Colgate commenced its operations in India in 1937 and since then, has been a popular household name. In July 2018, the plaintiff (COLGATE-PALMOLIVE COMPANY & Colgate Palmolive (India) Limited) was informed by its investigators in China that on 29th June, 2018 a ship containing large quantities of infringing toothbrushes bearing the mark COLDENT was to depart from a port at Ningbo, China and was scheduled to reach Kolkata ports via Krishnapatnam Port located in Nellore, Andhra Pradesh.
Anand and Anand represented Colgate and apprised the Delhi High Court of this peculiar situation and also provided the court with various details such as the name of the ship, container number and the port details. However, the name of the Indian importer was unknown.
The Hon’ble judge was further apprised regarding the various trademark registrations of Colgate and was shown the similarity between the trade dress of its products and the infringing product. The Hon’ble Judge noted the fact that the Importer had used the first name of Colgate, and has taken ‘dent’ of ‘dental’ to make it coldent, and has also taken the words, double action used by Colgate on its toothbrushes.
The learned judge took note of Section 140 of the Trademarks Act vide which the proprietor or licensee of a trademark may give notice in writing to the Customs Officials to prohibit the import any goods that may amount to infringement of their registered trademarks and the Customs Officials may require the importer of the goods or his agents to produce documents and particulars in his possession relating to the goods and to furnish information regarding the importer and exporter. Further the court held that Section 2(33) of the Customs Act defines “prohibited goods” viz: ‘any goods or export of which is subject to any prohibition under this Act or any other law for the time being in force but does not include any such goods in respect of which the conditions subject to which the goods are permitted to be imported or exported have been complied with;’ and it includes the goods the import or export of which is subject to any prohibition under the Customs Act or any other law for the time being in force, including the trademark or patent law etc., per Section 11(2)(n) of the Customs Act.
In such circumstances after hearing the Plaintiffs’ arguments, the Hon’ble Court was pleased to direct the concerned customs officials to immediately freeze the contents of the concerned ship and container and to divulge the details of the goods contained therein, the details of the exporter and importer, the value and number of goods etc. to the Plaintiffs to ensure that the matter reaches its logical conclusion. Further, the Hon’ble Court directed that in case the importer is found by the Customs Authorities, he be restrained from taking custody of the goods till the next date of hearing which is 19th September, 2018.
The matter is sub-judice before the Delhi High Court.