The Delhi High Court applying the test of “person of average intelligence with imperfect recollection” ruled that the Respondent is a prior user of the mark “Gulab Ka Phool” user and a well-registered proprietor of the said mark and even if the packaging is different, the Appellant cannot use “Gulab” or any other deceptively similar mark as the same would constitute trademark infringement.
Brief Facts:
A suit was filed by the Respondent (“Plaintiff” in the suit) seeking a permanent injunction against the Appellant from infringing the trademark/copyright of the Respondent. As claimed by the Respondent, the Respondent is involved in the business of manufacturing and selling packaged namkeens, salted, roasted, and baked products under the trademark “Gulab”. Through some marker sources, the Respondent became aware of the Appellant selling namkeen, cashew nuts, etc., under the trademark “Gulab”. It is alleged that this action of the Appellant constitutes trademark infringement. The Learned Commercial Court restrained the Appellant from using the trademark “Gulab” as the same was infringing the Respondent’s trademark “Gulab Ka Phool”, registered under Class 30.
Hence, the present appeal is preferred against the order passed by the Learned Commercial Court vide which the application under Order XXXIX Rule 1 and 2 of the Code of Civil Procedure, 1908 (hereinafter referred to as “CPC”) was allowed and the application under Order XXXIX Rule 4 of CPC seeking vacation of ad interim order was rejected.Background of the Case:
The Respondent stated that the mark “Gulab” is being used since 1910 and that the business expanded over the years under the said trademark.
As per the Appellant, in 1996 under the name of M/s Mangrol Oil Mill, the business of edible oils, food grains, etc. was started by the Nathwani family and M/s Mangrol Oil Mill is the parent entity of “Gulab” and has obtained the registration of the same in 1993. It is alleged that the Nathwani family had other businesses as well including M/s Pankaj Industries and M/s Pankaj Foods. Thereafter, the business was further expanded to include namkeens, peanuts, etc., under the trademark “Gulab”. It was in 2019 that the proprietor of M/s Pankaj Industries decided to transfer the existing business to a new company i.e., the Appellant.
Contentions of the Appellant:
It was contended that the Respondent was not the proprietor of the said trademark “Gulab Ka Phool” as the application is still pending before the Registry. Another contention was that since the Learned Commercial Court was of the view that the packaging of the products was not deceptively similar, the case for passing off ought to have been rejected.
Observations of the Court:
The High Court concurred with the findings of the Learned Commercial Court. The Respondent’s trademark was in connection with sweet edible items whereas the business of selling namkeens was started in 2000 by the Respondent and hence, the Commercial Court observed that the said items are allied and cognate goods and would be entitled to the protection of the registered trademark.
Regarding the contention that the name of the Respondent is not registered as the proprietor with the Registry, the Bench held that the contention does not hold water as the Respondent has claimed the ownership of the said mark via succession.
The Delhi High Court further remarked that even though there were dissimilarities, there exists a likelihood of confusion as both the marks use the device of a rose and the word “Gulab”. The target customers of both parties are also the same and therefore, the person of average intelligence with imperfect recollection would get confused.
The decision of the Court:
Based on the abovementioned reasons, the Bench dismissed the appeal while upholding the order passed by the Learned Commercial Court.
Case Title: M/S Gulab Oil and Food (Ahmedabad) Pvt. Ltd. V. Smt. Madhu Gupta
Coram: Hon’ble Mr. Justice Vibhu Bakhru, Hon’ble Mr. Justice Amit Mahajan
Case No.: FAO (COMM) 138/2021 & CM APPL.31852/2021
Advocates for Appellant: Adv. Mr. Aniruddha Deshmukh & Mr. Nikhil Goel
Advocates for Respondent: Adv. Mr. Sanjeer Singh
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(With input from news agency language)
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