Calcutta High Court
Shree Ganesh Besan Milll And Ors vs Ganesh Grains Limited And Anr on 24 December, 2021
Author: Aniruddha Roy
Bench: Aniruddha Roy
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
COMMERCIAL DIVISION
Original Side
Present:- Hon'ble Justice I. P. Mukerji
Hon'ble Justice Aniruddha Roy
APO 69 of 2021
CS 92 of 2020
IA NO: GA 2 of 2021
SHREE GANESH BESAN MILLL AND ORS.
Vs.
GANESH GRAINS LIMITED AND ANR.
For the Appellants : Mr. Manish Biala,
Mrs. Jayati Choudhury,
Mr. Ashutosh Upadhyay,
Mr. Devesh Ratan,
Ms. Ranjana Seal, Advs.
For the Respondent : Mr. Ranjan Bachawat, Sr. Adv.,
Mr. Debnath Ghosh,
Mr. Soumya Roy Choudhury,
Mr. Shounak Mitra,
Ms. Vaibhavi Pandey, Advs.
Judgment on : 24.12.2021
I. P. MUKERJI, J.-
SUMMARY OF FACTS
This is a trademark appeal in this court's Commercial Division.
It is from a judgment and order dated 15th March, 2021 read with the
order dated 17th March, 2021, in terms of prayers (a), (b), and (c) of the
petition, made by the learned Interlocutory judge on an interim application
filed by the respondent plaintiffs, in the suit, inter alia, complaining of
infringement of their registered word mark "Ganesh" by the
appellant/defendants.
Prayers (a), (b) and (c) are inserted below:-
"a) The respondents their men, servants, agents, assigns, dealers,
distributors and/or any one claiming on their behalf be restrained from
infringing the petitioners' registered trademark "GANESH" by selling,
manufacturing, marketing, advertising and/or otherwise dealing in any
goods or services under the mark "Shree Ganesh" or under any other mark
which is identical with or deceptively similar to the petitioners' registered
trademark "Ganesh" in any manner whatsoever;
b) The respondents, their men, servants, agents, assigns, dealers,
distributors and/or any one claiming on their behalf be restrained from
infringing the petitioners' registered trademark "Ganesh" by carrying on
business under the name and style of SHREE GANESH BESAN MILL or
under the mark "Shree Ganesh" or any business name or trading name
which is identical with or deceptively similar to the petitioners' registered
trademark "GANESH" as part of their trading name in any manner
whatsoever;
c) The respondents, their men, servants, agents, assigns, dealers,
distributors and/or any one claiming on their behalf be restrained from
passing off their goods and business as that of the petitioners by selling,
manufacturing, marketing, advertising and/or otherwise dealing in goods or
services under the mark "Shree Ganesh" or carrying on business under the
mark "Shree Ganesh" or under any other mark which is identical with or
deceptively similar to the petitioners' registered trademark "GANESH" in
any manner whatsoever."
The respondent No. 1 manufactures and markets within India and exports
out of the country, flour products like wheat, besan and so on. It has
substantial sale in West Bengal and some market in neighbouring states.
At the present point of time the appellant No.1 is also a manufacturer of
similar products from Raipur in Chattisgarh and have substantial sale in
Chattisgarh, Orissa, Jharkhand, Bihar and Madhya Pradesh but not in
West Bengal. This respondent has a turnover in excess of Rs.500 crores
per annum. The turnover of the appellant No.1 is much smaller.
The facts of this case from the pleadings and documents in short are like
this.
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Ganesh Flour Mills was manufacturing and marketing flour using the
mark "Ganesh" since 1936. At that time, the forefathers of the second
respondent ran the business. Eventually, the business was acquired by
the father of the second respondent Brij Ratan Mimani who ran it from 88,
Burtolla Street, Kolkata. Thereafter, the second respondent took over the
business and as a promoter incorporated a private limited company
"Ganesh Flour Mills Private Ltd." on 19th March, 2000. The name was
changed to that of the first respondent on 5th February, 2011.
From time to time the first respondent made several applications for
registration of the mark "Ganesh" or label marks or device marks with the
word "Ganesh" imprinted on it and marks which are variations of
"Ganesh". Most of these applications are pending. It enjoys registration of
two label marks containing the mark "Ganesh" in Class 30, one with the
restriction that the sale of the goods could only be confined to West Bengal
and the other with the limitation that sale would be restricted to eastern
India.
