Prakash Yedhula
(Lawyer)
08 October 2007
[font=""trebuchet ms""]Hello mmn,
Nice to see you differ from my view point. However, it is my pleasure to bring to your notice the following cases decided recently and reported in cdjlawjournal.
1) Balkrishna Hatcheries Versus Nandos International Ltd. & Another
High Court of Judicature at Bombay
Date of Decision: 04-06-2007
THE HONOURABLE MR. JUSTICE D.K. DESHMUKH
Civil Procedure Code ΓÇô Order 39 Rule 1, 2 - Trade Mark Act, 1999 - Section 29(1), 29(2)(b), 29(4) - Similarities ΓÇô Goods and services - Plaintiffs goods are not similar to or associated with the Defendants services and sale of sauces. The goods of the Plaintiff (processed or frozen meat products) and the 1st DefendantΓÇÖs services/goods (restaurants/food outlets and sale of sauces) cannot be said to be similar or associated because: (i) The Plaintiffs products are bought for cooking at home; the 1st DefendantΓÇÖs services are those of hospitality, entertainment and social interaction apart from the specialized Afro-Portuguese Cuisine at a restaurant. The Plaintiffs advertisements are clearly for frozen goods. On the other hand the Defendants Menus are the antithesis of that. The Menus say ""Freshest (never frozen)"" - (ii) The Plaintiffs products are bought by shoppers for groceries/foods to be consumed at home; the 1st DefendantΓÇÖs services are enjoyed by those who wish to go outside their homes and to socialize and enjoy the ambience of a specialized restaurant (usually of a higher middle or upper income bracket) - (iii) The Plaintiffs products are uncooked or processed frozen meat products and they have to be fried or cooked to be eaten; the 1"" DefendantΓÇÖs services are of a restaurant - (iv) The Plaintiffs products are sold at cold storages, wholesale distributors and supermarkets. They have to be fried or cooked to be eaten; the 1st DefendantΓÇÖs food is served at its restaurants and is chosen from a menu - (v) The Plaintiffs products would be found at cold storages or at the frozen foods, meats counters at supermarkets; the 1st DefendantΓÇÖs food would not be found at supermarkets - (vi) The Plaintiffs frozen and processed meat products do not compete with the 1st DefendantΓÇÖs restaurants/food outlets nor with the 1"" DefendantΓÇÖs sauces - (vii) Frozen and Processed meat products are not traded/provided by the same business as a restaurant or a manufacturer of sauces. It is, therefore, apparent that there is no similarity or association between the PlaintiffsΓÇÖ products and the first Defendant Restaurant and sale of sauces - The plaintiff has not made out prima facie case. Moreover the balance of convenience is also in favour of the Defendants: (i) The Plaintiff has not even commenced any restaurant/food outset business; (ii) The Plaintiff had knowledge of the Indian operations of the 1st Defendant since at least 2003. (iii) The Defendants restaurant at Malad was opened and has been operating since December, 2005; (iv) The two alleged letters relied upon by the Plaintiff to show confusion apart from being disputed, both emanate from Bangalore. There is no real evidence of confusion. (v) On the other hand no prejudice will be caused to the Plaintiff if the injunction is refused -The plaintiff is not entitled to any interim relief. The notice of motion is disposed of.
2) Radico Khaitan Limited Versus Saroj Bhatt & Others
Date of Decision: 04-06-2007
THE HONOURABLE MR. JUSTICE A.K. SIKRI
High Court of Delhi
Code Of Civil Procedure, 1908 ΓÇô Order 39 rules 1, 2 - Trademark Act, 1999 - Section 29 (4), 2, 11(6), 28, 29, 159 - the defendants' own case they have no intention to deal with the goods in which the plaintiff is dealing. The only question, therefore, is as to whether the defendant should be allowed to diversify and/or expand the use of their trademark RADICO. After taking holistic view of the matter and aforesaid facts cumulatively, I am of the view that the defendants may be allowed to continue to manufacture, sell and/or trade in dealing with henna products, body dots/bindis, fashion bags, belts, pashmina products, aroma products, silver and fashion jewellery, embroidered dresses, scarves, Indian handicrafts and ayurvedic products as well as other products in which they are dealing at present. However, in so far as diversification/expansion is concerned, the defendants would be allowed to do so limited to products falling in Class 3 alone and would not use the trade name/trademarks RADICO in respect of other products falling in other Classes without the prior permission of the Court. Subject to this, injunction order granted shall continue - Application stands disposed of.
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