IN THE HIGH COURT AT CALCUTTA ORIGINAL SIDE (Intellectual Property Rights Division) BEFORE: The Hon'ble JUSTICE RAVI KRISHAN KAPUR IP-COM/55/2024 [OLD NO CS/66/2023] UNILEVER INDUSTRIES PRIVATE LIMITED AND ORS. VS NARESH GEHANI AND ORS. For the plaintiffs : Mr. S.N. Mookerjee, Senior Advocate Mr. Ratnanko Banerji, Senior Adv. Mr. Soumya Roy Choudhury, Adv. Mr. Arunabha Deb, Adv. Ms. Ashika Daga, Adv. Mr. Raunak Das Sharma, Adv. Ms. Sanchari Bhowmik, Adv. For the defendant nos. 17 & 18 : Ms. Pubali Sinha Chowdhury, Adv. Ms. Mini Agarwal, Adv. For the defendant no.12 : Mr. Varun Pathak, Adv. Mr. Thejesh Rajendran, Adv. Mr. Tejpal Singh Rathore, Adv. Mr. Siddharth Dey, Adv. For defendant nos. 14 & 15 : Mr. Phiroze Edulji, Sr. Adv. Mr. Neel Mason, Adv. Mr. Shivam Ishaan, Adv. Ms. Priyanka Bhattacharya, Adv. Ms. Anuradha Das, Adv. Judgment on : 28.03.2025 Ravi Krishan Kapur, J.: 1. This is a suit for protection of intellectual property rights of the plaintiffs. 2. The plaintiffs are one of the largest manufacturers and distributors of Fast Moving Consumer Goods (“FMCG”). The goods and products manufactured, sold and distributed by the plaintiffs enjoy a high reputation and are valued internationally by consumers. 2 3. The plaintiff no.1, Unilever Industries Private Limited is a company incorporated under the Companies Act, 1956 having its registered office at the address stated in the cause title. The plaintiff no. 1 is also the proprietor of the “Kwality” trade marks. 4. The plaintiff no.2, Unilever PLC, is a company incorporated under the laws of England and Wales, and carries on business in India through Hindustan Unilever Limited, being the plaintiff no. 3. 5. The plaintiff no.3, Hindustan Unilever Limited, a subsidiary of the plaintiff no. 2 was established in India in 1933. The plaintiff no. 3 is a leading manufacturer of various consumer goods and its products have acquired immense reputation in the market. The plaintiff no. 3’s products are a household name in the Fast Moving Consumer Goods (“FMCG”) sector in the country. The products manufactured by plaintiff no. 3 are widely sold and distributed all over India with the help of its extensive marketing and distribution network, enabling its products to be sold in remote villages of the country. 6. The plaintiff no.4, Unilever IP Holdings BV, is a wholly owned subsidiary of the plaintiff no.2. As part of an internal re-organization, the intellectual property rights including trademarks in India relating to its nutrition and ice cream business have been assigned by the plaintiff no.2 to the plaintiff no.4. Moreover, the plaintiff no.2 has also assigned the beneficial interest in the corporate Unilever Logo being to the plaintiff no.4 for use in India. The plaintiff no.3 has also acquired both statutory and common law rights in relation 3 to the trading names “Hindustan Unilever”, “Hindustan Unilever Limited” and “HUL” and is entitled to exclusive use of the same in relation to their goods. 7. The subject matter of this suit pertains to frozen desserts. The frozen desserts sold, manufactured and distributed by the plaintiff no.3 are available in India under several popular brands namely “Cornetto” and “Feast”. Both these products are marketed under the umbrella trademark “Kwality Walls” belonging to the plaintiffs. Since March 1997, the plaintiff no.3 has been continuously and exclusively using the trademark “Kwality Walls” as a composite mark logo with the registered trademarks being the International Heart Logo being and the Corporate Unilever Logo being also in respect of ice-creams and frozen desserts. The plaintiff no.1 is also the registered proprietor and subsequent assignee of the “Kwality” trademarks which have been licensed to plaintiff no.3 for use in India in relation to ice-creams and frozen desserts. With the passage of time, the products of the plaintiff no.3 and its brands enjoy immense reputation and goodwill. 8. The plaintiffs state that the frozen desserts and ice-cream products in India are being sold for more than twenty years in a number of flavours and formats. The plaintiffs have also obtained registration pertaining to its products and quality with the corporate Unilever Logo and variants of the International Heart Logo, being . All the registration under the Trade Marks Act, 1999 (the Act) are valid and subsisting and have been continuously and uninterruptedly enjoyed 4 by the plaintiffs. The plaintiffs have not only a substantial turnover of their products under the name “Kwality Walls” but have also spent extensively in advertising the same. 9. It is contended that dairy based products are also classified under the Food Safety & Standards (Food Products Standards and Food Additives) Regulation, 2011. In fact, ice creams and frozen desserts are both classified as “dairy based desserts” and are now a category of food products under the Food Safety and Standards (Food Product Standards and Food Additives) Regulation, 2011 (FSSAI Regulations). In manufacturing frozen desserts, the plaintiffs follow the highest nutritional standards which are based on globally recognised dietary guidelines namely World Health Organization (WHO) and Food and Agriculture Organization of UN (FAO). It is further contended that all the frozen desserts of the plaintiffs strictly comply with the provisions of the Food Safety and Standards Act, 2006 (“FSSAI”) and Rules and Regulations framed thereunder and appropriate recognition of such Guidelines is provided for in the packaging labels of their products. 