- (1.) The petitioner, being the plaintiff in a suit for infringement of trademark and copyright has filed the present application praying for, various interim reliefs against the respondent.
(2.) The petitioner company is a part of the Unilever Group and carries on the business, inter alia, of manufacturing, marketing and sale of various kinds of washing soaps, including detergent. It is claimed that since 1959, the petitioner company adopted and commenced use of detergent products under the trade name "SURF". The petitioner company has continued to use the said trade mark consisting of the word "SURF" openly, extensively and continuously in the course of trade in respect of the detergent products manufactured by them. In the year 1996, the petitioner company started use of the trade mark "SURF EXCEL" with respect to its premium range of detergent powder products with superior quality and technology. It has subsequently introduced detergent bars, detergents liquids and 'matic' (machine wash) powders and liquids specifically for modern washing machine usage, under the same trademark "SURF EXCEL". By virtue of long, extensive and continuous use of the trademark "SURF"/ "SURF EXCEL" upon and in respect of the said goods, the trademark "SURF/SURF EXCEL" has acquired a secondary meaning as indicating to the goods originating from the petitioner company and from none else.
(3.) In order to distinguish their said product under the brand name "SURF EXCEL" from the detergents of the other manufactures, the petitioner has bona fide adopted a unique, artistic and distinctive logo (hereinafter referred to as "the said logo") for use upon and in relation to their detergents and like goods under brand "SURF EXCEL". The said logo portrays a device of a 'Splat' created by a drop of liquid on a hard surface with five appendages stemming out from its core, spreading towards different directions. The said appendages are wider at the periphery and narrower towards the core of the said splat. The appendage at the centre left position of the said splat is of the smallest in size, while the appendage at the bottom right of the said splat is the biggest in size. The other three appendages are of almost equal size. The said logo is predominately used by the petitioner company in the combination of either orange and green or pink and orange, upon and in relation to their "SURF EXCEL" range of goods packed and/or sold, inter alia, in artistic packaging/under artistic trade dresses. A representation of the petitioner's said logo shown in the combination of orange and pink is disclosed as Annexure "A" to the petition. The petitioner company has secured registration of all the said logos under the Trade Marks Act, 1999 and copies of the relevant registration certificates bearing nos. 1486109, 1780462, 1486108 and 1486107 (all in class 03) reflecting the respective logo have been disclosed in the petition as Annexures "B", "C", "D" and "E" to the petition, respectively. The petitioner is also the registered proprietor of the word "Excel" with respect to all goods in Class 3. A copy of the certificate of registration of the said Trade Mark issued in favour of the petitioner has been annexed as Annexure "F" to the petition. The subject matter of the present proceedings, inter alia, is also one of the petitioner's flagship product variant 'Easy Wash' sold under the trade mark "SURF/ SURF EXCEL". The petitioner company has been using the said splat device along with a blue background for "Surf Excel Easy Wash", formerly known as "Surf Excel Blue", since the adoption of the new logo in 2005.;