Sahidullah Munshi, J. - (1.) The Court : The present suit being C.S. No.69 of 2011 filed by Marico Limited, is for injunction against infringement of Trademark, passing off and infringement of copyright. The defendants entered appearance at the interlocutory stage but did not file any written statement to contest the suit. Record reveals that on 24th November, 2016 Hon'ble Justice Shivakant Prasad passed an order directing the matter to appear under the heading 'undefended suit'. After 24th November, 2016 matter appeared in the list on 5th December, 2016, 20th December, 2016, 17th January, 2017, 13th February, 2017, 3rd April, 2017, 11th May, 2017 and 20th June, 2017. But no attempt was made by any Advocate to represent the defendants. The fact of the case in a nutshell is as follows :- a) That the plaintiff is well-known manufacturer and trader of coconut oil, hair oil, perfumed hair oil and/or allied products. Its products are being sold in market under various reputed trade names like NIHAR, SAFFOLA, MEDIKAR, PARACHUTE as more fully and particularly described in paragraph 5 of the plaint. b) Plaintiff has sought to make out a case that on or about 17th February, 2006, M/s. Hindustan Lever Limited, the predecessor-in-interest of the plaintiff, pursuant to the execution of a Deed of Assignment (Ext. A and B), transferred, assigned and conveyed all its right, title and interest and property whatsoever in the Trademark 'NIHAR', for valuable consideration to the plaintiff. c) The said Deed of Assignment would reveal that prior to Hindustan Lever Limited, the mark 'NIHAR' belonged to the TATA Group (formerly known as TOMCO) at least since 1994. Since 1994, Hindustan Lever Limited had been manufacturing and marketing coconut oil, inter alia, under the brand name 'NIHAR'. The plaintiff became the owner of the Trademark 'NIHAR' with its goodwill in India by virtue of the aforesaid assignment dated 17th February, 2006. d) Prior to such assignment, Hindustan Lever Limited, the predecessor-in-interest of the plaintiff, obtained the registration of the Trademark 'NIHAR' (both word and label) in class 42 in order to protect its interest over the said Trademark 'NIHAR' under the provisions of the Trademarks Act, 1999. The plaintiff had also obtained the registration of the label 'NIHAR' in class 29 under the provisions of the Trademarks Act, 1999 (Ext. C) collectively being the registration certificates. e) It has been claimed by the plaintiff that by virtue of the said Deeds of Assignments plaintiff became the proprietor and owner of the Trademark 'NIHAR' and the copyright in the artistic work in connection therewith. However, plaintiff filed applications for change of name in respect of registered Trademark 'NIHAR' under class 42 bearing Registration No.1241348 dated 5th October, 2007 and 636900 dated 24th June, 2009 respectively in Form TM 24 before the Trademark registry (Ext. C) collectively being the Form TM 24. f) According to the plaintiff, it has advertised extensively in the Television channels about its products and the same has become a household name in India. The plaintiff has commissioned several leading advertising agencies to release the plaintiff's product commercially and advertised in the Television as well as print media. g) The said brand of coconut oil is of the highest quality and the colour scheme and get up being the substantial features of the packets, cartons, labels, bottles and jars, have become distinctive and have been exclusively associated with the products of the plaintiff and no one else. h) Pursuant to distinctiveness of the label which has been exclusively designed and adopted by the plaintiff, it has a right to protect the trade dress as against unauthorized use. i) Pursuant to distinctiveness of the bottles and labels which are exclusively designed and adopted by the plaintiff, it has right to protect the mark and trade dress against unauthorized users. The label used by the plaintiff has been shown at Annexure 'B' to the plaint. j) According to the plaintiff, due to extensive use, advertisement and sales in the market, the product of the plaintiff under the Trademark 'NIHAR', has acquired goodwill and reputation in the market and the Trademark 'NIHAR' has become a 'well-known Trademark'. k) In or about second week of March, 2011, plaintiff came to learn for the first time that the defendant no.1 was making and selling coconut oil in bottles of various shapes and sizes, inter alia, in 40 ml, 45 ml and 100 ml bottles having its own get up and colour scheme which is "deceptively similar" to the trade dress of the plaintiff in respect of 'NIHAR' coconut oil and/or a colourable imitation therewith. On enquiry, the plaintiff came to learn that defendant no.1 is a firm and the defendant no.2 is the person-in-charge of the affairs of the said firm and/or is an alter-ego of the said firm. l) Defendant no.2 described himself to be a manufacturer of coconut oil and was claiming that defendant no.1 was his concern. From the information available to the plaintiff, all business