2006(33)PTC118(Del)
IN THE HIGH COURT OF DELHI
Decided On: 15.05.2006
Appellants: Amber
Food Products
Vs.
Respondent: Dilip Kirplani and Ors.
Judges/Coram:
Counsels:
For Appellant/Petitioner/Plaintiff: Ameet Datta and Neha
Ahuja , Advs.
For Respondents/Defendant: S.K. Bansal
and Ajay Amitabh Suman , Advs.
JUDGMENT
1. Defendant NOs. 1, 2 and 3 were
served on 3.11.2005 and defendant NOs. 4 & 5 were served on 8.11.2005. Till
date no written statement has been filed. The application under Order VIII Rule
10 CPC seeks a decree. The defense counsel wants adjournment to file a reply to
the application. The defendant has not so far filed any written statement and
if an adjournment is granted now to file a reply to the application under Order
VIII Rule 10 CPC the sole purpose of the provisions of Order VIII Rule 10 CPC
as it stands after amendment will be defeated. Therefore, the prayer for
adjournment is, rejected.
2. Having heard the counsel for the
parties I pass the following judgment.
The plaintiff has filed the
suit seeking injunction against the defendants to restrain them from
reproducing the artistic feature, get up, arrangement, lay out, colour scheme
of the plaintiff's packaging in "smooth milk" which may amount to
infringement of the plaintiff's copy right in respect of labels of the
plaintiff's product being sold under the trade marks 'smooth milk'. An
injunction has also been asked to restrain the defendants from manufacturing,
selling or offering for sale, advertising, distributing, exporting, directly or
indirectly dealing in goods similar to that of the plaintiff's packaging
containing the essential features of the plaintiffs 'smooth milk' packaging.
The plaintiff made the following prayer in the plaint:
(a) An order of permanent
injunction restraining the Defendants, their servants, officers and agents and
any other person acting on their behalf from manufacturing, selling, offering
for sale, advertising, distributing, exporting, directly or indirectly from
substantially reproducing the artistic features, get up, arrangement, lay out,
colour scheme of the plaintiff's packaging in the "SMOOTH MILK"
artistic work amounting to infringement of copyright of the Plaintiff therein;
(b) An order of permanent
injunction restraining the Defendants, their servants, officers and agents and
any other person acing on their behalf, from manufacturing, selling, offering
for sale, advertising, distributing, exporting, directly or indirectly dealing
in goods similar to that of the Plaintiff's packaging containing the essential
features of the Plaintiff's "SMOOTH MILK" packaging and/or its get
up, arrangement, layout, colour scheme/combination as set out in the plaint or
doing any other act leading to the passing off of their goods and business as
that of the plaintiffs;
(c) An order for delivery
up of the labels, stationery articles, blocks, dies and any other material
bearing the impugned get-up/layout for the purpose of destruction/erasure;
(d) An order for rendition
of accounts of profits illegally earned by the Defendant on accounts of the use
of the impugned get-up/lay out and a decree for the amount so found due to be
passed in favour of the Plaintiff;"
3. Although the prayer A & B are
not very happily drafted one can gather the intention of the plaintiff to seek
an injunction against infringement of copyright. There is no prayer for
restraining the defendants from selling their product under the trade name
'smooth milk' used by the plaintiff or 'smooth butter' adopted by the
defendants. Accordingly the plaint has to be examined keeping in view this
prayer.
4. The plaintiff alleges in the plaint
that the plaintiff has been manufacturing, marketing and selling toffees and
confectionaries under various brand names as Soft Fruits, King Size, Milky
Toffees, Coco Bourbon, Paki Kery, Coconut, Buter Eclair, Elaichi, Aampapad,
Badam Malai, Milk Mara, Pista Malai, Bambaiya Aam, Butter Cream and 'Smooth
Milk'. The plaintiff has been selling these products at Madhya Pradesh as well
as at various cities across India and has considerable reputation. The trade
mark 'smooth milk' was adopted in the year April, 2005. The candies marketed
and sold under this trade name became instantly popular in Delhi. The sales
figure between April to August, 2005 was Rs. 33,600. The labels of 'smooth
milk' have distinctive get up, colour scheme and lay out. The distinctive
feature of the packaging are:
a. The colour scheme of
yellow, blue, brown and white.
b. On the front panel the
'smooth milk' label appears in blue colour with a red border around the words
'smooth milk' as well as around the plaintiff's trade name Amber.
c. The panel shows milk
flowing out of jug over the candies spread on the base.
d. Around the middle of the
panel is brown band with words Delicious Caramel Candy written in a stylized
manner.
e. The candies are small
and round in shape.
