$~6 * IN THE HIGH COURT OF DELHI AT NEW DELHI + CS(COMM) 107/2019 PATANJALI AYURVED LIMITED ..... Plaintiff Through: Mr. Dayan Krishnan, Senior Advocate with Mr. Rohan Ahuja, Ms. Sonali Dhir, Mr. Aadhar Nautiyal, Mr. Sanjeevi and Mr. Siddharth Mahajan, Advocates. versus MASALA KING EXPORTS TRADING PVT. LTD. & ORS..... Defendants Through: Mr. Amit Bansal, Advocate with Mr. Aman Rewaria, Advocate for Defendant No. 14. CORAM: HON'BLE MR. JUSTICE SANJEEV NARULA ORDER % 18.03.2019 CS(COMM) 107/2019 1. Pursuant to the order dated 26th February 2019, Mr. Amit Bansal, learned Senior Standing Counsel appearing on behalf of the Defendant No. 14, on instructions, states that the Customs Authorities do not have a mechanism to monitor the export of the items in question that are the subject matter of the present suit. He further explains that, at the time of the export, the brand names are not disclosed, and therefore, he is unable to verify whether Defendant Nos. 1 to 13 are indeed exporting Plaintiff’s products. CS(COMM)107/2019 Page1of14 2. Issue summons to the Defendant No. 1 to 12 through all modes upon filing of Process Fee including through email. 3. The summons to the Defendant No. 1 to 12 shall indicate that written statement to the plaint shall be positively filed within 30 days from date of receipt of summons. Along with the written statement, the Defendants shall also file an affidavit of admission/denial of the documents of the Plaintiff, without which the written statement shall not be taken on record. 4. Liberty is given to the Plaintiff to file a replication within 15 days of the receipt of the written statement. Along with the replication, if any, filed by the Plaintiff, an affidavit of admission/denial of documents of the Defendants, be filed by the Plaintiff, without which the replication shall not be taken on record. If any of the parties wish to seek inspection of any documents, the same shall be sought and given within the timelines prescribed under the Delhi High Court (Original Side) Rules, 2018. 5. List before the Joint Registrar for marking of exhibits on 23rd April 2019. It is made clear that any party unjustifiably denying documents would be liable to be burdened with costs. List before Court on 16th May, 2019. I.A No. 2959/2019 (u/o XXXIX R.1 & 2 CPC) 6. The Court has heard Mr. Dayan Krishnan, Learned Senior Counsel appearing on behalf of the Plaintiff at considerable length. CS(COMM)107/2019 Page2of14 7. Learned Counsel submits that the Plaintiff is a Company established in the year 2006 and is a leading manufacturer and marketer of herbal, nature based products and herbal medicines under the trade mark “PATANJALI” work and device both in Hindi and English along with part of its logo comprising of lines/strokes in green and orange colour. The products of Plaintiffs are available globally through its authorized distribution channels. The Plaintiff Company manufactures and sells wide variety of FMCG products in India and abroad. In short span since 2006, Plaintiff has set up an extensive warehouse and distribution network comprising of over 47,000 retail counters, 3500 distributors in 18 states. The sales and advertisement expenses of the Plaintiff have been stated in para 10 of the plaint which shows that the sales in year 2016-17 was 10,000 Crores. The Plaintiff has got registration of "PATANJALI" word in various classes. Besides the trademark "PATANJALI" has also been granted protection in several classes and countries and is claimed that its mark enjoys Trans border reputation and goodwill. 8. The grievance of the Plaintiff is that pursuant to a market research, it has come to the knowledge of the Plaintiff that Defendant No. 1 to 13 have been procuring the goods of the Plaintiff Company which are meant exclusively for sale in the domestic market and have been illegally exporting them without any authority from the Plaintiff and resultantly also infringing the exclusive right to use the registered trade mark of the Plaintiff. To prevent such illegal export, the Plaintiff has also issued letters to Custom Authorities, however the illegal exports have continued. Plaintiff has also lodged complaints with Commissioner of customs. However, the Customs CS(COMM)107/2019 Page3of14 authorities have stated that the Intellectual Property rules do not apply to exports and no action has been taken on the complaint of the Plaintiff. 9. Learned Senior Counsel has explained that the Plaintiff Company presently does not have any authorised channel for export of its products and the entire export is being done solely by the Plaintiff Company itself through its own IEC No. 0506062686. Further he states that the packaging of the products that are meant for domestic sale is completely different from those that are meant for export. 