Delhi High Court
Joy Creators Pvt Ltd Of 4, Mysore ... vs Natures Essence Pvt Ltd Of D-2505 ... on 20 September, 2018
$~12
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision:20th September, 2018
+ CS(COMM) 632/2018 & I.A. 2722/2014
JOY CREATORS PVT LTD OF 4, MYSORE ROAD,
KOLKATA ..... Plaintiff
Through: Mr. Hemant Daswani, Advocate (M-
9810556744).
versus
NATURES ESSENCE PVT LTD OF D-2505 VASANT KUNJ,
NEW DELHI ..... Defendant
Through: Mr. Aruni Poddar, Advocate (M-
954055810).
CORAM:
JUSTICE PRATHIBA M. SINGH
Prathiba M. Singh, J. (Oral)
1. The Plaintiff is a manufacturer and trader of a large range of cosmetic
and personal care products. The business traces back to 1988, when a
proprietorship firm of Mr. Ram Autar Gupta was formed in Kolkatta. The
said firm started manufacturing and selling products under the trade mark
`JOY'. Its products were talcum powder, creams, lotions, lip balms etc.,
Thereafter in 1996 it claims to have launched the `Honey and Almonds'
cream in India and thereafter started exporting the products to various
countries including Russia. The business of the Plaintiff started expanding
and the Plaintiff company was then formed. The mark `JOY' was assigned
by the sole proprietor to the company on 1st April 2010.
2. It is the case of the Plaintiff that it began marketing a range of
products under the name/expression `Honey & Almonds' including body
lotion, nourishing skin cream, cold cream, facial wash, facial gel etc., A
distinctive logo as also label was also adopted. Various trade mark
applications were filed for the various derivative marks consisting of the
expression `Honey and Almonds'. The products under this mark were also
extensively advertised in national electronic media. The said products won
various awards and accolades from the trade. The products were marketed
in several foreign countries includign USSR, Nepal, Saudi Arabia, Ecuador
and Bucharest. The products are sold in various well known retail chains in
India. The sale figures rose to crores of rupees.
3. Apart from the mark `Honey & Almond' the Plaintiff claims to be
using the tagline/slogan `Poshan Wala Lotion', in its marketing and
advertising for the products. It is claimed that the expression `Honey &
Almonds' is not generic but has acquired distinctiveness.
4. In September 2013, the Plaintiff came to know of the Defendant's
manufacturing and marketing activities of lotions and creams under the
mark/name 'Nature's Essence Almond & Honey Body Lotion'. The present
suit for permanent injunction, for passing off, infringement of trademark,
etc. has been filed seeking injunction against the said product using the
words Almond & Honey. The primary grievance of the Plaintiff is in respect
of the shape of the bottle, colour scheme, get up, the use of the expression
'Sampoorna Poshan Wala Lotion' of the Plaintiff and the description
'Almond and Honey'.
5. Insofar as the issue as to the shape of the bottle and the use of the
expression 'Sampoorna Poshan Wala Lotion' is concerned, the Defendant
has already agreed to change the shape of the bottle. Insofar as the
expression 'Sampoorna Poshan Wala' is concerned, the Defendant has
submitted that they have never used the said expression. The only
outstanding dispute between the parties is in respect of the use of the
expression 'Almond and Honey'.
6. The Plaintiff uses the expression 'Honey & Almonds' for their body
lotion as also their All Purpose Cream and they do not have objection in the
use of the 'Almond and Honey' by the Defendant. However, the submission
of the counsel for the Plaintiff is that the same should not be used as a
trademark to signify source, but as a description of the Defendant's product.
7. The Court has seen the proposed packaging of the Defendant and
from the proposed packaging, it is observed that 'Nature's Essence' is given
lesser prominence than 'Almond and Honey'. 'Nature's Essence' being the
trademark of the Defendant', the description 'Almond and Honey' should
not be used as a trademark or with undue prominence. Accordingly, it is
directed that in the packaging/container, which is handed across to the Court
today, the words 'Almond and Honey' would be written as directed below,
so as not to give undue prominence to the expression 'Almond and Honey'.
8. Accordingly, Defendant is injuncted from using the shape of the
impugned bottle and also injuncted from using the expression 'Sampoorna
Poshan Wala Lotion'. Insofar as the expression 'Almond and Honey' is
concerned, the Defendant is permitted to use it as a description of their
product both for the 'Nourishing Whitening Body Lotion and 'All Purpose
Cream'. The expression 'Almond and Honey' would however be in lesser
prominence than 'Nature's' and in any case cannot be larger than 75% of the
font of the word 'Nature's' forming part of `Nature's Essence' and 75% of
the space occupied by `Nature's Essence'.
9. The suit is decreed in the above terms. The Defendant shall produce
the label, which they intend to adopt in compliance of the above order.
10. No other reliefs are pressed.
11. Suit is disposed of. All pending I.As are also disposed of.
12. List on 5th October, 2018 for compliance.
PRATHIBA M. SINGH, J.
SEPTEMBER 20, 2018
Rahul
