Delhi High Court
Great Food And Beverages Llp & Anr. vs Mr. Yash Taneja on 27 September, 2019
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Decided on: 27th September, 2019
+ CS(COMM) 266/2017
GREAT FOOD AND BEVERAGES LLP & ANR ..... Plaintiffs
Represented by: Ms. Kangan Roda, Adv.
versus
MR. YASH TANEJA ..... Defendant
Represented by: Mr. Ritaj Kacker, Adv.
CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA
MUKTA GUPTA, J. (ORAL)
1. In the present suit plaintiff No.1 claims itself to be a limited liability
company existing under the laws of United Kingdom with its principal
business in London, United Kingdom and plaintiff No.2 being its wholly
owned subsidiary in India. The plaintiffs are manufacturing and selling
beverages and ready to eat snacks for kids and youngster in a fun and
innovative convenient way. The product portfolio of the plaintiffs
comprises of reasonably priced frozen juice bars, flavoured popcorn, dip and
lick lollypops and fruit juice drinks sold in various states in India under the
brands FRUITCHILL, FRUTCHILL, CRACKY and LOLICK. The most
popular produce of the plaintiffs sold is FRUTCHILL, which is a frozen
fruit bar with the goodness of natural juices and freshness of an ice-cream.
Plaintiffs claim that it manufactures and sells FRUTCHILL in a variety of
flavours like strawberry, lemon, mango, grape, orange and litchi and is a
very high quality edible product packaged with utmost hygiene and safety.
2. Grievance of the plaintiffs in the present suit is the dishonest
adoption, misuse by the defendant in copying the plaintiffs' unique
packaging which includes its Penguin Mascot, colour combination, style of
fonts and placement of images with respect to identical goods being fruit
flavoured Ice Candy (including dimensions of the packaging i.e. its length,
breath and height). Although the defendant uses the mark JUICYBLISS,
however the said mark has been done in a manner almost identical to the
plaintiff's with exact stylization of the marks, with identical colours and
fanciful representation of the labels, the copyright whereof vests with the
plaintiff.
3. A visual comparison of the packaging of the plaintiff's product
FRUTCHILL and the defendant's impugned product JUICYBLISS is as
under:
" "
4. The plaintiff also claims that the plaintiff's inhouse graphic designer
over the years has redesigned the packaging of the plaintiff in order to give a
fresher and younger look and in the year 2013 the plaintiffs adopted the
present artwork and distinctive packaging as it exists today. The artwork of
the plaintiff's packaging includes the plaintiff's vibrant Penguin Mascot and
the plaintiffs are in the process of registering the device of its Penguin
Mascot.
5. It is in the light of these pleas that the plaintiffs by the present suit
seek a permanent injunction against the defendant, their directors, agents
from manufacturing, distributing, exporting, selling or offering for sale in
any manner the impugned products in the packaging as noted above which is
deceptively, confusingly similar to the plaintiffs' mark/label/trade
dress/packaging thereby passing off the products of the defendant as that of
the plaintiffs; copying, reproducing, adopting/ using the device of the
plaintiff, reproducing, printing, publishing or using in any manner the
Penguin device bearing any resemblance to the plaintiffs' Penguin Mascot,
the copyright whereof vests with the plaintiffs, besides seeking a mandatory
injunction for recalling the impugned products, delivery of the impugned
products, withdrawal of the trademark application etc., besides costs.
6. Summons in the suit were issued to the defendant vide order dated
18th May, 2017, however despite service of summons the defendant failed to
file written statement within the period of 120 days from the date of service.
Hence the right of the defendant to file the written statement was closed.
Hence the plaintiff is entitled to a decree of the suit in its favour in terms of
Order VIII Rule 10 CPC.
7. A visual comparison of the plaintiffs' and defendant's products as
reproduced in the plaint are as under:
"
"
8. Even the carts used for selling the defendant's product are deceptively
similar to the plaintiffs' push cart trolleys as under:
"
"
9. Plaintiffs have placed on record material to show that it first launched
its product in the year 2010 in South India and thereafter in North India and
that the trademark of the plaintiffs has become synonymous with its eye-
catching packaging of the products originating from the plaintiffs. The
revenue collection of the plaintiffs from the sales in the fiscal years 2010 to
2016 have been approximately 21.86 crores. Vide order dated 13 th April,
2017 this Court had appointed a Local Commissioner who executed the
same on the defendant's premises on 17th April, 2017 and seized large
quantities of finished/ unfinished products including packaging material
label/ cartoons/ shipping works etc.
10. From the material as placed on record by the plaintiffs, it has been
proved that the use of the identical and nearly similar packaging/ trade dress
by the plaintiffs to that of the defendant is bound to cause confusion in the
minds of the consumers of the plaintiffs' products who are primarily young
children and thus the plaintiffs are entitled to a decree of injunction against
the defendant for passing off its products as that of plaintiffs' products based
on the packaging.
11. Consequently, in the absence of any defense from the defendant and
in view of the documents placed on record by the plaintiffs and the facts
noted above, the suit is disposed of passing a decree in favour of the
plaintiffs and against the defendant in terms of prayer (A) in the suit.
12. The defendant has not led any evidence to prove damages caused and
hence no damages can be awarded. In respect of the cost, the plaintiffs have
filed no affidavit to disclose the cost incurred, however a sum of ₹1,01,500/-
has been paid as the Court fees and a sum of ₹75,000/- to the Local
Commissioner. Thus, cost for a sum of ₹1,76,500/- is awarded in favour of
the plaintiffs and against the defendant.
(MUKTA GUPTA)
JUDGE
SEPTEMBER 27, 2019
'ga'
