Delhi High Court
Ds Confectionery Products ... vs Nirmala Gupta And Anr on 22 November, 2022
Neutral Citation Number: 2022/DHC/005036
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 03.11.2022
Date of decision:22.11.2022
+ CS(COMM) 176/2020
DS CONFECTIONERY PRODUCTS LIMITED
..... Plaintiff
Through: Ms.Vaishali Mittal, Mr.Rohin
Koolwal, Advs.
versus
NIRMALA GUPTA AND ANR ..... Defendants
Through: None.
CORAM:
HON'BLE MR. JUSTICE NAVIN CHAWLA
1.
The present suit has been filed by the plaintiff praying for a
decree of permanent injunction against the defendants restraining
them from manufacturing, selling, offering for sale, advertising,
directly or indirectly dealing in any manner with confectionery
products and/or any other goods and services including but not
limited to hard flavoured candies and/or fruit candies and/any other
goods and services using the trade mark PELSE/ , the
trade mark as also trade dress for
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PLUS++/ under the SNEH trading style
or any other trademark, containing the plaintiff‟s trademark and
copyright in PULSE/ , or any other mark deceptively
similar thereto, which would amount to either infringement,
passing off, dilution, unauthorised representation or unfair
competitions. The plaintiff further prays for delivery up, rendition
of accounts, costs and damages.
2. Vide order of this Court dated 20.08.2020, the defendants
were proceeded with ex-parte in the present suit.
3. It is the case of the plaintiff that it is a part of the Dharampal
Satyapal Group, a diversified conglomerate founded in the year
1929, and is engaged in the business of food and beverage
products, confectionery, hospitality, mouth fresheners, paan
masala, tobacco, agro forestry, rubber threads, infrastructure and
dairy segments. The plaintiff asserts that it has been a leading
industrial player creating premium high-quality products for a wide
range of consumers in India as well as internationally. Across the
multiple sectors of industry that the plaintiff conducts its business
in, it is recognized as a market leader in traditional natural mouth
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fresheners as also mini chewing gums, adopting trade names such
as, „Catch‟, „Pass-Pass‟, „Tulsi‟, „Rajnigandha‟ and „Chingles‟.
4. The plaintiff‟s goods under the trademark PULSE and the
trade-dress associated with its product PULSE along with the
„Kachcha Aam‟ flavoured candy, written as „Kachcha Aam with
Tangy Twist‟, marked the plaintiff‟s foray into the candy product
segment. The candy product was conceptualized around early 2013
and introduced for sale to the general public in December,
2014.The trade mark and packaging of the PULSE candy along
with its trade-dress is reproduced hereinbelow:
5. The plaintiff also launched its candy bearing the trade mark
PULSE/ in four different flavours- Guava and Orange
in the year 2016; Pineapple and Litchi in the year 2017. The
plaintiff further launched a sweetened drink as also a „no salt,
sugar free‟ variant of the candy, both bearing the trade mark
PULSE/ .
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6. The plaintiff gives details of its expenditure regarding the
advertisements and promotion between the years 2014 to 2018 of
its trade mark PULSE/ in paragraph 16 of the plaint.
7. The plaintiff also gives its sales figures of the products under
the PULSE trademark for the period 2014-2015 to 2017-2018, in
paragraph 18 of the plaint, with the sales rising from Rs. 1.89
Crore to Rs. 329.17 Crore during this period.
8. The plaintiff gives the details of the registrations
granted/applied for its trade marks, as under:
Trade Trademark Class User Date Date of Status
mark Application
Applicat
ion No.
2827909 30 01.04.2013 16.10.2014 Registered
3071704 01.04.2013 07.10.2015 Registered
3071705 30 01.04.2013 07.10.2015 Registered
2891666 30 01.04.2013 29.01.2015 Opposed
2827906 PULSE (word) 30 01.04.2013 16.10.2014 Opposed
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3103619 30 01.04.2013 23.11.2015 Registered
3854008 30 01.04.2013 07.06.2018 Registered
3854009 30 01.04.2013 07.06.2018 Registered
3854010 PULSE SHOTS 30 01.04.2013 07.06.2018 Registered
3188874 PULSE 32 01.10.2015 17.02.2016 Registered
3364213 PULSE 32 01.04.2013 16.09.2016 Accepted
9. The plaintiff asserts that its mark has also been
registered/applied for in other countries, details whereof are given
in paragraph 22 of the Plaint.