10. The defendant Nos.1 to 11 are social media influencers with huge public following on their respective platforms such as Instagram (defendant No.12), Twitter (defendant No.13, now “X”), You Tube (defendant No.14, presently owned and managed by the defendant No.15), one Moj App (hosted, owned, managed and controlled by the defendant No.16) and Linkedln (defendant No.17, owned and managed by defendant No.18). The posts/videos by defendant Nos.1 to 11 are viewed internationally. The defendant Nos.12 to 14, 16 and 17 are social media platforms on which the defendant Nos.1 to 11 have posted and uploaded the impugned videos which form the subject matter of this suit. 5 11. A chart summarizing the details of the impugned videos created and published by the defendant Nos. 1 to 11, along with the platforms wherein the same are uploaded, published, aired and broadcast has been morefully provided in the plaint which for convenience is set out below: Sl. No. Name Of The Creator Platform Followers (As On April 13, 2023) Username, Email Id (If Available) And Contact No. (If Available) Video Uploaded On URL Views And Comments (As On April 13, 2023) 1. Naresh Gehani (Defendant No. 1) Instagram (Defendant No. 12), Twitter (Defendant No. 13) and YouTube (Defendant No. 14 owned, managed and controlled by Defendant No. 15) 24,600 followers on Instagram, 29 followers on Twitter and 451 followers on YouTube @NareshGeh ani1 contactnares hgehani@gm ail.com March 23 on Instagram and YouTube March 28, 2023 on Twitter https://www.i nstagram.com/ reel/CqIVL_TD o1V/?igshid=O DM2MWFjZDg = https://twitter. com/NareshGe hani1/status/ 164055138874 8070912?t=0Zc eW9tSAimuBT XLWfWe2Q&s= 19 https://www.y outube.com/sh orts/U_eu_nYlv KQ 1,65,00,000 views and 2441 comments on Instagram. 2. Simrun Chopra (Defendant No. 2) Instagram (Defendant No. 12) 6,79,000 followers @simrun.cho pra support@sim runchopra.co m The account is verified. March 15, 2023 https://www.i nstagram.com/ reel/Cp0Bf0mq tc0/?igshid=M DJmNzVkMjY= 1,05,00,000 views and 1360 comments 3. Adithya Nataraj (Defendant No. 3) Instagram (Defendant No. 12) 3,05,000 followers @learnwithad ithya helloadithya nataraj@gma March 18, 2023 https://www.i nstagram.com/ reel/Cp6y6nrjj RS/?igshid=YT 1,86,00,000 views and 3756 comments 6 il.com UxNmE1Y2Q= 4. Jist News (Defendant No. 4) through Rishi Pratim Mukherjee, CEO of Jist News (Defendant No. 5) Instagram (Defendant No. 12) 5,10,000 followers @jist.news hello@jist.ne ws April 2, 2023 https://www.i nstagram.com/ reel/Cqh8xeEN fxT/?igshid=Y mMyMTA2M2Y %3D 1,85,000 views and 55 comments 5. Gokul Soundararajan (Defendant No. 6) Instagram (Defendant No. 12) 7893 followers @gokulsound ararajan Email id could not be traced. March 30, 2023 https://www.i nstagram.com/ reel/Cqaqaosp kTG/?igshid=M DJmNzVkMjY% 3D 1,32,000 views and 23 comments 6. Rakesh (Defendant No. 7) Instagram (Defendant No. 12) 32,400 followers @foodie_wala _ Email id not traced March 19, 2023 https://www.i nstagram.com/ reel/Cp- oxZ8rRZb/?igs hid=MDJmNzV kMjY%3D 63,500 views and 14 comments 7. Name could not be traced (Defendant No. 8) Instagram (Defendant No. 12) 34,600 followers @foodtechsoc iety foodtechsocie tyinfo@gmail. com March 18, 2023 https://www.i nstagram.com/ reel/Cp7kH- PD5W5/?igshi d=MDJmNzVk MjY%3D 23,900 views and 10 comments 8. Name could not be traced (Defendant No. 9) Instagram (Defendant No. 11) 5436 followers @bright_ups brightups202 3@gmail.com March 21, 2023 https://www.i nstagram.com/ reel/CqDMoHy L0J1/?igshid= MDJmNzVkMjY %3D 13,00,000 views and 63 comments 9. Akshay A (Defendant No.10) Instagram (Defendant No. 12), YouTube (Defendant No. 14 owned, managed and controlled by 3,46,000 followers on Instagram 3, 63, 000 followers on @imdicapsco op Akshaynone9 99@gmail.co m March 22, 2023 https://www.i nstagram.com/ reel/CqAvGtQr oqw/?igshid=O GY3MTdmODg %3D https://www.y 9,15,000 views on Instagram and 214 comments 4,65,000 7 Defendant No. 15) and Moj App (Defendant No. 16), YouTube 2,50,000 followers on Moj App outube.com/w atch?v=O5ehqn ApOGo https://mojap p.in/@imdicap scoop/video/3 038850307?ref errer=TZUQx8 W-fETshV views and 239 comments on YouTube 78,000 views and 5 comments on Moj App 10. Pariksha Rao (Defendant No.11) LinkedIn (Defendant No. 17) 6000 followers care@nuwe.a i Sometime around March, 2023 https://www.li nkedin.com/po sts/pariksha- rao- 78430bbb_food industry-india- brand-activity- 704056203347 3314816- _H0K/?original Subdomain=bo 57 comments N.B. the same has been re- shared multiple times. 