By a certificate dated 28th October, 2005 the word mark "Ganesh" was
registered by the trademark registry at the instance of the respondents
without any geographical limitation. This is the subject matter of the suit
and appeal.
The trade dress of the respondent No. 1 is a rhombus, coloured green with
the word "Ganesh" prominently written in white and an artistic design in
the green part in light green and yellow. The words "since 1936" are
written below "Ganesh".
The mark used by the appellants is "Shree Ganesh". "Ganesh" is written
with great prominence in the same style as that used by the respondent
No.1. Above "Ganesh" there is the word "Shree" which is in much smaller
font. What is also important is that the character, size and font of the
alphabets constituting the word "Ganesh" are quite identical to those used
by the respondent No.1. There are also the added words: "besan mill" after
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"Ganesh" in very small font. The above mark in english is at the back of
the package handed up to the court containing the appellants' product
"idli rava". The front of the package contains the same words in Hindi.
The appellants claim that the word "Ganesh" is common, generic and non-
distinctive. Moreover, it is the name of a most popular Hindu God. The
respondents cannot have any exclusive right to use the mark, inspite of
registration.
They also say that they have derived the name "Ganesh" from the father of
the appellant No. 2, Ganesh Lal Daryani. He had been doing business for
a very long time in grinding and/or manufacturing flour. This business is
being carried forward by the appellants in partnership. The trademark or
name "Shree Ganesh" which they are using is derived from Ganesh Lal
Daryani. They are entitled to use this mark under Section 35 of the
Trademarks Act, 1999.
Furthermore, the respondents were, at all material times fully aware of the
use of this mark by the appellants and admittedly from 2015. Having not
taken any action, the respondents are prevented from taking action by the
principles of acquiescence, waiver, estoppel and so on.
The learned judge by his impugned judgment and order made on 15th
March, 2021 read with the order dated 17th March, 2021 has restrained
the appellants from using the mark "Ganesh".
TWO BASIC PRINCIPLES
Two principles have to be borne in mind. The first is that, in this kind of
an action alleging infringement of trademark and passing off, an order of
injunction made or refused to be made, virtually disposes of the suit.
Experience shows that the order initially passed becomes the final order
and nothing much remains of the proceeding thereafter. Therefore, the
court exercising jurisdiction has to be most judicious in passing or
refusing to pass an interim order in such an action.
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Secondly, the general principle is that the discretion exercised by the
learned judge in passing an interim order in such a proceeding is
interfered with by the appeal court only if there is some gross or patent
error in appreciating the facts or law or the order is so unreasonable and
perverse that no reasonable judge could have passed it, is arbitrary or is a
product of bias. Otherwise, the court of appeal rarely interferes with the
discretion exercised by the learned trial judge in passing an interim order.
ORDER 41 RULE 27 APPLICATION
Another fact is noteworthy. It transpired during hearing of the appeal that
the appellants had not disclosed in their affidavit before the trial court
their turnover or sale of their products using the trademark "Ganesh".
After commencement of hearing of the appeal, the appellants took out an
application under Order 41 Rule 27 of the Code of Civil Procedure to
adduce further evidence.
Mr. Ranjan Bachawat, learned senior advocate, appearing for the
respondents very seriously opposed any order to be made permitting the
appellants from relying on those documents on the ground that they were
available with the appellants at the trial stage and if they did not disclose
them it was at their peril. Furthermore, most of the documents had been
fabricated to gain advantage in the appeal.
At the time of hearing of the appeal, without prejudice to the above
contentions, Mr. Ranjan Bachawat said that even from the documents
disclosed by the appellants, he would be able to show they had no case to
discharge the interim order.
As we have observed, a trademark matter is substantially decided at the
interim stage. Moreover, the question whether the learned single judge has
exercised his discretion judiciously or not is involved in the appeal.
Undoubtedly, the evidence which the appellants sought to produce were
available with them at the time of hearing of the interlocutory application
and could have been produced by them. For whatever reason they did not
produce those documents before the learned single judge. Since we were
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hearing the matter substantially, we thought that full justice to the case
could be done if the parties were allowed to produce whatever materials at
their disposal.
ARGUMENTS
Mr. Biala, learned Counsel appearing for the appellants made very
elaborate submissions.
