JUDGMENT

Navin Chawla, J.

I.A. 8147/2020

1. The present application has been filed by the plaintiff inter-alia praying for the grant of an ad interim injunction restraining the defendant, its directors, and/or anyone acting for and on their behalf from manufacturing, selling, offering for sale, marketing, retailing, supplying, distributing, exhibiting, advertising, promoting, displaying, dealing in and / or using, in any manner whatsoever, the products bearing the marks "SCHEZWAN CHUTNEY" and "SZECHUAN CHUTNEY".

FACTUAL BACKGROUND:

PLAINTIFF'S CASE

2. It is the case of the plaintiff that the plaintiff is one of the leading food companies in India, engaged inter alia in manufacturing and marketing a wide variety of dips, spreads, condiments, sauces, noodles, soups, pastes, dressings, ready-to-eat food products and other food preparations, for more than 25 years. The plaintiff employs more than 1200 people, having presence in countries such as U.S.A., Canada, Australia, U.K., Singapore, to name a few.

3. The plaintiff asserts that the plaintiff was the first to coin and independently invent a distinctive trade mark "SCHEZWAN CHUTNEY" in relation to dips and spreads, which is prima facie distinctive of the goods of the plaintiff and is exclusively associated with the plaintiff's brand. Its mark "SCHEZWAN CHUTNEY" has been granted registration for goods covered in Class 30, including sauce, under Registration No. 2431851 on 01.06.2017 as of 22.11.2012. Though Rectification Petitions have been filed against the said registration, the same is still valid and subsisting.

4. The plaintiff has also filed another trade mark application for the mark "SCHEZWAN CHUTNEY" under application no. 2431850 in Class 29 on 22.11.2012, but the same was refused raising an objection under Section 9 of the Trade Marks Act, 1999 (hereinafter referred to as 'the Act'). A review has been filed against the said refusal order, which is pending before the Trade Marks Registry.

5. The plaintiff further submits that in addition to the distinctive and coined trade mark "SCHEZWAN CHUTNEY", the plaintiff also possesses a highly distinctive label, which is reproduced herein below:

[IMG]

6. The plaintiff submits that the aforesaid label comprises of inter alia the distinctive trade mark SCHEZWAN CHUTNEY, wherein SCHEZWAN CHUTNEY is represented in a unique and distinctive manner in two lines in white lettering on the colour combination of orange and red, placement of the brand SCHEZWAN CHUTNEY on the label, unique colour combination and scheme, and placement and arrangement of all elements.

7. The plaintiff further submits that the aforesaid label has been created and devised by the in-house design label development department of the plaintiff. The distinguishing features of the label constitute as an original artistic work under Section 2 (c) of the Copyright Act, 1957. By virtue of the Copyright Act, the plaintiff is the first owner of the copyright in the above represented artistic work.

8. The plaintiff asserts that while studying consumer tastes and preferences, and in bridging international cuisines with local flavours, the plaintiff created a whole new cuisine in India - 'Desi Chinese', which is a fusion of Indian and Chinese flavours. The plaintiff submits that it was the first to identify and create the unique cuisine of 'Desi Chinese' that is native to India and universally loved across various countries. The plaintiff further states that, today, the plaintiff's products are synonymous with the cuisine 'Desi Chinese' in India and across the globe.

9. The plaintiff further asserts that as part of its product innovation in the Desi Chinese cuisine, in or around the year 2012, the plaintiff had introduced a dip and spread based product under the trade mark "SCHEZWAN CHUTNEY". "SZECHUAN" is a province of South-West China which is known for bold flavours, particularly the pungency and spiciness resulting from the use of garlic and chilli peppers. "CHUTNEY"