Vibhu Bakhru & Amit Mahajan JJ

Learned Single Judge has dealt with arguments and contentions raised by SOOTHE and has rightly reached a prima facie conclusion, DABUR’s mark does not infringe SOOTHE’s trademark and DABUR is not passing off its goods as those of SOOTHE. As rightly argued by DABUR and decided by Learned Single Judge, ‘SUPER’ is descriptive and laudatory. Indisputably, ‘SUPER’ is widely used in respect of various products not only of similar nature but also of different class and categories. SOOTHE’s product has a prominent colour scheme in yellow and orange/blue whereas in DABUR’s product, it is primarily green.

Hon’ble Justice Vibhu Bakhru and Hon’ble Justice Amit Mahajan of Hon’ble High Court of Delhi, Soothe Healthcare Private Limited v. Dabur India Ltd., [FAO(OS) (COMM) 100/2022] decided on 11.07.2022.

A suit on basis of cause of action on a fear or apprehension is commonly known as a quia timet suit, defined as action by which a person is entitled to obtain an injunction and restrain a threatened act – which if done, would cause substantial damage. A person who is under a threat of infringement is not remediless and can maintain a suit for injunction. There is no doubt, such apprehension or threat has to be genuine and not a figment of imagination.

Hon’ble Justice Vibhu Bakhru and Hon’ble Justice Amit Mahajan of Hon’ble High Court of Delhi, M/s. Maan Pharmaceuticals Ltd. v. M/s. Mindwave Healthcare Pvt. Ltd., [FAO(COMM) 78/2022] decided on 12.09.2022.

Also see, Reckitt Benckiser (India) Pvt. Ltd. v. Hindustan Unilever Limited, [FAO(OS)(COMM) 149/2021] decided on 26.09.2022 and Peps Industries Private Limited v. Kurlon Limited, [FAO(OS) (COMM) 94/2020] decided on 07.10.2022.

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It is not permissible to hold, two competing marks are deceptively similar, by examining a portion of one mark and comparing it with a portion of another mark, if composite marks viewed as a whole are dissimilar. Indisputably, Vasundhra Jewellers Private Limited does not enjoy monopoly for use of the word ‘Vasundhra’.   

‘Vasundhra’ would be a weak trademark. It is possible for a proprietor to claim exclusive right. However, it would be necessary to establish on account of extensive use, the said common word has been identified exclusively with the business of the proprietor and no other.

– Hon’ble Justice Vibhu Bakhru and Hon’ble Justice Amit Mahajan of Hon’ble High Court of Delhi, Vasundhra Jewellers Private Limited v. Kirat Vinodbhai Jadvani, [FAO(OS) (COMM) No. 287/2022] decided on 13.10.2022.

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Relaxo is engaged in manufacturing and selling of various kinds of footwear. Relaxo was granted registration of Design No. 294938 on 21.06.2017.

For a design to be registered, it must be original and novel; not disclosed in any manner prior to registration; and it should be significantly distinguishable from a known design or a combination of known designs. Thus, a mere trade variant, which is a combination of known designs, would not be entitled to protection under The Designs Act, 2000.

Undoubtedly, footwear designers have to function under constraints. However, Crocs Inc. USA v. Bata India Ltd., (2019) 78 PTC 1 cannot be read to mean, there can be no registrable design in respect of footwear and all designs would be merely trade variants. Aqualite has not produced sufficient material for this Court to conclude, Subject Design is merely a trade variant and indistinguishable from known designs or a combination thereof. It is apparent, Aqualite’s product is almost identical to Subject Design. It is not unusual for small players to copy designs which have become popular. It is not necessary to pursue remedies against each dealer/manufacturer selling infringing products. Aqualite is hereby restrained from infringing Design No. 294938 till disposal of the suit.

Hon’ble Justice Vibhu Bakhru and Hon’ble Justice Amit Mahajan of Hon’ble High Court of Delhi, Relaxo Footwears Limited v. Aqualite India Limited, [FAO(OS) (COMM) 145/2019] decided on 27.10.2022.

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If a suit involves urgent interim relief, Section 12A of The Commercial Courts Act, 2015 is inapplicable and it is not necessary to enter into a pre-institution mediation. Court is of view, question whether a suit involves any urgent interim relief is to be determined solely on basis of pleadings and relief(s) sought by Plaintiff. A pre-institution mediation is necessary only in cases where Plaintiff does not contemplate urgent interim relief.

Hon’ble Justice Vibhu Bakhru and Hon’ble Justice Amit Mahajan of Hon’ble High Court of Delhi, Chandra Kishore Chaurasia v. R.A. Perfumery Works Private Ltd., [FAO (COMM) 128/2021] decided on 27.10.2022.

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Gulab Oil and Food (Ahmedabad) Pvt. Ltd. has been restrained from using the trademark ‘Gulab’ in connection with namkeen, roasted and baked ready to eat snacks and not in in relation to other products. Learned Commercial Court, prima facie, found, use of ‘Gulab’ would constitute infringement of Smt. Madhu Gupta’s trademark ‘Gulab Ka Phool’ registered under Class 30 for sweet edible items, namely, Gajjak and Rewari, in 1944. Court finds no flaw with reasoning of Learned Commercial Court, namkeen and other ready to eat sweets such as Gajjak and Rewari are allied and cognate goods.

Hon’ble Justice Vibhu Bakhru and Hon’ble Justice Amit Mahajan of Hon’ble High Court of Delhi, Gulab Oil and Food (Ahmedabad) Pvt. Ltd. v. Smt. Madhu Gupta, [FAO (COMM) 138/2021] decided on 15.11.2022.

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Lord Diplock in Beecham Group Ltd. v. Bristol Laboratories Ltd., 1978 RPC 153 had referred to Clark v. Adie, (1877) 2 App. Cas. 315 to explain Doctrine of Equivalents.  

Courts have recognized, to permit imitation of a patented invention which does not copy every literal detail would be to convert protection of a patent grant into a hollow and useless thing” [Graver Tank & Mfg. Co. v. Linde Air Products Co., 339 U.S. 605 (1950)].

Doctrine of Equivalents has taken on a life of its own [Warner-Jenkinson Co., Inc. v. Hilton Davis Chemical Co., 520 US 17].

If an innovation – whether it is a product or a process – is pirated, an action to prevent such infringement cannot fail solely because, the offending product or process has certain minor and insubstantial variations or differences as compared to the patented product.  

Learned Single Judge had, with consent of parties, appointed Scientific Advisers. NATCO-Process is not equivalent to Suit Patent-Process. It cannot be termed a minor or insubstantial variation, so as plead: infringement and piracy.

Accordingly, we find no reason to interfere.

Hon’ble Justice Vibhu Bakhru and Hon’ble Justice Amit Mahajan of Hon’ble High Court of Delhi, FMC Corporation v. Natco Pharma Limited, FAO(OS) (COMM) 301/2022 decided on 05.12.2022.