The respondents are registered proprietors of both label and word marks
"Ganesh". The label mark or device was categorically stated to be used for
sale of the goods in West Bengal as would appear from the registration
certificates at Pages 400 to 403 of the paper book. However, the word
mark "Ganesh", also registered did not contain any qualification with
regard to the geographical area of sale. It was contended that this word
mark was so registered on the assurance given by the appellants to the
Trademark Registry that they would restrict their sale to West Bengal only
so as not to infringe the trademark of others or pass off their goods as
those of others.
He submitted that the word "Ganesh" was very common and not
distinctive. It was widely used in trade and industry. In fact, about 550
applications for registration of that mark were pending before the
Trademark registry, out of which 66 had been registered. Secondly, he
submitted that out of inadvertence or mistake or irregular conduct of
proceedings, the respondents' mark "Ganesh" had been registered by the
authority. Similar applications by the respondents for registration of a
label mark containing the word "Ganesh" or marks being variants of the
word "Ganesh" like "Ganapati", "Shree Ganesh", "Ganesh Gold", "Ganesh-
G", "Ganesha" etc. were pending registration. The respondents had
admitted in a reply to a show cause before the trademark authority on 19th
November, 2005 the above generic nature of the mark that nobody had the
right of exclusive use thereof.
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He also argued that the appellants were carrying on the business of
manufacturing and marketing flour products under the name and style of
"Ganesh" for a long period prior to the application for registration by the
respondent of their mark "Ganesh". His clients had substantial sale and
goodwill in the market for a long period of time.
In 1989 the predecessor-in-interest of the appellants one Shri Ganesh Lal
Daryani started using the trademark "Shree Ganesh" honestly and
bonafide deriving the name from his personal name. The appellants are
continuing such business.
Further, it was his contention that "Ganesh" was the name of a Hindu
deity, very popularly and extensively worshipped all over the country.
The registration of the mark "Ganesh" in favour of the respondent No.1
was illegal and wrongful and that by virtue of such registration no right of
exclusive user should be conferred on the respondents.
The appellants and the respondents are carrying on business from
different regions and the business of one does not trench on the other's
business.
In the application under Order 41 Rule 27 of the Code of Civil Procedure
the appellants had inter alia disclosed a certificate by a firm of Chartered
Accountants from where it appears that the gross sale of the firm in the
financial year 1985-86 was Rs.31,950/-. It increased to
Rs.28,50,45,887.60/- in 2019-20. The gross sales were within Rs.1 crore
upto 2008-09. It crossed Rs.1 crore in 2009-10 and thereafter made a
steady increase till 2019-20, the increase from 2017-18 to 2018-19 being
most spectacular from Rs.9,29,20,326/- to Rs.18,07,11,321/-. The
appellants in that application have also enclosed amongst other
documents invoices relating to sale to their buyers and copies of income
tax returns.
In Paragraph Nos. 3(e) and (f) of the affidavit-in-opposition used by the
appellants before the learned trial Judge, they alleged that the word
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"Ganesh" was generic and nobody had any right of exclusive use of the
mark. The respondents did not have the right of preventing anybody else
from using the mark. Moreover, "Ganesh" signified the Hindu God of
wealth. The respondents could not restrain the appellants from using this
mark, more so, when they have used it in an honest and bonafide manner.
In the said affidavit the appellants have referred to an examination report
of 2005 of the trademark registry in relation to Application no. 1386773 of
the respondent for registration of the word mark "Ganesh" under Class 30.
In their examination report, the trade mark registry objected to
registration because it was a personal name and that it was "identical with
or similar to registered trademark." To this, the respondents' patent and
trade mark Attorney S. Majumdar and Company by their letter dated 19th
November, 2005 replied that "Ganesh" was another name of Lord Ganesh
worshipped by the Hindus and did not have "any direct connection,
reference with the goods under the application". It was also urged in the
Attorney's reply that the word "Ganesh" was "generic and the mark is
common to trade as is evident from the several cited registered marks."
On this, Mr. Biala made two submissions. He referred to a certificate dated
25th November, 2020 obtained from the said registry relating to the
application for registration of the image mark "Ganesh". It stated that the
status of the application was "opposed". He submitted that the self same
word mark had been got registered by the respondents. This registration
had been wrongfully and illegally obtained as another office of the same
registry could not have granted registration of the self same mark.
