Calcutta High Court
Unilever Industries Private Limited ... vs Naresh Gehani And Ors on 28 March, 2025
Author: Ravi Krishan Kapur
Bench: Ravi Krishan Kapur
IN THE HIGH COURT AT CALCUTTA
ORIGINAL SIDE
(Intellectual Property Rights Division)
BEFORE:
The Hon'ble JUSTICE RAVI KRISHAN KAPUR
IP-COM/55/2024
[OLD NO CS/66/2023]
UNILEVER INDUSTRIES PRIVATE LIMITED AND ORS.
VS
NARESH GEHANI AND ORS.
For the plaintiffs : Mr. S.N. Mookerjee, Senior Advocate
Mr. Ratnanko Banerji, Senior Adv.
Mr. Soumya Roy Choudhury, Adv.
Mr. Arunabha Deb, Adv.
Ms. Ashika Daga, Adv.
Mr. Raunak Das Sharma, Adv.
Ms. Sanchari Bhowmik, Adv.
For the defendant nos. 17 & 18 : Ms. Pubali Sinha Chowdhury, Adv.
Ms. Mini Agarwal, Adv.
For the defendant no.12 : Mr. Varun Pathak, Adv.
Mr. Thejesh Rajendran, Adv.
Mr. Tejpal Singh Rathore, Adv.
Mr. Siddharth Dey, Adv.
For defendant nos. 14 & 15 : Mr. Phiroze Edulji, Sr. Adv.
Mr. Neel Mason, Adv.
Mr. Shivam Ishaan, Adv.
Ms. Priyanka Bhattacharya, Adv.
Ms. Anuradha Das, Adv.
Judgment on : 28.03.2025
Ravi Krishan Kapur, J.:
1. This is a suit for protection of intellectual property rights of the plaintiffs.
2. The plaintiffs are one of the largest manufacturers and distributors of Fast
Moving Consumer Goods ("FMCG"). The goods and products manufactured, sold
and distributed by the plaintiffs enjoy a high reputation and are valued
internationally by consumers.
3. The plaintiff no.1, Unilever Industries Private Limited is a company incorporated
under the Companies Act, 1956 having its registered office at the address stated
in the cause title. The plaintiff no. 1 is also the proprietor of the "Kwality" trade
marks.
4. The plaintiff no.2, Unilever PLC, is a company incorporated under the laws of
England and Wales, and carries on business in India through Hindustan Unilever
Limited, being the plaintiff no. 3.
5. The plaintiff no.3, Hindustan Unilever Limited, a subsidiary of the plaintiff no. 2
was established in India in 1933. The plaintiff no. 3 is a leading manufacturer of
various consumer goods and its products have acquired immense reputation in
the market. The plaintiff no. 3's products are a household name in the Fast
Moving Consumer Goods ("FMCG") sector in the country. The products
manufactured by plaintiff no. 3 are widely sold and distributed all over India with
the help of its extensive marketing and distribution network, enabling its
products to be sold in remote villages of the country.
6. The plaintiff no.4, Unilever IP Holdings BV, is a wholly owned subsidiary of the
plaintiff no.2. As part of an internal re-organization, the intellectual property
rights including trademarks in India relating to its nutrition and ice cream
business have been assigned by the plaintiff no.2 to the plaintiff no.4. Moreover,
the plaintiff no.2 has also assigned the beneficial interest in the corporate
Unilever Logo being to the plaintiff no.4 for use in India. The
plaintiff no.3 has also acquired both statutory and common law rights in relation
to the trading names "Hindustan Unilever", "Hindustan Unilever Limited" and
"HUL" and is entitled to exclusive use of the same in relation to their goods.
