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* IN THE HIGH COURT OF DELHI AT NEW DELHI

+ FAO(OS) (COMM) 171/2023
DABUR INDIA LIMITED ..... Appellant
Through: Mr. Rajiv Nayar, Sr. Adv.
with Mr. Anirudh Bakhru, Mr.
Ankur Chibber, Ms. Kripa
Pandit, Mr. Prabhu Tandon,
Ms. Navreet Kaur, Mr.
Christopher, Ms. Pragya
Chaudhary, Mr. Umang Tyagi
and Ms. Vijay Laxmi Rathi,
Advs.
versus

EMAMI LIMITED ..... Respondent

Through: Mr. Abhimanyu Bhandari, Ms.
Roohehina Dua, Ms. Charu
Mehta, Mr. Harshit Khanduja
and Mr. Sahib Kochhar, Advs.
CORAM:
HON'BLE MR. JUSTICE YASHWANT VARMA
HON'BLE MR. JUSTICE DHARMESH SHARMA
ORDER
% 21.08.2023
CAV 424/2023
Since learned counsels for the caveator/respondent has entered
appearance, the caveat stands discharged.

CM APPL. 42968/2023 (Ex. Certified Copy ) and CM APPL.

42969/2023 (Ex.)
Allowed, subject to all just exceptions.
The applications shall stand disposed of.
FAO(OS) (COMM) 171/2023 and CM APPL. 42967/2023 (Stay)
1. The present appeal is directed against the ad interim injunction
as framed by the learned Single Judge in terms of which the defendant
/ appellant has been restrained from selling its product in the
impugned packaging or any other packaging which is confusingly or
deceptively similar to that of the plaintiff / respondent. The dispute
Signature Not Verified
Digitally Signed
By:NEHA
Signing Date:24.08.2023
17:48:23
 arises in the backdrop of the appellant having launched a hair oil by
adopting the trademark “Dabur Cool King Thanda Tel”. Insofar as
the respondent / plaintiff is concerned, it had claimed in the suit that
the adoption of the aforesaid trade name as well as trade dress
amounted to infringement of its product which is sold as “Navratna
Ayurvedic Tel”. The learned Single Judge has, on a comparison of the
competing products come to conclude that while an allegation of
infringement is prima facie not made out and would appear to be
arguable, granted an ad interim injunction on the principles of passing
off.
2. The learned Single Judge has taken note of the fact that
“Navratna Oil” of the plaintiff / respondent was being sold in the
market since January 1989 as opposed to that of the appellant /
defendant who launched its product in May 2023. In terms of the
findings as returned and recorded in the impugned order and more
particularly those in paragraph 13, the learned Single Judge has
additionally come to conclude that the product of the appellant /
defendant carries similarities which are “stark” and “glaring”. It has
also been recorded that the use of red colour for the oil in question by
the appellant / defendant appears to have been “lifted” from the red
oil which is manufactured and sold by the plaintiff / respondent.
3. Before us, Mr. Nayar, learned senior counsel appearing in
support of the appeal, had contended that the appellant has been
manufacturing and distributing hair oil with cooling properties right
from 1972. The appeal, however, is principally based on what the
appellant contends was a complete lack of opportunity being granted
to it to present their case in opposition to the application which sought
grant of ad interim ex parte injunction. Mr. Nayar drew our attention
to the fact that arguments on the same were firstly heard on 07 August
2023
Signature Not Verified whereafter the matter was re-notified to be heard on 09 August
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By:NEHA
Signing Date:24.08.2023
17:48:23
 2023. According to learned senior counsel, upon conclusions of
submissions on that date, the learned Single Judge proceeded to grant
the ad interim injunction in terms aforenoted. It was submitted that the
appellants were thus deprived of an opportunity of filing a reply to the
application for ad interim injunction.
4. According to Mr. Nayar, the injunction as granted would not
sustain even otherwise in light of the admitted position that the
appellant had been selling red oil with cooling characteristics even
prior to the plaintiff / respondent as would be evident from its
trademark registration in Class 5 bearing number 282258. It was
further asserted that the appellant / defendant is also the registered
proprietor of the mark “Super Thanda Oil” bearing registration
number 1823606.
5. According to Mr. Nayar, the aforesaid factual details could not
be placed before the learned Single Judge since the appellant /
defendant had not been afforded an opportunity of filing a reply. It
was further submitted that the appellant / defendant had adopted the
trademark and brand name “Super Thanda Oil” for its red coloured
hair oil in the year 2006 itself and therefore the observation as
rendered by the learned Single Judge that the red oil had been “lifted”
by the appellant / defendant would not sustain.
6. Mr. Nayar also drew our attention to the existence of various
third party products in the market which too were red coloured cooling
hair oils with a similar trade dress and packaging. It was his
submission that all the aforesaid material would have been duly placed
before the learned Single Judge provided the appellant / defendant had
been granted due opportunity. It was further contended that once the
learned Single Judge had come to conclude that a case of infringement
had not been established prima facie and at the ad interim stage, the
ends
Signature Not Verified of justice clearly warranted the appellant / defendant being
