HEINZ ITALIA Vs. DABUR INDIA LIMITED

JUDGEMENT

(1.) The Court: Having heard Mr. Gautam Chakraborty, learned senior counsel, assisted by Mr. R. Bachawat, learned counsel appearing for the plaintiffs-petitioners and Mr. S. Sarker learned counsel along with Mr. Utpal Bose learned counsel for respondent-defendants and in the view formed by this Court, only certain relevant facts need to be stated. They are.

(2.) The first plaintiff claims to be the proprietor in India of inter alia the trade mark GLUCON-D registered under No. 304644 in class 30 and application for registration of the label in which the goods under the trade mark GLUCON-D were sold is pending with the Registrar of Trademarks including the application for recordal of the first plaintiff as the subsequent proprietor of the aforesaid trademarks are pending with the Registrar of Trademarks as also application for registration of present labels for the goods sold under trademark GLUCON-D are pending with the Registrar of Trademarks. The same trademark is claimed to have been assigned to the first plaintiff by Glaxo India along with goodwill of the business in which the mark was used by deed of assignment dated September 30, 1994. It is the further case of the plaintiffs that the energy drink under the trademarks of GLUCON-D is sold in a distinctive packaging consisting of distinctive colour scheme predominantly of the colour green consisting inter alia of the photograph of a family of three father, mother and son drinking GLUCON-D. Plaintiffs claim that the packaging has been designed for and on behalf of the plaintiffs and the copyright in the artistic work with the packaging vests with the plaintiffs. It is the further case of the plaintiffs that in or about July, 2002 they learnt that the defendant No. 1 had started selling an energy drink under the trademark GLUCOSE-D in a packing, the overall impression of which was the same as that of the plaintiffs packaging of goods sold under the aforesaid trademark. The trademark of the defendants GLUCOSE-D and the packaging, it is stated, being deceptively similar and in violation of the rights of the plaintiffs in the trademark get up and trade dress related to the trademark GLUCON-D, a suit was instituted by the plaintiffs on February 19, 2003 in the learned District Judge's Court at Gurgaon for an injunction and for damages. The said suit is pending adjudication being suit No. 2 of 2003 and also the injunction application.

(3.) It appears that in the written statement filed on behalf of the defendants in the said suit No. 2 of 2003 before the learned Additional District Judge, Gurgaon, it was inter alia stated by the defendant No. 1 that it had discontinued the said packaging complained of in the said suit and the defendant No. 1 had introduced a new package. Plaintiffs are said to have become aware for the first time from a television commercial of defendant No. 1 introducing a new packaging for the energy drink under GLUCOSE-D. Enquiries made by the plaintiff revealed that the defendant had changed its packaging and the new packaging was deceptively and even more similar to the plaintiffs packaging. According to the plaintiffs, the new packaging was a clear attempt by the defendant No. 1 to come as close as possible to the packaging and trade dress of the plaintiffs and to trade upon the reputation and goodwill of the plaintiffs. Plaintiffs thereupon instituted the instant suit being C.S. No. 138 of 2003 on the file of this Court.