Judgment:
$~OS-3 * % + Present: Mr.Siddhant Chamola, Ms.Vaishali Mittal and Ms.Mrinali IN THE HIGH COURT OF DELHI AT NEW DELHI CS(COMM) 405/2017, IAs.6860 and 14528/2017 DHARAMPAL SATYAPAL SONS PVT LTD MR. SATISH KUMAR & ORS Date of Decision:
18. 12.2018 ..... Defendants ...... Plaintiff versus Menon, Advs. for the plaintiff. Defendants are ex parte CORAM: HON'BLE MR. JUSTICE JAYANT NATH JAYANT NATH, J.
(ORAL) 1. This present suit is filed by the plaintiff against the defendants seeking relief for permanent injunction restraining the defendants, their proprietors/partners/directors, employees, etc from reproducing or using the packaging/getup/layout of offending trade mark “PULSE” candies in all flavours in lable/cartons/packaging/trade dress which is being used either as a trademark/trade dress or in any other manner whatsoever that may amount to passing off its trademark/trade dress of the plaintiff. Other connected reliefs are also sought.
2. The brief facts are that the plaintiff has established the business in chewing tobacco/mouth fresheners segment and enjoys the major market share in tobacco/mouth fresheners segment. It is stated in the plaint that the plaintiff had entered the business of manufacturing and selling Pan Masala/Mouth Fresheners with products like RAJNIGANDHA and PASS- PASS and mini chewing gums CHINGLES, providing confectionary offer for all age groups.
3. It is further stated that PULSE candies were introduced by the plaintiff CS(COMM) 405/2017 Page 1 of 6 under the banner of plaintiffs’ PASS-PASS initially in raw mango flavour on 13.12.2014. Thereafter, PULSE candies have gained immense popularity in the market and have crossed the value of over Rs. 100 crores as of 31.01.2016. This has led to introduction of new flavours by the plaintiff in the year 2016. Hence, the plaintiff enjoys tremendous goodwill and reputation in the market.
4. The details of the registration of the trademarks of the plaintiff with word “PULSE” are stated as follows:-
"Application No.Trademark Class Date Application of Goods/services details 2827906 PULSE (word) 30 16.10.2014 3071704 30 07.10.2015 3071705 30 07.10.2015 Chewing Gum, Candy and Confectionary Products Chewing Gum, Candy and Confectionary Products Chewing Gum, Candy and Confectionary Products CS(COMM) 405/2017 Page 2 of 6 5. 2827909 30 16.10.2014 2891666 30 29.01.2015 Chewing Gum, Candy and Confectionary Products Chewing Gum, Candy and Confectionary Products Further, perusal of the plaint shows that the defendants are engaged in the business of manufacturing and selling of confectionary products specially candies under the brand mark “PLUS” . The plaintiff came to know about the defendants in April, 2017, wherein it was revealed that the defendants are involved in manufacturing “PLUS” candies, bearing deceptively trade dress and structurally similar trademark in plaintiffs’ “PULSE” candies with raw mango flavour harming plaintiffs’ goodwill and reputation in the market.
6. 7. Hence, this present suit is filed. Notice was issued by all modes on 30.05.2017 by this court to the defendants and the defendants were also restrained from using the impugned trademark/trade dress of the plaintiffs’ “PULSE” candies.
8. Despite service no one appeared on behalf of the defendants and no written statement is filed till date. The defendants were proceeded ex-parte CS(COMM) 405/2017 Page 3 of 6 by this court on 16.07.2018.
9. I have heard the learned counsel for the plaintiff and have examined the contents of the plaint, the documents placed on record. The Ex-parte evidence recorded.
10. The plaintiff has led the evidence by way of affidavit of PW1, Ms. Samhita Chowdhary, AR of the plaintiff company, and PW2 Mr. Nripendra Kashyap, Private Investigator.
11. A perusal of the evidence by way of affidavit of Ms. Samhita Chowdhary, AR of the plaintiff would show that she is appointed as an authorized representative of the company in a Board resolution of the plaintiff, the same is marked and exhibited as Ex. PW1/1. She acknowledges the signatures in the plaint of the previous AR of the plaintiff, Ms. A. Loordma Mary, who instituted the present proceedings. Board resolution for appointment of Ms. A. Loordma Mary as the authorized representative of the company is marked and exhibited as Ex. PW1/2. She has further affirmed the contents of the plaint. She states that the plaintiff is the lawful owner of the trademark “PLUSE” candies. It is stated that the plaintiff company has a strong presence in the market of Pan Masala, Tobacco Mouth Fresheners and confectionary segments producing famous flagship brands of the plaintiff such as “TULSI”, “RAJNIGANDHA” which has attained a status of well know trademark. Extracts from the website of the plaintiff company promoting these products is marked and exhibited as Ex. PW1/3. Documents showing plaintiff “PULSE” candies promotional/sale materials are also marked and exhibited as PW14 to PW1/8. It is further stated that “PULSE” attained mass popularity in the market and the company has attained total revenue of Rs. 566.04 crores till February, 2017. Various invoices and CS(COMM) 405/2017 Page 4 of 6 Chartered Accountant certificate are marked and exhibited as Ex. PW19 and Ex. PW110 respectively. It is also stated that the plaintiff is the registered owner of the word “PULSE” and also have exclusive rights to use the trademark and trade dress of the “PULSE” candies. Trademark application is marked and exhibited as Ex. PW111. Plaintiff is also a copyright holder of layout/get-up of the “PULSE” candies. The NOC from the Designer is marked and exhibited as Ex. PW112. It is also stated that the defendants were manufacturing and selling candies under the brand name of “PLUS” candies in raw mango flavour which are similar and delusional to plaintiffs’ “PULSE” trademark. Photographs of defendants “PLUS” candy box and candies are marked and exhibited as Ex. PW115.
12. A perusal of evidence by way of affidavit of PW2 Mr. Nripendra Kashyap, Private Investigator shows that he was hired to conduct an enquiry on instructions of the plaintiff. It is stated that the business of the defendants is carried from Plot No.1, Meera Enclave, Ranholla Extension, and Delhi- 110041, from where the boxes containing “PLUS” candies have been purchased. Photograph of defendants’ premises and defendants’ candy box are marked and exhibited as Ex. PW22 and Ex. PW23.
13. It is quite clear from the averments in the plaint and the evidence on record that the plaintiff is the registered owner of the trademark PULSE in class 30 for Chewing Gums, Candy and confectionary products. Defendants are using the trademark PLUS and are selling the candies using the said trade mark. A visual look at the two trademarks would show that the trademark of the defendant is deceptively similar to the trademark of the plaintiff. The trade dress is also somewhat similar to that being used by the plaintiff. Both the plaintiff and defendants are in the same trade. The deceptive similarities CS(COMM) 405/2017 Page 5 of 6 of the candies and their visuals and trade dress are bound to create deception and confusion amongst the consumers and members of the trade.
14. In view of the above, a decree is passed in favour of the plaintiff and against the defendant in terms of para 63 (a), (b), (c) and (d). Keeping in view the acts of the defendant a decree is also passed in favour of the plaintiff and against the defendant for a sum of Rs.5,00,000/-. The plaintiff shall also be entitled to costs.
15. The suit is accordingly disposed of and all pending applications, if any, also stands disposed of. JAYANT NATH, J.
DECEMBER18 2018/ss Corrected and released on:19.1.2019 CS(COMM) 405/2017 Page 6 of 6