Unilever Plc & Anr vs Anoy Paul & Ors

The Court : In an action for infringement of trade mark on 26th November, 2018 defendant nos.37 to 56 have been added as parties. The plaint and the petition has been amended accordingly. Today the petitioner has prayed for a similar order that was passed on 10th of August, 2018 in GA No.2218 of 2018.

The plaintiff No. 1 is the registered proprietor of the trade mark "CORNETTO". It is stated that a large quantity of frozen desserts/ice cream has been sold in India under the said trade mark "CORNETTO" by reason whereof the said mark has become very well-known and has become distinctive of the products of the petitioners. The frozen desserts/ice cream of the petitioners sold under the trade mark "CORNETTO" have acquired a substantial reputation and goodwill in the market. The petitioners have also given the figures of the All India annual sale of products of the petitioner companies under the "Kwality Walls" brand including "CORNETTO" and expenses incurred in advertising of these frozen desserts/ice creams.

Mr. Ratnanko Banerji, learned Senior Counsel appearing on behalf of the petitioners submits that in the months of June and July, 2018 in course of market surveys and investigations carried out by the petitioners across Southern, Eastern and North Eastern India, it was found that the respondent nos. 1 to 20 were manufacturing, selling and distributing frozen desserts/ice creams under the marks "CORNETTO" and/or "CONATTO" which are identical and/or deceptively similar to the Trade Mark under which the Petitioners' product "CORNETTO" is sold and distributed in India. Mr. Banerji further submits that subsequent to coming across the aforesaid information, the Petitioners, upon making further enquiries and analyzing the packaging material being used by such persons/ entities, have come to learn that although the said persons/ entities are operating in different locations, the packaging materials are being supplied to them by common sources. The outer wrappers or top covers/ lids or a combination thereof being used by the said persons/entities to sell impugned goods indicate that there is a link between all the said persons/entities and they have a common interest in riding on the goodwill and reputation of the Petitioner No. 1's "Cornetto" trademark. Mr. Banerji submits that the persons/ entities whose identities the Petitioners have been able to ascertain have been arrayed as Respondent Nos. 1 to 20. The Petitioners as yet have not been able to ascertain the identities of the common printers and/or manufactures and/or suppliers of the packaging material being used by Respondent Nos. 1 to 20 and such persons are being impleaded as Respondent nos. 21 to 24 by the name 'Ashok Kumar'. It is submitted that upon the identities of such Respondents being known, the name 'Ashok Kumar' will be substituted by the real name of the Respondent and such Respondent will be impleaded through his/her real name.

The packet of the product "CORNETTO" of the petitioners and the infringing wrappers of the defendants are produced before this Court.

It appears that the infringing packets in which the products of the respondents are sold are a colourable and deceptive imitation of the trade mark of the petitioner No 1's "CORNETTO" which is a well-known trademark and of which the petitioner No. 1 is the registered proprietor.

. This Court is, prima facie, satisfied that the products sold by the defendants are in infringement of the petitioner No. 1's registered trade mark "CORNETTO" and are deceptively similar to those in which the petitioners' product "CORNETTO" is sold.

On the aforesaid prima facie satisfaction, in my view, a protective order is required to be passed, otherwise the infringing packets may be removed out of reach of the Court. In view thereof, there shall be an order in terms of prayers (a) and (b) of the application.

(1) Mr. Pradyut Kumar Dutta, Advocate Bar Association Room No.15, (Mob: 9830927029), (2) Debasish Das, Advocate (Mob: 9830457844), (3) Ratul Das, Advocate (4) Mr. Diptonil Hazra, Advocate (Mob: 7003894728), and (5) Mr. Victor Chatterjee, Advocate (Mob: 8910706366) are appointed Special Officers to immediately visit the godowns and the outlets of added defendant nos.37 to 56 and inventorize the infringing goods, if required, with police assistance. The five Special Officers shall in the meeting decide the places they wish to visit to carry out the direction of this Court. The Officer in charge of the concerned police station on a written request by the Special Officers along with a copy of this order shall render assistance to such Special Officers in implementing this order. The Special Officers shall also ensure that no sale of goods takes place. The Special Officers shall be at liberty to break open padlock(s), if required, in presence of police authorities in the event the respondents or the godown owners are unable to provide the key(s) to the Special Officers. The godowns shall be resealed and the key(s) shall be in the custody of the Special Officers until further orders. The Special Officers shall be entitled to an initial remuneration of 3000 GMs each. All arrangements for the Special Officers' travel, accommodation and the like shall be made by the petitioners and the expenses therefor. The Special Officers shall file reports on the returnable date.

Let this application appear on 14th January, 2019.

The petitioners are directed to serve a copy of this application along with a copy of this order upon the respondents by speed post and shall file affidavit of service on the adjourned date.

The interim order shall continue for a period of ten weeks from date or until further orders, whichever is earlier.

The respondents shall be at liberty to apply for vacation, variation and/or modification of the interim order upon notice to the petitioners.

The time to reverify and reaffirm the plaint by the plaintiff no.1 is extended by one week from date.