Madras High Court

Having Branch Office At vs Mm Cosmetics on 26 April, 2021

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                                    IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                 DATED: 26.04.2021

                                                      CORAM

                             THE HONOURABLE DR. JUSTICE G.JAYACHANDRAN

                                                 C.S.No. 61 of 2020
                                                         and
                                              O.A.Nos. 97 and 98 of 2020
                                                         and
                                                  A.No.621 of 2020


                      M/s. Power Soaps Private Limited,
                      Rep. by its Managing Director,
                      Mr.K.Dhanapal
                      R.S.No.94/1, Sembiapalayam,
                      Embalam Main Road,
                      Korkadu Post, Villianur [via]
                      Pondicherry – 605 110.

                      Having Branch Office at
                      Sri Jayalakshmi Apartments,
                      62-B, North Boag Road,
                      T.Nagar, Chennai – 600 017.                             .. Plaintiff

                                                              ..vs..
                      MM Cosmetics,
                      Rep. by its Prop. Pradeep Singh,
                      No.117, Govindappa Naicken Street,
                      Sowcarpet, Chennai – 600 001.                         ...Defendant

                      Prayer:Civil Suit filed under Order IV Rule I of O.S.Rules read with
                      Order VII Rule I of C.P.C and read with Section 22 of Designs Act,
                      2000 read with Section 27 of Trademark Act, 1996 read with Section 7 of
                      the Commercial Courts, Commercial Division and Commercial Appellate
                      Division of High Courts Act, No.4 of 2016, praying for the following:
https://www.mhc.tn.gov.in/judis/
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                                 a) a permanent injunction restraining the Defendant by
                      themselves or their men, partners, proprietors, stockists, dealers,
                      servants, agents, franchises, successors-in-interest, licensees, assignees,
                      manufactures, representatives or any of them from in any manner directly
                      or indirectly infringing the registered Design No.223361 by Controller of
                      Designs, Govt. of India of the Plaintiff's goods or any other deceptively
                      similar Design either through the use of deceptive advertising in websites
                      such as India Mart or Udaan or through any other franchise or outlet or
                      online marketing.

                                b) a permanent injunction restraining the Defendant by
                      themselves or their men, partners, proprietors, stockists, dealers,
                      servants, agents, franchises, successors-in-interest, licensees, assignees
                      manufacturers, representatives or any of them from in any manner
                      directly or indirectly passing off or enabling passing off of the
                      Defendant's goods under the Trade Mark “NATURE POWER
                      PAPAYA AURA” or any other deceptively similar Trade Mark or Trade
                      Dress either through the use of deceptive advertising in websites such as
                      India mart or Udaan or through any other franchise or outlet or online
                      marketing as and for the goods of the Plaintiff under the illustrious Trade
                      Mark “NATURE POWER PAPAYA AURA”.

                                 c) the Defendant including their agents and manufacturers, be
                      ordered to surrender to Plaintiff for destruction all name boards, packing
                      materials, visiting cards, letterheads, printer bills, cartons, boxes
                      manufacturing mould and other goods/websites/email addresses bearing
                      the falsified Trademark 'PAPAYA” or any mark deceptively similar to
                      that of the Plaintiff's illustrious Trade Mark “NATURE POWER
                      PAPAYA AURA”;

                               d) the Defendant is directed to pay a sum of Rs.30,00,000/-
                      (Rupees thirty lakhs only) as damages for infringing the Plaintiff's
                      Design;

                                    e) for the costs of the suit;


                                            For Plaintiff : M/s. K.Rajasekaran
                                            For Defendant : Exparte
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 https://www.mhc.tn.gov.in/judis/
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                                                      JUDGMENT

The suit is filed for permanent injunction restraining the

defendant from infringing the trademark and design of the plaintiff and

passing off their goods as that of the plaintiff.

