IMPORTANT POINT
The court emphasized the discretionary power under Order VIII Rule 10 of the Code of Civil Procedure, 1908 and the need for evidence to prove the plaintiff's case, highlighting the importance of essential documents in supporting the plaintiff's case.

JUDGMENT :

Sugato Majumdar, J.

1. The instant suit was originally instituted by M/s Hindustan Lever Ltd., a company registered under the Companies Act 1956, being the original Plaintiff no. 1 along with M/s Indexport Ltd., a company registered under the Companies Act 1956, against the Defendant alleging infringement of trade-mark.

2. The original Plaintiff no. 1 was owner of the band ‘NIHAR’ and used to market perfumed coconut oil under the said brand-name and trade-mark ‘NIHAR’. The word ‘NIHAR’ appeared on the labels and packages in a distinctive style, get-up, write-up and in distinctive colour scheme. The word was used in conjunction with a device of two coconut-trees one full coconut and another half coconut. The original Plaintiff no. 1 had been selling the product from the year 1995.

3. On or about 17th February, 2006, the Plaintiff No. 1 executed a deed of assignment in favour of the present Plaintiff M/s Marico Ltd., a company registered under the Companies Act 1956, whereby the original Plaintiff no. 1, M/s Hindustan Lever Ltd. transferred, assigned and conveyed all its rights, titles and interests in the trade-mark ‘NIHAR’, for valuable consideration in favour of the present Plaintiff as aforesaid. By virtue of the aforesaid assignment, the present Plaintiff became the owner of the trade-mark ‘NIHAR’ together with the good-will in India. The present Plaintiff is manufacturing and marketing coconut oil under the mark ‘NIHAR’. The original Plaintiff M/s Hindustan Lever Ltd. got the trade-mark registered in its name. Subsequent to assignment the present Plaintiff made application for registration of the trade-mark ‘NIHAR’ in its name and got it so registered. As such presently, the present Plaintiff is the registered proprietor of the trade-mark ‘NIHAR’. The present Plaintiff also substituted itself in place of the original plaintiffs.

4. In the second week of February 2004 the original Plaintiff No. 1 came to know that the Defendant no. 1 had been selling coconut oil in plastic packets having deceptive similarity, trade-dress, get-up, colour scheme and dimension with that of the original Plaintiff no. 1. The original Plaintiff purchased a packet of the deceptively similar coconut oil from the Defendant no. 3 at Bhagwati Store, 13A, Bidhan Sarani, Kolkata – 700006. In or around the month of November 2009 the present Plaintiff came to know that the Defendant no. 1 has marketing and selling double filtered coconut oil 200ml. jars bearing deceptively similar mark ‘Nihal’. The style, colour scheme and writing type of the packages of the coconut oil of the Defendants are deceptively and confusingly similar to that of the Plaintiff. In doing so, the Defendants are motivated with mala-fide object to deceive and confuse the consumers and pass-off their product as that of the Plaintiff.

5. The original Plaintiff instituted the instant suit praying for permanent injunction restraining the Defendants from passing off, along with others; decree for delivery up and destruction of labels, packages, cartons, and boxes of the Defendants similar to or in colourable imitation of those of the Plaintiff along with other prayers in view of infringement of trade-mark and passing off.

6. In spite of service of summons of Defendants did not contest the suit for which the suit became an undefended one, in terms of the order dated 20th June 2023. The Learned Counsel for the Plaintiff submitted that since no claim for damages is there, no evidence was required and proceeded with argument.

7. The first limb of argument of Mr. Sen, the Learned Counsel appearing for the present Plaintiff is that since the Defendants did not contest the suit and did not file written statement, this Court under Order VIII Rule 10 of the Code of Civil Procedure, 1908, shall pass judgment on the basis of the plaint. Referring to Kaira District Co-operative Milk Producers Union Ltd. & Anr. Vs. Maa Tara Trading Co. & Ors. [AIR 2022 Cal 377] and Shyam Sel Power Ltd. Vs. Atibir In