JUSTICE SHIV NARAYAN DHINGRA

1. The plaintiff filed a suit for permanent injunction against defendants claiming that the defendants were infringing trade mark and registered design of the plaintiff and were passing off their goods as those of the plaintiff. Defendants also claimed damages and rendition of accounts. The above application being IA No.1881/07 is made by the plaintiff under Order 39 Rule 1 and 2 CPC.

.2. The brief facts relevant for purpose of deciding this application are that plaintiff claimed that it was marketing Dabur Amla Hair Oil in bottles having a distinctive design having semi circular shoulder with curvaceous back and front panel converging taperly into each other. The shape and configuration of plaintiffs bottle was unique, novel and original and was registered as design no. 17324 under the Designs Act and was valid upto 24th February, 2011. The green cap put over the bottle was also unique and this was registered under Designs Act as design no. 171486 valid upto 11th June, 2011. It is also contended that these bottles were having embossing of trade mark Dabur of the plaintiff at the bottom. It is alleged that the defendants were manufacturing plastic bottles which were imitation of the bottles of the plaintiff and were having embossing Dabur trade mark on the bottom and the defendants were selling these bottles to counterfeiters of Dabur Amla Hair Oil. Thus defendants were infringing designs of the bottle of the plaintiff as well as cap of the bottle.

3. An ex parte interim order was granted to the plaintiff by the Court for seizure of the infringing material. The Local Commissioners visited the premises of all the 3 defendants and seized certain boxes of empty bottles as well as the ledger of defendant no. 3 showing that the empty bottles were being sold to different persons.

4. The defendants in written statement stated that the suit of the plaintiff was liable to be dismissed since it was based on false and frivolous allegations. Defendants have not been imitating the bottles of the plaintiff neither there was any embossing of trade mark of the plaintiff on the bottom or any part of the bottle seized by the Local Commissioner or being sold by the defendants. The defendants were not copying or infringing the design of the plaintiff. The bottles were being sold for multifarious uses of different persons and defendants were only selling empty bottles without any mark or number over these bottles. Selling of bottles of different sizes and shapes along with cap was the business of defendants.

5. During the arguments, both the bottles, i.e., of the plaintiff and defendants were produced in the Court and I have seen both the bottles. It could be seen that the plaintiff made false averment in the plaint that defendants were selling bottles with trade mark of the plaintiff embossed on the bottle. None of the bottles, seized from the defendants, bear the trade mark “Dabur at the bottom or at any other place. Neither any of the Local Commissioners in his report has stated that the bottle was having embossing of trade mark of “Dabur. It is apparent that the plaintiff, in order to create a case of infringement of trade mark and design made this false averment that bottles with embossing of trade mark Dabur were being sold by the defendants. I consider that the plaintiff had no, prima facie, case against the defendants and suit is liable to be dismissed for deliberately making flase averments.

6. Even otherwise, a look at the bottles of the plaintiff would show that the bottles being used by the plaintiff are common bottles being used by the several other companies for marketing their hair oil, fixers and liquid products. These bottles have similar shape as being used by different manufacturers of liquid products like JOLEN (Skin Satin Moisturizer), SEBSUN (Anti Dandruff Shampoo), Lever Ayush Hair Poshak Oil of HLL, Shivanand Amla Plus Hair Oil, Bajaj Amla Shikakai Hair Oil, Cantharidine Hair Oil, SIMAX