Facts of the Case

DS Confectionery Products Limited, the plaintiff, is part of the Dharampal Satyapal Group and is engaged in diverse business sectors, including food and beverages and confectionery products. The plaintiff entered the candy segment with its PULSE branded candy, including the “Kachcha Aam with Tangy Twist” product. The candy was conceptualised around early 2013 and introduced for sale to the public in December 2014.

The plaintiff subsequently launched PULSE candies in additional flavours, including Guava and Orange in 2016 and Pineapple and Litchi in 2017. It also launched a sweetened drink and a “no salt, sugar free” candy variant under the PULSE mark.

The plaintiff relied upon extensive advertisement and promotional expenditure and substantial sales figures. Significantly, sales of products under the PULSE trademark increased from approximately ₹1.89 crore to ₹329.17 crore during the period referred to in the judgment. The plaintiff also relied upon various trademark registrations and applications in Class 30 and Class 32.

The plaintiff further asserted that the Delhi High Court, in Dharampal Satyapal Sons Private Limited v. Mr. Akshay Singhal & Ors., CS(COMM) 129/2019, had already declared PULSE to be a “well-known trade mark” within the meaning of Section 2(1)(zg) of the Trade Marks Act, 1999.

The plaintiff also claimed copyright protection in the artistic features of its PULSE labels under Section 2(c) of the Copyright Act, 1957, including copyright registration for artistic work relating to its orange and guava flavoured candy labels.

Around the first week of May 2020, the plaintiff discovered that the defendants were advertising and selling candies under the marks PELSE and PLUS++, including raw mango-flavoured candies, with allegedly similar packaging and trade dress under the SNEH trading style. Internet searches also revealed listings connected with M/s Silver Products, through which the allegedly infringing goods were offered.

The comparison reproduced in the judgment, particularly on pages 9 to 11, showed alleged similarities in the writing and placement of the marks, colour outlining, slant division of packaging, mango imagery, tagline positioning, jar presentation and overall visual arrangement. The Court examined these similarities as part of its deceptive-similarity analysis.

Issues Involved

The principal issues before the Court were whether the defendants’ use of PELSE and PLUS++ was deceptively similar to the plaintiff’s registered and well-known PULSE trademark; whether the defendants’ colour scheme, packaging and overall trade dress amounted to infringement and passing off; whether such use also violated the plaintiff’s copyright in the artistic work embodied in its labels; whether the matter was fit for summary judgment under Order XIII-A of the Code of Civil Procedure, 1908, as applicable to commercial disputes, read with Rule 27 of the Delhi High Court Intellectual Property Division Rules, 2022; and whether the plaintiff was entitled to permanent injunction, damages and costs.

Plaintiff’s Arguments

The plaintiff contended that it was the proprietor of the PULSE trademark for hard flavoured candies and fruit candies and that the mark had acquired extensive reputation, goodwill and distinctiveness through substantial sales, advertising and market presence.

It argued that PULSE had already been judicially recognised as a well-known trademark under Section 2(1)(zg) of the Trade Marks Act, 1999, thereby strengthening the protection available against deceptively similar marks.

The plaintiff submitted that the defendants’ marks PELSE and PLUS++ were visually, structurally and phonetically similar to PULSE. According to the plaintiff, minor alterations such as replacing “U” with “E”, deleting or modifying a letter, or adding “++” did not create sufficient distinction.

The plaintiff further contended that the defendants had imitated the essential visual features of its packaging, including the twin-colour combination, placement of fruit imagery, slant division of the package, central positioning of the brand name, mango depiction, tagline placement and jar presentation.

It was also argued that the PULSE labels constituted original artistic works within Section 2(c) of the Copyright Act, 1957, and that the defendants’ imitation infringed the plaintiff’s copyright.

Since the defendants failed to contest the proceedings and the plaintiff’s assertions remained unrebutted, the plaintiff sought summary judgment under Order XIII-A CPC read with Rule 27 of the IPD Rules, 2022.

Respondents’ / Defendants’ Arguments

No substantive defence was advanced by the defendants.

The defendants failed to enter appearance despite service and did not file written statements. The Court recorded that they had been proceeded ex parte. Consequently, the plaintiff’s material assertions remained unrebutted.

An ex parte ad interim injunction had initially been granted on 17 June 2020, restraining the defendants from manufacturing, selling, offering for sale or advertising goods bearing the impugned marks PELSE and PLUS++. Thereafter, on 20 August 2020, the defendants were proceeded ex parte, and the interim injunction was made absolute until adjudication of the suit.

Court’s Findings and Order

The Delhi High Court found that the plaintiff was the proprietor of the PULSE mark used for hard flavoured candies and fruit candies and noted that the mark had previously been recognised as a well-known trademark under Section 2(1)(zg) of the Trade Marks Act, 1999.

