Dabur India Limited v S. S. Gill
Delhi High Court
2 May 2013
CS(OS) 2617/2008 and I. A. 15507/2008
The Judgment was delivered by : Manmohan, J.
1. Present suit has been filed with the following prayers:-
“A. Pass a decree of permanent injunction in favour of the Plaintiff and against the Defendant thereby restraining the Defendant, its servants, agents, representative, distributors, assigns from manufacturing, selling, offering for sale, advertising, directly or indirectly dealing in rose water under the trademark “GULVARI” and/or any other trademark deceptively or phonetically similar to the trademark of the Plaintiff GULABARI;
B. Pass a decree of permanent injunction in favour of the Plaintiff and against the Defendant thereby restraining the Defendant, its servants, agents, representative, distributors, assigns from manufacturing, selling, offering for sale, advertising, directly or indirectly dealing in rose water under the impugned trade dress, or get up, comprising colour combination of pink, white and silver or any other trade dress getup or label as may be deceptively similar to the trade dress, getup and label of Plaintiff’s DABUR GULABARI rose water in respect of overall colour combination, layout and arrangement of features;
C. Pass a decree of mandatory injunction in favour of the Plaintiff and against the Defendant thereby directing the Defendant, its servants, agents, representatives, distributors, and assigns to hand over to the Plaintiff all goods, packagings, wrappers, cartons, unfinished products etc. with the impugned trade mark GULVARI and/or relatable to the impugned trademark/ trade dress. The Defendant be also ordered to hand over all dies, plates, moulds, blocks, matrix, transfers, negatives etc. pertaining to the impugned trademark/trade dress;
C. direct that the Defendant be called upon to render accounts of profits earned by the Defendant through their unauthorised user of the trademark/ copyright „GULABARI’ and a decree be accordingly passed in favour of the Plaintiff for the amount found due;
D. direct that the costs of the present suit be awarded in favour of the Plaintiffs and against the Defendant;
E. pass such other and further orders as this Hon’ble Court may deem fit and proper in the facts and circumstances of the case.”
2. Mr. Sudhir Makkar, learned counsel for plaintiff states that in view of the fact that defendant is ex parte, he is only pressing prayers ‘A’ and ‘B’ of the plaint. The aforesaid statement is accepted by this Court and plaintiff is held bound by the same.
3. In the plaint, it is stated that plaintiff is engaged in the manufacture and sale of rose water under the trade mark GULABARI along with the house mark Dabur since the last three decades.
4. It is further stated in the plaint that the word-mark GULABARI and the label GULABARI are registered under the provisions of the Trade Mark Act, 1999.
5. Mr. Sudhir Makkar, learned counsel for plaintiff states that since 1993 plaintiff has adopted a distinctive colour combination of the shades pink and white for the trade dress of its rose water packaging as well as for the get up of the label used in respect of the plaintiff’s product. He submits that the plaintiff’s label including its overall colour combination of pink and white and the overall get up including arrangement of features of the label constitutes original artistic work within the meaning of S. 2(c) of the Copyright Act, 1957 thereby entitling the plaintiff to copyright protection u/s. 14 of the Copyright Act, 1957.
6. In the plaint, it is also stated that defendant launched its rose water under the name GULVARI.
7. Mr. Makkar, learned counsel for plaintiff contends that the defendant has deliberately chosen the trade mark GULVARI as it is deceptively similar to the plaintiff’s trade mark. He submits that defendant has brazenly copied the distinguishing features of plaintiff’s trade dress to cause confusion and deception amongst consumers about the origin of the defendant’s rose water and to pass off its product as that of the plaintiff to unwary customers with imperfect recollection to make illegal profits.
8. Upon the present suit being filed, on 17th December, 2008 this Court passed an ex parte injunction restraining the defendant from selling, advertising, distributing or in any other manner dealing in Gulabjal (Rose water) under the name GULVARI or with a trade dress similar or deceptively similar to that of the plaintiff.
9. Since despite publication of notice in newspaper, none appeared for the defendant, it was proceeded ex parte vide order dated 21st May, 2012.
10. Thereafter, the plaintiff led evidence by filing affidavits. Plaintiff in its evidence exhibited its trade mark registration certificates, invoices, photographs and sale invoices.
11. Having heard learned counsel for the plaintiff and having perused the ex parte evidence as well as documents placed on record, this Court is of the opinion that plaintiff has proved the facts stated in the plaint and has also exhibited the relevant documents in support of its case. Since the plaintiff’s evidence has gone unrebutted, said evidence is accepted as true and correct.
12. This Court is of the view that adoption of the trade mark GULVARI by the defendant amounts to infringement of the plaintiff’s trade mark GULABARI.
13. Further, this Court is of the opinion that the use of the mark GULVARI by the defendant which is deceptively similar to the plaintiff’s registered trade mark GULABARI is bound to cause confusion in the mind of the consumers about the source of the rose water on account of deceptive similarity between the two marks. The possibility of confusion and deception is compounded on account of visual similarity between the trade dress and get up of the defendant’s packaging with those of the plaintiff predominantly on account of similarity of colour combination of pink, white and silver as well as lay out and arrangement of features including the cap and size of the bottle. Also considering the nature of goods and the class of consumers who purchase and use rose water, this Court is of the opinion that confusion or deception is inevitable leading to passing off of the defendant’s goods as those of the plaintiff.
14. Consequently, present suit and application are decreed in terms of prayers ‘A’ and ‘B’ of the plaint. Registry is directed to prepare a decree sheet accordingly.
Suit allowed
