SANJEEV NARULA, J.

I.A. 5496/2024 (under Order XIII-A Rule 3 r/w Section 151 of the CPC seeking summary judgment against Defendants No. 1 to 3).

1. The instant suit has been filed by the Plaintiff, Manash Lifestyle Private Limited, inter alia seeking permanent injunction against Defendants No. 1 to 3, restraining them from using the Plaintiff’s registered trademarks “GOOD VIBES”, “NY BAE”, “ALPS GOODNESS”, “STAY QUIRKY” and the associated trade dresses or any other deceptively similar marks in any manner, which amounts to infringement and/or passing off of the Plaintiff’s trademarks/trade dress.

2. Counsel for the Plaintiff presents the following facts and contentions for a permanent injunction against Defendants No. 1 to 3:

2.1. Plaintiff, Manash Lifestyle Private Limited, a company incorporated in the year 2011, is engaged in the manufacture and sale of cosmetics including makeup, skincare, hair, bath and body, herbal, baby care, beauty and wellness products, fragrances, and related products. Plaintiff owns and operates a start-up business of online beauty and wellness store named “PURPLLE”/“", available at “https://www.purplle.com”. The Plaintiff’s “PURPLLE” start-up is one of India’s well-known unicorn companies and is a market leader in the country in terms of providing easy access to global beauty and wellness products. Plaintiff has over a million customers, over 1000 curated and 100% authentic brands, and over fifty thousand products which are accessible and available on the aforementioned website.

2.2. The present suit relates to one of the Plaintiff’s brand/trademarks “GOOD VIBES”, which was conceived and adopted in the year 2017 for cosmetics and skin care products and has continuously been used by the Plaintiff thereafter. Plaintiff manufactures, advertises, and sells a large range of cosmetic products under the brand “GOOD VIBES”, (Plaintiff’s products) such as Good Vibes Rosehip Radiant Glow Serum, Good Vibes Vitamin C & B3 Skin Glow Face Serum, Good Vibes Papaya Brightening Face Wash, Good Vibes Vitamin C & E Age Defying Face Serum, Good Vibes Vitamin C Brightening Face Serum, etc., detailed in paragraph No. 4 of the plaint.

2.3. Plaintiff has secured trademark registrations for various trademarks/logos under the “GOOD VIBES” brand, such as "", "", "", "", "", (Plaintiff’s trademarks) and other formative marks, under various classes in relation to its cosmetic and skin care products as well as advertisment, marketing and promotion of the same. Furthermore, Plaintiff also has common law rights in the various trade dresses and packaging of its products, for which it has also applied for trademark (label) registration under classes 3 and 35, the details whereof have been set out in paragraph No. 8 of the plaint.

2.4. The Plaintiff has invested substantial amounts of money and effort in building a brand identity for its registered trademarks and has extensively promoted its products through different forms of media, including on social media platforms such as Facebook, Instagram, and YouTube. Further, Plaintiff’s products bearing its registered trademarks are available for sale on its dedicated website “https://goodvibesonly.in/”, in retail stores as well as e-commerce websites such as Amazon, Flipkart etc.

2.5. Due to the continuous and extensive use and promotion of the Plaintiff’s trademarks, the Plaintiff has garnered significant goodwill and reputation in its “GOOD VIBES” products, which is evidenced from the sales figures provided in the plaint since its inception in 2017. In the FY 2022-23, the year preceding the filing of the lawsuit, the Plaintiff made cumulative sales worth INR 93.59 crores for its “GOOD VIBES” products. Therefore, the Plaintiff asserts common law rights in its registered trademarks as well as its distinctive trade dress/ packaging.

2.6. The grievance of Plaintiff in the present suit pertains to Defendants No. 1 to 3’s unauthorised use and misappropriation of the Plaintiff’s registered trademarks, trade dress/packaging, promotional images as well as product names, images, and descriptions, for manufacturing, advertising, and offering for sale identical cosmetic and skin care products by Defendant No. 1, M/s OCP Tech Industries Private Limited. Defendants No. 2 and 3 are the directors of Defendant No. 1.

