Delhi High Court
The Coca-Cola Company & Anr vs Mr.Dwarkanath on 15 February, 2018
$~OS-4
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 15.02.2018
+ CS(COMM) 1475/2016 and IA No. 10016/2014
THE COCA-COLA COMPANY & ANR ..... Plaintiffs
Through Ms.Kangan Roda, Ms.Kripa Pandit
and Ms.Shreya Sethi, Advs.
versus
MR.DWARKANATH ..... Defendant
Through
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH, J.(ORAL)
1.
The present suit is filed by the plaintiffs seeking a decree of
permanent injunction to restrain the defendant, its partners, employees, etc.
from manufacturing, selling, marketing, etc. using the offending trade mark
KWALTY and/or offending bottle shape as represented in the plaint and/or
any other mark which is deceptively or confusingly similar to the registered
trade mark KINLEY (label) and DANUBE BOTTLE shape of plaintiff No.1
as a trade mark or part of a trade mark or any other mark to infringe the
plaintiff‟s trade mark. Other connected reliefs are also sought.
2. It is contended in the plaint that plaintiff No. 1 is the registered
proprietor of the trademarks DANUBE BOTTLE shape, KINLEY and
KINLEY (label) as detailed in para 3 of the plaint. Plaintiff No. 2 is the
authorised bottler of plaintiff No.2. It is further pleaded that plaintiff No. 1
first adopted the distinctive DANUBE BOTTLE shape in the year 2006 in
Turkey and in India its use commenced in 2008. Since the launch of the said
DANUBE BOTTLE, the same has been continuously and extensively used
and has acquired immense reputation and goodwill. It is pleaded that the
consumers associate the said distinctive DANUBE BOTTLE shape with the
plaintiff and plaintiff‟s brand KINLEY. The plaintiff‟s brand/trademark
KINLEY was launched in India in 2001. It is pleaded that the plaintiffs have
invested enormous amount of money towards the protection, promotion and
advertising of the trade mark KINLEY, the distinctive label and the
DANUBE BOTTLE shape details of which are given in the plaint.
3. In May-June 2013, the plaintiff came across the product being
packaged drinking water under the brand of KWALTY being offered for
sale in a bottle, the shape of which is virtually identical to plaintiff No.1‟s
well known and distinctive DANUBE BOTTLE shape. Apart from copying
the shape of the bottle, the defendant has adopted a label which is virtually
identical to the KINLEY(label) of the plaintiff. Various points of
comparison have also been detailed in the plaint including that the
defendant‟s bottle is virtually identical to the plaintiff‟s distinctive
DANUBE BOTTLE shape. The defendant has copied the exact shape, silver
colour and placement of the ribbon device as used by the plaintiffs in
KINLEY. KINLEY (label) has also been copied. The wordings used on the
plaintiff‟s bottle have also been copied, namely, "Drinking water is good for
your body.... You can enjoy every drop of Kinley". Hence, it is pleaded that
the shape of the bottle and the overall get up is virtually identical to that of
the plaintiff‟s trade mark.
4. It is pleaded that on 07.07.2013 a letter was sent by the counsel for the
plaintiff to the defendant to cease and desist. The same was received back by
the postal department as „refused‟. It is further pleaded that as per the
impugned bottles, the entity M/s Harshini Electronics is the manufacturer.
The investigation of the plaintiffs revealed that Mr.Dwarkanath, the
defendant is the owner of the said entity. It is also pleaded that the
investigation conducted at the premises of the defendant confirmed that the
defendant continues to manufacture the offending product under the mark
KWALTY (label).
5. The defendant was served through publication as it is pleaded that
they had refused to accept service. The defendant was proceeded ex parte on
26.09.2017.
6. None has appeared for the defendant and he has also not filed any
written statement within the time made available. In terms of Order 8 Rule
10 CPC a decree is passed in favour of the plaintiffs and against the
defendant in terms of prayer A (i). The plaintiffs shall also be entitled to
costs which shall be based on the plaintiff‟s filing a bill of cost duly certified
by the learned counsel for the plaintiffs.
7. Learned counsel for the plaintiffs submits that despite the injunction
order passed by this court, the defendant continues to flout the interim orders
passed by this court. The plaintiffs are free to take steps as per law against
the said act of the defendant.
8. The suit is disposed of in the above terms.
JAYANT NATH, J
FEBRUARY 15, 2018
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