10. The plaintiff also submits that this Court in its judgment
dated 17.10.2019, titled Dharampal Satyapal Sons Private
Limited v. Mr. Akshay Singhal & Ors., CS(COMM) 129 of 2019,
has declared the trade mark PULSE as a „well-known trade mark‟
under Section 2 (1) (zg) of the Act.
11. The plaintiff submits that the PULSE labels such
as are „original artistic works‟
within the ambit of Section 2(c) of the Copyright Act, 1957 and
that the plaintiff is the holder of the copyright in the artistic work
for its orange and guava flavoured candy vide registration number
A-122599/2017 dated 26.12.2017.
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12. It is the case of the plaintiff that around the first week of
May 2020, the plaintiff learned of the defendants‟ activities of
advertising and selling candies bearing the mark PELSE/
as well as raw mango-flavoured candies bearing the mark
PLUS++/ and trade dress under the SNEH trading
style.
13. The plaintiff submits that vide internet searches, it came
across the defendants‟ proprietorship concern, that is, M/s Silver
Products, highlighted on third party websites such as
www.indiamart.com wherein the defendants had listed their candy
goods bearing the impugned marks PELSE/ and
PLUS++/ .
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14. The plaintiff further states that a search of the GST number
of M/s Silver Products, indicates that the defendant no. 1 is the
owner of the same, whereas the listing of M/s Silver Products on
www.indiamart.com shows that the defendant no. 2 also owns and
is involved in managing the affairs of the proprietorship concern.
PROCEEDINGS BEFORE THIS COURT
15. Vide order of this Court dated 17.06.2020, an ex-parte ad-
interim injunction was issued restraining the defendants from
manufacturing, selling, offering for sale, and advertising, directly
or indirectly, the goods bearing the impugned trade marks
PELSE/ and PLUS++/
16. On 16.07.2020, the learned counsel for the plaintiff
submitted before the Court that the defendants had been served via
e-mail. Thereafter, as noted hereinabove, vide order of this Court
dated 20.08.2020, the defendants were proceeded ex-parte on
account of non-appearance despite service, albeit on an alternate
address. Vide the same order, the ex-parte ad-interim injunction
dated 17.06.2020 was made absolute till the adjudication of the
present suit.
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17. Though the matter had been listed before the learned Joint
Registrar (Judicial) for recording of plaintiff‟s evidence, the
learned counsel for the plaintiff submitted that the present case is
fit for passing of a Summary Judgment in terms of Order XIII-A of
the Code Of Civil Procedure, 1908, as applicable to commercial
disputes of a specified value, read with Rule 27 of The Delhi High
Court Intellectual Property Division Rules, 2022 (in short, "IPD
Rules"), against the defendants.
ANALYSIS AND FINDINGS
18. I have considered the submissions of the learned counsel for
the plaintiff.
19. From the averments made in the Plaint, which remain un-
rebutted, it is evident that the plaintiff is the proprietor of the mark
PULSE used for its product, that is, hard flavoured candies/fruit
candies. In Mr. Akshay Singhal (supra), this Court has held the
plaintiff‟s mark PULSE to be a well-known trade mark as defined
in Section 2(1)(zg) of the Act.
20. The trade mark adopted by the defendants, that is, PLUS++
as also PELSE are deceptively similar to that of the plaintiff. Mere
addition of the sign "++" or deletion of the alphabet "E" from the
mark of the plaintiff, in my opinion, is not sufficient to bring about
a distinction in the two marks, as the same would remain
phonetically similar. Similarly, replacement of the alphabet "U" by
"E" in the mark PELSE by the defendants would also not bring
about sufficient distinction between the mark of the plaintiff and
the defendants to answer the test of deceptive similarity of the two
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marks. The adoption of colour combination of twin colours and the
presence and placement of the fruit(s) on the trade dress adds to the
deceptively similarity of the two marks.
