Finding prima facie infringement of near-identical trade dress and three-leaf device copycat of Herbalife’s registered marks, the Delhi High Court has directed Amazon, Flipkart and IndiaMART to take down 18 listings within 36 hours and disclose seller KYC details. The Court found that Herbalife established a prima facie case of trademark infringement under Section 29 of the Trade Marks Act, 1999 and passing off against the sellers of ‘Herbawish’ and ‘Herbawish Nutrition’ nutritional products, on the ground that the rival marks were visually and phonetically deceptively similar to its registered ‘Herbalife’ trademarks with the common prefix ‘Herba’ enhancing deception.
The Court treated the copying of the Plaintiff’s trade dress, including the three-leaf device, colour combination, white container background, green band and label placements, as evidence of dishonest intent, holding that the rival products were difficult to distinguish by a person of average intelligence and imperfect recollection. Further, use of the Plaintiff’s registered three-leaf device by the Defendants was prima facie held to be trademark infringement, with the Court noting that since the products were nutritional, inferior quality could pose health risks to the public and dilute the ‘Herbalife’ mark.
A Single Judge Bench of Justice Jyoti Singh observed that the Plaintiff had made out a prima facie case for grant of ex parte ad interim injunction against Defendants No. 1 and 2, with the balance of convenience lying in favour of the Plaintiff and a likelihood of irreparable harm if the injunction was not granted. The Court noted that the impugned marks ‘Herbawish’ and ‘Herbawish Nutrition’ were visually and phonetically deceptively similar to the Plaintiff’s ‘Herbalife’ trademarks, with the deception being enhanced by the common prefix ‘Herba’, and that since the rival products were identical with a common consumer base and trade channels, there was every likelihood of confusion among members of the public.
The Court further observed that the dishonest intent of Defendants No. 1 and 2 was evident from their copying of the Plaintiff’s packaging/trade dress, including the three-leaf device, colour combination, white container background, green band and placements, making the rival products difficult to distinguish by a person of average intelligence and imperfect recollection, and that the use of the registered three-leaf device prima facie amounted to infringement under Section 29 of the Trade Marks Act, 1999.
The Court also noted that since the products in question were nutritional products, inferior quality could pose health risks to the public and tarnish the Plaintiff’s image while diluting the ‘Herbalife’ trademarks. Page 12 With respect to Defendant No. 7 (IndiaMART), the Court recorded the submission that the legend ‘Developed and Managed by Indiamart’ referred only to technical backend assistance, with all content and trademark use belonging to the seller.
Briefly, Herbalife International, Inc., a global health and wellness company founded in the United States in 1980, filed a commercial suit before the Delhi High Court seeking relief against Ashish Kumar and others for alleged trademark infringement and passing off. The Plaintiff claims to be the registered proprietor of the ‘Herbalife’ word mark and its variants, including ‘Herbalife Nutrition’, the three-leaf device/logo, and product brands such as ‘Shakemate’, ‘Formula 1’, and ‘Cell-U-Loss’, with trademark registrations in India in Classes 03, 05, 29, 30, 32 and 35, and common law rights in its trade dress. The Plaintiff’s products are sold in over 95 countries through a network of direct sellers/distributors, with a suggested retail of USD 8.6 billion in 2025 and net sales of USD 5 billion in 2024, and the brand enjoys significant social media following and global sponsorship of over 150 athletes.
The Plaintiff alleged that Defendant No. 1 (proprietor and Managing Director of Defendant No. 2) was selling near-knockoff nutritional products under the marks ‘Herbawish’ and ‘Herbawish Nutrition’, along with a three-leaf logo and trade dress deceptively similar to the Plaintiff’s, while Defendants No. 3 and 4 were manufacturers and Defendants No. 5 to 7 were e-commerce marketplaces (Amazon, Flipkart and IndiaMART) listing the impugned products. Page 8 The Plaintiff learnt of the alleged infringement in late February 2026, and after advance service of rectification petitions impugning Defendant No. 1’s trademark registrations, the Defendants approached the Plaintiff for settlement, but the proposal shared did not materialise, and infringing listings continued even after the Defendants claimed to have stopped production of products carrying the three-leaf device.
