Delhi High Court
Henkel India Ltd. vs Mr. Chandan Chhabra And Anr. on 3 January, 2013
Author: Manmohan
#F-11
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) 1220/2009
HENKEL INDIA LTD. ..... Plaintiff
Through Mr. N. Mahabir with Dr. Sheetal
Vohra, Advocates
versus
MR. CHANDAN CHHABRA
AND ANR. ..... Defendants
Through None
% Date of Decision: 3rd January, 2013.
CORAM:
HON'BLE MR. JUSTICE MANMOHAN
JUDGMENT
MANMOHAN, J (Oral):
1. Present suit has been filed seeking injunction to restrain infringement
of copyright in plaintiff's packaging material, rendition of accounts and
damages. The prayer clause in the plaint is reproduced hereinbelow:-
"(i) An order for permanent injunction restraining the
Defendant, their partners or proprietors as the case may be, its
officers, servants, agents and representatives from
manufacturing, selling, offering for sale or advertising directly
or indirectly in India or overseas, in a packaging in which the
product UJALA White is being sold or any other deceptively
similar packaging, thereby restraining infringement of
copyright in the packaging of the Plaintiff's in its product Mr.
White.
(ii) An order for delivery up of all goods, dies, packaging,
blocks, cartons, labels and any other material bearing the get
up and packaging of its product UJALA White to the authorized
representative of the Plaintiff's for the purposes of destruction
etc;
(iii) An order for costs of the proceedings;
(iv) An order for rendition of accounts of profits made by the
Defendants/damages to be awarded to the Plaintiffs and
against the Defendants on account of use of the trade marks
Mr. White and the packaging;
(v) For such other further order or orders as this Hon'ble
court may deem fit and proper in the facts and circumstances of
the present case."
2. At the outset, learned counsel for the plaintiff states that he is
confining his prayer in the present suit only to prayer (i) in the plaint,
namely, for a permanent injunction restraining the defendants, their partners,
officers, servants, agents and representatives from selling their product in a
packaging material similar to that of the plaintiff.
3. On 25th September, 2009, this Court had directed the defendants to be
proceeded ex-parte as none had appeared for them despite service.
Consequently, present suit is taken up for hearing and disposal ex parte.
4. The relevant facts of the present case are that plaintiff is a subsidiary
of Henkel AG & Co. KGaA, a German company, that manufactures
products sold in around 125 countries. In 2008 the turnover of plaintiff's
parent company was 14.10 billion € with a profit of 780 million €.
Plaintiff's parent company manufactures various brands such as Pril, Henko,
Fa, Margo, Mr. White, Chek etc. The plaintiff's business areas include
laundry and home care, beauty and personal care products.
5. Plaintiff's parent company vide a Licence Agreement dated 20th
December 2005 granted plaintiff the right to use, sell and market mid range
detergent products under the trademark 'MR. WHITE'. It is stated in
evidence of Mr. Pranab Roy, Constituted Attorney of plaintiff company that
the plaintiff developed packaging to sell its goods under the mark 'MR.
WHITE' promising 'long lasting whiteness'. The sales figures of the
plaintiff's product 'MR. WHITE' in India during the years 1999 to 2009 are
as under:-
Year Amount in Rs.(MINR)
6. During the third week of June 2009, the Plaintiff through its
representative, became aware about the defendants selling their product
'Ujala White' in parts of North India including New Delhi. The plaintiff has
placed on record samples of the plastic packaging in which the plaintiff's
product 'MR. WHITE' and defendants' product 'Ujala White' are being
sold.
7. Having heard learned counsel for the plaintiff and having perused the
paper book, this Court finds that the similarities between plaintiff's
packaging and defendants' packaging are as under:-
PLAINTIFFS PACKAGING DEFENDANTS PACKAGING
FRONT SIDE FRONT SIDE
On the top there is a dark blue On the top there is a dark blue
border. border.
At the top left corner there are At the top left corner there are
red, yellow and blue stripes on red, yellow and blue stripes on
a two shades of green a two shades of green
background. background.
New Improved is written with New Improved is written with
black colour on yellow stripe. black colour on yellow stripe.
With Whiteness Boosters is With Whiteness Boosters is
written in white colour on blue written in white colour on blue
stripe. stripe.
In the middle there is white and In the middle there is white and
light blue oval wherein blue light blue oval wherein blue
colour is in the border and colour is in the border and
white in the middle white in the middle.