7. The subject matter of this suit pertains to frozen desserts. The frozen desserts
sold, manufactured and distributed by the plaintiff no.3 are available in India
under several popular brands namely "Cornetto" and "Feast". Both these
products are marketed under the umbrella trademark "Kwality Walls" belonging
to the plaintiffs. Since March 1997, the plaintiff no.3 has been continuously and
exclusively using the trademark "Kwality Walls" as a composite mark logo with
the registered trademarks being the International Heart Logo being
and the Corporate Unilever Logo being also in
respect of ice-creams and frozen desserts. The plaintiff no.1 is also the registered
proprietor and subsequent assignee of the "Kwality" trademarks which have been
licensed to plaintiff no.3 for use in India in relation to ice-creams and frozen
desserts. With the passage of time, the products of the plaintiff no.3 and its
brands enjoy immense reputation and goodwill.
8. The plaintiffs state that the frozen desserts and ice-cream products in India are
being sold for more than twenty years in a number of flavours and formats. The
plaintiffs have also obtained registration pertaining to its products and quality
with the corporate Unilever Logo and variants of the International Heart Logo,
being . All the registration under the Trade Marks Act, 1999 (the Act)
are valid and subsisting and have been continuously and uninterruptedly enjoyed
by the plaintiffs. The plaintiffs have not only a substantial turnover of their
products under the name "Kwality Walls" but have also spent extensively in
advertising the same.
9. It is contended that dairy based products are also classified under the Food
Safety & Standards (Food Products Standards and Food Additives) Regulation,
2011. In fact, ice creams and frozen desserts are both classified as "dairy based
desserts" and are now a category of food products under the Food Safety and
Standards (Food Product Standards and Food Additives) Regulation, 2011 (FSSAI
Regulations). In manufacturing frozen desserts, the plaintiffs follow the highest
nutritional standards which are based on globally recognised dietary guidelines
namely World Health Organization (WHO) and Food and Agriculture Organization
of UN (FAO). It is further contended that all the frozen desserts of the plaintiffs
strictly comply with the provisions of the Food Safety and Standards Act, 2006
("FSSAI") and Rules and Regulations framed thereunder and appropriate
recognition of such Guidelines is provided for in the packaging labels of their
products.
10. The defendant Nos.1 to 11 are social media influencers with huge public following
on their respective platforms such as Instagram (defendant No.12), Twitter
(defendant No.13, now "X"), You Tube (defendant No.14, presently owned and
managed by the defendant No.15), one Moj App (hosted, owned, managed and
controlled by the defendant No.16) and Linkedln (defendant No.17, owned and
managed by defendant No.18). The posts/videos by defendant Nos.1 to 11 are
viewed internationally. The defendant Nos.12 to 14, 16 and 17 are social media
platforms on which the defendant Nos.1 to 11 have posted and uploaded the
impugned videos which form the subject matter of this suit.
11. A chart summarizing the details of the impugned videos created and published by
the defendant Nos. 1 to 11, along with the platforms wherein the same are
uploaded, published, aired and broadcast has been morefully provided in the
plaint which for convenience is set out below:
Sl. Name Of The Platform Followers Username, Video URL Views And
No. Creator (As On April Email Id (If Uploaded On Comments
13, 2023) Available)
And Contact (As On April
No. (If 13, 2023)
Available)
1. Naresh Gehani Instagram 24,600 @NareshGeh March 23 on https://www.i 1,65,00,000
followers on ani1 Instagram nstagram.com/ views and
(Defendant No. (Defendant No.
Instagram, and YouTube reel/CqIVL_TD 2441
1) 12), Twitter
o1V/?igshid=O comments on
29 followers
(Defendant No. contactnares DM2MWFjZDg Instagram.
on Twitter
13) and hgehani@gm March 28, =
and 451
YouTube ail.com 2023 on
followers on https://twitter.
