kpd 1 / 5 NMCDL 596 2018.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION IN ITS COMMERCIAL DIVISION NOTICE OF MOTION (L) NO. 596 OF 2018 IN COMMERCIAL IP (L) NO. 336 OF 2018 Parle Agro Private Limited Applicant (Org. Plaintiff ) In the matter between : Parle Agro Private Limited Plaintiff Versus Gulam Moinuddin Khan and another Defendants Mr. Hiren Kamod alongwith Mr. Vaibhav Kini instructed by Khaitan & Co. for the Plaintiff. Gulam Moinuddin Khan Defendant No.1 present. CORAM : S.J. KATHAWALLA, J. DATED : 28 th MARCH, 2018 P.C.: 1. The Plaintiff - Parle Agro Private Limited has filed the above Suit against Mr. Gulam Moinuddin Khan, proprietor of Royal India Foods carrying on business at 114, Balaji Industrial Park Tondre, MIDC, Taloja, Navi Mumbai 410 208 seeking reliefs on the ground that the Defendants are engaged in wrongful activities of infringing the registered trademarks, copyrights of the Plaintiff and committing the tort of passing off, in the circumstances explained in the Plaint.
kpd 2 / 5 NMCDL 596 2018.sxw 2. An application for urgent ad-interim order was moved before this Court on 16 th March, 2018 i.e. for appointment of Court Receiver and injunction. Paragraphs 8 and 9 of the order passed by this Court dated 16 th March, 2018, are reproduced hereunder :- 1. The rival prodcuts are produced before me. The photographs of the rival products are reproduced hereinbelow: PLAINTIFF S PRODUCT DEFENDANTS PRODUCT The dishonesty of the Defendants is apparent from the fact that the Defendants have copied the overall color scheme, layout, get up and the entire trade dress of the Plaintiff s FROOTI product including the bottle shape and the yellow bottle caps and the Impugned Product of the Defendants is identical to the Plaintiff s FROOTI product as depicted at EXHIBIT B to the plaint. It is therefore clear that the Defendants have
kpd 3 / 5 NMCDL 596 2018.sxw deliberately and dishonestly adopted and used the Impugned Mark FROOTIN and the Impugned Label which is identical to the FROOTI Label of the Plaintiff. In the circumstances, a strong prima facie case for the grant of ad-interim reliefs without issuing notice to the Defendants, is made out. Unless reliefs as prayed for are granted, the Plaintiff is likely to suffer injury. In view of what is stated in paragraph 24 of the plaint and paragraph 4 of the affidavit in support of Notice of Motion and in view of the above, I am satisfied that the object of granting the following reliefs would be defeated if notice of this application is given to the Defendants. There shall accordingly be an ad-interim order in terms of prayer clauses (a), (b), (d) and (g) of the Notice of Motion, which read as follows:... 3. Accordingly, the Court Receiver visited the business premises of the Defendants and has taken charge of the impugned products, labels etc. as set out in his report dated 27 th March, 2018. 4. Today when the matter is called out, the Defendant No.1 Mr. Gulam Moinuddin Khan is present in Court. He states that he has committed a mistake since he was misguided by his trademark agents Leonard Corporate Solutions Private Ltd., having their office at office No.8, 1 st Floor, Lucky Mansion, Opposite Manthan Plaza, Vakola Market,Santacruz (East), Mumbai 400 055. He has tendered an unconditional apology for the same. Initially I was of the view that the entire suit can be disposed off if the Defendant No.1 agrees to submit to a decree as prayed and further agrees to pay a certain amount towards costs and damages. However, the Learned Advocate appearing for the Plaintiff has drawn my attention to the fact that
kpd 4 / 5 NMCDL 596 2018.sxw though the Defendants have obtained license from the Food Safety and Standard Authority of India (fssai) only with regard to tea powders, spices as well as confectionery and has not obtained any license qua the impugned product, he has on the label of the impugned product printed that the impugned product is fssai approved and has given license / registration No. 21515114000567 which is the license number he has obtained for tea powders, spices and confectionery. The Learned Advocate has also drawn my attention to a report available on the internet (https://www.nyooz.com/news/hyderabad/), wherein it is reported that three infants from Kalapathar locality in Old City at Hyderabad took ill and had to be hospitalized after drinking Frooti during iftar. The forensic report on whether the packeted drinks are spurious or not is awaited. The Learned Advocate for the Plaintiff has also pointed out that in the instant case, the contents / quality of the impugned product which the Defendant No.1 is trying to pass off as the product of Plaintiffs also needs to be tested because if the ingredients used in the impugned product are not in conformity with the required standards, the consumer may face serious health problems, more particularly the minors who are fond of mango drinks. The Advocate for the Plaintiff has also informed the Court that the Plaintiffs are in the process of filing a police complaint qua the manufacture of said goods by the Defendants inter-alia by misrepresenting that his product is fssai approved. 5. In view thereof, the Defendants are granted time upto 2 nd April, 2018 to appoint an Advocate in the matter. However, in the meantime, the following order is passed :-
kpd 5 / 5 NMCDL 596 2018.sxw (i) Upon the complaint being filed by the Plaintiff with the Local Police Station, the Deputy Commissioner of Police (DCP) under whose jurisdiction the local Police Station is situated shall get the complaint investigated, which will include obtaining a forensic report qua the contents of the impugned product, and shall thereafter, set the law in motion against those who have found to have committed an offence under the concerned statute. (ii) The DCP shall forward a copy of the forensic report to this Court on or before 15 th April, 2018, which will assist the Court in passing further orders in the matter. (iii) In the meantime, the earlier order dated 16 th March, 2018 shall continue to be in force. 6. Before this order was signed, Mr. Kini, Senior Associate from M/s. Khaitan & Co. has informed the Court that after the matter was heard on 28 th March, 2018, he received a call from Defendant No.1 Gulam Moinuddin Khan at around 8.30 p.m. stating that if the suit against him is not withdrawn, he shall commit suicide. The local Police Station shall therefore, make a note of such threat received by the Advocate. Stand over to 2 nd April, 2018. ( S.J.KATHAWALLA, J. )