The Delhi High Court has temporarily restrained Ashraful Islam (Defendant), its partners, affiliates, franchisees, officers, distributors, servants, agents, assigns, representatives, and anyone acting on their behalf directly or indirectly, from manufacturing, selling, offering for sale, advertising, dealing in any manner with products/services using the impugned marks HIMALAYA THE NUTRA HEALTH CARE as also the domain name https://himalayanutrawellness.com and/or any other mark identical or deceptively similar to Plaintiffs’ registered HIMALAYA trademarks/logos including all the associated and formative marks/logos, amounting to infringement of trademarks.
A Single Judge Bench of Justice Jyoti Singh observed that the Plaintiffs are registered proprietors of the trademark HIMALAYA and its formative marks. Whereas, the Defendant has adopted and is using the impugned mark HIMALAYA THE NUTRA HEALTH CARE, which are deceptively similar and since the rival goods are identical and trade channels and consumer base are common, confusion among members of public and potential customers is highly likely.
The Bench further observed that Plaintiffs have garnered formidable reputation and goodwill by extensive and continuous use of HIMALAYA trademarks and associated trade dress, whereas the Defendant has adopted deceptively similar marks and trade dress with a view to encash the reputation of the Plaintiffs and misrepresent to the public that its products emanate from the Plaintiffs or have some association with them.
Since the action of the Defendant is causing irreparable harm and injury to the goodwill and reputation of the Plaintiffs, the action amounts to passing off, and hence, balance of convenience lies in favour of the Plaintiffs and they are likely to suffer irreparable harm in case the interim injunction, as prayed for, is not granted.
Briefly, the plaintiffs, engaged in manufacturing ayurvedic products since 1930, had discovered that an individual (Defendant – Ashraful Islam), had applied for registration of the mark “HIMALAYA THE NUTRA HEALTH CARE” in respect of pharmaceutical products and was operating a website using a deceptively similar domain name. The plaintiff claimed that the Defendant had adopted an identical font style, green colour scheme and overall trade dress and was selling products in packaging closely imitating that of their well-known LIV.52 syrup, thereby creating a likelihood of confusion among consumers.
The plaintiff also alleged that the defendant’s website stated, “HIMALAYA NUTRA HEALTHCARE IS A DIVISION OF HIMALAYA WELLNESS COMPANY,” which, according to them, was calculated to misrepresent an association with the plaintiffs. The plaintiffs submitted that they are the registered proprietors of the “HIMALAYA” mark and its formative variants, holding around 150 trademark registrations in India, and that their logo and packaging are protected under the Copyright Act.
Appearances:
Advocates Prachi Agarwal and Manan Mondal, for the Plaintiff
NA, for the Defendant
