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2018 DIGILAW 665 (CAL)

Hindustan Unilever Limited v. Gajender Jain

2018-09-10

SOUMEN SEN

body2018
JUDGMENT : 1. The entire order dated 5th September, 2018 is recalled as the stenographer who had taken the order has transcribed a different order which was not passed on that date. The order that was passed on 5th September, 2018 reads as follows : “The Court: This is an interlocutory application in aid of a suit complaining of infringement of plaintiff’s trade mark and copyright. The plaintiff claims to be the registered proprietor of the trade mark “WHEEL”, “ACTIVE WHEEL” 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 “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. Mr. Arunabha Deb, appearing on behalf of the petitioner submits that in the month of August, 2018 in course of a market survey and investigation carried out by the petitioner at Kunwa, in Rajasthan, it was found that the respondent was manufacturing, selling and distributing detergent soap under the marks “MICRO EZY WASH”, “MICRO WASH” and “MICRO POWER WASH” 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. The packet of the product “ACTIVE WHEEL” of the petitioner and the infringing wrappers of the defendant, namely “MICRO EZY WASH”, “MICRO WASH” and “MICRO POWER WASH” are produced before this Court. The packet of the product “ACTIVE WHEEL” of the petitioner and the infringing wrappers of the defendant, namely “MICRO EZY WASH”, “MICRO WASH” and “MICRO POWER WASH” are produced before this Court. 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 trade mark and copyright. This Court is, prima facie, satisfied that the products sold by the defendant are deceptively similar to those in which the product “ACTIVE WHEEL” is sold. The petitioner is the owner of the copyright and trade mark 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 packets may be removed out of reach of the Court. In view thereof, 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 MICRO in relation to its business of detergent powder in any manner not same and/or similar to the infringing wrappers. I appoint Mr. Ovik Sengupta, Advocate of High Court, Calcutta (Mob.:9830158038) 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 and file the report on the adjourned date. The Special Officer shall be at liberty to break open padlocks, if required, in presence of police authorities in the event the respondent or the godown owner is unable to provide the keys to the Special Officer. The Special Officer shall be entitled to an initial remuneration of 2000 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. Let this application appear 3rd October, 2018. 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. The interim order shall be for a period of ten weeks from date or until further orders, whichever is earlier. 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. The interim order shall be for a period of ten weeks from date or until further orders, whichever is earlier. The respondent shall be at liberty to apply for vacation, variation and/or modification of the interim order upon notice to the petitioner. Urgent certified website copies of this order, if applied for, be urgently supplied to the parties subject to compliance with all requisite formalities.” 2. In view thereof, the earlier order dated 5th September, 2018 is recalled and replaced by the order as recorded above. 3. The Computer Section shall make the necessary correction. The server copy shall be corrected accordingly.