IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION

NOTICE OF MOTION (L) NO. 2669 OF 2014 IN SUIT (L) NO. 1119 OF 2014

Hindustan Unilever Ltd. …Plaintiff / Applicant vs. Mr.Thair Husaini, Proprietor of T.H. Traders & Anr. ...Defendants

Mr.Chetan Kapadia with Ms.Rachita Romani and Ms.S. Mehta i/b. M/s.India Law for Plaintiff. None for Defendants.

CORAM : S.C. GUPTE, J.

11 DECEMBER 2014

P.C. :

This is an infringement and passing off suit where the Plaintiff has applied for ad-interim reliefs against infringement of its trade marks and copyrights in the marks and devices, namely, "ACTIVE WHEEL", "WHEEL", "SUPER WHEEL WITH LEMON", "WHEEL AND WHEEL DEVICE", "BLUE WHEEL WITH TINO PAL CBS-X" AND "LIGHTENING MNEMONIC DEVICE". The Plaintiff is the registered proprietor of the trade mark "WHEEL". The Plaintiff has been marketing its goods under the trade mark "WHEEL" along with the device of Wheel, in which the Plaintiff claims a copyright. The Plaintiff claims that it got designed a unique label / wrapper to package the products sold by the Plaintiff under the trade mark / device of WHEEL or ACTIVE WHEEL. The Plaintiff has given details of its gross turnover of sales in value as well as its advertisement expenses. It is the Plaintiff's case that the Defendants have been infringing the Plaintiff's trade mark and device by adopting a deceptively similar mark "WELL" used with the prefix 'Active'. The Defendants have also been using the same colour scheme and pattern of the packaging of their products. Prima facie, the use of the trade mark WELL or ACTIVE WELL together with the colour scheme and pattern of the packing amounts to infringement of the Plaintiff's registered trade mark as also the copyright claimed by the Plaintiff in the device

and packaging.

2 The Notice of Motion and the suit have been served on Defendant No.1. Affidavit of service has been filed. The service packet addressed to Defendant No.2 has returned unserved. Defendant No.1 is absent, despite service.

3 Having regard to the averments made in the plaint and the documents produced in the plaint, a prima facie case is made out for grant of adinterim reliefs.

4 Accordingly, ad-interim injunction in terms of prayer clause (a) is granted against the Defendants.

5 Court Receiver, High Court, Bombay is appointed as a Commissioner to visit the premises of the Defendants and conduct a search and thereafter, seize the infringing goods, if any, from the premises. The Court Receiver may seek the assistance of the police officer, if necessary.

6 The Defendants are directed to submit a detailed list of dealers' stipulations and monthly turnover in respect of the goods marketed by them under the trade mark / device of WHEEL or ACTIVE WHEEL within a period of four weeks from today.

7 Replies to the Notice of Motion to be filed within a period of four weeks from today. Rejoinder, if any, within a period of two weeks thereafter. Place the Motion for hearing on 18 January 2015.

(S.C. Gupte, J.)