Mr. White is written in slanting Ujala White is written in
script in red colour having blue slanting script in red colour
shadow. having blue shadow.
There is a blue strip underneath There is a blue strip underneath
Mr. White on which Long Mr. White on which Long
Lasting Whiteness is written in Lasting Whiteness is written in
white colour. white colour.
There is a device of half cut There is a device of half cut
lemon on bottom right side. lemon on bottom right side.
There are three stripes along There are three stripes along
with the lemon device. The top with the lemon device. The top
stripe is in red colour on which stripe is in red colour on which
With The Power of is written in With The Power of is written in
white colour. The second stripe white colour. The second stripe
is of yellow colour on which is of yellow colour on which
Lemon is written in green Lemon is written in green
colour and the third stripe is in colour and the third stripe is in
blue colour on which Blue is blue colour on which Blue is
written in white colour. written in white colour.
There are three blue circles at There are three blue circles at
the bottom of device of lemon the bottom of device of lemon
from which white rays are from which white rays are
emanating. emanating.
On the bottom left corner are On the bottom left corner are
two stripes. The top stripe is of two stripes. The top stripe is of
red colour wherein Quality & red colour wherein Quality &
are written in white colour. are written in white colour.
The bottom stripe is of green The bottom stripe is of green
colour on which responsibility colour on which responsibility
is written in white colour. The is written in white colour. The
word Henkel is written on these word Burj is written on these
stripes. stripes.
On bottom right corner Mr. On bottom right corner Ujala
White is written in red colour White is written in red colour
and white shadow is emanating and white shadow is emanating
therefrom. therefrom.
BACK SIDE BACK SIDE
On the top there is a dark blue On the top there is a dark blue
border. border.
The background is divided in The background is divided in
two shades, the top being two shades, the top being green
green and the bottom being and the bottom being blue.
blue.
On top left are three stripes On top left are three stripes
along with the lemon device. along with the lemon device.
The top stripe is in red colour The top stripe is in red colour
on which With The Power of is on which With The Power of is
written in white colour. The written in white colour. The
second stripe is of yellow second stripe is of yellow
colour on which Lemon is colour on which Lemon is
written in green colour and the written in green colour and the
third stripe is in blue colour on third stripe is in blue colour on
which Blue is written in white which Blue is written in white
colour. Below it is another colour. Below it is another
blue stripe on which With blue stripe on which With
Whiteness Boosters is written in Whiteness Boosters is written in
white colour. white colour.
There are three blue circles at There are three blue circles at
the bottom of device of lemon the bottom of device of lemon
from which white rays are from which white rays are
emanating. emanating.
On the top right Mr. White is On the top right Mr. White is
written in slanting script in red written in slanting script in red
colour having White shadow. colour having White shadow.
There is a blue strip underneath There is a blue strip underneath
Mr. White on which Long Mr. White on which Long
Lasting Whiteness is written in Lasting Whiteness is written in
white colour. white colour.
Photographs of shirts, half cut Photographs of shirts, half cut
lemon and front packaging are lemon and front packaging are
present. present.
There is similarity in script. There is similarity in script.
For example Plaintiffs For example Defendants
packaging states- Mr. White- packaging states-New Improved
Giving your clothes not just Detergent Powder Gives your
'Whiteness', but 'Long Lasting clothes not just 'Whiteness', but
Whiteness'. 'Long Lasting Whiteness.
8. This Court is of the opinion that the plaintiff's packaging with its
colour, pattern, arrangement, get up and lay out is an original artistic work
within the meaning of Section 2(c) of The Copyright Act, 1957. Further, the
defendants' packaging material for its product 'Ujala White' is visually and
structurally similar to that of the plaintiff's packaging material for its
product 'MR. WHITE'. In fact, the defendants have copied the essential
features of the plaintiff's packaging. The points of dissimilarities between
the two packaging are negligible. Accordingly, this Court concludes that the
defendants have deliberately adopted the plaintiff's packaging so as to trade
and encash upon the plaintiff's goodwill.
9. Consequently, to prevent infringement of the plaintiff's copyright in
its packaging of 'MR. WHITE', defendants are permanently restrained from
using similar packaging to that of 'MR. WHITE'.
10. The suit is accordingly decreed in terms of prayer (i) of the plaint.
Decree sheet be drawn up accordingly.
MANMOHAN, J
JANUARY 03, 2013
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