HINDUSTAN UNILEVER LIMITED Vs. ATUL TIWARI

JUDGEMENT

(1.) The petitioner, as the plaintiff in a suit for infringement of trademark and copyright has filed the present application praying for, various interim reliefs against the respondent herein.

(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. 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 designed a unique trade mark label/sachet bearing original artistic work, get up and lay out to market their detergent bearing the trade name "ACTIVE WHEEL" 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 flowers and lemons and the placement thereof and the white burst at the centre of the label/packaging are the essential features of the artistic work comprised in the said label/packaging and are distinctive to the petitioner's "ACTIVE WHEEL" product. 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.

(3.) 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) powder 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.