10. Elaborating on this submission, he explains that the products which are to be exported are packaged by complying with metrological standards of the country where the products are required to be exported. Exports made illegally which do not comply with legal requirements create grave risk to the goodwill and reputation of the company and also impacts the sale and exports of the Plaintiff's product. The illegal exports using registered trade mark without any license, permission or authority infringes the said trademark. He further submitted that the Plaintiff Company has also come across instances where the Plaintiff's goods have been tampered or altered, whereby creating a risk towards the quality of the goods and the reputation of the Plaintiff attached with them. The averments made in para 49 show that the packaging of the product is materially altered by affixing stickers on the same for the purposes of export. To substantiate the said averment, the Plaintiff has annexed a picture of an “Atta” packet of the Plaintiff and one that is being illegally exported by the Defendants. It is apparent from the pictures that on the original packet it was duly printed that it was to be CS(COMM)107/2019 Page4of14 consumed within four months. However, there was another sticker placed over the details printed on the packet that stated that the “Atta” is good for nine months. Therefore, the Defendants, by such acts are defrauding the general public into believing that the product is exported by the Plaintiff and since the product mentions an expiry date of way over four months, the consumers fall at a risk of consuming “Atta” that is no longer fit for consumption. This in turn will tarnish the reputation of the Plaintiff and put the products of the Plaintiff in bad light. Following are the pictures of the Plaintiff’s product which are stated to have been illegally exported: CS(COMM)107/2019 Page5of14 11. He further referred to several pictures of the products explaining the differences. It is noted that for the products which are meant for domestic sale words “intended for sale in Indian subcontinent only” appear on the packaging. In contrast, the products meant for export have the words “export only” printed on them. The difference in the packaging is explained by way of illustration in respect of the Plaintiff's toothpaste and facewash. These products when sold in international market not only have a detailed ingredient list but the packaging of the product is also distinctly different from that of domestic products. The comparison is evident from the following:- CS(COMM)107/2019 Page6of14 NAME OF EXPORT DOMESTIC THE PRODUCT 1. PATANJALI Calcium carbonate, Aqua, Chamomile, Neem, TOOTHPASTE Sorbitol, Glycerin, Silica, Babool, Tomar, Pudina, Sodium Lauryl Sulphate, Clove, Pepper, Flavour/aroma, Sodium Vajradanti, Saccharin,Sodium Bakul, Vidang, Carboxymethyl cellulose , Turmeric, Polyethylene glycol 400,Zinc Meswak,Oak citrate , Menthol, Sodium benzoate, Chamomile, Tomar, babool, neem, pudina, turmeric,clove,long pepper, meswak, bakula, Trisodium Phosphate, Potassium Alum, Trachyspermum 2.PATANJALI Myristie Acid, Glycerin, Aqua, Aloe vera. Orange peel, FACE WASH Potassium Hydroxide, Neem, Tulsi, Vitamin-A, Propylene Aqua, soft soap base. Glycol, Stearic Acid, Decyl Vitamin-A, Vitamin-E, glucoside, Laurie Acid, Honey, Fragrance Ethylene Glycol Distearate, Glyceral monostearate, Poluquatemium, Sodium Hydroxide, Diazolidenyl urea and IDBC, Di-sodium- EDTA, Retanyl palmitate, Honey Perfume, Orange peel. Vitamin E,Neem, Tulsi CS(COMM)107/2019 Page7of14 DESCRIPTION FOR EXPORT FOR DOMESTIC MARKET PATANJALI DANT KANTI (FRONT VIEW) PATANJALI DANT KANTI (BACK VIEW) CS(COMM)107/2019 Page8of14 PATANJALI MINT TULSI BODY CLEANSER (FRONT VIEW) PATANJALI MINT TULSI BODY CLEANSER (BACK VIEW) 12. Mr. Krishnan submits that as per the requirement of Food and Drug Administration (FDA), the description of the products is far more detailed. In case the indications on a particular product are not in compliance with the regulations of the FDA, the products are put in an import “Alert list” and as a result the import of such products gets impaired. 13. Learned Senior Counsel further submitted that the Plaintiff has received CS(COMM)107/2019 Page9of14 queries from persons who have purchased its products from the local shops in Illinois, USA and has got alerted to the fact that it’s products are being exported through unauthorized channels. He thus submits this is on account of the acts of Defendant No. 1 to 13 and such other entities who have led to creation of unattended grey market which exposes the Plaintiff to unwarranted legal risks in those jurisdictions as the buyers of such product would purchase the products believing them to be lawfully imported products. 14. The learned Senior Counsel has also referred to the judgments of this Court in Kapil Wadhwa & Ors v. Samsung Electronics Co. Ltd & Anr. 2012 SCC OnLine Del 5172 and urged that the said judgment would not be applicable to facts of the present case.