‘PELSE/PLUS++ may deceive consumers’: Delhi HC grants permanent injunction to PULSE candy

Finding the defendant guilty of infringing the Dharampal Satyapal Group’s registered trademarks as also passing off, the high court observed that the adoption of the similar trade mark and trade name by the defendants is not only a violation of the rights of the plaintiff but could also “deceive general unwary consumers and appears dishonest”.

DS Confectionery Products Limited is part of the Dharampal Satyapal Group, a diversified conglomerate founded in the year 1929 that is engaged in the business of food and beverage products, confectionery, hospitality, mouth fresheners, paan masala and tobacco, among others.

The company asserted that it has been a leading industrial player creating premium high-quality products and is recognised as a market leader in traditional natural mouth fresheners, with trade names such as, ‘Catch’, ‘Pass-Pass’, ‘Tulsi’, ‘Rajnigandha’ and ‘Chingles’.

The company said that its trademark ‘PULSE’ – a fruit candy manufactured in several flavours like guava and ‘kachcha aam’ or raw mango – was declared a “well known trademark” by the high court in an October 2019 order in another case. In May 2020, the plaintiff learned that candies were being sold under the ‘PELSE’ mark along with raw mango-flavoured candies under the ‘PLUS++’ mark.

On June 17, 2020, the high court granted an ex parte interim injunction, restraining M/s Silver Products and others, from manufacturing, selling, offering for sale, and advertising, directly or indirectly, the goods bearing the ‘PELSE/PLUS++’ marks.

In its November 22 judgment, the high court found that the ‘PLUS++/PELSE’ trademarks are “deceptively similar” to that of DS Confectionary. “Mere addition of the sign ‘++’ or deletion of the alphabet ‘E’ from the mark of the plaintiff, in my opinion, is not sufficient to bring about a distinction in the two marks, as the same would remain phonetically similar. Similarly, replacement of the alphabet ‘U’ by ‘E’ in the mark PELSE by the defendants would also not bring about sufficient distinction between the mark of the plaintiff and the defendants to answer the test of deceptive similarity of the two marks,” the high court noted.

The high court further noted that even the colour combination and the presence and placement of the fruit(s) on the trade dress added to the deceptive similarity of the two marks. Further, the colour scheme and the overall packaging of the products on ‘PELSE/PLUS++’ appeared to be deceptively similar to that of ‘PULSE’.

“In Mondelez Foods India Pvt Ltd and Another v Neeraj Foods Products, 2022 SCC OnLine Del 2199, while placing reliance on a judgment of this Court in ITC Ltd v Britannia Industries Ltd, (2016) 233 DLT 259, this court has held that when the product is an eatable which are sold over the counters and not expensive, the colour scheme of the packaging plays an important role in the consumer making an initial choice and in enabling a discerning consumer to locate the particular brand of a manufacturer. In some cases, however, it is possible that such a purchaser after having been misled into an initial interest in a product manufactured by an imitator discovers his folly, but this initial interest being based on confusion and deception can give rise to a cause of action for the tort of passing off, as the purchaser has been made to think that there is some connection or nexus between the products and business of two disparate companies. The above observations are fully applicable to the facts of the present case,” the high court said.