Registered trademarks can acquire protective rights against infringement even if they are descriptive when they establish secondary meaning associated with the product.

JUDGMENT

Prathiba M. Singh, J. (Oral)

1. This hearing has been done through hybrid mode.

I.A. 3107/2022 (for stay)

2. The Plaintiff has filed the present suit seeking permanent injunction, restraining infringement of trademark, passing off, dilution, unfair competition, delivery up, rendition of accounts, damages, and other reliefs in respect of the trademark `PLANT POWERED'.

3. The case of the Plaintiff is that it was incorporated in the year 2016, and over the years, it has sold various baby care and personal care products which are natural and eco-friendly, including detergent, lotions, face wash, face cream, sunscreen face mask etc., under the trademark `PLANT POWERED'. The trademark `PLANT POWERED' was adopted by the Plaintiff in the year 2019, and has been using the said trademark along with two logos being and . Trademark Application No.4363416 dated 30th November, 2019 was filed by the Plaintiff in Class 3, along with the label which was used by the Plaintiff. The said mark was registered. Apart from the said application, the Plaintiff has sought registrations by way of other applications in Class 5, which are currently objected to and are pending examination. The Plaintiff has also sought registration of the device mark (`PLANT POWERED').

4. The sales of the Plaintiff's products since the year 2019 is claimed to be Rs.5.95 crores, and the promotional expenses are claimed to be over Rs.4 crores. Various products of the Plaintiff have also been duly licenced under The Drugs and Cosmetics Act, 1940.

5. The grievance of the Plaintiff, in the present case, is that the Defendant No.1 - Mr. Aayush Gupta, who is also running two entities which are known by the names `Plant Powered' and `Bo International', applied for the registration of the mark (PLANT POWERED) with a flower logo. The said application was filed on 29th December, 2020 in Class 3 on a `proposed to be used' basis. The said mark proceeded for registration and the Plaintiff has now filed a rectification seeking cancellation of the said mark.

6. As per the Plaintiff, upon gaining knowledge of the said registration, the Plaintiff conducted a market survey and found a number of Defendant's products on the e-commerce platform www.amazon.in ("Amazon"). The details of the said products, along with product codes, and Amazon Standard Identification Number (ASIN) are also set out in the plaint.

7. Mr. Sethi, ld. Senior Counsel appearing for the Plaintiff has made the following submissions:

i. A cease and desist notice was issued by the Plaintiff on 1st February, 2022. However, the Defendant did not respond to the same. Upon receiving the cease and desist notice, the Defendant wrote a complaint to Amazon, raising a grievance against the Plaintiff's products, which resulted in an email being sent to the Plaintiff on 8th February, 2022. Subsequent emails were also received from Amazon, and the Plaintiff's products were delisted from Amazon. Thus, the Defendant chose not to reply to the legal notice, but parallelly, took action against the Plaintiff which had addressed the legal notice to the Defendant. He submits that this shows the mala fide and dishonest nature of the Defendant's conduct.

ii. The Defendant is also using the name `PLANT POWERED' as a trading style for identical goods. The domain name www.plantpowered.in has also been registered on 9th Oct