- (1.) O.S.A.No.183 of 2007 This appeal has been filed against the order dated 13.06.2007 made in O.A.No.310 of 2007 for granting an interim injunction restraining the defendants, their servants and agents and others from using the words HEALTH & GLOW or HEALTH AND GLOW or any other mark, name, logo, monogram or label. O.S.A.No.184 of 2007 This appeal has been filed against the order dated 13.06.2007 made in O.A.No.311 of 2007 for granting an interim injunction restraining the defendants, their servants, agents, dealers, stockists and others associated with them from reproducing using as sign age or otherwise, printing, publishing or distributing any label, printed matter, stationery which is colourable imitation or substantial reproduction of Applicant's HEALTH AND GLOW (Device). O.S.A.Nos.185 and 186 of 2007 These appeals have been filed against the order dated 13.06.2007 made in A.Nos.2941 & 2942 of 2007 to vacate the injunction granted in O.A.Nos.311 & 310 of 2007 in C.S.No.236 of 2007. O.S.A.No.187 of 2007 This appeal has been filed against the order dated 13.06.2007 made in A.No.2943 of 2007 in C.S.No.236 of 2007 to reject the plaint under Order 7 Rule 11 of Civil Procedure Code.
(2.) Respondent as a Plaintiff filed a suit stating that he is a registered Proprietor of the Trade Mark as well as the Device Health and Glow and also claiming to be the Proprietor of the Copyright in the style and manner in which the trade name and mark are artistically written and used by the Plaintiff in Health and Glow Retailing Private Limited. Since Appellants/Defendants have filed applications for registering trade name as Health and Glow, Respondent/Plaintiff constrained to file a suit for the following reliefs viz.,: a) A permanent injunction restraining the Defendants, their principal officers, servants, agents, their assignees in business, dealers, stockists and others associated with them from using the words Health & Glow or any other mark, name, logo, monogram or label that is or may be identical with or deceptively similar to the registration 1) HEALTH & GLOW or 2)HEALTH AND GLOW (DEVICE) trademarks of the plaintiff, or to market, sell, offer for sale, license, advertise, directly or indirectly deal in any goods and services online or offline amounting to infringement of the plaintiff's registered trademark Nos.802306, 1315016 and 1315017 in classes 3 and 3 & 5 respectively; b) A permanent injunction restraining the Defendants from using as a domain name/website address, marketing, selling, offering for sale, licensing, advertising, either directly or indirectly dealing in any goods using the words Health and Glow or any other mark identical with or similar to the trade name, mark and device of the plaintiff, as may cause or be likely to cause confusion or deception amounting to passing off of the Defendants' goods and services as those of the plaintiff; c) A permanent injunction restraining the Defendants, from reproducing, using as signage or otherwise, printing, publishing or distributing any label, printed matter, stationery or packaging which is a colourable imitation or substantial reproduction of the plaintiff's Health & Glow label as depicted in paragraph 13 of this plaint, amounting to infringement of plaintiff's copyright thereto; d)A decree for delivery upto the plaintiff for destruction of all packaging, labels, block, dyes, stickers, signage, advertising materials, all types of stationary and brochures and all other infringing materials of the Defendants bearing the words Health & Glow; e) A preliminary decree in favour of the plaintiff directing the defendants to render account of profits made through use of the Health & Glow mark and a final decree thereafter be passed in favour of the plaintiff for the amount of profits that have been found to be made by the defendants after it had rendered accounts; f)for a direction to the defendants to pay damages to the tune of Rs.25 lakhs.
(3.) Averments in the plaint are as follows: (i)Respondent/Plaintiff is having registered Office at Chennai and carrying on business as Retail Service Provider in beauty and health care merchandise, eversince 1997. (ii)Respondent/Plaintiff has been using the trade mark and the trade device known as 'Health and Glow, written in a stylised manner with the image of a dancing girl inside the letter 'G' eversince 1997. It was registered under the Trade Marks Act, in respect of goods under Classes 3 and 5 bearing Registration Nos.802306, 1315016 and 1315017 and filed two more applications for registration bearing Nos.1420632 and 804746 in respect of services and goods under Classes 42 and 3 are pending before the Registrar of Trade Marks. (iii)Respondent/Plaintiff has 43 retail outlets in Chennai, Bangalore, Mumbai and Hyderabad and has a good reputation and built up enormous goodwill for the chain of retail stores run by them. They offer for sale, a wide range of Colour Cosmetics, Skin Care, Hair Care, Herbal Products, Fragrances and Beauty Accessories, Aromatherapy Products, Men's Cosmetics, Baby Care, Personal Care Items and Toiletries and Pharmaceutical Products. (iv)As a result of the enormous advertisement cost, over the year, the total annual turnover of the Respondent/Plaintiff rose from Rs.7.25 crores in 1998-99 to Rs.52.83 crores in 2005-2006. One of the shareholders of the Plaintiff's Company maintains a website providing information about the goods and services offered by the plaintiff. In May 2006, Respondent/Plaintiff came across an advertisement in the Trade Marks Journal dated 15.09.2005 showing that the first Appellant/first Defendant herein had filed an application for registration of a Trade Mark containing the words Health and Glow in respect of goods and services under Class 5. Respondent/Plaintiff immediately filed a notice of opposition before the Registrar, which was pending. (v) In March 2007, Appellants/Defendants run a cosmetic Homoeopathy Health Clinic and they also have a website www healthandglowclinic com. Therefore, Respondent/Plaintiff filed a suit for infringement of their registered trade mark, for passing off the products and services of the Appellants/Defendants as those of the Respondent/Plaintiff and for infringement of the copyright. (vi)Along with the suit, Respondent/Plaintiff filed an applications in O.A.Nos.310 and 311 of 2007 for an interim injunction. On 23.03.2007, an interim injunction was granted.;