Point of Law : Infringement of trade mark - Amicably settlement between parties - Court has gone through terms of settlement incorporated in Settlement Agreement and same is found to be valid and lawful.

JUDGMENT :

The hearing has been conducted through video conferencing.

CS(COMM) 341/2020 & IA No. 7294/2020 (u/O XXXIX R 1 & 2 r/w Sec. 151 CPC by the plaintiffs); I.A. 7799/2020 (u/O 39 R 4 r/w Sec. 151 CPC by the defendants); I.A. 11593/2020 (by defendants) & IA No. 8744/2021 (u/O 1 R 10(2) r/w Sec. 151 CPC)

1. Plaintiffs have filed the present suit, inter alia, for permanent injunction restraining infringement of trade mark, passing off, dilution, unfair competition, misrepresentation, damages, rendition of accounts, delivery up, etc. against the defendants.

2. Pertinently, plaintiff No.1- N.V. Nutricia is a company incorporated under the laws of The Netherlands. Plaintiff No.2, Nutricia International Private Limited, is a wholly owned subsidiary of the plaintiff No.1. The trade mark ‘NUTRICIA’ has been used in association with the products of plaintiff No.1, both as a brand as well as the trade/corporate name.

3. According to plaintiffs, the trade mark ‘NUTRICIA’ was coined, conceived and adopted by plaintiff No.1 in the year 1901 and has since been extensively used by the plaintiff No.1 as a brand as well as the dominant and operative part of its corporate name. Over the years, as the plaintiff No.1 and its group companies have expanded across the globe and established themselves as leaders in the specialised nutrition market, the trade mark ‘NUTRICIA’ has become progressively well-known across the world, and has become exclusively associated with the plaintiff No.1 and its group companies. The plaintiff No.1 also has several registrations for the trade mark ‘NUTRICIA’ in its favour in various other countries apart from India. Thus, the trade mark ‘NUTRICIA’ is solely and exclusively associated with the plaintiffs.

4. The Defendant No.1, “Nivisa Healthcare Pvt. Limited”, formerly known as Nutrica International Private Limited, is a company incorporated under The Companies Act, 2013 and is in the business of manufacturing, supplying and selling infant food in the form of health supplement protein powders under the trade mark and trade name ‘NUTRICA’. Defendant No.2, Mr. Nitin Rohatgi, is the director of the defendant No.1 and defendant No.3 is a third party. Defendants No.2 and 3 came to be employees of the plaintiff No.2 but after their resignation, they were discharged from their services on 30.06.2019 and 04.12.2017 respectively.

5. Further, in February, 2020 an Investigator of plaintiffs revealed that the defendants were in the business of manufacturing, supplying and selling health supplement protein powders for infants under the trade mark and trade name ‘NUTRICA’. Further plaintiffs came to know that the defendants have applied for trade mark registration for the label IMAGE under class 5 of the classification followed by India’s Trade Mark Registry. According to plaintiffs, defendant Nos. 2 and 3 being ex-employees of the plaintiff No. 2 were clearly aware of the Plaintiffs’ rights and goodwill in the mark ‘NUTRICIA’ and still, they deliberately and dishonestly adopted the mark ‘NUTRICA’. In such a view of the matter, the present suit was filed by the plaintiffs seeking:-

“A decree of permanent injunction restraining each of the defendants, its partners, directors, proprietors, subsidiaries, affiliates, franchisees, officers, servants, agents, distributors, stockists, representatives, licensees and anyone acting for or on their behalf directly or indirectly, as the case may be,

(a) from selling, offering for sale, advertising, manufacturing, mentioning on their websites, dealing in any manner whatsoever or otherwise using, including as a part of a corporate name, domain name or trade name, the mark ‘NUTRICA’ or the label IMAGE any other mark identical or deceptively similar to the Plaintiff No.1’s registered trade mark ‘NUTRICIA’, especially in relation to the business of manufacturing or selling food supplements, amounting to infringement;

(b) from selling, offering for sale, advertising, manufacturing, mentioning on their w