21. That apart, even the colour scheme and the overall
packaging of the products adopted by the defendants appear to be
deceptively similar to that of the plaintiff‟s. The same has been
highlighted by the plaintiff as under:-
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S. NO ELEMENTS OF SIMILARITY
1. The identical manner of writing
and placing of PULSE vis-à-vis
Defendant‟s adoption of PLUS++
with identical shades of color
outlining
2. The identical manner of writing
"PULSE" in the centre of the
package near the slant divide in
white capital font
3. The identical slant divide between
the package dividing the package
into two halves between the
package;
4. The identical manner and location
of the mango fruit partially sliced
similar to the half cut fruit mango
on the Plaintiff‟s PULSE
packaging;
5. The deceptively similar adoption
and manner of positioning the
tagline "Kachcha Aam with Tangy
Twist " adjacent to the mango as
that of the Plaintiff‟s tagline
"Kachcha Aam with Khatta
Meetha Masala" positioned
similarly.
6. Identical manner of writing
PLUS++ along with placement of
other elements as that of the
Plaintiff on the jar with a green
lid.
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S.NO. ELEMENTS OF SIMILARITY
1. The identical manner of writing
and placing of PELSE vis-à-vis
Defendants‟ adoption of PULSE
with identical shades of color
outlining
2. The identical manner of alternate
arrangement of the letters PELSE
identical to the Plaintiff‟s PULSE
3. The use of white color capital font
to write the PELSE trademark as
adopted by the Plaintiff
4. The identical manner of writing
"PULSE" in the centre of the
package with a slant divide
manner.
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22. In Mondelez Foods India Pvt. Ltd. and Another v. Neeraj
Foods Products, 2022 SCC OnLine Del 2199, while placing
reliance on a judgment of this Court in ITC Ltd. v. Britannia
Industries Ltd., (2016) 233 DLT 259, this Court has held that
when the product is an eatable which are sold over the counters
and not expensive, the colour scheme of the packaging plays an
important role in the consumer making an initial choice and in
enabling a discerning consumer to locate the particular brand of a
manufacturer. In some cases, however, it is possible that such a
purchaser after having been misled into an initial interest in a
product manufactured by an imitator discovers his folly, but this
initial interest being based on confusion and deception can give
rise to a cause of action for the tort of passing off, as the purchaser
has been made to think that there is some connection or nexus
between the products and business of two disparate companies.
The above observations are fully applicable to the facts of the
present case.
23. In view of the above, I find the defendants to be guilty of
infringement of the plaintiff‟s registered marks as also passing off.
The same is also in violation of the copyright vested in the artistic
work of the plaintiff‟s label registered under the registration no. A-
122599/2017.
24. Adoption of the similar trade mark and trade name by the
defendants is not only a violation of the rights of the plaintiff, but
may also deceive general unwary consumers and appears
dishonest.
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25. In the present case, the defendants have chosen not to file
their written statements, nor have they entered appearance in the
suit to defend the same. In my opinion, therefore, this is a fit case
where a Summary Judgment in terms of Order XIII-A of the Code
Of Civil Procedure, 1908, as applicable to commercial disputes of
a specified value, read with Rule 27 of the IPD Rules deserves to
be passed in favour of the plaintiff and against the defendants.
26. This Court, in Su-Kam Power Systems Ltd. v. Kunwer
Sachdev and Another, 2019 SCC OnLine Del 10764, has held as
under:
"90. To reiterate, the intent behind
incorporating the summary judgment
procedure in the Commercial Court Act,
2015 is to ensure disposal of commercial
disputes in a time-bound manner. In fact,
the applicability of Order XIIIA, CPC to
commercial disputes, demonstrates that the
trial is no longer the default
procedure/norm.
91. Rule 3 of Order XIIIA, CPC, as
applicable to commercial disputes,
empowers the Court to grant a summary
judgement against the defendant where the
Court considers that the defendant has no
real prospects of successfully defending the
claim and there is no other compelling
reason why the claim should not be
disposed of before recording of oral
evidence. The expression "real" directs
the Court to examine whether there is a
"realistic" as opposed to "fanciful"
prospects of success. This Court is of the
view that the expression "no genuine issue
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requiring a trial" in Ontario Rules of Civil
Procedure and "no other compelling
reason.....for trial" in Commercial Courts
Act can be read mutatis mutandis.
Consequently, Order XIIIA, CPC would be
attracted if the Court, while hearing such
an application, can make the necessary
finding of fact, apply the law to the facts
and the same is a proportionate, more
expeditious and less expensive means of
achieving a fair and just result.
