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63. Learned Senior Advocate Shri Kamal Trivedi for the Respondents / Original Plaintiffs have placed reliance on the following judgments, which are very much similar to the one on hand and submitted that the Courts have made such overall comparison as discussed herein above, while granting injunction against the usage of objectionable device mark / label. He has relied upon the following judgments which are as under:
Sr. Name Citation Pg. Original mark Copied mark
No. No. (1st
(1st Compilation Compilation of
of Judgments of Judgments of
Respondents) Respondents)
1. Parle Products (1972) 1 SCC 1-6 A wrapper / label A wrapper / label of
(P) Ltd. vs. J.A. 818 of partly yellow partly yellow and
& Co. Mysore and partly white in partly white in
colour, having a colour, having a
picture with a girl picture of a girl and
in centre, carrying birds in the center,
a pot of water on with hay-bundle on
her head with two her head supported
calves around her with one hand and
and hens in the carrying a stick and
foreground and a bundle of food in
farm house with a the other hand with
fence in a cows and hens
background with around.
words, "Parle's
Gluco Biscuits"
printed thereon.
2. Dabur India 2012 SCC 7 - 21
Limited Vs. Online Del. 3332
Shree Baidyanath
Ayurved Bhawan
Pvt. Ltd.
3. Marico Ltd. Vs. 2014 SCC 22 - 40
Pratik Goyal Online Del. 1786
5. Mother Dairy 2015 SCC 66 - 75
Fruit & Online Del.
Vegetable Pvt. 10637
Ltd Vs. Sri
Vinayaka Milk
Products
7. Parle Agro Pvt Judgment dated 91 - 95
Ltd. vs. Gulam 28.03.2018
Moinuddin Khan rendered by
and Anr. Hon'ble Bombay
High Court
8. Parle Products MANU/MH/149 96 - 101
Pvt. Ltd. V/s. 2/ 2020
Future Consumer
Ltd.
9. Gujarat Tea Order dated 102 - 123
depot. Co. Vs. 04.08.2015
Bagharam passed by this
Krupaji Ganchi Hon'ble Court
10. Taw (1951) RPC 271 124 - 129
Manufacturing
Coy Ld. Vs.
Notex
Engineering Coy.
Ld
(G) Case Law Discussion:
(v) Parle Products Ltd. vs. Bakeman Industries Ltd.
reported in MANU / TN / 1824 / 1998 ;
This is also not a good law in view of the Apex Court's judgment in case of Parle Products (P) Ltd. vs. J. P. & Co., Mysore.
(vi) Britannia Industries Ltd Vs ITC Limited reported in MANU / DE / 0626 / 2017;
This judgment is for passing off action of Britannia and not for infringement of trade mark or copyright, as it is there in the present case. Secondly, in this case, Britannia was there in the business of biscuits since many years, whereas in the present case, the Appellant- Defendant is yet to enter in tea business. Hence, the said judgment cannot be applied to the present case.
138. The reliance placed by learned Advocate Mr. Shah in case of Parle Products Limited v. Bakemans Industries Limited (supra) is also not applicable to the facts of the present case. The said judgment is not a good law in view of the judgment of the Hon'ble Apex Court in case of Parle Products (P) Ltd. vs. J.A. & Co. Mysore (supra).
139. Learned Advocate Mr. Shah has also placed reliance upon the discussion of the Hon'ble Apex Court in case of Cadila Healthcare v. Cadila Pharmaceutical (supra) wherein the Hon'ble Apex Court has rejected the adoption of the English principles regarding the weightage to be given to the dissimilarities, however, Hon'ble Apex Court has not stated that the principles concerning the colour combination as laid down in various English judgment would not be relevant for the Indian Jurisdiction. In paragraph 33 of the said judgment, the Hon'ble Apex Court has observed that the English cases would be relevant in understanding essential feature and therefore considering the long line of English as well as American judgments as narrated in the commentary of Kerly's Law of Trade Marks and Trade Names and narrated by various Hon'ble High Court (i.e. Britania Industries v. ITC Ltd.), it is clear that it would be very difficult for anyone to claim passing off solely on the basis of colour combination as essential feature. Learned Advocate Mr. Shah has submitted that In such circumstances, learned Trial Court out to have appreciated that the Respondents / Original Plaintiffs have no prima facie case of passing off and therefore injunction ought not to have been granted.
Sr. Name Citation Pg. Original mark Copied mark
No. No.
(1st (1st
Compilation Compilation
of Judgments of Judgments
of of
Respondents) Respondents)
1. Parle Products (P) (1972) 1 SCC 1-6 A wrapper / label A wrapper / label of
Ltd. vs. J.A. & Co. 818 of partly yellow partly yellow and
Mysore and partly white partly white in
in colour, having colour, having a
a picture with a picture of a girl and
girl in centre, birds in the center,
carrying a pot of with hay-bundle on
water on her head her head supported
with two calves with one hand and
around her and carrying a stick and
hens in the bundle of food in
foreground and a the other hand with
farm house with a cows and hens
fence in a around.
background with
words, "Parle's
Gluco Biscuits"
printed thereon.
2. Dabur India 2012 SCC Online 7 - 21
Limited Vs. Shree Del. 3332
Baidyanath
Ayurved Bhawan
Pvt. Ltd.
3. Marico Ltd. Vs. 2014 SCC Online 22 - 40
Pratik Goyal Del. 1786
5. Mother Dairy Fruit 2015 SCC Online 66 - 75
& Vegetable Pvt. Del. 10637
Ltd Vs. Sri
Vinayaka Milk
Products
7. Parle Agro Pvt Ltd. Judgment dated 91 - 95
vs. Gulam 28.03.2018
Moinuddin Khan rendered by
and Anr. Hon'ble Bombay
High Court
8. Parle Products Pvt. MANU/MH/149 96 - 101
Ltd. V/s. Future 2/ 2020
Consumer Ltd.
9. Gujarat Tea depot. Order dated 102 - 123
Co. Vs. Bagharam 04.08.2015
Krupaji Ganchi passed by this
Hon'ble Court
10. Taw Manufacturing (1951) RPC 271 124 - 129
Coy Ld. Vs. Notex
Engineering Coy.
Ld