Justice Ravinder Bhat of the Delhi High Court in an order dated 29th October, 2010 (click here for the order) ordered the partial release & de-sealing of a consignment of confectionary which had earlier been seized by a Court appointed Commissioner on the grounds that they, prima facie, infringed the trademark rights of the Plaintiff company – the famous Ferrero, manufacturers of ‘Ferrero Rocher’ and ‘Nutella’ – and also on the grounds of ‘public interest’ i.e. there was a reasonable suspicion that the products were being imported from China in contravention to a government order banning the import of milk-based products from China. The reason for the Government circular was the infamous ‘Melamine in Milk’ scandal that rocked China in 2008. Originally Justice Bhat had appointed, on 14th September a Commissioner, on an application made by the Plaintiffs, since he was convinced that the packaging of the product was deceptively similar to that of the Plaintiffs. (The defendants were however not using the ‘Ferrero Rocher’ & ‘Nutella’ brands and were instead selling the products under the brands Cherier and Ginnou respectively.)After ordering the testing of the Defendant’s products in both private laboratories and government accredited laboratories Justice Bhat came to the conclusion that the defendant’s products though imported from China did not really contain the banned substance and the import was in consonance with the Government orders on importation from China as also the prescribed norms under the Prevention of Food Adulteration Act. Since the ‘public interest’ angle was taken care of, Justice Bhat ordered the release of the consignment as the Defendant argued that firstly the consignment, containing the Cherier chocolates, would otherwise expire, causing irreparable injury and secondly that their main market i.e. Diwali season, was drawing to a close. Justice Bhat however ordered the defendants to furnish a bank guarantee of Rs. 6 lakhs and an injunction against the further import of the Ferrero Rocher lookalikes until the pendency of the suit.
While Justice Bhat was completely justified in releasing the seized goods on the grounds of irreparable injury, his inquiry into the ‘adulteration’ angle, under the Prevention of Adulteration Act, is questionable. The Prevention of Food Adulteration Act, to the best of my knowledge and belief, contains an elaborate mechanism to investigate and prosecute all adulteration cases as criminal and not civil offences. When Parliament has deemed it fit to consider adulteration as only a penal offence, a civil court is automatically barred from dealing with adulteration cases. The appropriate remedy would have been to dismiss any adulteration claims raised by the Plaintiffs and instead to refer them to the appropriate mechanism under the appropriate legislation.
Interesting post…got Ferrero Rocher as Diwali Gift from my employers…wondering these are original or fakes !!!
Don’t worry Anon, the lookalikes were being sold under the ‘brand’ Cherier and not Fererro. 🙂 Happy Diwali
Reg your last para:
If one’s right is affected/if one is likely to be put at a loss by another’s criminal act, do the civil courts not have power to award relief?
Hi Prashanth
Don’t you think an enquiry into aspect of “food adulteration” is unnecessary if Ferrero was seeking an injunction against a “lookalike”?
@Anon(7:40): Civil Courts cannot assume jurisdiction under a penal statute. If the plaintiff can make out the case for a tort, then a civil court can intervene.
@Anon (10:05): Well ‘food adulteration’ always helps hype up the case so although it was unnecessary for an injunction it makes strategic sense to use it as a ground of challenge.
Dear Prashant,
He is Justice “RavinDRA” Bhat, not Justice “RavinDER” Bhat. He’s a Mangalorean, not from the North, so it’s not the same as satinder/jitender/rajinder/maninder 😉
Cheers
lol! Thanks for pointing it out!
Cheers,
Prashant