Full Text
HIGH COURT OF DELHI
Date of Decision: 14th November, 2022
B C HASARAM AND SONS AYURVEDIC PHARMACY & ANR. ..... Plaintiffs
Through: Ms. Tusha Malhotra and Ms. Yamini Jaswal, Advocates. (M:9878096700).
Through: Mr. Yashraj Samant and Mr. Shrirang Verma, Advocates. (M:9829412764) along with Mr. Vishnu Rathaur (Sole
Proprietor).
JUDGMENT
1. This hearing has been done through hybrid mode.
2. The present suit has been filed by the Plaintiffs seeking permanent injunction restraining the infringement of copyright, passing off, unfair competition, delivery up, rendition of accounts, damages, and other reliefs. The dispute in the present suit relates to the mark ‘KESRI MARHAM’ used by the Plaintiffs in respect of their flagship product which is an ointment for the treatment of body aches. The case of the Plaintiffs was that the Defendant is the manufacturer and marketer of ‘PAHARI GARHWALI BALM’ which is also a pain relief balm and is being packaged and sold in a nearly identical trade dress as that used by the Plaintiffs for its ‘KESRI MARHAM’ product.
3. The competing product labels of the Plaintiffs and the Defendant, as impugned in the present suit, are set out hereinbelow: Plaintiffs’ product Defendant’s product
4. Upon a consideration of the above competing labels, this Court had granted an ex parte ad-interim injunction, vide order dated 17th May, 2021, in the following terms:
5. Post the above injunction order dated 17th May, 2021, the Defendant has entered appearance. However, the Defendant has failed to file the written statement. Accordingly, vide order dated 13th July, 2022 passed by the ld. Joint Registrar, the Defendant’s right to file the written statement has been closed.
6. As recorded in the previous order dated 30th August, 2022, during the pendency of the present suit, the Defendant made certain minor modifications in the colour scheme and packaging of the impugned product. The said packaging was shown to this Court on the said date. However, the same were not satisfactory, and vide order dated 30th August, 2022, it was directed as under:
7. On the said date, I.A. 6313/2021 wherein the Plaintiff was seeking disclosure of the accounts and the quantum of sales by the Defendant, was also disposed of, in the following terms:
8. During the course of hearing on the last date, i.e., 30th August, 2022, the sole proprietor of the Defendant - Mr. Vishnu Rathaur had joined the proceedings virtually and had also agreed to place new artwork proposed to be adopted by the Defendant before this Court. The Defendant was also directed to ensure that the change which is now brought about in the packaging for its product is substantial and not violative of the injunction order dated 17th May, 2021.
9. Today, Mr. Vishnu Rathaur is present in Court and his statement has been recorded. He has also filed an affidavit dated 8th November, 2022 wherein he has stated that the mediation proceedings between the parties failed only due to the legal costs that were demanded by the Plaintiffs. A perusal of the said affidavit also shows the gross sales of the Plaintiffs, which has been set out below: i. Year ending 31st March, 2020: Rs.70,277/ii. Year ending 31st March, 2021: Rs.2,25,729/iii. Year ending 31st March, 2022: Rs.5,97,959/-
10. Vide affidavit dated 8th November, 2022, the Defendant has also stated as under:
11. Accordingly, a further new label has been proposed to be adopted by the Defendant and the same has been extracted below:
12. The above proposed label is broadly acceptable to the Plaintiffs, except for the green stripe at the bottom of the said label. Accordingly, Mr. Rathore who is present in Court has given instructions to his ld. Counsel that he would replace the green colour of the stripe at the bottom of the label with any other colour which is not similar to green colour. The statement of Mr. Rathour has also been recorded.
13. Considering the nature of the matter and the foregoing facts, the following directions are issued: i. The present suit is decreed in terms of the reliefs as sought in paragraph 44(a), (b) and (c) of the Plaint; ii. The Defendant undertakes to destroy the products of its manufacture and sale bearing the impugned packaging, labels and patterns, and shall not use the same in future. The said undertaking is accepted; iii. Going forward, the Defendant shall adopt the new label, as extracted hereinabove in paragraph 11, with the modification in terms of paragraph 12 to the effect that the green stripe at the bottom of the label shall be replaced with any other colour which is not similar to green colour; iv. In addition, the Defendant shall pay a sum of Rs.[1] lakh as nominal costs to the Plaintiffs. v. If the Defendant is found to be violating any of the undertakings given to this Court or the decree passed hereinabove, the Defendant shall be liable to pay damages to the tune of Rs.25 lakhs, to the Plaintiff without further adjudication. The Plaintiff would also be entitled to enforce and avail of all its remedies in accordance with law, including the prayer for rendition of accounts and damages, as contained in paragraph 44(e) and (f) in the present suit. Subject to the above, ld. Counsel for the Plaintiff submits that the prayer for rendition of accounts and damages is not pressed at this stage.
14. Since the matter has been amicably resolved, full court fee is refunded to the Plaintiff, through ld. Counsel in terms of the judgment of the ld. Division Bench of this Court in Nutan Batra v. M/s. Buniyaad Associates, [2018 (255) DLT 696].
15. The present suit is decreed in the above terms. Decree sheet be drawn accordingly. All pending applications are also disposed of.
PRATHIBA M. SINGH JUDGE NOVEMBER 14, 2022 Rahul/AD