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Import and Sale of Chinese Chocolates Allowed in India

Issued: December 01 2010
The case of Ferrero Spa & Anr v. Shri Maa Distribution (India) Pvt Ltd & Anr (CS (OS) 1763/2010) came before the Delhi High Court regarding the trademark infringement of the Plaintiff’s product ‘Ferrero Rocher’ and ‘Nutella,’ which are well known in the chocolate world.
 
At the first instance, the Court granted an ex-parte order in favour of plaintiff, restraining the defendant from marketing products under the trademark ‘Cherier’ and ‘Ginnou’ as those products infringed the plaintiff’s trade dress in Ferrero Rocher products. The Court further appointed a Commissioner who visited and inspected the defendant’s business premises and seized a large number of boxes and cartons containing chocolates under the trademark ‘Cherier.’
 
However, relying on the perishable nature and short shelf life of the seized products and in view of the forthcoming festival season when the sale of such items reaches its peak, the defendants applied before the Court and sought relief to the extent that their premises be de-sealed and the goods in question be released on reasonable terms. The High Court of Delhi, after reviewing various facts brought by the parties, decided to grant interim relief of de-sealing of premises and release of the goods. The plaintiff, though, argued that the defendant’s products were infringing the registered trademark and trade dress and were also in violation of a Notification issued by the Government of India under the Prevention of Food Adulteration Act. The Court decided on the basis of the available documents and reports that the products were not in breach of the requirements of the two other statutes, in terms of consisting of milk, etc., and released the seized goods.
 
The order de-sealing the defendant’s products by the Court was passed in the wake of forthcoming festival season and was interestingly based upon nonviolation of the Food Adulteration Act and a Government Notification. Hence, apart from the plaintiff’s interests, the Court also looked into the broader aspect of public interest.
 
The defendants further relied on a report of the Federation of Indian Chambers of Commerce & Industry (FICCI) Research and Analysis Centre in respect of ‘Cherier’ chocolates, as it observed that the sample was in compliance with required standards of fat content and ash content and was fit for human consumption. They further relied on two reports from Arbro Pharmaceuticals, which claimed to be ISO-certified and a government-approved laboratory. It had observed that the expiry date on the samples was 08.02.2012 (February 2, 2010) when the samples were received on 18.10.2010 (August 18, 2010) and both reports stated that melamine and milk were absent in the product.
 
It was also put on record by the defendants that they had been importing the goods for the past seven years. It was further highlighted by the Court that the report of Arbro Pharmaceutical’s report showed that there was no melamine, but it indicated presence of 0.39% of milk on a dry basis. The Court observed that the observation pertaining to the milk content was not relevant and though the report of the plaintiff was on record, the same could not outweigh the opinion established by the report of the government’s laboratory, which was later affirmed by the FICCI.
 
Eventually the Court observed that since the matter was at an interim stage and pertained to adjudication of trademark claims, orders for the release of the goods could be issued, after imposing suitable conditions. The Court observed that the goods of the defendant did not have milk. Yet, the requirements of Prevention of Food Adulteration Act and its Rules were not complied with due to absence of the name of the importer on the package. The Court observed “that the said provisions are in nature of public interest as if any damage was caused due to consumption of such goods, the importer who got the product in the market could be brought to book.”
 
The Court observed that the contravention of the Prevention of Food Adulteration Act is an offence and that it had not been called upon to decide on the matter. Yet, the Court could not be blind to the issue. The Court in the present matter elucidated that how the change in time the exchange of confectionaries was a common practice and in light of the facts it had become of relevance to consider public health issues and if the same was not handled in an appropriate manner, it would affect many.
 
Accordingly, the Court laid responsibility on the concerned authorities of the Departments of Health and Consumer Affairs of the Government of the National Capital Territory of Delhi, as well as the Central Government’s Ministry of Consumer Affairs, to take appropriate steps to publish in the media, newspapers and periodicals, as well as the public domain, explaining the existence of these standards to members of the public, to spread awareness, and to encourage the public to use caution while purchasing such goods in order to prevent any harm to the health and well being of the general public. The defendant, for the time being, was allowed to market its existing stock of ‘Cherier’ chocolates and the premises were de-sealed on the condition of furnishing of a bank guarantee worth Rs600,000 (US$13,300), accounts of sale of the seized goods, and filing an undertaking not to import any more of the goods or offer them for sale until pendency of the suit.

LEX ORBIS Intellectual Property Practice
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About the Author

Manisha Singh Nair is a partner at Lex Orbis in New Delhi. She has the distinction of practicing in both the prosecution and enforcement arenas, and has extensive experience in the post-lodgment prosecution of patents, trademarks and designs.
Tag:  Lex Orbis  Delhi High Court  Prevention of Food Adulteration Act  FICCI

 

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