92. Accordingly, unlike ordinary suits,
Courts need not hold trial in commercial
suits, even if there are disputed questions
of fact as held by the Canadian Supreme
Court in Robert Hryniakv. Fred Mauldin,
2014 SCC OnLine Can SC 53, in the event,
the Court comes to the conclusion that the
defendant lacks a real prospect of
successfully defending the claim."
27. In view of the above, the plaintiff has been able to make out
a case for grant of prayers made in paragraph 69 (i) to (vi) and
(viii) of the Plaint.
28. As far as the relief of damages and rendition of accounts is
concerned, this Court in Intel Corporation v. Dinakaran Nair
&Ors., 2006 SCC OnLine Del 459 has held as under:
"13. The only other question to be
examined is the claim of damages of
Rs. 20 lakh made in para 48(iii)
(repeated) of the plaint. In this
behalf, learned Counsel has relied
upon the judgments of this Court
in Relaxo Rubber Limited v. Selection
Footwear, 1999 PTC (19)
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578; Hindustan Machines v. Royal
Electrical Appliances, 1999 PTC (19)
685; and CS (OS) 2711/1999, L.T.
Overseas Ltd. v. Guruji Trading Co.,
123 (2005) DLT 503 decided on
7.9.2003. In all these cases, damages
of Rs. 3 lakh were awarded in favour
of the plaintiff. In Time
Incorporated v. Lokesh Srivastava,
2005 (30) PTC 3 (Del) apart from
compensatory damages even punitive
damages were awarded to discourage
and dishearten law breakers who
indulge in violation with impunity. In
a recent judgment in Hero Honda
Motors Ltd. v. Shree Assuramji
Scooters, 125 (2005) DLT 504 this
Court has taken the view that
damages in such a case should be
awarded against defendants who
chose to stay away from proceedings
of the Court and they should not be
permitted to enjoy the benefits of
evasion of Court proceedings. The
rationale for the same is that while
defendants who appear in Court may
be burdened with damages while
defendants who chose to stay away
from the Court would escape such
damages. The actions of the
defendants result in affecting the
reputation of the plaintiff and every
endeavour should be made for a
larger public purpose to discourage
such parties from indulging in acts of
deception.
14. A further aspect which has been
emphasised in Time Incorporated
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case (supra) is also material that the
object is also to relieve pressure on
the overloaded system of criminal
justice by providing civil alternative
to criminal prosecution of minor
crimes. The result of the actions of
defendants is that plaintiffs, instead
of putting its energy for expansion of
its business and sale of products, has
to use its resources to be spread over
a number of litigations to bring to
book the offending traders in the
market. Both these aspects have also
been discussed in CS(OS) No.
1182/2005 titled Asian Paints (India)
Ltd. v. Balaji Paints and
Chemicals decided on 10.3.2006. In
view of the aforesaid, I am of the
considered view that the plaintiff
would also be entitled to damages
which are quantified at Rs. 3 lakh."
29. In the case of Hindustan Lever Ltd. and Anr v. Satish
Kumar, 2012 SCC OnLine Del 1378, this Court again held as
under:
"23. One of the reasons for granting
relief of punitive damages is that
despite of service of summons/notice,
the defendant had chosen not to
appear before the court. It shows that
the defendant is aware of the illegal
activities otherwise, he ought to have
attended the proceedings and give
justification for the said illegal acts.
Since, the defendant has maintained
silence, therefore, the guilt of the
defendant speaks for itself and the
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court, under these circumstances,
feels that in order to avoid future
infringement, relief of punitive."
30. Applying the above principles and taking into account the
fact that the defendants failed to appear before this Court despite
service, the plaintiff is found entitled to damages of a sum of Rs.
2,00,000/-.
31. The plaintiff shall be entitled to a decree as to costs as well.
RELIEF
32. Accordingly, a decree of permanent injunction in terms of
the prayers mentioned in paragraph 69 (i) to (vi) and (viii) of the
Plaint is passed in favour of the plaintiff and against the
defendants.
33. Damages of Rs. 2,00,000/- are granted in favour of the
plaintiff and against the defendants. The plaintiff is also entitled to
the costs of the suit.
34. Let a decree-sheet be drawn accordingly.
NAVIN CHAWLA, J.
NOVEMBER 22, 2022/DJ
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