Mother Dairy Fruit and Vegetable Pvt. Ltd. Vs. Dhara Dairy Foods Co. - Court Judgment

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Order delivered on: January 23, 2014 + CS(OS) No.2617/2010 MOTHER DAIRY FRUIT & VEGETABLE PVT. LTD...... Plaintiff Through Mr.Aman Taneja, Advocate versus DHARA DAIRY FOODS CO. ..... Respondent Through Defendant is ex-parte CORAM: HON'BLE MR. JUSTICE MANMOHAN SINGH MANMOHAN SINGH, J.

1. The defendant is ex-parte. The present suit has been filed by the plaintiff, Mother Diary Fruit and Vegetable Pvt. Ltd, for permanent injunction, restraining infringement of trademark, copyright, passing off, damages, rendition of accounts, delivery up etc. against the defendant.

2. It is the case of the plaintiff that it is the registered proprietor of the well known trademark DHARA and has various registrations for the said mark under Class 29. The details of the said registrations in respect of the mark DHARA have been given in Para 13 of the plaint. Some of them are: registration in respect of DHARA Refined Vegetable Oil under class 29 bearing registration No.494225 from 12th July, 1988, registration in respect of DHARA HEALTH & Device under class 29 bearing registration No.851041 from 12th April, 1999, registration in respect of DHARA Kachi Ghani Mustard Oil & Device under class 29 bearing registration No.1478831 from 18th July, 2006.

3. The trademarks have been registered in the name of Dhara Vegetable Oil & Foods Company Limited. However, an entity by the name of Mother Dairy India took over the sales and marketing of Dhara Vegetable Oil & Foods Company Limited in May/June 2003. The plaintiff thereafter amalgamated with the said companies on 7 th August, 2007 and 13th August, 2008 respectively and the plaintiff filed relevant applications with the Trademarks Registry for bringing its name on record as the owner of these marks.

4. It has been stated that in addition to the statutory rights, the plaintiff has also accrued common law rights in the mark DHARA. The plaintiff has made substantial investments towards advertisement and promotional activities for the brand/trademark DHARA. The details of the expenditure towards advertisement and promotional activities for the brand/trademark DHARA have been provided under Para 14 of the plaint, of which the said expenditures for the period 2009-2010 have been stated to be `8.79 Crores.

5. It has further been stated that the products sold under the brand DHARA are extremely popular with the consumers and the general public. The popularity enjoyed by the brand DHARA and its immense reputation is well reflected in the sales figures brand DHARA has generated for the plaintiff, details of which are given in Para 15 of the plaint and out of which the sales figures for the period 2009-2010 has been stated to be `247.75 Crores.

6. It has been stated by the plaintiff that as a result of continuous and extensive use of the DHARA trademark and its DHARA logo and packaging/trade dress over a long period of time spanning a wide geographical area coupled with vast promotion and publicity the said trademark enjoy an unparalleled reputation and goodwill in the market and have acquired the status of a “well-known” trademark.

7. The plaintiff is also the registered proprietor of the trade/label/word mark MOTHER DAIRY and variations thereof. The Plaintiff markets approximately 2.8 million liters of milk daily under the said mark in the markets of different parts of India including Delhi, Mumbai, Saurashtra and Hyderabad. Not only does the Plaintiff sell milk and milk products under the trademark MOTHER DAIRY but it is also the trade name of the plaintiff.

8. The plaintiff markets its products in a unique and distinctive packaging style of which the prominent identifying features the Mother Dairy Blue Logo and the wave design. The Plaintiff has been using the well known “Mother Dairy” blue logo as a trademark/logo/label mark since around the year 2003 and is also the owner of copyright in the said logo.

9. The plaintiff is also the owner of the copyright in the wave design used on the packaging of milk. The relevant extracts of the Register of Copyright have been placed on the court record. The said registrations are in the name of the National Dairy Development Board and were transferred to the Plaintiff vide Deed of Assignment dated 31st March, 2000.