2.7. In April, 2023, one of the Plaintiff’s representatives came across the Defendant No. 1’s website “https://addtodeal.in/,” selling and advertising multiple products under the marks “NYLAZ”/ "" and “QUEUING”/ “", which bear identical packaging, promotional images and visual appearance as the Plaintiff’s products. (Impugned products) Thereafter, the Plaintiff discovered that Defendant No. 1 had applied for registration of the marks “NYLAZ”/ "" and “QUEUING”/ "" in the year 2022 on a proposed to be used basis. The said applications are pending on account of objections raised against the marks.

2.8. A perusal of Defendant No. 1’s website revealed that they have slavishly copied over 150 product listings comprising of identical promotional images, visual appearance, product names, product images and product descriptions. A detailed comparison table of the Plaintiff’s products and the impugned products has been attached along with the plaint.

2.9. Pertinently, it was discovered that the Plaintiff’s trademarks were being unauthorisedly used and displayed on Defendant No.1’s website and further, authentic products of the Plaintiff under the brands “GOOD VIBES”, “ALPS GOODNESS”, “STAY QUIRKY” and “NY BAE” were available for sale on Defendant No. 1’s website, without any authorisation or consent of the Plaintiff.

2.10. Upon further investigation via the internet, the Plaintiff discovered that Defendants No. 1 to 3’s impugned products, bearing the same promotional images, visual appearance, and packaging as that of the Plaintiff’s products, were advertised on social media handles and were being sold on e-commerce websites of Defendant No. 4, i.e., Flipkart and Shopsy and Defendant No. 5 i.e., Meesho. Therefore, there is a high probability of confusion being caused amongst innocent consumers, who would not be able to distinguish between the two competing products.

2.11. In order to further investigate into the infringing activities of the Defendants, the Plaintiff purchased some of the impugned products through Flipkart and Meesho. A bare perusal of the impugned products makes it evident that the products have the same exact shape and packaging as the Plaintiff’s products. Further, even the contents/ text written on the products are copied verbatim from the Plaintiff’s products.

2.12. Being in the same industry, Defendants No. 1 to 3 had prior knowledge of the Plaintiff’s trademarks and products and thus, they have calculatedly and maliciously adopted the same promotional images, product content and descriptions, visual appearcance and packaging of the Plaintiff’s products to pass off the same as the Plaintiff’s. By displaying the Plaintiff’s trademarks as well as the Plaintiff’s authentic products on their website, Defendants No. 1 to 3 are decieving consumers to mistakenly believe that the impugned products are associated with the Plaintiff’s established brand/trademark, thereby amounting to infringement, dilution and unfair competition. The afore-mentioned acts of Defendants No. 1 to 3 are intended to ride upon the reputation and goodwill of the Plaintiff in order to reap illegal profits.

2.13. Considering the nature of the products in question, i.e., cosmetic and skin care products, the Plaintiff has incurred considerable expenditure for the research and development of its products and its associated packaging to ensure the highest quality. Further, every promotional image and product description has been created by professionals after assessing the market trends and demands. The impugned products of Defendants No. 1 to 3, which are sold under packaging identical to that of the Plaintiff’s and over whose quality the Plaintiff has no control, could potentially harm consumer interests. This situation is likely to cause damage to the Plaintiff’s reputation, as consumers may attribute any negative experiences with the Defendants’ products directly to the Plaintiff, due to the deceptive similarity in packaging. This misperception could lead to a loss of consumer trust and goodwill that the Plaintiff has established over the years.

3. This Court, on 25th July, 2023, on a prima facie assessment of the facts and documents placed on record, granted an ad-interim ex-parte injunction in favour of the Plaintiffs, restraining Defendants No. 1 to 3 from manufacturing, selling or offering for sale, advertising any products in identical packaging or containers, or similar get-up, layout, colour combination, trade dress etc., of the Plaintiff’s products, as mentioned in the chart, which forms part of Annexure A to the order.

4. The injunction order dated 25th July, 2023 extended to all of products of Defendants No. 1 to 3 as mentioned in columns 2 and 3 of the chart. However, it was made clear that the Defendants were not injuncted from manufacturing and/or selling products under the marks “NYLAZ”/ "" and “QUEUING”/ "" and were permitted to utlise packaging which is different from that of the Plaintiff. Further, Defendants No. 4 and 5 were directed to remove the infringing listings of Defendants No. 1 to 3, from their online platforms.