Secondly, he submitted that having admitted through their trademark
Attorney that the mark was the name of God and in common and wide
spread use and of which there was several registrations, the respondents
could not prevent the appellants or are estopped from preventing the
appellants from using the mark.
8
From 1998 the predecessor-in-interest of the appellants Shree Ganesh Lal
Daryani adopted the trademark "Shree Ganesh" honestly and bonafide
from his name "Ganesh". The appellants continued with this business,
thereafter reconstituting it from a proprietorship to a partnership firm.
According to Mr. Biala, as stated in Paragraph No. 3(h) and (i) of the said
affidavit that the respondent have sale in a restricted area. Furthermore,
the appellants and the respondents carry on business in different regions.
Their business activities do not overlap.
Learned Counsel stated that another word mark in the form of an image,
of the respondents, had been registered subject to the limitation under
Section 18(4) read with Section 2(l) of the Trademarks Act, 1999 that it
would be used within the geographical area of West Bengal. He argued
that the right to exclusive use of a mark by the registered proprietor under
Section 28 of the said Act was subject to the other provisions of the Act
namely, Section 30(2)(b) which inter alia, provides that if a trademark is
used in a place where the registration did not extend geographically.
The said right of exclusive use of a registered proprietor could not interfere
with any bonafide use by a person of his own name or that of any of his
predecessors in business, under Section 35 of the said Act.
Learned counsel also submitted that the respondents were guilty of
suppression. They did not disclose to the court that several hundred
applications for the mark "Ganesh" were pending registration all over the
country, that label marks of the respondents containing the word
"Ganesh" were pending registration, subject to opposition or had been
registered with limitation and disclaimer with regard to the geographical
area of their use.
I will discuss only the relevant cases cited by learned Counsel at the time
of dealing with the arguments.
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Mr. Ranjan Bachawat, learned senior counsel, appearing for the
respondent made the following submissions.
Ganesh Dariani was the name of the father of the appellant No. 2. There is
no evidence to show that Ganesh Daryani did business using the mark
"Ganesh" or that the father was engaged in the business of manufacture
and marketing of flour products. In other words, the appellants have not
been able to make out any connection between the father's business and
the present business of the respondent and use of the trade mark
"Ganesh". Therefore, the case sought to be made out by the appellants
that they were doing business using the personal name has no basis.
The appellants at best carried on and still carries on the business of
grinding flour for individual customers. They are not in any real sense
engaged in the manufacture and sale of flour products. Invoice documents
have been fabricated by them to show sale. He tried to show from the
invoice that the website referred to there had been obtained by the
appellants at a later date than when the invoice was issued.
By use of the word "Ganesh", the appellants were infringing the
respondents' mark under Section 29(5) of the said Act which lays down
that a registered mark is infringed by a person if he uses such registered
trademark as his trade name dealing with goods and services in respect of
which the trade mark is registered.
He referred to the documents at Pg. 333 of the paper book which showed
that application No. 854527 made by Harish Daryani who carrying on
business as "Shree Ganesh Besan Mill", on 4th May, 1999 made an
application in Mumbai for registration of the mark "Ganesh" dealing in
goods ata, besan and spices. The date of user was claimed from 1990.
According to the records of the Trademark Registry obtained on 10th
September, 2020, the application had been abandoned.
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The Chartered Accountant who authenticated the sales figures of the
appellants had made a disclaimer that the figures were those provided by
the respondents and that no documents had been available to him. Hence,
the Chartered Accountant's certificate had little or no evidentiary value.
The respondents had used the mark "Ganesh" from 1936 as would be
evident from advertisements of the mark in newspapers in that period. The
respondents had also made sizeable expenses throughout the period of its
use, in advertisements.
The appellants have been unable to show use of the mark "Ganesh in its
business.
Learned Counsel brought our attention to the supplementary affidavit
affirmed on 8th February, 2021 filed by the appellants in the learned court
below. It appears from it that after the order of injunction was made on 4th
January, 2021, the parties had a sitting to settle the trademark dispute.
The appellants by an email dated 21st January, 2021 forwarded some
proposed trademarks to the respondent. They even became ready to use
the words "Shree Ganesh Besan Mill" without highlighting the word
"Ganesh" prominently.
Learned Counsel also stated that the appellants were unsuccessful in
getting registered three marks using the word "Ganesh", namely "Shree
Ganesh Chana Besan", "Shree Ganesh Gulab" and "Shree Ganesh Tota
Farsan Flour".
