Societe Des Produits Nestle, Sa & Anr v. Basant Alal Kokcha & Ors

S. RAVINDRA BHAT, J OCTOBER 09, 2009

Page 1 * IN THE HIGH COURT OF DELHI AT NEW DELHI + CS(OS) 1411/2006 Pronounced on 09.10.2009 SOCIETE DES PRODUITS NESTLE, SA & ANR ..... Plaintiffs Through : Mamta Jha with Manish Mishra and Mr. Sumit Rajput versus BASANT ALAL KOKCHA & ORS ..... Defendants Through : Nemo CORAM: HON'BLE MR. JUSTICE S. RAVINDRA BHAT 1. Whether the Reporters of local papers Yes may be allowed to see the judgment? 2. To be referred to Reporter or not? Yes 3. Whether the judgment should be Yes reported in the Digest? HON'BLE MR. JUSTICE S.RAVINDRA BHAT (Open Court) % 1. The plaintiffs seek to restrain the defendants, their partners/ proprietors, assigns, franchisees, licensees, distributors and agents from manufacturing, selling, offering for sale advertising, directly or indirectly dealing in food products including pasta or any other culinary products, under the trademarks MAGGI, MAGGI logo, NESTLE and NESTLE logo or any other trade mark or logo as may be identical to or deceptively similar to that of the plaintiffs, amounting to infringement of plaintiffs registered trademarks; further also restraining them from using, reproducing, printing, importing, selling, offering for sale or dealing in infringing MAGGI packaging bearing the impugned the impugned MAGGI or NESTLE logo or any other logo as Page 2 may be colourable imitation or substantial reproduction of the said logos of the plaintiffs in respect of their colour combination, get up, lay out or arrangement of features, amounting to infringement of copyright of plaintiffs therein. A decree for rendition of accounts and delivery- up is also sought. 2. The brief facts of the case are that the second plaintiff is a company incorporated under the Companies Act. The second plaintiff claims that it is part of a gigantic group, known as Nestle, owning 479 factories and employing nearly 2,20,000 people. It is contended that Nestle's products are known worldwide for their innovative nature, and excellence in quality. The mark NESTLE is a house-mark of the Nestle group, and has been in existence for 125 years, since its creation in 1866. The plaintiffs claim to be engaged in the business of manufacturing and selling, amongst other products, various culinary products such as noodles, sauce, soups etc. under the trade mark MAGGI in various international markets. All products bearing the mark MAGGI also bear plaintiffs' house mark/ trade mark NESTLE and NESTLE logo (device of a nest with two birds perched on it, in conjunction with the word mark NESTLE). As per the suit averments the defendants are engaged in printing, procuring and sale of culinary products such as pasta in the infringing and spurious MAGGI packagings. 3. By order dated 27.11.2008 the defendants were proceeded ex-parte, as no appearance had been entered on their behalf since 24.09.2007, during which period the matter had been listed before the Court on five occasions. 4. To establish their allegations and averments, the plaintiffs rely on the deposition of their constituted Power of Attorney holder, Ms.Venita Gabriel (PW-1). The plaintiffs filed theirs affidavit in evidence (Ex. PW-1/A) stating that the earliest use of MAGGI products dates back to 1886 in Switzerland; the first plaintiff has been manufacturing and selling variety of culinary Page 3 products in India under the trademark MAGGI since 1974. It is claimed that the "Reader's Digest" magazine had identified MAGGI as a "super brand" in the year 2001 and the brand MAGGI had been voted for the same magazine's highest award namely "platinum award". The trademark MAGGI features into the publication titled "World's Greatest Brands" (year 1996 edition) published by "Inter Brands", which ranked MAGGI amongst world's top 50 brands. 5. It is stated the trademark MAGGI is a coined mark, which was derived from the surname of Julius Maggie, founder of the business of the Nestle Group. It has no common parlance and is not a dictionary word. The trademark MAGGI is used by the plaintiff in con