M/S Blue Heaven Cosmetics Pvt Ltd vs Midie Cosmetics
2022 Latest Caselaw 1009 Del

                                                           Signature Not Verified
                                                           Digitally Signed
                                                           By:DEVANSHU JOSHI
                                                           Signing Date:14.04.2022
                                                           07:50:34


$~11
*    IN THE HIGH COURT OF DELHI AT NEW DELHI
                                    Date of Decision: 11th April, 2022
+          CS (COMM) 477/2021 & I.As. 12711/2021, 16540/2021
     M/S BLUE HEAVEN COSMETICS PVT LTD                    ..... Plaintiff
                        Through: Mr. Rishabh Srivastava & Ms.
                                 Radhika         Arora,            Advs.
                                 (M:9737708556)
                        versus
     MIDIE COSMETICS                                   ..... Defendant
                        Through: Mr. Saransh Saini, Advocate.
     CORAM:
     JUSTICE PRATHIBA M. SINGH
Prathiba M. Singh, J. (Oral)

1. This hearing has been done through hybrid mode. CS(COMM) 477/2021 & I.A. 12711/2021 (for interim injunction) & I.A. 16540/2021 (u/O XXXIX R 4 CPC)

2. The present suit has been filed by the Plaintiff seeking permanent injunction restraining the Defendant from infringement of its trademark/trade dress/copyright/writing style/ writing style/colour combination/label/packaging/ and reliefs for passing off goods, delivery upon, rendition of accounts of profits along with further damages, relating to the mark 'BLUE HEAVEN GET BOLD' and its formative marks. The Plaintiff is a company engaged in the business of manufacturing, marketing and trading in a range of cosmetic products. The Plaintiff is the registered owner of the word mark 'BLUE HEAVEN', its formative marks as well as the following marks which were adopted by it in 1972-

Signature Not Verified Digitally Signed By:DEVANSHU JOSHI Signing Date:14.04.2022 07:50:34

3. The Plaintiff is using the mark 'BLUE HEAVEN' in a distinctive logo form in blue colour, and various variants thereof, for the last several years. The mark 'BLUE HEAVEN' is also registered/pending registration in various foreign countries such as China, West Indies, Israel, Nigeria, Malaysia, United Kingdom, Yemen, UAE, etc. In 2020, the Plaintiff is stated to have adopted the mark 'BLUE HEAVEN GET BOLD (word/formative marks)' in a distinctive label/packaging/trade dress, as under:

4. The sales figures of the Plaintiff for the year 2019-2020 was to the tune of approximately Rs.135 crores. In the year 2020-2021, the sales figures of the Petitioner were approximately Rs.145 crores, till the time of filing of the suit in September, 2021. The case of the Plaintiff is that the Defendants are selling products under replicas of the Plaintiff's label/trademark/trade dress/copyright/packaging/etc. The Defendants also

hold a trademark registration for , bearing TM No. 3388032 in Class 3.

Signature Not Verified Digitally Signed By:DEVANSHU JOSHI Signing Date:14.04.2022 07:50:34

5. Today, I.A. 12711/2021, which is the application seeking interim injunction is listed along with I.A. 16540/2021, which is an application for vacation of injunction. However, an adjournment is sought on behalf of the Defendant.

6. It is seen from the record and the physical products which have been produced before this Court today, that this is a case of complete counterfeiting which has been undertaken by the Defendants. The Plaintiff's and Defendants' products are reproduced as under:

Signature Not Verified Digitally Signed By:DEVANSHU JOSHI Signing Date:14.04.2022 07:50:34

Signature Not Verified Digitally Signed By:DEVANSHU JOSHI Signing Date:14.04.2022 07:50:34

7. A perusal of the above as also the physical products, shows that the marks are almost identical, the colour combination is identical, the label is identical, in fact, every feature of the Plaintiff's product has been imitated by the Defendants. Ld. Counsel for the Plaintiff in fact, also submits that the bar code of the Defendant's impugned product is the same as the barcode of the Plaintiff's products.

8. This Court also noted that pursuant to the execution of the local commission, the Local Commissioner's report dated 26th October, 2021 has been placed on record. The Local Commissioner has seized more than 2,300 infringing products which are inventoried and are in the custody of the Defendants.

9. Moreover, it is noticed from the packaging of the Defendants that the same does not have any MRP, neither the manufacturing and the marketing date, or the address from where it was manufactured. The only information on the packaging is the phrase "Made in PRC". Considering the fact that cosmetics are personal care products which are used on skin, such sale of the products can also not be permitted. Section 9C and 9D of the Drugs and Cosmetics Act, 1940 (hereinafter "DCA") read with Rule 34 of the Cosmetics Rules, 2020, clearly mandates that the various particulars such as

Signature Not Verified Digitally Signed By:DEVANSHU JOSHI Signing Date:14.04.2022 07:50:34

date of manufacture, date of expiry, name and exact address/pin code of manufacturer, name of importer, batch no., etc. have to be mentioned on the label of any cosmetic product. Relevantly, Section 9C of the DCA reads as under:

"9C. Misbranded cosmetics.--For the purposes of this Chapter, a cosmetic shall be deemed to be misbranded--

(a) if it contains a colour which is not prescribed; or

(b) if it is not labelled in the prescribed manner; or

(c) if the label or container or anything accompanying the cosmetic bears any statement which is false or misleading in any particular."

10. Therefore, the continuance of sale and manufacture of the impugned products would also be contrary to the DCA. In this view of the matter, the interim injunction already granted shall stand confirmed during the pendency of the suit. Both I.A. 12711/2021 and I.A. 16540/2021, are disposed of.

11. Additionally, ld. counsels for the parties submit that the document schedule has been filed on 9th April, 2022, before the Joint Registrar. However, ld. counsel for the Plaintiff submits that the documents of the Defendants are not in terms of the Commercial Courts Act, 2015.

12. Let the said documents be brought on record by the Defendants.

13. List before the Joint Registrar on 22nd July, 2022, for the admission denial and marking of exhibits.

14. After marking of exhibits, the matter be placed before the Court for case management.

PRATHIBA M. SINGH JUDGE APRIL 11, 2022/dj/ms