Bombay High Court
Parle Agro Private Limited vs Shree Balaji Food And Beverages And And 3 ... on 6 August, 2019
Author: K.R.Shriram
Bench: K.R.Shriram
1/4 14.NMCDL-1795-2019.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY AND ORIGINAL CIVIL JURISDICTION
IN ITS COMMERCIAL DIVISION
COMMERCIAL NOTICE OF MOTION (L) NO.1795 OF 2019
IN
COMMERCIAL IP SUIT (L) NO.818 OF 2019
Parle Agro Private Limited ....Applicant/Plaintiff
Vs.
Shree Balaji Food & Beverages & Ors. ....Defendants
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Mr. Hiren Kamod a/w. Mr. Nishad Nadkarni I/b. Khaitan and Co. for
applicant/plaintiff.
Mr. K. U. Fule for defendant nos.2 and 3.
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CORAM : K.R.SHRIRAM, J.
DATE : 6th AUGUST 2019 P.C.:
1 Mr. Kamod states that all defendants have been served and only defendant nos.2 and 3 are represented in Court. Mr. Fule appearing for defendant nos.2 and 3, at the outset, states that he is an advocate practicing in Nagpur and undertakes that an advocate practicing in Bombay and registered in the original side will file Vakalatnama within one week from today. Undertaking accepted.
2 Mr. Fule also states that defendant nos.2 and 3 were silent partners of defendant no.1 and the main person is defendant no.4. Mr. Fule is seeking time to file an affidavit in reply.
3 Plaintiff's case is that defendant no.1 of which defendant nos.2 to 4 are partners were appointed as franchisee by an agreement dated Gauri Gaekwad ::: Uploaded on - 06/08/2019 ::: Downloaded on - 07/08/2019 04:06:31 ::: 2/4 14.NMCDL-1795-2019.doc 13th March 2013 to manufacture, fill, pack, sell and distribute the BAILLEY products in the territory of Nagpur, Wardha, Chandrapur and Bhandara. The agreement came into force from 1st September 2013 and was valid till 31st August 2016. The tenure of the agreement was extended by an addendum dated 30th August 2016 till 18th October 2017. Whilst the renewal of the agreement was being contemplated, plaintiff had realised that the BIS license of defendants had expired in November 2017 and therefore, plaintiff called upon defendants to cease the manufacture and any sale of the BAILLEY products till such time that all licenses including in particular the BIS license has been renewed. Negotiations ensued but since defendants failed to get its BIS license renewed, plaintiff by a letter dated 24th May 2018 specifically recorded that the franchise agreement stood terminated and called upon defendants to cease all activities with regard to the BAILLEY products.
4 It seems plaintiff saw newspaper articles on or about 17 th July 2019 stating that BIS (Bureau of Indian Standards) had raided the premises of defendants and amongst other products found packaged drinking water bearing the mark BAILLEY, PARLE AGRO BAILEY and the BAILLEY label packaged in jars which were identical to the BAILLEY jar of plaintiff. The product is water and if water is contaminated or spurious product is introduced in the market, it would cause harm and injury to the general Gauri Gaekwad ::: Uploaded on - 06/08/2019 ::: Downloaded on - 07/08/2019 04:06:31 ::: 3/4 14.NMCDL-1795-2019.doc public. Not only plaintiff's profits will be affected but it will end up affecting the general public. In such cases, we must remember that the product is water and any kind of confusion by the customer can have an unpleasant if not disastrous results. The Courts need to be particularly vigilant where defendant's packaged water are being passing off as plaintiff's. The confusion is more likely in such cases to result in loss of life or other serious health problems. As held in Cadila Health Care Limited V/s. Cadila Pharmaceutical Limited1 public interest would support lesser degree of proof showing confusing similarity in the case of names of companies manufacturing medicinal products as against other non medicinal products.
It would apply equally for packaged water. Confusion between products of manufacturers may lead to threat of life. As held in Indchemie Health Specialities Pvt. Ltd. V/s. Naxpar Labs Pvt. Ltd. & Anr. 2 where medicinal products (and I would add it extends to packaged water) are involved the test to be applied for adjudging the violation of trade marks law for passing off may not be at par with cases involving non medicinal products. A stricter approach should be adopted while applying the test to judge the possibility of confusion of one product for another by the consumer. 5 In the circumstances, ad-interim in terms of prayer clauses - (a) and (c) has to be granted and is hereby granted.
1. 2001 PTC 300 (SC)
2. 2002 (24) PTC 341 Gauri Gaekwad ::: Uploaded on - 06/08/2019 ::: Downloaded on - 07/08/2019 04:06:31 ::: 4/4 14.NMCDL-1795-2019.doc 6 Affidavit in reply to be filed and copy served by 20 th August 2019. Rejoinder, if any to be filed and copy served by 29th August 2019. 7 Stand over to 3rd September 2019 on which date clause 14 petition be also listed.
8 By 31st August 2019 all office objections in the notice of motion and suit to be removed and notice of motion and suit to be numbered, failing which notice of motion and suit will stand dismissed without further reference to this Court.
(K.R. SHRIRAM, J.) Gauri Gaekwad ::: Uploaded on - 06/08/2019 ::: Downloaded on - 07/08/2019 04:06:31 :::