Punjab-Haryana High Court
Shree Balaji Chemicals Safidon & Ors vs Baldev Raj Girdhar & Anr on 15 July, 2016
RA-109-CII-2016 (O&M) in
FAO-4927-2015
Shri Balaji Chemicals Safidon & others
Vs
Shri Baldev Raj Girdhar & others
Present: Mr. Anand Chhibbar, Senior Advocate,
with Mr. Gaurav Mankotia, Advocate,
and Mr. Saurabh Arora, Advocate,
for the review applicants-respondents.
Mr. S.K. Garg Narwana, Senior Advocate, with Ms. Shweta Nahata, Advocate, Mr. Karan Garg, Advocate, and Mr. Teevar Sharma, Advocate, for the appellants.
* * * * This is an application for review of my order and judgement dated 18.03.2016.
2. As recorded in the order, the appeal is against the judgement and order of the learned Additional Sessions Judge, Jind restraining the appellant i.e. the original defendant from infringing the registered trademark "Girdhar Khadi" by using the word "Khadi" as a trademark with any prefix and suffix or any phonetically or visually similar trademark as that of the respondents i.e. the original plaintiffs' registered trademark "Girdhar Khadi" by any deceptive variations of these trademarks.
3. There is no doubt that paragraph 2 of my order proceeded on a factually incorrect basis. Paragraph 2 reads as under:-
"The respondents i.e. the plaintiffs are the registered proprietors of the word mark "Girdhar Khadi". The application for registration was advertised before acceptance in class-30 with disclaimer to the effect that "the applicant has no exclusive right for the word 'Khadi'".
1 of 3 ::: Downloaded on - 19-07-2016 00:12:59 ::: RA-109-CII-2016 (O&M) in -2- FAO-4927-2015 The plaint did not even disclose the fact of the disclaimer. The registration certificate itself has not been produced. It is reasonable to presume that the registration certificate also contains the same disclaimer. Indeed it would be difficult to imagine the Registrar not insisting upon the disclaimer in respect of a word such as "Khadi".
Further, what is registered is the word mark and not a device mark. This itself was sufficient for the learned Judge to have rejected the application for injunction."
(emphasis supplied)
4. Obviously, what was shown to me were the papers and proceedings in respect of the registration in class-30. It is for this reason that I recorded a finding that the registration was advertised before acceptance in class-30 with a disclaimer to the effect that "the applicant has no exclusive right for the word 'Khadi'". This registration certificate is not material to the case. The plaintiffs' case was based on the registration not in respect of class-30, but in respect of class-3. This is clear from paragraph 2 of the plaint which expressly refers to the fact that plaintiff No. 1 is the registered proprietor of the said trademark in respect of washing soaps, washing powder, bleaching preparations and other substances for laundry use, cleaning, cake bath soap included in class-3. Further, paragraph 2 of the plaint expressly refers to the Registrar of Trademarks having issued a certificate of registration of trademark bearing No. 574038 dated 26.10.2006. This registration certificate which is in respect of goods under class-3 and not under class-30 was before the trial Court and it contains no disclaimer. In fact, even the advertisement 2 of 3 ::: Downloaded on - 19-07-2016 00:13:00 ::: RA-109-CII-2016 (O&M) in -3- FAO-4927-2015 before acceptance does not contain such a disclaimer. The registration under class-3 was without any disclaimer. There is no question of any typographical error in my order on account of the reference to class-30. It is obviously the certificate in respect of class-30 that was shown to me for otherwise I would not have observed that the same contains the disclaimer to the effect that "the applicant has no exclusive right for the word 'Khadi'". Had the advertisement before registration in respect of class-3 been shown to me, such an observation would never have been made.
Had the matter ended there, I would have unhesitatingly recalled my order for it was on a wrong basis of a fundamental issue of fact.
5. The only reason I do not recall my order is because in paragraph 3 I did observe that there is no visual or phonetic similarity between the marks "Girdhar Khadi" and "Garg Khadi". I also observed that there was no possibility of confusion or deception. This would obviously be an independent observation.
6. The review application is accordingly disposed of.
(S.J. VAZIFDAR) ACTING CHIEF JUSTICE 15.07.2016 Amodh 3 of 3 ::: Downloaded on - 19-07-2016 00:13:00 :::