(Defendant No. Twitter
YouTube com/NareshGe
14 owned,
hani1/status/
managed and
164055138874
controlled by
8070912?t=0Zc
Defendant No.
eW9tSAimuBT
15)
XLWfWe2Q&s=
https://www.y
outube.com/sh
orts/U_eu_nYlv
KQ
2. Simrun Chopra Instagram 6,79,000 @simrun.cho March 15, https://www.i 1,05,00,000
followers pra 2023 nstagram.com/ views and
(Defendant No. (Defendant No.
reel/Cp0Bf0mq 1360
2) 12) support@sim
tc0/?igshid=M comments
runchopra.co
DJmNzVkMjY=
m
The account
is verified.
3. Adithya Nataraj Instagram 3,05,000 @learnwithad March 18, https://www.i 1,86,00,000
followers ithya 2023 nstagram.com/ views and
(Defendant No. (Defendant No.
reel/Cp6y6nrjj 3756
3) 12) helloadithya
RS/?igshid=YT comments
nataraj@gma
il.com UxNmE1Y2Q=
4. Jist News Instagram 5,10,000 @jist.news April 2, 2023 https://www.i 1,85,000
followers nstagram.com/ views and 55
(Defendant No. (Defendant No.
reel/Cqh8xeEN comments
4) through 12)
[email protected] fxT/?igshid=Y
Rishi Pratim ws mMyMTA2M2Y
Mukherjee, CEO %3D
of Jist News
(Defendant No. 5)
5. Gokul Instagram 7893 @gokulsound March 30, https://www.i 1,32,000
Soundararajan followers ararajan 2023 nstagram.com/ views and 23
(Defendant No.
reel/Cqaqaosp comments
(Defendant No. 12) Email id
kTG/?igshid=M
6) could not be
DJmNzVkMjY%
traced.
3D
6. Rakesh Instagram 32,400 @foodie_wala March 19, https://www.i 63,500 views
followers _ 2023 nstagram.com/ and 14
(Defendant No. (Defendant No.
reel/Cp- comments
7) 12)
oxZ8rRZb/?igs
Email id not hid=MDJmNzV
traced kMjY%3D
7. Name could not Instagram 34,600 @foodtechsoc March 18, https://www.i 23,900 views
be traced followers iety 2023 nstagram.com/ and 10
(Defendant No.
reel/Cp7kH- comments
(Defendant No. 12) foodtechsocie
PD5W5/?igshi
8) tyinfo@gmail.
d=MDJmNzVk
com
MjY%3D
8. Name could not Instagram 5436 @bright_ups March 21, https://www.i 13,00,000
be traced followers 2023 nstagram.com/ views and 63
(Defendant No.
reel/CqDMoHy comments
(Defendant No. 11)
brightups202 L0J1/?igshid=
9)
[email protected] MDJmNzVkMjY
%3D
9. Akshay A Instagram 3,46,000 @imdicapsco March 22, https://www.i 9,15,000
followers on op 2023 nstagram.com/ views on
(Defendant (Defendant No.
Instagram reel/CqAvGtQr Instagram
No.10) 12), YouTube
oqw/?igshid=O and 214
(Defendant No.
Akshaynone9 GY3MTdmODg comments
14 owned,
3, 63, 000 [email protected] %3D
managed and
followers on m
controlled by https://www.y
4,65,000
Defendant No. YouTube outube.com/w views and
15) and Moj atch?v=O5ehqn 239
App ApOGo comments
(Defendant No. 2,50,000 on YouTube
https://mojap
16), followers on
p.in/@imdicap 78,000 views
Moj App
038850307?ref comments on
errer=TZUQx8 Moj App
W-fETshV
10. Pariksha Rao LinkedIn 6000 [email protected] Sometime https://www.li 57 comments
(Defendant No. followers i around nkedin.com/po
(Defendant N.B. the
17) March, 2023 sts/pariksha-
No.11) same has
rao-
been re-
78430bbb_food
shared
industry-india-
multiple
brand-activity-
times.