10. The plaintiff’s consistent efforts at promoting its products under the trade mark ‘Mother Dairy’ coupled with the association in the minds of the consumers of such mark with the plaintiff and high quality of goods sold under the ‘Mother Dairy’ trade mark has resulted in extensive sales accruing to the plaintiff for the said goods. With regard to specifically packaged milk and milk products, the plaintiff enjoys immense reputation and goodwill as it remains sensitive to the needs of the market and consumers and is able to improve or modify their goods or services, including advertising, appointment of distributors etc. to retain the leading market position.

11. It is the case of the plaintiff that the defendant, Dhara Dairy Foods Co., is manufacturing, selling and distributing identical products as that of the plaintiff i.e. Milk, under an identical trademark DHARA as that of the plaintiff apart from using a packaging/trade dress that is a slavish imitation of the plaintiff’s packaging/trade dress for its packaged milk products. The defendant is additionally using the plaintiff’s DHARA trademark as a part of its trade name as well.

12. It has been submitted that the intended confusion and deception being practiced by the defendant is so blatant that its products can hardly be differentiated with the plaintiff’s products, by an ordinary individual buying milk products. A comparison of the two packaging is given below: PLAINTIFF’S PACKING OF ITS MILK DEFENDANT’S PACKAGING OF ITS PRODUCTS13 The plaintiff was informed about the impugned activities of the defendant in August, 2009. The plaintiff immediately issued a cease and desist notice dated 21st August, 2009, clearly informing the defendant of the plaintiff’s rights to the trademark/logo DHARA and of the copyright in the packaging of its milk asking the defendant to stop its infringing activities. Thereafter, the defendant sent a reply dated 2nd October, 2009 wherein the defendant while denying the plaintiff’s contentions and averments also refused to stop its infringing activities.

14. It has been submitted by the plaintiff that the possibility of confusion being caused by the defendant’s adoption of the mark DHARA and the trade-dress therein is very high and in fact inevitable due to the following reasons: a. The defendant is selling identical products under an identical trademark and packaging. b. The plaintiff’s and the defendants’ products are sold through the same trade channels. c. Since milk is a necessary commodity, the classes of consumers purchasing the said products would include a large segment of the illiterate and semi-illiterate population.

15. It is the case of the plaintiff that the defendant by its adoption and use of the impugned mark and the packaging/trade dress is clearly attempting to pass off its goods as those of the plaintiff. This is in clear violation of the plaintiff’s common law as well as statutory rights in the mark DHARA and the trade dress used for its milk products.

16. It has been submitted that the sale and distribution of the impugned products has resulted in great harm prejudice to the plaintiff’s business, rights and interests apart from amounting to tarnishment and dilution of the Plaintiff’s reputation and goodwill. The Plaintiff is suffering huge losses and damages due to the blatant and outright violation of its rights by the defendant.

17. The suit as well as the interim application for injunction was listed before court on 22nd December, 2010 when summons were issued to the defendant in the suit and notices were issued in the application and an ex parte ad interim injunction was passed in favour of the plaintiff and against the defendant restraining them from manufacturing, selling, offering for sale or distributing, advertising, directly or indirectly dealing in milk products or goods of any description bearing the “DHARA” trademark/label and/or trade name or any mark/label, in any language, that is identical to the plaintiff’s trademark or any other mark/label which is deceptively similar to the plaintiff’s trademark/label.

