Delhi High Court
G.K.Burman Herbal (India) Pvt Ltd vs Zee Hygiene Products Pvt Ltd. on 10 July, 2017
$~38
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 10.07.2017
+ CS(OS) 2467/2012
G.K.BURMAN HERBAL (INDIA) PVT LTD ..... Plaintiff
versus
ZEE HYGIENE PRODUCTS PVT LTD. ..... Defendant
Advocates who appeared in this case:
For the Plaintiff : Mr Ankit Sahni
For the Defendant : Mr N.Mahabir
CORAM:-
HON'BLE MR JUSTICE SANJEEV SACHDEVA
JUDGMENT
10.07.2017
SANJEEV SACHDEVA, J. (ORAL)
IA No.7358/2017(XXIII R.3 CPC)
1. The plaintiff has filed the present suit under Sections 28 & 29
read with Sections 134 & 135 of the Trade Marks Act, 1999 and
Sections 51 & 55 of the Copyright Act, 1957 for permanent injunction
restraining infringement of Trade Mark, Copyright, Damages etc.
2. The parties have settled their disputes. Accordingly, the present
application under Order XXIII R.3 CPC has been filed.
3. The application is signed by the authorized representatives of
the parties and their counsel and is supported by an affidavit of the
respective Directors of the plaintiff as well as defendant Companies.
The application is marked 'Exhibit C- 1'.
4. The application is allowed.
CS(OS) 2467/2012
1. The plaintiff has filed the present suit under Sections 28 & 29
read with Sections 134 & 135 of the Trade Marks Act, 1999 and
Sections 51 & 55 of the Copyright Act, 1957 for permanent injunction
restraining infringement of Trade Mark, Copyright, Damages etc.
2. The plaintiff claims to be the proprietor of the trade mark
'HIMGANGE' Ayurvedic Oil having adopted the mark in the year
1986.
3. The plaintiff has filed the suit contending that the Defendant is
infringing its registered trademark and the copyright.
4. The parties have arrived at a settlement with the plaintiff.
Terms of the Settlement are as under:-
"3. The Defendant admits that the trade mark
HIMGANGE (word per se) and HIMGANGE (Label) are
the registered trademarks of the Plaintiff in relation to
Ayurvedic hair oil, besides for other goods, and that the
Plaintiff is both the statutory as well as common law
owner in relation to the 'Himgange' word mark and
Himgange Label.
4. That the Defendant admits that the Plaintiff is
owner/proprietor of the artistic work HIMGANGE
(Label) which is registered under registration
No.A70781/05 of the Copyright Act.
5. The Defendant also admits that the Plaintiff is the
owner of Copyright in the inside of the carton, the
packaging material and instructions for use of the
Himgange product of the Plaintiff, as more further
detailed in paragraph 5, 6 and 7 of the Plaint.
6. The Defendant also admits that the Plaintiff is the
owner of the Design of the bottle registered under
Registration No. 196282 under the Designs Act.
7. The Defendant undertakes to this Hon'ble Court
that they will not use the labels, sachet/pouch, bottle,
packing carton/packing material and outer carton which
is deceptively similar to the Plaintiffs label,
sachet/pouch, bottle, outer carton/packing material
amounting to infringement of trademark, copyright,
design and passing off their goods as the goods of the
Plaintiff.
8. The Defendant shall not manufacture and sell the
products bearing a label deceptively similar or identical
to the label of the Plaintiff as well as adopting a layout
and get up similar to the artistic features of the Plaintiffs
carton, literary works of the Plaintiff as well as bottles
that are similar to the registered design of the Plaintiffs
bottle. The Defendant shall inform all its distributors to
return all infringing stock (if any) within a week of the
present settlement and shall hand over all existing stock
(if any) to the Plaintiff for destruction within two month
of the present settlement. The Defendant further
undertake not to oppose or seek a rectification in relation
to any of the rights of the Plaintiff.
9. The Defendant has agreed to change the entire
packaging of its product (including shape/design of the
bottle) under the trade mark HIMGURU, as per
ANNEXURE-l, attached to this term of settlement which
forms integral part hereof. The Plaintiff consents to this
Annexure - 1.
10. The Defendant undertakes that the new packaging
developed as annexed hereto, will not be amended as to
presentation of trade mark, artistic work, devices, layout.
color scheme shown therein, In case, any
amendment/change is made, such change shall not effect
the style of writing of the trade mark HIMGURU, and
substantial representation of the devices, colour schemes,
and that such change shall be reported by the Defendant
to the Plaintiff in advance in writing."
5. As per the Settlement, the defendant has agreed to change the
entire packaging of its product and the trade dress and packaging
agreed upon between the parties, which the defendant would
henceforth use for its Ayurvedic Oil, has been annexed as
'Annexure-I' to the application under Order XXIII Rule 3 CPC.
Annexure-I is marked 'Exhibit C- 2'.
6. The undertaking given by the defendant is accepted.
7. In view of the undertaking given by the defendant, plaintiff
does not press the reliefs mentioned in paragraphs 32 (iii) to 32(vii) of
the plaint. Learned counsel submits that though in the application the
plaintiff had stated that it does not press reliefs claimed in paragraphs
32 (iii) to 32(iv), he has instructions to state that the plaintiff also does
not press the reliefs mentioned in paragraphs 32(v) to 32(vii) of the
plaint.
8. In view of the above, the suit is decreed in terms of paragraphs
3 to 10 of the application being IA No.7358/2017 under Order XXIII
Rule 3 CPC(Exhibit C - 1), as extracted hereinabove.
9. Exhibits C - 1 and C - 2 shall form part of the Decree.
10. Decree sheet be prepared accordingly.
11. The next date of 29.08.2017 is cancelled.
SANJEEV SACHDEVA, J
JULY 10, 2017
'Sn'