704056203347
3314816-
_H0K/?original
Subdomain=bo
12. It is alleged that in or about the end of March, 2023, the plaintiffs had come to
learn that the defendant nos.1 to 11 have started a negative campaign which is
being run against frozen desserts marketed and sold by the plaintiffs under the
registered trademarks "Walls", "Hindustan Unilever" and the multiple trademarks
containing "Kwality" including the brands inter-alia such as "Cornetto", "So
Alphanso Mango Frozen Dessert" and "Shameless Vanilla" which exclusively
relate to and are easily identifiable with the plaintiffs and their products.
13. The plaintiffs contend that each of the impugned posts or videos is false,
misleading, malicious and rubbishes the plaintiffs' frozen desserts products
directly and brazenly. The products of the plaintiffs in each of the impugned
videos or posts are shown in bad light and the consumers are asked not to
purchase the same. In particular, the impugned posts/videos not only
differentiate between ice-cream and frozen desserts but also suggest and make
direct references to the fact that frozen desserts sold by the plaintiffs are not good
for health and contribute to heart diseases, auto immune diseases,
neurodegenerative diseases and cancer. It is also contended that there is
misleading information sought to be disseminated in respect of the ingredients for
manufacturing frozen desserts. In particular, it is suggested that in garb of
manufacturing frozen desserts, the plaintiffs are actually selling palm oil and
making consumers believe that the same is ice-cream. The underlying intent
behind each of the impugned videos is directed against the frozen desserts
manufactured by the plaintiffs. It is also alleged that the impugned posts/ videos
by the defendant nos.1 to 11 have deliberately, knowingly and with malicious
intent generated a fear psychosis amongst consumers about the entire frozen
desserts category and are trying to make viewers and consumers believe that the
frozen desserts marketed and sold by the plaintiffs are unsafe, dangerous and
unhealthy. It is also contended that in uploading, airing, publishing and
broadcasting the impugned posts/videos the defendant nos.1 to 11 have acted in
an irresponsible and casual manner. It is alleged that the defendant nos.1 to 11
are unqualified to make any such assertion which they seek to do by way of the
impugned videos/posts. It is further contended that in uploading, airing
publishing and telecasting the impugned videos the defendant nos.1 to 11 have
perpetrated fraud, tarnished and disparaged the frozen desserts marketed and
sold by the plaintiffs.
14. The plaintiffs being aggrieved by the aforesaid impugned posts/videos /
disparaging advertisements, have filed the instant suit alongwith an interlocutory
application being I.A. G.A. No. 1 of 2023 praying for appropriate interim reliefs.
15. By an ad interim order dated 18th April, 2023, the Court inter alia, held as follows:
...
13. Prima facie, the impugned videos/posts are detrimental to the distinctive
character and reputation of the trademark belonging to the petitioners and
impinge on their legitimate interests as owners of their trademark. Moreover,
the impugned videos and posts involve unauthorized use of theregistered
trademark of the petitioners thereby attracting infringement under section 29 of
the Act.
14. I find that each of the impugned videos and/or broadcast, published and
telecasted by the respondent nos.1 to 11 in the platform of the respondent
nos.12 to 19 directly refer to the petitioners and the frozen desserts
manufactured, sold and distributed by them. The unauthorized use of the
packaging, label and logo of the petitioners' product in each of the impugned
videos/posts violates the trade mark protection afforded and being enjoyed by
the petitioners.
15. Health and Wellness influencers are a modern day reality. Article 19(1) of
the Constitution guarantees freedom of speech and expression. The restriction
to free speech, expression, views and opinion is only to the limited extent as
enshrined in Article 19(2) of the Constitution. It is also well recognized that
freedom of speech is not an absolute and unrestricted right. The rival balancing
interests which have to be taken into account in matters such as this are the
interests of the consumers and the public to be made aware against the right of
the petitioners to seek protection of their intellectual property rights.
16. Prima facie at an ad interim stage even though the underlying intent of each
of the impugned videos may or may not be objectionable, nevertheless in
making a clear, direct and brazen reference to the petitioners and their product
i.e frozen desserts, the Rubicon has been crossed. The products of the
petitioners and the petitioners have been identified, named and targeted
directly. Undoubtedly, frozen desserts sold by the petitioners by name are
shown in poor light and are also depicted to be harmful and dangerous to
health. This is impermissible.
