M/S Nice Food Products v. M/S Kalyan Products

S. RAVINDRA BHAT, J

Page 1 * IN THE HIGH COURT OF DELHI AT NEW DELHI + CS (OS) 1298/2008 Pronounced on: 23.10.2009 M/S NICE FOOD PRODUCTS ..... PLAINTIFF Through: Mr. Ashok Mittal, Advocate versus M/S KALYAN PRODUCTS ..... DEFENDANTS Through: None CORAM: HON'BLE MR. JUSTICE S. RAVINDRA BHAT 1. Whether the Reporters of local papers Yes may be allowed to see the judgment? 2. To be referred to Reporter or not? Yes 3. Whether the judgment should be Yes reported in the Digest? HON'BLE MR. JUSITCE S.RAVINDRA BHAT (Open Court) * 1. The plaintiff is a proprietorship firm. The suit claims permanent injunction, damages and delivery up, alleging that the defendants have infringed the plaintiff's trademarks, and caused injury. 2. According to the suit, the plaintiff's predecessors were in the business of manufacturing and marketing confectionaries, for more than eighteen years, in "Goli, Tofeee, Candies, Lollipops, Confectionary goods and sweets. It is contended that the plaintiff, and through its predecessors had been continuously using the word trademarks "Chaa-Pat" and "Prika's Chaa- Page 2 Paat" as well as in the label forms, for their confectionary goods. The plaintiff concern claims registered ownership of the trademark "Chaa-Pat" in Classes 30 and 5, as well as in class 30, in Hindi. The registrations have been placed on record, and marked as Exh. PW-1/4 to PW-1/8. 3. The suit also alleges that the stylized label "Prika's Chaa-Paat" is an original artistic work, for which the plaintiff owns copyright, (and which is used in its labels) evidenced through registration A-57577/99 and A-58500/2001. The distinctive feature of the label is the depiction of a child with a bald, large head, in yellow; the entire layout of the label, it is claimed, is unique to the plaintiff's goods. In support of the averment, the plaintiff relies on registration certificates Ex. PW-1/9 and Ex. PW-1/10. The plaintiff's packaging pouch is exhibited as Ex. PW- 1/1. 4. The plaintiff submits that the user of the trademark and artistic devise has been continuous, since 1990 and that it has acquired a certain goodwill and reputation in respect of the goods marketed and sold by it (the plaintiff). It is stated that the plaintiff's trademark, and use of the phrase "Prika's Chaa-Paat" is inherently distinctive and was not being used by any of its competitors. The plaintiff relies on its growing sales figures, as well as copies of its invoices (marked as Ex. PW-1/140-Ex. PW-1/182) to testify its goodwill and reputation, established during the last 18 years. 5. The plaintiff alleges that in July, 2008 it learnt that the defendants are manufacturing Sweets, Golie, candies and toffees under an identical or confusingly similar word mark "Chaafaat" with the same device (of a bald boy with a large head) with a view to cause confusion and deception in the trade and public and to make unlawful and illegal gains. The Page 3 impugned mark, similar name and a deceptively similar label and device adopted by the defendant would show that the latter has used the plaintiff's trade mark as a model / guide while conceiving its trade mark. The plaintiff alleges, therefore, that the defendant's action amounts to infringement of its trade mark. It is claimed that the use of the impugned trade mark by the defendant is visually, structurally and phonetically identical to the plaintiff's trade mark and artistic label in respect of its goods and is bound to lead to confusion and deception amongst the purchasing public and trade. The mis-representation by the defendant is not only relatable to the origin of the goods but also to the quality of the products which are not of the same standard as that of the pliaintiffs. The reason for the defendant's for doing what has been done, is to encash upon the tremendous goodwill and reputation of the reputation and plaintiff's prior used trade mark, and artistic label. It is also alleged that the products or goods are purchased by a large number of customers, who rely on