Delhi High Court: In a case wherein the suit alleged infringement as well as passing off, by the defendants, Xeryus Retail (P) Ltd. of its products as the products of the plaintiff, Coty Germany GMBH, a Single Judge Bench of C. Hari Shankar, J., opined that the assertions of the plaintiff clearly made out a case of infringement, by the defendants, of the plaintiff’s registered trade marks as well as of the defendants unlawfully passing off their own goods as well as testers of the plaintiff as the plaintiff’s goods for commercial sale and thereby defrauding the purchasing public. Thus, the Court granted a permanent injunction in favour of the plaintiff and held that the plaintiff would also be entitled to costs of Rs. 1,00,000, to be paid by the defendants.
It was submitted by the plaintiff that it was a reputed name in the field of perfumes, and was the holder of the following registrations in India, CALVIN KLEIN (word mark); CK (device mark); CALVIN KLEIN MAN (word mark); CALVIN (word mark); Eternity (device mark); OBSESSION (device mark); OBSESSION (word mark); EUPHORIA (word mark); CK ONE (device mark); CK ONE (word mark); and CK ONE SHOCK (word mark). The plaintiff submitted that it’s trade mark “Calvin Klein” was founded and adopted based on the name of its founder in 1967 since which time the plaintiff had been using the said mark, as well as both in a whole, in its own as well as abbreviated “CK” form. The plaintiff had also been representing its mark in a particular fashion which had been indelibly associated with the identity of the plaintiff. The plaintiff’s represented 
, 
, and 
marks.
The plaintiff claimed that, under the aforesaid marks, it sold a wide variety of fragrances which had become extremely popular, including “CK one”, “CK one SHOCK”, “ETERNITY” and “Euphoria”. It was also claimed that the special stylised manner in which the word “CK” and “Calvin Klein” were used constituted original artistic works within the meaning of the Copyright Act, 1957 and were entitled to protection. The plaintiff also claimed to be operating the website www.calvinklein.com, through which it disseminated information regarding its activities and its products.
The plaintiff submitted that the defendants were, through the website www.perfumery.co.in and www.unboxed.in using the plaintiff’s mark for their products and were also selling, for commercial value, testers of the plaintiff’s products which were only intended to enable a prospective customer to be able to sample the fragrance before deciding to purchase it. Such testers were never meant to be sold for commercial value and, by doing so, the defendants were indulging in an unfair trade practice. Besides, such testers were being sold by the defendants, masquerading them as perfumes of the plaintiff for sale, thereby, luring customers into paying money for such testers which were otherwise not to be commercially dispensed. Further, the defendants had dishonestly and with malafide intent started adopting and using the plaintiff’s marks , , ck one, and .
The Court opined that the assertions of the plaintiff clearly made out a case of infringement, by the defendants, of the plaintiff’s registered trade marks as well as of the defendants unlawfully passing off their own goods as well as testers of the plaintiff as the plaintiff’s goods for commercial sale and thereby defrauding the purchasing public.
Thus, the Court granted a decree of permanent injunction thereby, restraining the defendants and their individual proprietors/partners, agents, representatives, distributors, assigns, heirs, successors, stockists and all others acting for and on their behalf from marketing, using, selling, soliciting, importing, exporting, displaying, advertising, purveying, intending to sell impugned goods on www.perfumery.co.in and www.unboxed.in or any other online marketplaces or web entity or through any social media channels or by any other mode or manner dealing in or using the impugned trade mark/logo/label , , and or any other trade mark/logo/label which might be identical with and/or deceptively similar to the plaintiff’s said trade mark/logo/label.
The Court further opined that in view of the fact that the assertions in the plaint had remained unrebutted and that the defendants had also chosen not to cooperate with the present proceedings and had abstained from participating in these proceedings, thereby indicating that they had no substantial defence to offer, the defendants necessarily had to be burdened with costs. Therefore, the plaintiff would be entitled to costs of Rs. 1,00,000, to be paid by the defendants.
[Coty Germany GMBH v. Xeryus Retail (P) Ltd., 2023 SCC OnLine Del 4273, Order dated 21-7-2023]
Advocates who appeared in this case :
For the Plaintiff: Rishi Bansal, Rishabh Gupta, Advocates.