17. In such circumstances, the petitioners have been able to make out a strong
prima facie case on merits. The balance of convenience and irreparable injury is
also in favour of orders being passed as prayed for herein.
18. In view of the aforesaid, the respondent nos.1 to 11 are permitted to
telecast, broadcast or disseminate the impugned videos only after removing the
offending portion in each of the videos/posts which make any reference to the
petitioners or the frozen desserts being manufactured, sold and distributed by
them. The respondent nos.1 to 11 and each of them are also restrained from
making use of the trademark, trade dress, packaging logo and lables of the
petitioners or any of their products in any manner whatsoever. The respondent
nos.1 to 11 are directed to carry out the aforesaid changes within a period of
seven days from the date of communication of this order. In default, appropriate
orders would be passed on the respondent nos.12 to 18 to block each of the
impugned videos if necessary.
...
16. On 3rd May, 2024, it was submitted by the plaintiffs before this Hon'ble Court
that all the defendants have duly complied with the ad interim order dated 18th
April, 2023 and have taken down the impugned videos/ posts. Hence this Court
extended the ad interim order dated 18th April, 2023 until further orders of the
Hon'ble Court. Out of all the defendants, only the defendant nos. 16, 17 and 18
have filed their written statements.
17. By an order dated 7th February, 2025, this Hon'ble Court recorded that defendant
nos. 12, 14, 15, 17 and 18, who are all intermediaries, have complied with the
orders of this Hon'ble Court and the impugned telecast and videos have been
removed. It was further observed by this Hon'ble Court that no Affidavit-in-
Opposition has been filed on behalf of the contesting defendants, the Court had
on 7th February, 2025 disposed of I.A. G.A. No 1 of 2023, by confirming the ad
interim order dated 18th April, 2023.
18. It is submitted on behalf of the plaintiffs that in view of the compliances pursuant
to the order dated 18th April, 2023 and the limited scope of controversy, the suit
can be disposed of expeditiously and summarily in view of the provisions of the
Commercial Courts Act, 2015. The defendants who have filed their written
statements, being the defendant nos. 16, 17 and 18, are not directly responsible
nor instrumental in publishing the impugned videos and have throughout acted
only as intermediaries (save and except the defendant no.18). The remaining
defendants choose to remain unrepresented and no written statement has been
filed by either of them.
19. In view of the above circumstances, the instant suit is decreed in favour of the
plaintiffs by granting a decree in terms of prayer (a) of the plaint, as modified
below:
(a) A decree of perpetual injunction restraining defendant Nos.1 to 11, their
management, members, affiliates, directors, servants, officers, employees,
representatives, agents and all other persons claiming through or under it or
acting in concert with them or on their behalf or acting on their instructions
in any manner from uploading or disseminating or telecasting or
broadcasting or publishing or circulating or otherwise howsoever
communicating to the public or from making available the impugned
posts/videos or any part thereof or any other post/video of a similar nature
in any language or in any manner causing the impugned posts/videos or
any part thereof or of a similar nature to be uploaded or disseminated or
telecast or broadcast or published or communicated or circulated or made
available to the public or published in any manner or on any mode/media;
20. The defendant nos. 12 to 17 undertake that they would immediately remove or
delete any offending posts or videos pertaining to the subject matter of the
impugned /offending videos or broadcast, in terms of the above decree, as soon
as it is brought to their attention by an appropriate legal notice issued on behalf
of the plaintiffs.
21. In view of the above, IP-COM 55/2024 being CS-COM/488/2024 and Old No.
CS/66/2023 stands disposed of. Any pending application also stands disposed
of. The decree in terms of the above be drawn up expeditiously.
(Ravi Krishan Kapur, J.)
