Ramesh Chander Sharma vs Kishore Daswani And Anr.
2005 Latest Caselaw 1234 Del

JUDGMENT

Swatanter Kumar, J.

1. This is a suit filed by the plaintiff for grant of a decree for permanent injunction restraining the defendants from infringing the copyright as also lable like Annexure X to the plaint bearing the trademark HONEYBEE/HONEYBEE PLUS and further passing of their goods as goods of the plaintiff or to do anything, which may cause confusion and deception in relation thereto.

2. The plaintiff is the sole proprietor of M/s Pretty Enterprises carrying on business, interalia, of manufacture and sale of all kinds of hair removing wax and other allied items. The plaintiff adopted the trademark HONEYBEE bona fidely on 1st October, 1998 in relation to Hot/Cold Hair Removing Wax and cosmetic goods. The plaintiff also obtained manufacturing license from the Drug Controller, Delhi under license No. 1296/COS dated 13th August, 1999 with the said brand name HONEYBEE. It is further the pleaded case of the plaintiff that the plaintiff has a copyright in Honeybee Hot Wax and the present dispute relate thereto. It is also stated that the packing material used by the plaintiff in relation to Honeybee Hot Wax is a distinctive and unique label since September, 1999. It is distinctive and public at large recognise the packing material along with trademark of the plaintiff. The plaintiff has shown its sale during the year 1999-2000 to 2001-2002 in the range of Rs. 10 lakhs and above. The plaintiff also claim that it has spent a huge amount for publicity of the trademark Honeybee as well as the packing material and they have learnt that defendant No. 1 is selling the goods manufactured by defendant No. 2 all over India and are infringing plaintiffs trademark, passing of their goods as the goods of the plaintiff and further that they have also infringed the copyright of the plaintiff. The packings issued by the defendants are deceptively similar to that of the plaintiff and they are using identical trademarks.

3. The defendants had put in appearance before the Court and ad-interim injunction in favor of the plaintiff was granted vide order of the Court dated 1st September, 2003, which was in force all this time. Vide order dated 18th November, 2003 it was recorded that parties are negotiating a settlement and prayed for time. Different dates were taken but no settlement was effected between the parties. As no compromise was filed, the matter was listed for arguments. Vide order dated 8th August, 2005, the defendants were proceeded ex-parte as nobody was appearing on behalf of defendants on the numbers of hearing and the case was ordered to be listed before the Joint Registrar on 26th August, 2005 and for final disposal before the Court on 30th August, 2005. Before the Joint Registrar on 29th August, 2005, PW-1 Mr. Ramesh Chander filed his affidavit Exhibit PW I/A and tendered the same. The documents were exhibited as Ex.P-1 to Ex.P-5, which have a direct bearing on the case. Finally the arguments were heard ex-parte in the case.

4. As already noticed, the defendants were proceeded ex-parte vide order dated 8th August, 2005. They have filed the written statement. In paragraph 9 of the written statement, the defendants had taken a stand that they were not aware of any product bearing the mark HONEYBEE when they adopted the said mark. They were also not aware of the alleged copyright of the plaintiff, which is not registered. It was stated that plaintiff had not approached the Court with clean hands. The written statement read in its entirety does not really dispute the claim of the plaintiff. The thrust of the written statement is that the plaintiff cannot claim any trademark or copyright in HONEEBEE. The plaintiff is himself a pirate of the mark HONEYBEE and hence he cannot claim any right in that regard.

5. The affidavit of Mr. Ramesh Chander, PW-1 reiterated the case pleaded in the plaint and further stated that the lable of Honeybee Hot Wax is Exhibited as Ex.P-1 and the defendants have copied the same trademark which has a distinct and unique lable, which the plaintiff are operating since 1999. The defendants have ecopied the same and are passing of their goods as goods of the plaintiff with a deceptive lable and packings. It has come in evidence that the plaintiff has already applied for registration of trademark on 25th August, 1999, which is pending. The plaintiff claims a right in the said trademark and packing material on the basis of prior bona fide user. The products of the plaintiff under the trademark Honeybee is stated to have distinct and definite recognition in the market. It is also stated in this affidavit that the packing material/lable is the original artistic work within the meaning of Section 2(c) of the Copyright Act. The label of the plaintiff is placed on record as Annexure B and the offending packing is placed as Exh. P-2. Some small changes made in the lable are only intending to further mislead the public and the defendant is not bona fide prior user of the said label. The plaintiff has also filed on record the bills issued in the year 1999 onwards till recently in relation to the said products with the same lable and description.

6. I have also examined Exh. P-1, which is the packing and label of the plaintiff, Ext. P-2 is the defendants' packing and label, which is deceptively similar to that of plaintiff and it is not possible for a lay person and a customer to decipher the same at the first glance. The mild change in colour scheme is in no way a distinctive feature, which would take the action of the defendant outside the offending article.

7. For the reasons aforesaid, I would pass a decree in favor of the plaintiff and against the defendants restraining the defendants from manufacturing, selling or offering for sale and using the trade-name HONEYBEE in any form, which is similar or deceptively similar to that of the plaintiff and from passing of their goods as those of the plaintiff by causing confusion by their product, which is exhibited as Exh. P-2. The plaintiff shall be entitled to costs in the suit.

8. The suit stands disposed of. IA 8828/2003 is also disposed of.