeks from date or until further orders, whichever is earlier. 10. The respondent shall be at liberty to apply for vacation, variation and/or modification of the interim order upon notice to the petitioner. 11. Urgent certified website copies of this order, if applied for, be urgently supplied to the parties subject to compliance with all requisite formalities.