Delhi High Court
M/S Blue Heaven Cosmetics Pvt Ltd vs Miss Fashion India Through Its ... on 31 October, 2022
2022/DHC/004614
$~20
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 31st October, 2022
+ CS (COMM) 683/2021 and I.A. 17193/2021
M/S BLUE HEAVEN COSMETICS PVT LTD ..... Plaintiff
Through: Mr. Rishabh Srivastava, Advocate.
(M:9737708556)
versus
MISS FASHION INDIA THROUGH ITS PROPRIETOR LUKESH
JAIN & ORS. ..... Defendants
Through: None.
CORAM:
JUSTICE PRATHIBA M. SINGH
Prathiba M. Singh, J. (Oral)
1. This hearing has been done through hybrid mode.
2. The background of the case is that the suit has been filed by the
Plaintiff - M/s. Blue Heaven Cosmetics Pvt. Ltd. seeking permanent
injunction restraining infringement of registered trademarks, trade dress,
copyright, packaging, colour combination, passing off, rendition of accounts
of profits, etc. The Plaintiff is stated to be the registered proprietor of the
word mark "Blue Heaven" and the following device marks in classes 03 and
35 -
3. One Sh. Gurnam Singh, sole proprietor of M/s G.C. Laboratories
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adopted the mark "Blue Heaven" as well as the formative marks in the year
1972. Later the same is stated to have been assigned to the Plaintiff- M/s
Blue Heaven Cosmetics Private Limited vide an assignment deed dated 27th
March, 2019. It is the case of the Plaintiff that the mark "Blue Heaven" has
been used by it in a distinctive logo form in blue color, and various variants
thereof, for the last several years.
4. The present suit was filed by the Plaintiff against three Defendants i.e.
Miss Fashion (India) through its proprietor Mr. Lukesh Jain (also at „Arihant
Traders‟)- Defendant No.1, Mr. Kushal Jain - Defendan No.2 (also at
„Arihant Traders‟) and an ecommerce platform - Indian Ethics -Defendant
No.3.
5. It is the grievance of the Plaintiff that on 10th December, 2021 the
Plaintiff came across the following product of the Defendants bearing an
exact replica of the Plaintiff‟s registered mark, colour combination,
packaging, and overall get up as that of Plaintiff‟s product-
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6. Vide order dated 22nd December, 2021 an ex parte ad interim
injunction was issued by the ld. Single bench restraining the Defendants
from using the trade mark, trade dress, color scheme, or overall getup as
depicted above (i).
7. During the pendency of the suit, the Plaintiff and Defendant Nos.1
and 2 amicably resolved their disputes and filed an application under Order
XXIII Rule 3 CPC. As per the settlement application, the suit was decreed
vide order dated 12th April, 2022 in terms of paragraph 41(i) of the plaint
and the settlement terms qua the said Defendants. The relevant portion of
the said order reads as under:
"6. The Plaintiff and the Defendant Nos.1 & 2 have
resolved their disputes amicably and the terms of the
settlement are contained in paragraphs 3 to 8 of the
application. As per the settlement application, the
Defendant Nos.1 & 2 have acknowledged the rights of
the Plaintiff in the mark, trade dress, color
combination, writing style, packaging, color
combination, overall get up as depicted above (ii). It is
further stated in paragraph 3 of the application that
Defendant No.1 and 2 have not infringed the rights of
the Plaintiff in the mark "Blue Heaven".
7. The Defendant No. 1 and 2 have undertaken not to
use any mark identical or similar to the mark of the
Plaintiff as depicted above through themselves or
through any of their associated entities. A sum of Rs.4
lakhs, as per paragraph 7 of the application, is
acknowledged to have been received by the Plaintiff.
8. The Court has perused the terms of the settlement.
The same are lawful and there is no impediment to
recording the same. The application is signed by the
Plaintiff and the Defendant Nos.1 & 2 along with their
respective counsels.
9. The suit is decreed in terms of paragraph no. 41 (i)
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of the plaint as also the Settlement terms recorded in
the agreement, qua the Defendant Nos.1 & 2. The
Plaintiff, Defendant Nos.1 & 2 or anyone acting for
and on their behalf shall be bound by the terms of the
settlement. Decree sheet be drawn accordingly."
