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IN THE HIGH COURT OF DELHI
Navin Chawla, J.
DS Confectionery Products Limited - Appellant
Versus
Nirmala Gupta - Respondent
CS(COMM) 176 of 2020
Decided On : 22-11-2022
Trademark Infringement - Permanent Injunction - Well-Known Trademark - Copyright Violation - [PULSE] - [Trademark Infringement] - [Section 2(1)(zg) of the Act, Copyright Act, 1957] - The court found the defendants guilty of trademark infringement, passing off, and violation of copyright in the plaintiff's label. The defendants' marks were deemed deceptively similar to the plaintiff's, and their actions were considered dishonest. The court granted a decree of permanent injunction, damages, and costs in favor of the plaintiff.
Fact of the Case:
The plaintiff sought a permanent injunction against the defendants for trademark infringement, passing off, and other unfair competition practices related to confectionery products. The defendants were proceeded with ex-parte, and the plaintiff claimed to be a leading industrial player in the food and beverage industry, with a well-known trademark PULSE.
Finding of the Court:
The court found the defendants guilty of trademark infringement, passing off, and violation of copyright in the plaintiff's label. The defendants' marks were deemed deceptively similar to the plaintiff's, and their actions were considered dishonest. The court granted a decree of permanent injunction, damages, and costs in favor of the plaintiff.
Issues: Trademark Infringement, Passing Off, Copyright Violation
Ratio Decidendi: The defendants' marks were deceptively similar to the plaintiff's, and their actions were considered dishonest, leading to trademark infringement, passing off, and copyright violation. The court granted a decree of permanent injunction, damages, and costs in favor of the plaintiff.
Final Decision: The court granted a decree of permanent injunction, damages of Rs. 2,00,000, and costs in favor of the plaintiff against the defendants.
JUDGMENT
1. The present suit has been filed by the plaintiff praying for a decree of permanent injunction against the defendants restraining them from manufacturing, selling, offering for sale, advertising, directly or indirectly dealing in any manner with confectionery products and/or any other goods and services including but not limited to hard flavoured candies and/or fruit candies and/any other goods and services using the trade mark PELSE/
, the trade mark as also trade dress for A picture containing text Description automatically generated PLUS++/
under the SNEH trading style or any other trademark, containing the plaintiff's trademark and copyright in PULSE/
, or any other mark deceptively similar thereto, which would amount to either infringement, passing off, dilution, unauthorised representation or unfair competitions. The plaintiff further prays for delivery up, rendition of accounts, costs and damages.
2. Vide order of this Court dated 20.08.2020, the defendants were proceeded with ex-parte in the present suit. A picture containing pickle Description automatically generated-A picture containing text Description automatically generated
3. It is the case of the plaintiff that it is a part of the Dharampal Satyapal Group, a diversified conglomerate founded in the year 1929, and is engaged in the business of food and beverage products, confectionery, hospitality, mouth fresheners, paan masala, tobacco, agro forestry, rubber threads, infrastructure and dairy segments. The plaintiff asserts that it has been a leading industrial player creating premium high-quality products for a wide range of consumers in India as well as internationally. Across the multiple sectors of industry that the plaintiff conducts its business in, it is recognized as a market leader in traditional natural mouth fresheners as also mini chewing gums, adopting trade names such as, `Catch'1/2, `Pass-Pass'1/2, `Tulsi'1/2, `Rajnigandha'1/2 and `Chingles'.
4. The plaintiff's goods under the trademark PULSE and the trade-dress associated with its product PULSE along with the `Kachcha Aam'1/2 flavoured candy, written as `Kachcha Aam with Tangy Twist'1/2, marked the plaintiff's foray into the candy product segment. The candy product was conceptualized around early 2013 and introduced for sale to the general public in December, 2014.The trade mark and packaging of the PULSE candy along with its trade-dress is reproduced hereinbelow:
5. The plaintiff also launched its candy bearing the trade mark PULSE/
in four different flavours-Guava and Orange in the year 2016; Pineapple and Litchi in the year 2017. The plaintiff further launched a sweetened drink as also a `no salt, sugar free'1/2 variant of the candy, both bearing the trade mark PULSE/.
6. The Plaintiff gives details of its expenditure regarding the advertisements and promotion between the years 2014 to 2018 of its trade mark PULSE/ in paragraph 16 of the plaint.
7. The plaintiff also gives its sales figures of the products under the PULSE trademark for the period 2014-2015 to 2017-2018, in paragraph 18 of the plaint, with the sales rising from Rs1.89 Crore to Rs329.17 Crore during this period.
8. The plaintiff gives the details of the registrations granted/applied for its trade marks, as under: A close-up of a logo Description automatically generated with low confidence
| Trade mark Application No. | Trademark | Class | User Date | Date of Application | Status |
| 2827909 |  | 30 | 01.04.2013 | 16.10.2014 Registered | |
| 3071704 |  | 30 | 01.04.2013 | 07.10.2015 | Registered |
| 3071705 |  | 30 | 01.04.2013 | 07.10.2015 | Registered |
| 2891666 |  | 30 | 01.04.2013 | 29.01.2015 | Opposed |
| 2827906 | PULSE (word) | 30 | 01.04.2013 | 16.10.2014 | Opposed |
| 3103619 |  | 30 | 01.04.2013 | 23.11.2015 | Registered |
| 3854008 |  | 30 | 01.04.2013 | 07.06.2018 | Registered |
| 3854009 |  | 30 | 01.04.2013 | 07.06.2018 | Registered |
| 3854010 | PULSE SHOTS | 30 | 01.04.2013 | 07.06.2018 | Registered |
| 3188874 | PULSE | 32 | 01.10.2015 | 17.02.2016 | Registered |
| 3364213 | PULSE | 32 | 01.04.2013 | 16.09.2016 | Accepted |
9. The plaintiff asserts that its mark has also been registered/applied for in other countries, details whe
Trademark infringement, passing off, and copyright violation were established, leading to the grant of a permanent injunction, damages, and costs in favor of the plaintiff.
The court established that use of a trademark can infringe another's marked similarity leading to consumer confusion, mandating protection against unauthorized use.
The impugned marks are deceptively similar to Plaintiff's registered marks, leading to public deception, and the Court passes a summary judgment in favor of the Plaintiff.
The court applied the provisions under Order XIII-A of the CPC and the Delhi High Court Intellectual Property Rights Division Rules, 2022 to grant a Summary Judgment in a commercial dispute involving....
Generic and descriptive terms in trademarks cannot be exclusively claimed, and likelihood of confusion must be assessed holistically from the average consumer's perspective.
The court found that despite phonetic similarity, the distinctiveness of trade marks and differences in intended consumer bases negate the likelihood of confusion and passing off.
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