18. Since no one appeared from the defendant’s side on various subsequent dates and no written statement was filed, the defendant was proceeded ex-parte vide order dated 30th September, 2011. The plaintiff was given 8 weeks time to produce the ex-parte evidence. In the evidence, the plaintiff proved the facts stated in the plaint by evidence by way of affidavit of Mr. Y K Mathur, Deputy General Manager – Legal, of the plaintiff and also exhibited certain documents in support of its case. The same are given as follows: (i) Certificate of Incorporation and Memorandum of Association and Articles of Association, exhibited as Ex. PW12. (ii) Certified copy of the assignment deed dated 31st March, 2000, exhibited as Ex. PW13. (iii) Documents substantiating Mother Diary India taking over the sales and marketing of DHARA brand edible oils from GCMMF in May/June, 2003, exhibited as Ex. PW14. (iv) Copy of the court order dated 7th August, 2007 directing amalgamation of Mother Diary India Limited with plaintiff, exhibited as Ex. PW15. (v) Certified copy of the court order dated August 13,2008 directing amalgamation of DOFCO with the plaintiff, exhibited as Ex. PW16. (vi) Certificate of Chartered Accountant authenticating sales and promotional expenses figures for Dhara, exhibited as Ex. PW19. (vii) Copies of certificates of ‘mother Diary’ mark registrations, exhibited as Ex. PW111. (viii) Letter of assignment from the artist who prepared the Mother Diary Blue Logo, exhibited as Ex. PW113. (ix) Extracts from the register of copyrights, exhibited as Ex. PW114 (x) ISO-9001, ISO-14001 and ISO-22000 certificates, exhibited as Ex. PW115. (xi) Quality Assurance Laboratory Certificate issued by National Accreditation Board for Testing and Calibration Laboratory (NABL)- Department of Science and Technology, Government of India, exhibited as Ex. PW116. (xii) Chartered Accountant’s certificate verifying sales figures of products sold under Mother Diary mark and revenues generated for sale of Mother Diary Milk and Milk Products, exhibited as Ex. PW117.

19. The evidence filed by the plaintiff has gone unrebutted as no cross- examination of the plaintiffs witnesses were carried out, therefore, the statements made by the plaintiff are accepted as correct deposition. Under these facts and circumstances, the plaintiff is entitled for a decree for permanent injunction in terms of para 44(a), (b), (c) and (d) of the plaint.

20. As regards the relief claimed in para 44 (g) is concerned, the plaintiff has prayed damages to the tune of `20,00,100/- to be paid by the defendant.

21. On the question of damages, the learned counsel for the plaintiff has referred various judgments in support of his submission pertaining to the aspect of damages where this Court has granted previously granted both exemplary and punitive damages against the defendants in ex-parte matters of similar nature in various industries ranging from software to automotives, chocolates to pharmaceuticals, stationary to luxury brands, etc. Some of the decisions which have been referred are as under: (i) In Time Incorporated Vs. Lokesh Srivastava & Anr., 2005 (30) PTC3(Del.) while awarding punitive damages of Rs. 5 lakhs in addition to compensatory damages also of Rs. 5 lakhs, Justice R.C. Chopra observed that “time has come when the Courts dealing in actions for infringement of trademarks, copyrights, patents etc., should not only grant compensatory damages but also award punitive damages with a view to discourage and dishearten law breakers who indulge in violation with impunity out of lust for money, so that they realise that in case they are caught, they would be liable not only to reimburse the aggrieved party but would be liable to pay punitive damages also, which may spell financial disaster for them.”

(ii) 22. In Microsoft Corporation Vs. Rajendra Pawar & Anr., 2008 (36) PTC697(Del.) decided on 27th July, 2007, this Court held that “Perhaps it has now become a trend of sorts, especially in matters pertaining to passing off, for the defending party to evade court proceedings in a systematic attempt to jettison the relief sought by the plaintiff. Such flagrancy of the Defendant’s conduct is strictly deprecatory, and those who recklessly indulge in such shenanigans must do so at their peril, for it is now an inherited wisdom that evasion of court proceedings does not de facto tantamount to escape from liability. Judicial process has its own way of bringing to tasks such erring parties whilst at the same time ensuring that the aggrieved party who has knocked the doors of the court in anticipation of justice is afforded with adequate relief, both in law and in equity. It is here that the concept of awarding punitive damages comes into perspective.”

Keeping in view the infringement committed by the defendant which has gone unrebutted and since the claim is based upon assessment of the plaintiff, I am of the opinion that a sum of ` one lac can be reasonably awarded to the plaintiff as compensatory damages and a sum of ` two lacs as punitive/exemplary damages as well as damages on account of loss of reputation and goodwill of the plaintiff. This prayer made in para 44 (g) is granted to the above extent. The plaintiff is also awarded `50,000/- as costs of the suit.

23. The decree be drawn accordingly. The suit as well as the pending applications are disposed of accordingly. (MANMOHAN SINGH) JUDGE JANUARY23 2014