5. The plaintiff has copy right over
the design of the label. The plaintiff is a prior user of this label. The art
work of the label was designed in February, 2005. The transfer of rights for
using the label was obtained from the designer. The defendants have dishonestly
copied the trade label of the plaintiff and are thereby causing confusion in
the minds of its consumers. The defendants are selling identical products and
are holding out their products to be variant of the products of the plaintiff
and are trying to pass off their own products as those of the plaintiffs. The
defendants are aware that the plaintiff has adopted this label for selling his
candies and has dishonestly adopted the same. The plaintiff therefore, seeks
prayer mentioned above.
6. The plaintiff has submitted the
labels used by the defendants for selling their products Delicious Caramel
Candy under the trade marks 'smooth butter'. The plaintiff has also submitted
the wrapper of its own product of Delicious Caramel Candy. The two wrappers are
deceptively similar to one another to any casual observer. Both the wrappers
have the same colour combination. The words 'smooth' in the two wrappers are
almost similar and appear to be reproduction of each other. The style in which
'smooth milk' and 'smooth butter' are written are also deceptively similar.
There are of course distinction between the two wrappers. While the plaintiff's
wrapper/label shows milk flowing out of a jug, the defendants' wrapper shows
that the jug from which the milk is flowing out is held by a man with a red
apron on his waist and a blue cap. But the man does not occupy the centre space
and he is almost at the left edge of the label and, therefore, the similarity
of milk flowing out of a jug in the two labels is quite striking. Both the
labels have the same band of brownish colour on which the same words
"Delicious Caramel Candy" are written. Just as the plaintiff has used
its name Amber on the top left hand corner, the defendants have also written
their trade name Vijaya at the top left hand corner. The Caramels on the two
labels are also some what similar. Thus, although the two labels are not
identical they are deceptively similar. The defendants cannot dispute that
there has been a conscious effort to copy the plaintiff's label. To any person
of ordinary prudence the infringement of copy right is apparent. No evidence is
required to be led to prove that the defendants have infringed copy right of
the plaintiff in the label of 'smooth milk'.
7. If the defendants use this label it
will not only infringe the plaintiff's copy right but may also amount to
passing off their product as those of the plaintiff's.
8. In view of the above the plaintiff
is entitled to injunction to restrain defendants from continuing to use the
label 'smooth butter' or any label which may be similar to the plaintiff's
label of 'smooth milk' as the same will amount to infringement of plaintiff's
copy right. The plaintiff is also entitled to restrain the defendants from
selling his product under his wrapper or label deceptively similar to 'smooth
milk'. However, the plaintiff's claim for damages is not sound. How the damages
have been suffered has not been made out in the plaint. Hence, the prayer for
damages has to be dismissed.
9. The plaintiff is also entitled to an
order of delivery up all the labels, stationery articles etc. used for
manufacturing the labels as also for accounts to identify the profit illegally
earned by the defendants by using the label. The suit is accordingly decreed.
The defendants are restrained from using their label of 'smooth butter' or any
other label which may be similar to the label of the plaintiff amounting to
infringement of copy right by the plaintiff in the label of 'smooth milk'. The
defendants are also restrained from selling their product with the label
similar to the plaintiff's label of 'smooth milk'. Decree for mandatory
injunction is also granted directing the defendants to deliver up the
infringing labels as well as other articles which may carry the same lay out or
get up of the label to the plaintiff. The defendants shall render true and
correct accounts of profits earned by the sale of products under the labels
'smooth butter' within two months hereof, falling which the Court will appoint
a Local Commissioner to go into accounts.
