HINDUSTAN UNILEVER LIMITED Vs. BEERU MISHRA

JUDGEMENT

(1.) 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. The petitioner company claims that since 1955, they have been manufacturing and selling detergent powder in India by adopting the trade mark "WHEEL". Apart from "WHEEL", the petitioner company also manufactures and sells another premium version of the said "WHEEL" brand known as "ACTIVE WHEEL". The petitioner got designed a unique trade mark label/sachet bearing original artistic work, get up and lay out to market their detergent bearing the trade mark "ACTIVE WHEEL". The said label bears the original artistic work, get up and lay out containing swirl device and prominent display of lemons along with white jasmine flower covering the border of the label with the trademark "ACTIVE WHEEL" appearing on the centre of the label and the Device of "WHEEL" on the lower right hand end of the label. By virtue of the Deed of Assignment of Copyright dated September 20, 2012 executed by the firm of commercial artists who created the painting and the artistic work, get up and lay out of the labels/ packages of said product "ACTIVE WHEEL", the petitioner has become the owner of the copyright in the painting and artistic work used in the labels/wrappers for packaging of the detergent powder "ACTIVE WHEEL". The petitioner is also the registered proprietor of several trademarks with respect of their products "WHEEL" and "ACTIVE WHEEL". It is further claimed that the detergent powder sold by the petitioner under the trademark "ACTIVE WHEEL" in the labels/packets have a distinctive style, get up and colour scheme and the said detergent "ACTIVE WHEEL" has acquired substantial reputation and goodwill in the entire country and the said labels/packets with its unique feature have become distinctive product of the petitioner.

(2.) Apart from the said detergent sold under the trade name "ACTIVE WHEEL", the petitioner company also manufactures and markets another kind of detergent in the form of detergent bars, detergent liquids and matic (machine wash) powders and liquids used for washing machine under the trade names "SURF" and "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 and from none else.

(3.) In order to distinguish their product "SURF EXCEL" from the product of other manufactures of detergent 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 potrays the 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 its "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 "B" to the petition. The petitioner company has secured registration of all the said logo under the Trade Marks Act, 1999 and copies of the relevant registration certificates bearing nos. 1486109, 1780462, 1486108 and 1486107 reflecting the respective logo have been disclosed in the petition as Annexures "C", "D", "E" and "F", respectively. The registration of the first trademark is limited to colours orange and pink and registration of the fourth trademark is limited to colours green and orange. However, the second trademark is registered without any disclaimer or condition.