JUDGEMENT

JYOTI SINGH, J.

I.A. 9121/2022 (under Order 39 Rules 1, 2 and 7 CPC, by Plaintiff) &

9775/2022 (under Order 39 Rule 4 CPC, by Defendant No.3)

1. This judgment shall dispose of an application preferred on behalf of the Plaintiff under Order 39 Rules 1, 2 and 7 CPC as well as an application under Order 39 Rule 4 CPC filed on behalf of Defendant No.3 (hereinafter referred to as ‘Defendant’).

2. Present suit has been filed by the Plaintiff seeking a decree of permanent injunction restraining Defendants and others acting on their behalf from advertising, offering for sale or selling their products on e-commerce sites as well as from using the registered corporate names or domain names bearing the tradename ‘Newton Box’ and/or any mark deceptively similar to the Plaintiff’s registered trademark ‘Einstein Box’

and/or formative marks amounting to infringement of Plaintiff’s registered trademark as well as from copying, reproducing, adapting, rearranging the ‘Einstein Box’ products of the Plaintiff, amounting to infringement of copyright. Restraint is also sought against passing off, dilution and tarnishment along with reliefs of delivery up and damages.

3. It is averred in the plaint that Plaintiff is a company incorporated under the Companies Act, 1956 on 02.05.2005. Defendant No.1 is Flipkart, an e-commerce company, through which Defendant sells its products. Sale of impugned products from Defendant No.1’s website was channelled through Defendant No.2 from Defendant No.1’s warehouse.

4. It is further averred that in the year 2014, Plaintiff undertook extensive research into interactive tools to aid early learning for children. Inspired by the famous quote of the world-renowned physicist Albert Einstein, “Every child is born a genius”, Plaintiff created games and books that would help unlock the genius in every child. Plaintiff developed learning activities and games in the form of kits for children upto the age of 14 years under the brand/ tradename “Einstein Box”. The inspiration behind associating name of the world-renowned physicist Albert Einstein with the products of the Plaintiff was to showcase and market the products of the Plaintiff as one of its kind foundational learning and development toys. Each Einstein Box product has age-appropriate books, games and activities.

5. It is pleaded that Plaintiff introduced and launched the first set of Einstein Box products for the age group of 01 to 06 years in October 2016. Over six years, between 2016 and 2022, Plaintiff has launched more than 28 kits and to ensure that they reach the target market, it has been selling the Einstein Box products only on large e-commerce sites like Amazon and Flipkart and on its own brand website www.einsteinbox.in.

6. It is stated that each Einstein Box has been produced with huge effort and investment. Plaintiff has a dedicated production team of 3-5 personnel for the last six years, who after interaction with teachers, customers, etc. generated concepts, designs, themes and game proposals, which were then translated into books and activities. A graphic designer was also engaged, who created the graphics and after extensive reviews/ changes, books/ activities were released into the market. Besides these, voluminous marketing material for online sales, instruction manuals, photographs, etc. were created by the Plaintiff’s employees or commissioned agents and these are the original literary and artistic works of the Plaintiff.

7. It is averred that Plaintiff has spent more than Rs.5,00,00,000/- on development and marketing the Einstein Box products over the last 3 years. Significant investment in product development has led to the Einstein Box products being very successful and popular. In the current year itself, Plaintiff had sales in excess of around Rs.15,00,00,000/-. In the previous year, i.e. 2021, sales of the Einstein Box products were in excess of Rs.10,00,00,000/-. Einstein Box products are also selling very successfully internationally in US