decisions in respect of defendant no.1 firm, were taken by the defendant no.2. Defendant nos.1 and 2 were processing, packaging, marketing and selling coconut oil under the mark 'NIHAR'. Plaintiff came to learn that the defendants were making and selling coconut oil with the mark 'NIKHAR' in various parts of Bihar, Jharkhand and West Bengal, both within and outside the ordinary original civil jurisdiction of this Court. In some of the bottles bearing the mark 'NIKHAR', the product is alleged to be processed by the defendant no.1 and in some bottles the product is alleged to have been packed by the defendant no.1. m) From the enquiry made by the plaintiff it was found that the products were also manufactured by defendant no.1 within the aforesaid jurisdiction. It is also the claim of the plaintiff that the name and address of the manufacturer and other requisite various details of the product are not being displayed by the defendant in the bottles in violation of various statutory regulations. n) The bottles in which coconut oil is being sold by the defendant, bearing word 'NIKHAR', are identical in shape, size and colour with the bottle in which the products of the plaintiff are also sold bearing the mark 'NIHAR'. o) The bottles of the defendant bearing the word 'NIKHAR' are of transparent bottles with slight curvature in the middle and have a green cap (except the 50 ml bottle of the defendant having a flip top cap instead of screw cap). The word 'NIKHAR' is also printed in deep green with a golden border and the said word is written in a particular font which is similar to the way 'NIHAR' is written and in an elliptical background. p) In the label of the defendants, below the word 'NIKHAR' the word 'Naturals' is printed in deep green and in italics and below the said word 'Naturals', there is a golden line segment with two leaves in deep green across such line. As the case of the plaintiff's label, the defendants' impugned label also has got a prominent stroke of green colour from left hand side top towards the bottom right side. There are Jasmine flowers printed in white scattered in the said label of the defendants. A picture of a woman appears in the said label and the word 'JASMINE' is printed in white against a coloured background. q) The predominant colour of the label of the defendants is two shades of green, one light and the other dark. On the reverse of the bottle various particulars of the product are printed in green with the word 'NIKHAR' appearing at the top. r) The impugned label of the defendants would appear from Annexure 'G' to the plaint.
(2.) In such circumstances the plaintiff filed the suit praying necessary reliefs. Plaintiff also filed an interlocutory application being G.A. No.999 of 2011 before this Hon'ble Court which passed an interim order on 4th April, 2011 to the following effect :- "d) injunction restraining the respondents and each one of them whether by themselves or of their servants, agents and assigns or otherwise howsoever from infringing or caused to infringe or enabling others to infringe the Trademark 'NIHAR' of the petitioner for any other mark which is of substantial reputation or colourable imitation therewith; e) injunction restraining the respondents and each one of them whether by themselves or by their servants, agents or assigns or otherwise howsoever from selling or offering for sale or marketing 'NIKHAR' coconut oil in any manner whatsoever or in any way using the impugned label contained in Annexure 'J' herein or any colourable imitation therewith;"
(3.) At the interlocutory stage this Hon'ble Court also appointed a Receiver in terms of Prayer 'A' of the petition with authority to enter into the business premises of the defendants, take custody of the infringed goods and make an inventory. The said order dated 4th April, 2011 appears at page 153 and 154 of the Judges Brief of Documents. While passing the aforesaid order dated 4th April, 2011, this Hon'ble Court observed that the plaintiff is the registered proprietor of the mark 'NIHAR' in respect of hair oil. The design of the plaintiff's plastic bottles and the get up appears to have been substantially copied by the first defendant, 'NIKHAR' brand of light perfumed oil. Although, the defendants appeared at the interlocutory stage, but such observation appeared not to have been challenged in appeal. By a subsequent order dated 12th July, 2011, the said order dated 4th April, 2011 (ex parte) was confirmed holding, inter alia, "the defendants have also agreed that the defendants will not use the labels that have been impugned in the present proceedings. The defendants have filed an affidavit disclosing a new label that the defendants proposed to use and the defendants seek approval of the Court in such regard. The plaintiff asserts that since the suit relates to the impugned labels of the defendants and their resemblance to the plaintiff's label, the Court should refrain from going beyond the scope of the suits to specifically approve of label and the defendants said that they will now use.";