Delhi High Court: A suit was filed relating to the trade mark ‘WOW’ used by the Plaintiff in respect of toiletries and other products, including personal care products since 2014. Prathiba M Singh, J., restrained the defendant 1 to 4 from using the marks ‘WQVV’ or any other mark that is identical or deceptively similar to the plaintiff’s trade mark ‘WOW’, including the device and logo form of the ‘WOW’ marks, for the manufacture and sale of products.
The plaintiff’s case is that it uses the brand ‘WOW’ for many products, including supplements, herbal blends, creams, serums, lotions, shampoos, bath & body products, essential oils, etc. The plaintiff operates a website at www.buywow.in and has registered various other websites to promote its products. It also has a substantial presence on social media. The products of the plaintiff are sold in extremely distinctive containers, featuring a unique trade dress and colour combination of dark brown, white and gold. The plaintiff asserts rights in the trade mark ‘WOW’, the writing style of the said mark, and the trade dress. In addition, the plaintiff also claims design registration in respect of the plaintiff’s shampoo product. The plaint avers that the plaintiff has successfully protected its products and trade dress from infringement by initiating legal proceedings.
In the present suit, defendant 1 is VBRO Skincare Limited, defendants 2 and 3 are the proprietor of VBRO Skincare Pvt. Ltd., and proprietor of an entity named Vkeshbund Pvt., respectively, defendant 4 is Herbocare Herbal Products, which is believed to be the manufacturer of the alleged infringing products. Defendants 5 to 7 are respectively, Amazon Seller Services Private Limited, Flipkart Internet Pvt. Ltd., and Acevector Limited (‘Snapdeal’). The plaint averred that the plaintiff discovered listings for hair care products under the marks ‘VBRO’ and ‘WQVV’ on various e-commerce platforms, particularly on those of Defendant 5 to 7. These ‘WQVV’ products were found to infringe the plaintiff’s trade mark rights in the ‘WOW’ mark, and their trade dress also seemed imitative of the plaintiff’s ‘WOW’ range of products. The grievance in the present case is that the defendants, who sell identical products under the mark ‘VBRO’ and ‘WQVV’ have copied and imitated the entire trade dress, get up, lay out, colour combination, writing style of the plaintiff’s ‘WOW’ products.
The conflicting marks are
The Court noted that insofar as the trade dress, get up and colour combination is concerned, the case is one of res ipsa loquitur, where the imitation is writ large. The containers and the products sold by the Defendants are almost complete imitations of the Plaintiff’s products. The way ‘WQVV’ is depicted could easily confuse any consumer into believing that the impugned products manufactured by Defendant 1-4 is a ‘WOW’ product, especially, with the elongated ‘W’ in the third letter. The writing style and various descriptors on the containers are also identical. Even the products manufactured and sold under the mark ‘VBRO’ have an identical trade dress.
Thus, the Court concluded that the defendants’ products could be passed off as those of the plaintiff. The defendants’ products are available on various e-commerce platforms such as Amazon, Flipkart and SnapDeal. The plaintiff has made out a prima facie, case for grant of an injunction. Balance of convenience lies in favour of the plaintiff, and irreparable harm would be caused, if an injunction was not granted.
The Court restrained Defendants 1 to 4 from manufacturing, selling, offering for sale any personal care, household products, cosmetic and household products in a trade dress, colour combination, get up, lay out, arrangement or in containers that substantially imitate the Plaintiff’s trade dress, containers and products. The Court also directed defendant 5 to 7, which are e-commerce platforms, to take down the listings as set out in Document 1 to the plaint.
[Body Cupid Pvt Ltd. v. VBRO Skincare Pvt, 2023 SCC OnLine Del 7962, decided on 13-12-2023]
Advocates who appeared in this case :
Mr. Dhruv Anand & Mr. Udita M Patro, Advocate for plaintiff
Mr. Saikrishna Rajagopal and Mr. Vivek Ayyagari, Advs. for D-5
