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Judgment
Manmohan Singh, J.—The plaintiff''s in this case are engaged in the manufacture and sale of ayurvedic products preparations. Plaintiff No. 1
is a partnership firm which is constituted by two partners i.e. plaintiff Nos. 2 and 3. Their website www.himalayahealthcare.com is accessed
globally.
As per the plaintiff''s, they provide their entire business depends upon their intellectual property in one form or the other and they have made
heavy financial investment in continuously developing and marketing their portfolio of ayurvedic herbal remedies. The plaintiff''s provide high quality
products at a reasonable price, as a result of which, they have earned immeasurable goodwill in their brand. The goodwill of the plaintiff is their
most valuable asset and it depends upon the protection of their intellectual property.
It is stated by the plaintiff''s, to ensure that their products are easily identifiable in the market, they have registered trademarks pertaining to their
products, both Indian and foreign and apart from Himalaya brand which has a distinct design and logo, they have also registered trademarks for
their individual products. The plaintiff''s have developed a unique and distinctive trade dress, including layout, colour scheme and getup for their
containers, labels and cartons of their products. The elements of the said trade dress are the original artistic works of the plaintiff''s in which they
also own the copyright registration No. A-63897/2003 for its logo.
In March 2009, the plaintiff came to know about the website www.herbalcureindia.com of which defendant No. 1 is the registrant. The said
website is being used for selling herbal and other healthcare products and along with other brands, it also advertises and offers for sale the
products of the plaintiff''s. It is stated by the plaintiff, that the manner and presentation of plaintiff''s products on the defendant''s website is
calculated to create unrealistic expectations and the plaintiff''s themselves have never represented themselves to be the suppliers of such
hypothetical remedies/products. Further, the defendants are offering for sale the products of the plaintiff''s at absurd and exorbitant prices which
are likely to damage the reputation of the plaintiff in the market.
The plaintiff''s submits that the defendants are engaged in unauthorized dealings and sales under the trademark Himalaya brought from India and
either commercially resold back into different parts of India or other places abroad without obtaining license, permission and authorization of the
plaintiff''s. The acts of the defendants amount to substantial change and impairment as contemplated by sub-section (4) of Section 30 of the Trade
Marks Act, 1999. Further, the defendant No. 1 by passing off itself as an authorized dealer of the plaintiff''s is putting the plaintiff''s in grave danger
of being held liable by the consumers of Himalaya products which are being advertised and sold without the knowledge of the plaintiff''s and their
condition could be tampered with by defendant No. 1.
The defendants have adopted a similar getup and layout in green orange and white as used by the plaintiff''s to identify the source of their origin
in their logo ""Herbalcureindia"". Thus the plaintiff''s have filed the present suit for permanent injunction restraining passing off, trade mark
infringement and copy right infringement, delivery up, damages and rendition of accounts.
As per the defendants, they are not selling any product of the plaintiff''s as that of their own or using the trademark of the plaintiff''s for any drugs
other than those manufactured by the plaintiff''s. They have never interfered with the package, labeling, design or the contents of the products of the
plaintiff''s. The defendants No. 2 website entertains health related queries and prescribes home remedies as well as ayurvedic and herbal
medicines. The cost of the medicines prescribed on the site includes the cost of consultancy and other charges for the expert advice along with the
cost of the medicine. Defendant No. 2 site is accessed throughout the world but, does not entertain any order from any patient in India and
therefore, the prices on the medicines are quoted in dollars and not in rupees and all the payments are also accepted only in dollars.
It is stated by the defendants that the goods sold by them are not likely to cause any deception that those products are those of the defendants
or are approved or licensed by the plaintiff''s.
While selling plaintiff''s'' products, it provides a photograph of the said product along with the HIMALAYA logo on the web page with details
regarding the product, quantity and price in USD only. Apart from the said details, they also provide other additional information as such action,
dosage, side effects, indications and compositions. The products sold by them states ''For Sale in India and Nepal Only''. Defendant No. 1 on this
website also sells many such products of the plaintiff''s which are not meant for sale online.
The defendants are engaged in unauthorized dealings and sale of products under the trade mark HIMALAYA bought from India and either
commercially resold back into different parts of India or other places abroad without obtaining the license, permission or authorization of the
plaintiff''s to conduct such sales. The plaintiff''s have legitimate reasons for not permitting such dealings as they destroy the plaintiff''s'' entire
business model, which is designed to safeguard the plaintiff''s'' valuable goodwill. The defendants'' acts amount to substantial change and
impairment as contemplated by sub-section (4) of Section 30 of the Trade Marks Act, 1999.
The goods sold by the defendant No. 1 under the trade mark of the plaintiff''s are also likely to cause confusion or deception in the trade and
amongst consumers because there is an in-built misrepresentation in the sale of the said goods under the trade mark HIMALAYA by defendant
No. 1, inasmuch as a false impression is given that the products are approved of or licensed by the plaintiff''s. By passing itself off as an authorized
dealer of the plaintiff''s, the defendants are also putting plaintiff''s in grave danger of being held liable by consumers for HIMALAYA products
which are sold without the knowledge of the plaintiff''s and the condition of which could have been altered or tampered by defendant No. 1 and
not maintained in a proper condition as authorized retails are obligated to. The defendants on their website have boldly claimed that they ship the
products to any country free of any charge and also offer free consultation.
After passing the ad-interim order on 31.07.2009, the plaintiff''s filed two contempt petitions against the defendants as the defendants violated
the interim order.
On the other hand, the learned counsel for the defendants, during the course of hearing of the contempt petitions, states that all the
objectionable material has been deleted from the website of the defendants. He also undertakes that in future the defendants shall not indulge in
such activities as mentioned in the plaintiff.
The learned counsel for the plaintiff''s that as the defendants have discontinued the said activities, the plaintiff''s have no objection if the decree
is passed in terms of para 35(a), (b) and (c) of the plaint. As far as reliefs claimed by the plaintiff''s for damages and cost is concerned, after
obtaining the instructions from the defendants, the counsel for the defendants submits that the defendants shall pay a sum of Rs. 30,000/- as full and
final settlement.
In view of the above, the suit of the plaintiff''s is decreed in terms of para 35(a), (b) and (c). As far as other reliefs are concerned, the
defendants shall pay a sum of Rs. 30,000/- to the plaintiff''s within a period of eight weeks from today. Decree be drawn accordingly. All pending
applications stand disposed of.