FERRERO SPA Vs. MAA DISTRIBUTION INDIA PVT LTD

JUDGEMENT

(1.) This common order will dispose of pending an ad-interim injunction application as well as IA No.13116/2010 by the first defendant seeking de-sealing and release of goods; the order will also dispose of an application being IA No.13829/2010 whereby the plaintiff seeks an order that the keys of the first defendant premises be taken back on the file of the Court and retained in the Registry.

(2.) By an order dated 14.09.2010 the Court on an overall consideration of the suit, the list of documents and other materials had granted an ex-parte ad-interim order restraining the first defendant from marketing the products "Cherier" and "Ginnou" as it prima facie infringed the plaintiff's "Ferrero Rocher" and "Nutella" brands particularly the trademark in the get up as well shape of the product, packing etc. The Court had also appointed a Commissioner to inspect the defendant's premises and seize the infringing packing etc. Pursuant to the order of Court a local commissioner had visited the defendant's premises and by report dated 05.10.2010 submitted that a large number of boxes, cartons containing the chocolates (of the "Cherier" brand) and certain other variants had been seized. The defendant moved an application for de-sealing the premises and argued that the goods seized were perishable commodities with limited shelf life and should be released but upon imposition of reasonable terms, since the festive season was round the corner.

(3.) Whilst granting ex parte injunction the Court had taken into consideration inter alia a notification issued by the Central Government under the Customs Act prohibiting importation of confectionary items. The Court had noted that the ban was in terms of the notification at page 117 of the list of documents. The said prohibition order by the Central Government pertaining to confectionary items containing milk and milk products/extracts and was dated 24.06.2010; it was referred to a previous notification banning importation of said milk based confectionary items including chocolates. The defendant in support of its case had filed several documents including release of goods such as chocolates imported by it, which were originally detained by the customs authorities. In the list of documents, the defendant also relied upon a report of the Central Food Laboratory, a wing of the Food Safety and Standards Food of India, Ministry of Health and Family Welfare, Government of India. The said report had stated that the sample of chocolate conformed to the standard prescribed under the Prevention of Food Adulteration Rules, 1955. However, the report indicated that as regard one aspect i.e. disclosure of importer's address as required under Rule 32 of the PFA Rules the packaging of the products were nonconforming.