5. As per the record, Defendants No. 1 to 3 have been served. They have not appeared or filed any written statement to contest the present suit. Their right to file written statement was foreclosed by the Joint Registrar on 16th February, 2024. As such, Defendants No. 1 to 3 are being proceeded exparte.

6. In the meantime, as Defendant No. 4 complied with this Court’s directions regarding taking down the infringing URLs, they were permitted to be deleted from the array of parties on 16th February 2024.

7. Counsel for Defendant No. 5 states that they have also complied with the court directions and requests that they be deleted from the array of parties. There is no objection from Plaintiff. Accordingly, Defendant No. 5 is deleted from the array of parties. Amended memo of parties be filed within four weeks from today.

8. The Court has considered the afore-noted submissions and examined the record, which demonstrate the Plaintiff’s statutory rights over its registered trademarks “GOOD VIBES” and common law rights over its trade dress and packaging for the products in question. A chart comparing the trade dress of Plaintiff’s products against the impugned products of Defendants No. 1 to 3 has been attached to this judgment. On a perusal of the said chart, it is clearly established that Defendants No. 1 to 3 have entirely imitated the trade dress of the Plaintiff’s products, including the shape, size, colour scheme, visual appearance, as well as the description of the products on the labels, which have been copied almost verbatim. Any consumer who is looking to purchase the Plaintiff’s product would understandably be confused and mistake the impugned products as being those of the Plaintiff.

9. Considering the extent of imitation of the Plaintiff’s products, the actions of Defendant No. 1 to 3 are clearly dishonest and malafide and amount to infringement and passing off of Plaintiff’s trademark and trade dress/ packaging. In view of the above, the Court is of the opinion that Defendants No. 1 to 3 have no real prospect of successfully defending the claims made in the lawsuit. As such, there is no compelling reason for keeping the suit pending and relegating the Plaintiff to lead ex-parte evidence. (See: Disney Enterprises Inc. and Anr. v. Balraj Muttneja and Ors.) 2014 SCC OnLine Del 781, (Cross Fit LLC v. RTB Gym and Fitness Centre) 2022 SCC OnLine Del 2788, and (The Indian Performing Right Society Ltd. v. Gauhati Town Club) 2013 (134) DRJ 732.

10. In the above circumstances, the Court deems it fit to adjudicate the present matter summarily against Defendants No. 1 to 3 under Order VIII Rule 10 r/w Order XIII-A Rule 3 of the Code of Civil Procedure read with Rule 27 of the Delhi High Court Intellectual Property Division Rules, 2022.

11. Accordingly, the application is allowed and disposed of.

CS(COMM) 493/2023.

Relief.

12. The counsel for Plaintiff has confirmed that presently, the impugned products are no longer visible on the Defendants’ impugned website and their listings have also been removed from third-party websites, such as Meesho and Flipkart.

13. Accordingly, a decree of permanent injunction is passed, restraining Defendants No. 1 to 3, or any person acting on their behalf, from launching, manufacturing, selling, offering for sale, exporting, advertising, marketing and/or in any manner reproducing and replicating the product packaging/ trade dress and promotional images of the Plaintiff’s “GOOD VIBES” and other brands/ products available online, as mentioned in Annexure A to this order.

14. It is clarified that Defendants No. 1 to 3 are not prevented from manufacturing and/or selling products under their marks “NYLAZ”/ "" and “QUEUING”/ "" or any other packaging/ trade dress that is distinct from the Plaintiff’s trademarks and packaging/ trade dress.

15. The relief of delivery up, prayed for in paragraph No. 41(vi), is not being pressed. As regards claim of damages sought in paragraph No. 41(ix) of the plaint, this Court is convinced that this is not a case of innocent adoption, and Defendants No. 1 to 3’s conduct invites the award of damages. However, in absence of seizure of impugned products by a Local Commissioner, and in the facts and circumstances of the case, the Court finds it appropriate to award nominal damages of Rs. 50,000/- to the Plaintiff, recoverable jointly and severally from Defendants No. 1 to 3.

16. The Plaintiff is also entitled to costs valued at Rs. 2,98,000/-, which includes the court fee of Rs. 1,98,000/- and reasonable assessment of litigation cost of Rs. 1,00,000/- from Defendants No. 1 to 3.

17. The suit is decreed in above terms. Decree sheet be drawn up.

18. Suit and all pending applications are disposed of.