Delhi High Court (May 15, 2001) 2001 (TLS)125464 2001-DLT-94-209 :: 2002-AD (Del)-1-345 HYGIENIC -RESEARCH INSTITUTE Vs. Shobhan Lal, Jain A. K. Sikri ( 1 ) THIS Suit is filed by the plaintiff for passing a decree of permanent injunction, copyright infringement, passing off, damages and delivery-up. As per the averments made in the plaint, the Plaintiff hasa firm registered under Indian Partnership Act having its Office at Bombay and branch office at Delhi. Mr. Subhash C. Nishat is one of the partners of the plaintiff-firm who has been authorised to institute the present Suit. The plaintiff carries on business of manufacturing and marketing of cosmetics including hair care preparations and hair dye. One of its produce is supervasmol 33, hairdye. It is averred in the plaint that in the year 1978, the plaintiff adopted a new distinctive label and carton for it s product super VASMOL. 33. The said product has since then continuously been sold in a peacock blue carton with a picture of smiling man in white colour on one side and a woman with open hair on the other side. The Super vasmol 33 appears in English and Hindi inside a rectangular device on both sides of the carton. On the top left hand side corner of the carton are written the words "kesh -. Kala" diagonally in Hindi and English. The descriptive matter- {about the product) in English appears on the side along with the picture of the smiling man and descriptive matter in Hindi appears on the side along with the picture of the woman with open hair. The ribbon shaped silver and black line run diagonally across the carton. The carton and its distinctive get-up, layout and arrangement constitute an original artistic work within the meaning of Section 2 (c) of the Copyright Act, 1957. The plaintiffs are the owner of the copyright and exclusively entitled to reproduce the artistic features thereof in any material form. It is further stated in the plaint that this afore-mentioned distinctive product have been sold by the plaintiff on a large and extensive scale throughout india. Sale figures for the period 1978-1996 have been mentioned in the plaint. It is also stated that the plaintiff has been spending substantial amount of money in popularising its products through newspaper, magazines, television, sponsorship on special events, etc. Sale figures for the period 1978-1996 have been mentioned in the plaint. It is also stated that the plaintiff has been spending substantial amount of money in popularising its products through newspaper, magazines, television, sponsorship on special events, etc. and the expenditure incurred annually during the period 1982-1996 has also been mentioned as per which the expenditure on this account has been increasing steadily and in 1995-1996 a sum of Rs. 43,33,246. 00 was spend on advertisement of the products of the plaintiff. The plaintiff is also stated to be a registered owner of the trade mark SUPER VASMOL 33 since 22/11/1957 under registration no. 182355 which is a valid and subsisting registration. In the month of Februay 1997, the plaintiff came to know that a product hair-dye in a carton (Annexure b and exhibited as P-5) reading as Super-99 black and nice having identical colour scheme, get-up, layout and arrangement as Super Vasmol 33 is being sold in and around Delhi. The plaintiffs made inquiries as the product had no address on its outer carton and the label on the bottle had only the name of the defendant no. 2. The Suit has been filed for permanent injunction, copyright infringement, passing off, damages and delivery-up, etc. on the ground that the defendants have copied its entire carton by using the same colour scheme and by placing the picture of man and woman on the same side of the carton as of the plaintiffs. It is also contended that the entire descriptive matter on the plaintiff s carton have also been copied in Hindi and English on the same place using the same typestyle as that of the plaintiffs carton. The defendants have also copied the rectangular device as that of the plaintiffs. ( 2 ) ALONG with the Suit, the plaintiff filed ia. 3173/97 under the provisions of Order XXXIX Rule 1 and 2 of the Code of Civil Procedure for interim injunction. While issuing summons in the Suit on 7/04/1997 ex-parte injunction dated 7/04/1997 passed on this IA restraining the defendant from using the carton mark B appearing at page 56 of the documents file which is similar to the plaintiff s carton appearing at page 54 of the documents. This interim order has continued operate till date. ( 3 ) THE summons were duly served on the defendants who appeared and filed the written statement. This interim order has continued operate till date. ( 3 ) THE summons were duly served on the defendants who appeared and filed the written statement. However after the pleadings when the matter was fixed for filing of documents and admission and denial of documents on 1 1/10/1999 no one appeared on behalf of the defendant to carry out admission and denial of documents filed by the plaintiff. The defendants did not file documents either. Following issues were framed on 5/11/1999:- 1. whether the defendants are infringing the copyright by using the carton and literature of the plaintiff? OPP. 2. Whether the defendants are passing off their goods as the goods of the plaintiff? OPP. 3. Relief. ( 4 ) EVEN thereafter nobody appeared on behalf of the defendants. By Order dated 28/08/2000 the defendants were proceeded ex-parte and the plaintiff was allowed to file affidavit by way of evidence. The plaintiff has filed affidavit of Shri Subhash C. Nishat partner of the plaintiff-Firm. In this affidavit the witnesss has deposed in consonance with the various averments made in the plaint Is as noted above. The witness also proved various documents. Exhibit P-1 is the carton of the plaintiff in respect of its product SUPER VASMOL-33. Exh. P. 2 to P. 4 are the advertisement showing that the product in question of the plaintiff is being advertised. Exh. P-5 is the carton of the defendant of its product hair-dye super-99- The literature of the defendants product is exh. P-6. ( 5 ) FROM the evidence on -record I am satisfied that the plaintiff is the owner of the artistic work on the carton of its product SUPER VASMOL-33 in the manner, it is projected in Exh. P-1. I am also satisfied that the defendants in their product hair dye - SUPER 99 Black and nice has copied this artistic work of the plaintiff inasmuch as it contains same colour scheme, get up, look up and arrangement as SUPER vasmol -. 33, by piecing the picture of a man and woman on the same side of the carton as that of the plaintiff s product,the defendants have also copied the entire descriptive matter on the carton. Even the descriptive matter in Hindi and English is placed on the same place using the same type, style as that of the plaintiff s carton. Even the descriptive matter in Hindi and English is placed on the same place using the same type, style as that of the plaintiff s carton. The defendants have also copied the rectangular device as that of the plaintiffs. This action of the defendant is clearly dishonest and malafide and it is bound to cause confusion and deception in the minds of the consumers/purchasers. By using this methodology the defendants intention is to passing of their goods as goods of the plaintiff. Issue nos. 1 and 2 are therefore decided in favour of the plaintiff and against the defendants. ( 6 ) THE plaintiff does not press the relief of damages. Accordingly the following decree is passed (i) A decree for permanent injunction is passed in favour of the plaintiff and against the defendants restraining the defendants, their proprietor/partners, servants, agents, stockists, etc. from manufacturing, selling, offering for sale, advertising directly or indirectly dealing in cartons/labels of Super 99 Black and nice like Annexure "b" bearing the same colour scheme as that of the plaintiffs or any other colourable imitation thereof. (ii) A decree for permanent injunction is passed restraining the defendants, their partners or proprietors as the case may be, their servants, agents, stockists from manufacturing, selling, offering for sale, advertising, directly or indirectly dealing in hair dye, or any other cognate and allied goods packed in the packing material which is infringement of copyrights of the plaintiff s and reproduction of plaintiff s copyright on the tin containers, plaetic containers as well as cardboard packings or any other packing material which is deceptively similar with the packing material of the plaintiffs. (iii) Defendants are further directed to deliver to the plaintiffs all the offending and infringing containers, blocks, dyes, packing material, advertising material and stationary articles for the purposes of destruction and/or erasure. (iv) Plaintiff shall also be entitled to costs. Decree able drawn accordingly. --- *** --- .