2. As per the plaint, the trademark “Nature Power Papaya

Aura” is a registered trademark widely used by the plaintiff and their

predecessors since 2008. The plaintiff has got registration for the

following trademark:

Application No. Trademark Class Status NATURE POWER SOAP- 3 Registered 1122147 SANDAL NATURE POWER SOAP- 3 Registered 1122138 LEMON NATURE POWER SOAP- 3 Registered 1122145 ROSE NATURE POWER SOAP- 3 Registered 1122144 LOGO NATURE POWER SHAMPOO 3 Registered 1330047 (BLACK) NATURE POWER SHAMPOO 3 Registered 1330046 (JASMINE) NATURE POWER HERBAL 3 Registered 1389118 SOAP NATURE POWER - 3 Registered 1389116 BEAUTY SOAP NATURE POWER 3 UNDER 1823808 PROCESS https://www.mhc.tn.gov.in/judis/ https://www.mhc.tn.gov.in/judis/

3.The sales turnover of the plaintiff's product Nature Power

Papaya Aura Bath Soap for the period 2012 to 2018 is as follows:

Financial Year Sales turnover in Rupees 2012-13 34,48,98,612 2013-14 36,10,87,553 2014-15 40,99,32,586 2015-16 64,27,11,549 2016-17 65,55,70,953 2017-18 80,0090,935 Thus, its annual turnover for the year 2017-2018 is Rs.80,0090,935/-.

4.Alleging that the defendant is deceptively imitating the

trademark and design of the plaintiff product, suit has been filed for the

following relief:-

“a) a permanent injunction restraining the Defendant by themselves or their men, partners, proprietors, stockists, dealers, servants, agents, franchises, successors-in-interest, licensees, assignees, manufactures, representatives or any of them from in any manner directly or indirectly infringing the registered Design No.223361 by Controller of Designs, Govt. of India of the Plaintiff's goods or any other deceptively similar Design either through the use of deceptive advertising in websites such as India Mart or Udaan or through any other franchise or outlet or online marketing.

b) a permanent injunction restraining the Defendant by themselves or their men, partners, proprietors, stockists, dealers, servants, agents, franchises, https://www.mhc.tn.gov.in/judis/successors-in-interest, licensees, assignees manufacturers, https://www.mhc.tn.gov.in/judis/

representatives or any of them from in any manner directly or indirectly passing off or enabling passing off of the Defendant's goods under the Trade Mark “NATURE POWER PAPAYA AURA” or any other deceptively similar Trade Mark or Trade Dress either through the use of deceptive advertising in websites such as India mart or Udaan or through any other franchise or outlet or online marketing as and for the goods of the Plaintiff under the illustrious Trade Mark “NATURE POWER PAPAYA AURA”.

c) the Defendant including their agents and manufacturers, be ordered to surrender to Plaintiff for destruction all name boards, packing materials, visiting cards, letterheads, printer bills, cartons, boxes manufacturing mould and other goods/websites/email addresses bearing the falsified Trademark 'PAPAYA” or any mark deceptively similar to that of the Plaintiff's illustrious Trade Mark “NATURE POWER PAPAYA AURA”;

d) the Defendant is directed to pay a sum of Rs.30,00,000/- (Rupees thirty lakhs only) as damages for infringing the Plaintiff's Design;

e) for the costs of the suit”

5.At the time of admission, this Court after perusing the

affidavit and documents, granted interim injunction. Summons was

served on the defendant but he did not choose to contest the matter and

remained exparte. Therefore, exparte evidence was recorded. P.W.1 was

examined. Exs.P1 to P6 were marked. M.O.1 and M.O.2 were marked

on the side of the plaintiff.

https://www.mhc.tn.gov.in/judis/ https://www.mhc.tn.gov.in/judis/ 6.The evidence documentary and oral indicates that the

plaintiff is manufacturer of various types of soap products. They are

proprietor of trademark “Power” adopted from their predecessor and

being used since 1991. Their products are marketed by suffixing or

prefixing the trademark “Power”. The soap product is now alleged to

have been infringed by the defendant is the soap produced and marketed

by the plaintiff in the name “Nature Power Papaya Aura”. The design,

colour and the artistic work of the soap duly registered with the

competent authority by the plaintiff is imitated by the defendant and

imitation of the plaintiff's product by the defendant clearly established by

the plaintiff through M.O.1 and M.O.2. The wrapper of the product are

not as Exs.P4 and P5. The slavish imitation of the plaintiff product by