12. It is alleged that in or about the end of March, 2023, the plaintiffs had come to learn that the defendant nos.1 to 11 have started a negative campaign which is being run against frozen desserts marketed and sold by the plaintiffs under the registered trademarks “Walls”, “Hindustan Unilever” and the multiple trademarks containing “Kwality” including the brands inter-alia such as “Cornetto”, “So Alphanso Mango Frozen Dessert” and “Shameless Vanilla” which exclusively relate to and are easily identifiable with the plaintiffs and their products. 13. The plaintiffs contend that each of the impugned posts or videos is false, misleading, malicious and rubbishes the plaintiffs’ frozen desserts products directly and brazenly. The products of the plaintiffs in each of the impugned videos or posts are shown in bad light and the consumers are asked not to purchase the same. In particular, the impugned posts/videos not only 8 differentiate between ice-cream and frozen desserts but also suggest and make direct references to the fact that frozen desserts sold by the plaintiffs are not good for health and contribute to heart diseases, auto immune diseases, neurodegenerative diseases and cancer. It is also contended that there is misleading information sought to be disseminated in respect of the ingredients for manufacturing frozen desserts. In particular, it is suggested that in garb of manufacturing frozen desserts, the plaintiffs are actually selling palm oil and making consumers believe that the same is ice-cream. The underlying intent behind each of the impugned videos is directed against the frozen desserts manufactured by the plaintiffs. It is also alleged that the impugned posts/ videos by the defendant nos.1 to 11 have deliberately, knowingly and with malicious intent generated a fear psychosis amongst consumers about the entire frozen desserts category and are trying to make viewers and consumers believe that the frozen desserts marketed and sold by the plaintiffs are unsafe, dangerous and unhealthy. It is also contended that in uploading, airing, publishing and broadcasting the impugned posts/videos the defendant nos.1 to 11 have acted in an irresponsible and casual manner. It is alleged that the defendant nos.1 to 11 are unqualified to make any such assertion which they seek to do by way of the impugned videos/posts. It is further contended that in uploading, airing publishing and telecasting the impugned videos the defendant nos.1 to 11 have perpetrated fraud, tarnished and disparaged the frozen desserts marketed and sold by the plaintiffs. 14. The plaintiffs being aggrieved by the aforesaid impugned posts/videos / disparaging advertisements, have filed the instant suit alongwith an interlocutory application being I.A. G.A. No. 1 of 2023 praying for appropriate interim reliefs. 9 15. By an ad interim order dated 18th April, 2023, the Court inter alia, held as follows: … 13. Prima facie, the impugned videos/posts are detrimental to the distinctive character and reputation of the trademark belonging to the petitioners and impinge on their legitimate interests as owners of their trademark. Moreover, the impugned videos and posts involve unauthorized use of theregistered trademark of the petitioners thereby attracting infringement under section 29 of the Act. 14. I find that each of the impugned videos and/or broadcast, published and telecasted by the respondent nos.1 to 11 in the platform of the respondent nos.12 to 19 directly refer to the petitioners and the frozen desserts manufactured, sold and distributed by them. The unauthorized use of the packaging, label and logo of the petitioners’ product in each of the impugned videos/posts violates the trade mark protection afforded and being enjoyed by the petitioners. 15. Health and Wellness influencers are a modern day reality. Article 19(1) of the Constitution guarantees freedom of speech and expression. The restriction to free speech, expression, views and opinion is only to the limited extent as enshrined in Article 19(2) of the Constitution. It is also well recognized that freedom of speech is not an absolute and unrestricted right. The rival balancing interests which have to be taken into account in matters such as this are the interests of the consumers and the public to be made aware against the right of the petitioners to seek protection of their intellectual property rights. 