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IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of decision: 18^th May, 2022

+

CS(COMM) 702/2021 & I.A. 17434/2021

M/S BLUE HEAVEN COSMETICS PVT LTD

..... Plaintiff

Through:

Mr. Rishabh Srivastava & Ms.

Radhika

Arora,

Advocates

(M-

9737708356)

versus

SHIVANI COSMETICS THROUGH ITS PARTNERS VINOD

MONGA NISHANT MONGA

..... Defendant

Through:

None.

CORAM:

JUSTICE PRATHIBA M. SINGH

Prathiba M. Singh, J.(Oral)

1. This hearing has been done through hybrid mode.

2. The present suit has been filed by the Plaintiff seeking permanent

injunction restraining infringement of registered trademark, trade dress,

copyright, writing style, colour combination, label, packaging, passing off

goods, delivery up, rendition of accounts of profits along with further

damages.

3. The Plaintiff – M/s. Blue Heaven Cosmetics Pvt. Ltd. is engaged in

the business of manufacturing and sale of cosmetics and other allied goods.

It is the case of the Plaintiff that the Defendant has infringed the rights of the

Plaintiff

in

the

registered

marks

“BLUE

HEAVEN”/

This is a digitally signed Judgement.

NEUTRAL CITATION NO: 2022/DHC/001953

and “BLUE HEAVEN GET BOLD” (word as well as formative marks). The

Plaintiff adopted the mark “BLUE HEAVEN” in the year 1972 and has been

continuously carrying out trade under the said mark. The Plaintiff further

adopted

the

distinctive

mark

“BLUE

HEAVEN

GET

BOLD”

(word/formative marks) in the year 2020.

4. An ex parte ad interim injunction was granted, restraining the

Defendant, vide order dated 23rd December, 2021 in the following terms:

This is a digitally signed Judgement.

NEUTRAL CITATION NO: 2022/DHC/001953

”.

5. None appears for the Defendant, despite repeated service being

effected. A perusal of the affidavits of service dated 15^th February, 2022 and

placed on record by the ld. Counsel for the Plaintiff shows that the notice

and summons have been served upon the Defendant repeatedly through

speed post. Service has also been effected upon the Defendant through

email.

This is a digitally signed Judgement.

NEUTRAL CITATION NO: 2022/DHC/001953

6. Ld. Counsel for the Plaintiff further submits that, in fact, the Plaintiff

has received a letter from the Defendant - M/s. Shivani Cosmetics, wherein

the Defendant has stated as under:

matter to our attention. In this respect, we are

willing to inform you that we are making an

offer to stop this box immediately. We will make

sure to remove all the boxes and material of this

respective product.

should be liable for such guilty.”

The letter which has been received by the Plaintiff from the Defendant

appears to have the signatures of one Mr. Vinod Monga who is the partner

of the Defendant – M/s. Shivani Cosmetics.

7. Ld. Counsel for the Plaintiff also submits that the address of the

Defendant which has been mentioned in the memo of parties is the same as

the address where the Defendant is presently residing and the said address

appears on the Defendant’s products as well.

8. Considering the above facts, this Court is convinced that service has

been effected upon the Defendant.

9. This Court has also perused the competing products of the Plaintiff

and the Defendant which have been handed over to the Court. A perusal of

the same shows that the Defendant’s products have a packaging that is

virtually identical to that of the Plaintiff. The Plaintiff is the manufacturer

and seller of ‘Blue Heaven Cosmetics’, including ‘Blue Heaven Get Bold

Eyeliner Waterproof 7 ml’. The Defendant has copied the various elements

This is a digitally signed Judgement.

NEUTRAL CITATION NO: 2022/DHC/001953

including the letter styling, colour scheme, the placement of the various

features, the colour combination of the packaging, etc. The Defendant also

used various devices and descriptive material on its product which is

identical to that of the Plaintiff.

10. A representation of the packaging and