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"YO!" is common to the trade and of non-distinctive character. The impugned registration confers an exclusive right in respect of such non-distinctive mark such as "YO!" in favour of the plaintiff, which is in contravention with the provision of Section 17(2)(b) of the Act, and is therefore, ex facie invalid registration.

15. Counsel for the defendant submits that there is no infringement whatsoever of the impugned trade mark registrations as alleged. The defendant is not using "YO!" as trade mark which is the condition precedent to constitute infringement under the provisions of Section 29 of the Act. He states that the goods of the defendant in issue in present proceedings are noodles. These goods have been sold in the market since 1974 under the trade mark "MAGGI" which is a household name in India and several other countries. "MAGGI" by itself is a brand which enjoys a turnover of over Rs.493 crores. The trade mark "MAGGI" is the brand which identifies the packaged noodles. The said mark has even been appearing on the packaged noodles since 1974 and have remained unchanged and continue to appear on the packaging prominently. Accordingly, it is forcefully asserted that it is wholly misconceived on the part of the plaintiff to allege that the defendant is using "YO!" as a trade mark and the plea of infringement made by the plaintiff is liable to be rejected on this ground alone.

16. The defendant states that in order to indicate the flavor of noodles and to relate it to the youngsters, MASALA and CHILLY CHOW is used as "flavor descriptor" upon the packaging highlighting the characteristic and quality of the noodles in conjunction with "YO!" to attract the segment of youth as targeted consumers. It is asserted that the use of word MASALA YO! as flavour descriptor is a bona fide use and cannot be objected. The bonfide of use of "Masala Yo!" by the defendant is established from the fact that MAGGI CUPPA MANIA insta noodles is a cupped packaged noodles which is instant noodles and targeted to the youth market who would find it a useful companion on a trip, tour, picnic, college and school outings etc. The purpose and objective of the packaged instant noodles and its targeted consumers which predominately comprise of the youth segment, justifies the use of expression of excitement YO! in conjunction with the flavor descriptor "Masala" or "Chilly Chow" by the defendant in respect of instant noodles marketed under the well known and extensively reputed household brand "Maggi" in India.

18. The defendant further submits that the manner of use of the expression "MASALA YO!" and CHILLY CHOW YO!" by the defendant upon the MAGGI CUPPA MANIA instant noodles packaging clearly establishes that -

i) The brands/trademarks under which the instant noodles of the defendant are marked are MAGGI and CUPPA MANIA;
ii) The defendant used MASALA and CHILLY CHOW as "flavor descriptor" upon the packaging highlighting the characteristic and quality of the noodles in conjunction with "YO!" (Which means exclamation with excitement) to attract the segment of youth as targeted consumers.

19. The defendant submits that notwithstanding that „YO!" may be a registered trade mark by itself or in conjunction with the other marks, cannot be a ground to interfere with and injunct permitted use thereof by the statute. Such use is not a "trade mark usage". Such use therefore does not amount to infringement of a trademark "YO!".

20. The defendant states that the suit is misconceived and no injunction is liable to be issued against the defendant since there is no likelihood of confusion or deception between the competing products merely on account of use of the mark "YO!" by the defendant. It is further stated that there are no similarities between the distinguishing features of competing products including their trade marks, their packagings and the goods in question and as such there can‟t be any likelihood of confusion or deception by the use of the mark "YO!" in conjunction with "MASALA" and "CHILLY CHOW" notwithstanding the fact that the instant noodles of the defendant are marketed under its well known, internationally reputed and household brand MAGGI which is being used in India since 1974 and is a leading brand in the packaged noodles segment having 91% market share. It is asserted that there is no similarity whatsoever, between the trade mark "Yo! China" of the plaintiff and the trade mark "Maggi" used by the defendant. It is also stated that even there is no similarity whatsoever between the manner of use of the expression/exclamation "Yo!". The term "Yo!" is not used as a brand by the defendant. There is no prominent usage of product descriptor "Masala Yo!" by the defendant. The trade mark and get up of the packaging of their product is distinctive by itself and distinguishes packaged noodles manufactured and marketed by them. The defendant states that it has always packaged "Maggi" culinary products in packaging having distinctive colour combination of red and yellow since 1974. Thus the question of any passing of arising as alleged by the plaintiff cannot arise.