The Court held that PLUS++ and PELSE were deceptively similar to PULSE. It specifically found that the mere addition of the sign “++”, deletion or alteration of a letter, or replacement of the alphabet “U” with “E” did not create sufficient distinction. The marks remained phonetically and deceptively similar.

The Court also found that the defendants’ adoption of the twin-colour combination and the presence and placement of fruits in the trade dress added to the deceptive similarity. The colour scheme and overall packaging of the defendants’ products were also found deceptively similar to those of the plaintiff.

Relying upon Mondelez Foods India Pvt. Ltd. and Another v. Neeraj Food Products, 2022 SCC OnLine Del 2199, which in turn referred to ITC Ltd. v. Britannia Industries Ltd., (2016) 233 DLT 259, the Court emphasised that for inexpensive edible products sold over the counter, the colour scheme of packaging plays an important role in the consumer’s initial choice. Even where a purchaser later discovers the mistake, confusion creating initial interest may sustain an action for passing off.

Accordingly, the Court found the defendants guilty of:

  • Infringement of the plaintiff’s registered trademarks
  • Passing off
  • Violation of copyright vested in the plaintiff’s registered artistic work
  • Adoption capable of deceiving unwary consumers
  • Dishonest adoption of similar marks and trade dress

The Court further held that the defendants had neither filed written statements nor entered appearance to defend the suit. It therefore found the case appropriate for summary judgment under Order XIII-A CPC, as applicable to commercial disputes, read with Rule 27 of the Delhi High Court Intellectual Property Division Rules, 2022.

Ultimately, the Court passed a decree of permanent injunction in favour of the plaintiff and against the defendants in terms of the specified prayers in the plaint.

The Court also awarded:

Damages: ₹2,00,000
Costs of the suit: Awarded to the plaintiff

A decree sheet was directed to be drawn accordingly.

Important Clarification

This judgment is particularly important because it clarifies that minor spelling modifications or symbolic additions do not necessarily avoid trademark infringement where the competing marks remain phonetically, visually or structurally deceptive.

The Court’s finding demonstrates that:

PULSE vs PELSE — substitution of “U” by “E” was insufficient to create meaningful distinction.

PULSE vs PLUS++ — alteration of lettering and addition of “++” was insufficient where the resulting mark remained deceptively similar.

The judgment further clarifies that trademark comparison is not restricted to word marks in isolation. Courts may consider the overall commercial impression, including:

  • Colour combinations
  • Packaging layout
  • Placement of brand names
  • Slant divisions
  • Fruit imagery
  • Tagline positioning
  • Jar design and presentation
  • Overall trade dress

A further significant clarification concerns low-priced, over-the-counter edible goods. In such products, consumers may make purchasing decisions quickly, and packaging colour schemes can materially influence initial product selection. Therefore, even initial interest confusion can support a passing-off claim.

The judgment also confirms that in commercial intellectual property disputes, a full trial is not invariably necessary. Where the defendant has no real prospect of successfully defending the claim and no compelling reason exists for a trial, the Court may grant summary judgment under Order XIII-A CPC.

Sections Involved

Trade Marks Act, 1999

Section 2(1)(zg) — Definition of “well-known trade mark”; directly significant because PULSE had been judicially recognised as a well-known trademark.

Sections 28 and 29 — Relevant to the registered proprietor’s exclusive rights and infringement of registered trademarks in the context of the Court’s finding that the defendants infringed the plaintiff’s registered marks.

Passing Off Principles — Independent common-law protection against deceptive misrepresentation causing confusion regarding source, connection, association or commercial nexus.

Copyright Act, 1957

Section 2(c) — “Artistic work”; relied upon in relation to the PULSE labels and packaging artwork.

The Court found violation of the plaintiff’s copyright in the registered artistic work bearing Registration No. A-122599/2017.

Code of Civil Procedure, 1908

Order XIII-A — Summary Judgment in commercial disputes; applied because the defendants had no real prospect of successfully defending the claim and there was no compelling reason requiring a trial.

Delhi High Court Intellectual Property Division Rules, 2022

Rule 27 — Invoked along with Order XIII-A CPC in considering and granting summary judgment in the intellectual property dispute.

 Link to download the order -https://mytaxexpert.co.in/uploads/1783155634_869compressed.pdf

Disclaimer
This content is shared strictly for general information and knowledge purposes only. Readers should independently verify the information from reliable sources. It is not intended to provide legal, professional, or advisory guidance. The author and the organisation disclaim all liability arising from the use of this content. The material has been prepared with the assistance of AI tools.