Parimal Mandir v. Bharat Vasi Sugandhit Dhoop & Ors

RAJIV SAHAI ENDLAW, J FEBRUARY 21, 2014 'SK'

IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of Decision: 21st February, 2014. + CS (OS) 985/2012 M/S PARIMAL MANDIR .....Plaintiff Through: Mr. Arjun Mukherjee, Adv. with Ms. Anusuya Nigam, Adv Versus BHARAT VASI SUGANDHIT DHOOP & ORS ....Defendants Through: None CORAM:- HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. The plaintiff has instituted this suit (on 13th April 2012) for (i) Permanent Injunction restraining the defendants from using the trademark/trade dress/label/packaging "BHARAT VASI" or any other deceptively similar trademark/trade dress/label/packaging in relation to Agarbathis and Dhoop or any other product so as to result in infringement of trademark, passing off, unfair competition and dilution; (ii) Permanent Injunction restraining the defendants from using the trade dress/label/packaging "BHARAT VASI" or any other deceptively similar trade dress/label/packaging in relation to Agarbathis and Dhoop or any other product so as to result in infringement of copyright; (iii) Delivering all the infringing products bearing the impugned trademark/trade dress/label/packaging "BHARAT VASI" or any other deceptively similar trademark/ trade dress/label/packaging including the packaging material, moulds and dyes etc for the purpose of destruction; and, (iv) Damages/Rendition of Accounts, pleading:- (a) that the Plaintiff M/s Parimal Mandir is a registered partnership firm and is one of the leading manufacturers and exporters of high quality Incense Sticks (Agarbathis), Dhoops & Cones since the year 1983; (b) that the various brands of the plaintiff include BHARAT VASI, GURUDEV, SHANTHINIKETHAN, MOMENTS, CHAMPAFLOWER, POOJA FLORA, YATRA, CHARULATHA, JIYO, MAGIC, RAINBOW, ALEXANDER, SHUBH LABH, CHOICE, MAHIMA, BENGAL'S PRIDE, INTIMATE etc.; (c) that the Agarbathis and Dhoops manufactured by the plaintiff are sold in distinctive packaging both in India and abroad and have gained widespread popularity and immense reputation of the brand "BHARAT VASI"; the plaintiff's immense popularity has led to expanding its frontiers across 35 different countries where the plaintiff offers a variety of fragrances and an array of products; (d) that in order to identify and maintain the association with the plaintiff, house/umbrella marks of the plaintiff "PARIMAL" and "PM" are also printed with the products sold under the brand "BHARAT WASI" by the plaintiff; (e) that the plaintiff adopted the mark/name "BHARAT VASI" in the year 1990 and has been continuously using the same in relation to Agarbathis and Dhoop products since then; (f) that by virtue of extensive and continuous use, the mark/name "BHARAT VASI" has attained unparallel reputation and has carved a distinctive niche for itself in the trade circles and also amongst its consumers and has come to be associated exclusively with the plaintiff; (g) that the plaintiff is a registered proprietor of the trademark/trade dress/label/ packaging "BHARAT VASI" claiming user since 1990 and a holder of a Trademark Registration Certificate dated 6th June 2005 bearing no.1361867; (h) that the plaintiff has also received awards from the Karnataka Chamber of Commerce, Bangalore and Star Export House, Delhi in recognition for their quality products; (i) that apart from being the registered proprietor of the trademark/trade dress/label/packaging "BHARAT VASI", the plaintiff also owns the copyright with regard to the said packaging vide registration no. A-90373/2011; and (j) that the Plaintiff owns the Copyright in the entire layout, getup and the trade dress used on the carton/packaging of its entire range of products including the aforementioned brand i.e. "BHARAT VASI" for Agarbathis and Dhoops; the layout, getup and trade dress for each of the plaintiff's product has been designed by and/or on behalf of the plaintiff. 2. Summons of the suit and notice of the application for interim relief were issued and vide ex parte ad interim order dated 16th April, 2012 the defendants, their promoters, directors,