8. The suit, thus, now continues qua only Defendant No.3. Defendant
No.3 which is an e-commerce platform which runs a website under the name
www.iethics.in. As per the plaint, Defendant No.3 was involved in the
online marketing of the products of Defendant Nos.1 & 2 on its own website
and other third party websites such as www.indiamart.com. The screen shots
of the said websites consisting of the impugned products have been placed
in the plaint and are extracted herein below:
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9. At the time when Defendant Nos.1 & 2 settled the disputes with the
Plaintiff, settlement talks were going on with Defendant No.3. On behalf of
Defendant No.3, an email dated 30th December, 2021 was received, which
has been handed over by ld. Counsel for the Plaintiff. The same reads as
under:
"Sir/Mam
We have Received Or Package Related Trademark
Ref Mo 123 Date: 27-12-21
Sir Indian Ethics Not Deal Any Type Of Cosmetics
Products Please Check Our Website Indian Ethics
Our Ecommerce Portal Links I Mention Below Pis
Check
Amazon: Click Here
Or By business is Meshoo Reselling Business
Our Business Started: 29 June 21 Not sell Any
Product For Previous Months because My Business
Not Setup Properly at a time.
Thanks & Regards
Indian Ethics"
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10. Thereafter, ld. Counsel for the Plaintiff submits, that Defendant No.3
is not coming forward to sign the settlement application. Further, vide order
dated 11th July, 2022, the right of Defendant No.3 to file written statement
also stands closed. The Defendant no.3 is proceeded ex-parte.
11. Heard. The main Defendants i.e., Defendant Nos.1 & 2, who are
involved in manufacturing and marketing the impugned products have
already settled with the Plaintiff and have undertaken not to use the mark
"Blue Heaven", similar get up, trade dress, writing style, etc as that of the
Plaintiff‟s product. Considering the fact that Defendant No.3 is an e-
commerce platform selling the products of Defendant Nos.1 & 2 and no
defence has been put up, this Court is of the opinion that no oral evidence
would be required in view of the settled legal position in Disney Enterprises
Inc. & Anr. v. Balraj Muttneja &Ors. [CS (OS) 3466/2012 decided on 20th
February, 2014] and the suit can be finally disposed of against Defendant
No.3 as well. The relevant observation from the judgment in Disney
Enterprises Inc. (supra), are as under:
"3. Though the defendants entered appearance
through their counsel on 01.02.2013 but remained
unrepresented thereafter and failed to file a written
statement as well. The defendants were thus directed to
be proceeded ex parte vide order dated 04.10.2013and
the plaintiffs permitted to file affidavits by way of
exparte evidence. 4. The plaintiffs, despite having been
granted sufficient time and several opportunities, have
failed to get their affidavits for leading ex-parte
evidence on record. However, it is not deemed
expedient to further await the same and allow this
matter to languish, for the reason that I have in Indian
Performing Rights Society Ltd. Vs. Gauhati Town Club
MANU/DE/0582/2013 held that where the defendant is
ex parte and the material before the Court is sufficient
to allow the claim of the plaintiff, the time of the Court
should not be wasted in directing ex parte evidence to
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be recorded and which mostly is nothing but a
repetition of the contents of the plaint."
12. The suit is thus decreed in terms of paragraph 41(i) of the plaint
against Defendant No.3 as well. Defendant No.3 shall with immediate
effect, if not already removed, take down all the listings of Defendant Nos.1
& 2‟s products on its platform and other third party websites, if any put up
by it. Such third party websites shall take down the listings, upon receiving
communication from either the Plaintiff or any of the Defendants.
13. In the facts and circumstances of the present case, nominal costs of
Rs.25,000/- are awarded in favour of the Plaintiff and against Defendant
No.3. No further reliefs are pressed for in the matter. Decree sheet be drawn
against Defendant no.3.
14. The suit along with all the pending applications are disposed of.
PRATHIBA M. SINGH
JUDGE
OCTOBER 31, 2022/dk/sk