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By:NEHA
Signing Date:24.08.2023
17:48:23
 accorded an opportunity to place its response to the application
seeking grant of ad interim injunction.
7. The aforesaid submissions were refuted by Mr. Bhandari,
learned counsel appearing for the plaintiff / respondent who submitted
that the learned Single Judge had accorded an opportunity to parties to
address exhaustive submissions and it was only thereafter that the ad
interim injunction came to be granted. Mr. Bhandari submitted that the
appeal is based on material which had not even been placed for the
consideration of the learned Single Judge. In view of the aforesaid, it
was his submission that there would exist no justification for this
Court to interfere in an appeal since the appellant / defendant would
have an opportunity to seek vacation of the ad interim injunction as
granted by the learned Single Judge.
8. Having conferred our thoughtful consideration on the rival
submissions noticed above, we find that, undisputedly, the suit upon
being presented on or about 02 August 2023 came up for
consideration for the first time on 07 August 2023. The ad interim
injunction came to be granted merely two days thereafter on 09
August 2023. Admittedly, and as per the plaintiffs / respondents own
case, the product of the appellant / defendant had been introduced
somewhere around May 2023. In our considered opinion, this fact
alone warranted the appellants / defendants being accorded at least a
rudimentary opportunity to oppose the application which sought grant
of ad interim injunction.
9. We further note that the appellant / defendant appears to have
asserted before the learned Single Judge that there were various
similar third party products which had been in existence and in due
circulation in the market. The details in respect of third party products
and marks found on the trademark registered in Class 3 and 5 have
also
Signature Not Verified been set forth in the appeal. We also take note of the contention
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By:NEHA
Signing Date:24.08.2023
17:48:23
 of Mr. Nayar that bearing in mind the admitted fact that its product
“Dabur Super Thanda Oil” had been introduced way back in 2006
also was a circumstance which would have warranted consideration by
the learned Single Judge.
10. In our considered opinion, these and other contentions which
are addressed must necessarily be examined by the learned Single
Judge in the first instance and it would clearly be inappropriate for us
to enter any observation in this respect.
11. All that we deem necessary to observe is that in light of the
contentious issues which stood raised, the ends of justice would have
warranted the learned Single Judge affording an opportunity to the
appellant / defendant to oppose the application for grant of ad interim
injunction by placing all relevant material on the record. This would
have enabled the learned Single Judge to obtain a more holistic view
of the dispute that arises. We are thus of the opinion that the
circumstances merit the matter being remanded to the learned Single
Judge for consideration of the ad interim injunction application afresh
and after affording an opportunity to the appellant / defendant to file a
reply in opposition. Consequently, the impugned order would merit
being set aside on this short ground alone.
12. Accordingly, and for all the aforesaid reasons, the present
appeal shall stand allowed. The impugned order dated 09 August 2023
shall stand set aside. The matter shall consequently stand remitted to
the board of the learned Single Judge who may proceed to consider
the application for ad interim injunction afresh, in accordance with
law and without being influenced by any observation appearing in this
order.
13. Since we have chosen to remand the matter to the learned
Single Judge on the short ground of a lack of an opportunity to the
appellant
Signature Not Verified / defendant to oppose the application for ad interim
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By:NEHA
Signing Date:24.08.2023
17:48:23
 injunction, though needless to state, we observe that we have not
considered the merits of the rival contentions that were addressed and
have been briefly noticed hereinabove and all aspects in this respect
are kept open for the consideration of the learned Single Judge.
14. In order to fast track the consideration of the application for ad
interim injunction which had been made by the plaintiff / respondent,
we further direct the appellant / defendant to file its response to the
application under Order XXXIX Rule 1 and 2 of Code of Civil
Procedure, 1908 within a period of two weeks from today.
15. We accord liberty to the respondent / plaintiff to move the
learned Single Judge with an appropriate prayer for reconsideration of
its ad interim injunction application. The appellant / defendant shall
render all cooperation in the expeditious disposal of the said
application.
16. The appellant / defendant shall also maintain a detailed record
of all sales of its products that may be made till such time as the
aforesaid application is decided afresh and place the same before the
learned Single Judge at such intervals as may be provided by that
Court.

YASHWANT VARMA, J.

DHARMESH SHARMA, J.
AUGUST 21, 2023
neha

Signature Not Verified

Digitally Signed
By:NEHA
Signing Date:24.08.2023
17:48:23