The Delhi High Court on 28th February 2018 passed an ex-parte order against Glacier Water Industries. The suit was filed by Coca-Cola company against defendants seeking a permanent injunction, damages and to restrain them from passing off their products as that of the plaintiffs. The plaintiffs also requested the court to restrain the defendants from using the mark ‘KINLEY’ and to transfer all web domains related to the same. This case also deals with the concept of trademark dilution.
Brief facts of the case
Plaintiff no. 1 is a world-renowned manufacturer of carbonated drinks. They have operations in around 200 countries including India. They also deal with fruit-based beverages and other non-alcoholic drinks.
Plaintiff no.1 also stated that plaintiff no. 2 is an authorized partner of their company in India and their relationship is governed by Bottler’s Agreement entered between the two. A reference was also made to the number of units they sold in India which was stated to be around 520 million.
As per the plaint, the plaintiff no.1 had adopted the mark ‘KINLEY’ in India in 2001.They also stated that they have been using the mark ‘KINLEY’ in 35 other countries.
The counsels for the plaintiffs stated that they came across the defendant’s mark and found out that the defendants have been stating that their product was made in collaboration with the plaintiff no.1. As per the plaintiffs, this status was completely false. The plaintiff never got into any kind of agreement or understanding with the defendant. The defendants are using the impugned mark on all their products and also while advertising. The plaintiffs also stated that the defendant has applied for the mark ‘KINLEY’ in class 11 which deals with water purifier, water supply, and sanitary purpose. This act in itself shows the intention of the defendants to pass off their products as that of plaintiff’s.
Analysis of the court
In this case an application for interim injunction which was filed on 29th April 2013, the court passed an ex-parte order in favor of the plaintiffs and against the defendant.
The operative part of the above mentioned ex-parte order is reproduced below:-
“Consequently, defendant, its Directors, employees, agents, distributors, franchisees, representatives and assigns are restrained from manufacturing or authorizing the manufacture, selling or offering for sale, marketing, advertising, promoting or displaying or in any other manner whatsoever using the impugned mark KINLEY and/or any other mark which is deceptively or confusingly similar to the registered trade mark of KINLEY of plaintiff No. 1 as a trade mark or part of the trade mark, trade name or part of trade name or as a domain name or part of a domain name or in any other manner whatsoever so as to infringe the plaintiff No. 1’s registered trade mark or pass off its goods as those of the plaintiffs till further orders.
The defendants, its Directors, employees, agents, distributors, franchisees, representatives, and assigns are also restrained to transfer the domain names ‘kinley.in’ and ‘kinleyro.com’ and/or any other domain name which is similar to the plaintiff №1’s registered trademark KINLEY till further orders…….”
During the pendency of the suit, the plaintiffs had filed an application for impleadment of two partners of the defendant firm. The court partially allowed the said application and only agreed to implead M/s Balaji Enterprises as defendant no. 2.
Despite repeated service of notice to their last known addresses, there was no response to the notice neither any was any written statement filed.
The evidences provided by the plaintiffs to secure a permanent injunction were following:-
- Plaintiffs proved that they were the first company to register the mark KINLEY by providing registration details like registration number and date of registration.
- The plaintiffs also proved that they were the first to register the device mark and provided details of the same.
- They were also able to prove that the defendants were operating www.glacierswater.com,www.kinley.inand www.knileyro.com which are used to infringe the registered mark of the plaintiffs.
- A CA certificate was also provided to show that between 2012–2016 the plaintiffs had spent around Rs.839 crores on advertising. This shows that a lot of money was spent on advertising and defendant’s acts were directly leading to a monetary loss for the plaintiffs
After going through all the evidences rendered by the plaintiffs, the court came to the conclusion that plaintiffs had acquired a brand name that was instantly recognizable anywhere in the world and was known for its quality.
The court also observed that to attain such a goodwill he plaintiffs have invested significantly in advertising and other expenses. Defendant’s use of the mark KINLEY was an act to piggyback on the popularity of the plaintiff company and to take advantage of its popularity.
The plaintiffs also stated that the defendants never took any explicit permission to use their registered mark KINLEY which in itself was illegal.
This court also referred to Ramesh Chand Ardawatiya Vs. Anil Panjwani, AIR 2003 SC 2508 which held that:-
“33. ………In the absence of denial of plaint averments, the burden of proof on the plaintiff is not very heavy. A prima facie proof of the relevant facts constituting the cause of action would suffice and the court would grant the plaintiff such relief as to which he may in law be found entitled. In a case which has proceeded ex parte, the court is not bound to frame issues under Order 14 and deliver the judgment on every issue as required by Order 20 Rule 5. Yet the trial court should scrutinize the available pleadings and documents, consider the evidence adduced, and would do well to frame the “points for determination” and proceed to construct the ex parte judgment dealing with the points at issue one by one. Merely because the defendant is absent the court shall not admit evidence the admissibility whereof is excluded by law nor permit its decision being influenced by irrelevant or inadmissible evidence.”
The above-mentioned case was of great benefit to the plaintiffs as prima facie their evidences were strong enough to show that the defendants were infringing the mark of the plaintiff and as the case was ex-parte, there was no rebuttal.
The court after going through all the arguments and evidences gave the order in favor of the plaintiffs and permanently restrained the defendants from using the impugned mark.
The above-mentioned case will have far-reaching repercussions as it will pave the way for other ex-parte matters to secure a permanent injunction if they can prima facie prove a case against the other party.
If a party has enough evidence then getting an interim injunction is not difficult. However, getting a permanent injunction was a different cup of tea. This will not be the case now as the principle outlined in the judgement will help parties which have a strong prima facie case.