16. Prima facie at an ad interim stage even though the underlying intent of each of the impugned videos may or may not be objectionable, nevertheless in making a clear, direct and brazen reference to the petitioners and their product i.e frozen desserts, the Rubicon has been crossed. The products of the petitioners and the petitioners have been identified, named and targeted directly. Undoubtedly, frozen desserts sold by the petitioners by name are shown in poor light and are also depicted to be harmful and dangerous to health. This is impermissible. 17. In such circumstances, the petitioners have been able to make out a strong prima facie case on merits. The balance of convenience and irreparable injury is also in favour of orders being passed as prayed for herein. 18. In view of the aforesaid, the respondent nos.1 to 11 are permitted to telecast, broadcast or disseminate the impugned videos only after removing the offending portion in each of the videos/posts which make any reference to the 10 petitioners or the frozen desserts being manufactured, sold and distributed by them. The respondent nos.1 to 11 and each of them are also restrained from making use of the trademark, trade dress, packaging logo and lables of the petitioners or any of their products in any manner whatsoever. The respondent nos.1 to 11 are directed to carry out the aforesaid changes within a period of seven days from the date of communication of this order. In default, appropriate orders would be passed on the respondent nos.12 to 18 to block each of the impugned videos if necessary. … 16. On 3rd May, 2024, it was submitted by the plaintiffs before this Hon’ble Court that all the defendants have duly complied with the ad interim order dated 18th April, 2023 and have taken down the impugned videos/ posts. Hence this Court extended the ad interim order dated 18th April, 2023 until further orders of the Hon’ble Court. Out of all the defendants, only the defendant nos. 16, 17 and 18 have filed their written statements. 17. By an order dated 7th February, 2025, this Hon’ble Court recorded that defendant nos. 12, 14, 15, 17 and 18, who are all intermediaries, have complied with the orders of this Hon’ble Court and the impugned telecast and videos have been removed. It was further observed by this Hon’ble Court that no Affidavit-in- Opposition has been filed on behalf of the contesting defendants, the Court had on 7th February, 2025 disposed of I.A. G.A. No 1 of 2023, by confirming the ad interim order dated 18th April, 2023. 18. It is submitted on behalf of the plaintiffs that in view of the compliances pursuant to the order dated 18th April, 2023 and the limited scope of controversy, the suit can be disposed of expeditiously and summarily in view of the provisions of the Commercial Courts Act, 2015. The defendants who have filed their written statements, being the defendant nos. 16, 17 and 18, are not directly responsible nor instrumental in publishing the impugned videos and have throughout acted only as intermediaries (save and except the defendant no.18). The remaining 11 defendants choose to remain unrepresented and no written statement has been filed by either of them. 19. In view of the above circumstances, the instant suit is decreed in favour of the plaintiffs by granting a decree in terms of prayer (a) of the plaint, as modified below: (a) A decree of perpetual injunction restraining defendant Nos.1 to 11, their management, members, affiliates, directors, servants, officers, employees, representatives, agents and all other persons claiming through or under it or acting in concert with them or on their behalf or acting on their instructions in any manner from uploading or disseminating or telecasting or broadcasting or publishing or circulating or otherwise howsoever communicating to the public or from making available the impugned posts/videos or any part thereof or any other post/video of a similar nature in any language or in any manner causing the impugned posts/videos or any part thereof or of a similar nature to be uploaded or disseminated or telecast or broadcast or published or communicated or circulated or made available to the public or published in any manner or on any mode/media; 20. The defendant nos. 12 to 17 undertake that they would immediately remove or delete any offending posts or videos pertaining to the subject matter of the impugned /offending videos or broadcast, in terms of the above decree, as soon as it is brought to their attention by an appropriate legal notice issued on behalf of the plaintiffs. 21. In view of the above, IP-COM 55/2024 being CS-COM/488/2024 and Old No. CS/66/2023 stands disposed of. Any pending application also stands disposed of. The decree in terms of the above be drawn up expeditiously. (Ravi Krishan Kapur, J.)