After receipt of the notice of opposition to registration of those marks, the
appellants abandoned the applications as would be evident from the
certificates dated 5th May, 2016 and 11th August, 2017 at Pgs. 325, 328
and 331 respectively of the paper book.
Mr. Bachawat further submitted that out of 540 marks containing
"Ganesh" revealed on search, sixty three were registered. Out of sixty
three, seven were registered in favour of the respondents. Fifteen were
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word marks. Only four marks bearing the word mark "Ganesh" were
registered, out of which only one belonged to Class 30. Out of four marks,
one related to confectionary items, two have expired and the fourth was
owned by the respondents.
Learned Counsel also urged before us that the respondents enjoyed
substantial goodwill in the market and that the appellants had been
unable to furnish any evidence of user or sale of the subject product under
the trademark "Ganesh". At best, the appellants were carrying on the
business of grinding flour for individual consumers (ata chakki). He also
argued that the purported sale disclosed by the appellants did not show
any connection between the trademark "Ganesh" and the sale of the
product.
The partnership under which the appellants were carrying on business
was founded after the death of the said appellant No. 2's father and that
there was no connection between the business of the partnership and the
business carried on by the father.
Therefore, there was no justification for use of the father's name Shree
Ganesh Daryani. In any case, if the father's name had to be used "Ganesh
Daryani" and not "Ganesh" ought to have been used by the appellants.
The sole purpose of the appellants was to trade on the goodwill of the
respondents by using their mark "Ganesh".
In those circumstances, there was no case for vacation or variation of the
interim order.
I will deal with the relevant cases cited by Mr. Bachawat when I deal with
the arguments.
FACTS IN DETAIL, DISCUSSION AND FINDINGS
The respondent plaintiffs' case is founded on the registered word mark
"Ganesh". The application (No. 1168684) in Class 30 was made on 21st
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January, 2003. Registration had been granted on 28th October, 2005
without any limitation or disclaimer.
The application of Manish Mimani at Page 400 of the paper book was
made on 17th January, 1992 (TM Application No. 565726 in Class 30) for
registration of the image word mark "Ganesh". It was registered under
Certificate No.231828 dated 31st August, 2000 and renewed till 17th
January, 2026 for flour, besan, ata, suji, sattu etc. with the limitation that
it could be used for goods for sale in the state of West Bengal only.
Another Application No. 928276 in Class 30 was made on 30th May, 2000
by Manish Mimani for the marks "Ganesh Bhog", "Ganesh Photo (device)".
It was registered as a device under Certificate No. 777955 dated 10th
March, 2009 and renewed till 30th May, 2030 for the same category of
goods with the limitation that the mark could be used for sale in the states
of eastern region of India only (Pg. 403 of the paper book).
On 22nd September, 2005 just a month or so before the registration of the
word mark "Ganesh" Purusottam Das Mimani made the application No.
1386773 for registration of the same trade mark in Class 30 for inter alia,
flour products (Pg. 404 of the paper book). A certificate dated 25th
November, 2020 issued by the trade mark registry states that the status of
the registration is "opposed". The examination report of the trade mark
registry stated that the mark was refused registration as it was a personal
name and identical or deceptively similar to registered trademarks. To this
the respondents' trade mark Attorney replied on 19th November, 2005
that "Ganesh" was the name of a God worshipped by the Hindus and did
not have "any direct connection reference with the goods under the
application" and further that the name was generic.
About 540-550 marks of "Ganesh" or variants thereof like Ganesh Gold,
Ganesh-G, Ganesh-R, Shree Ganesh have been applied, for registration.
63-66 have been registered. 4 are for the word mark "Ganesh". One relates
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to confectionary. Two registrations have expired. The other belongs to the
respondents, the only registered word mark "Ganesh" is Class 30.
On the other hand, the appellants filed several applications for registration
of the trade mark "Shree Ganesh" and its variants. Some of these
applications were opposed by the respondents who filed their opposition.
None of these marks have been registered in favour of the appellants.
Some of the applications of the appellants are deemed to have been
abandoned according to the respondents.
By virtue of registration of the word mark "Ganesh", the respondent seeks
to restrain the appellants from using that mark in any manner
whatsoever.
The trademarks registry has been very cautious in dealing with such a
huge number of applications. Either they are kept pending or granted with
disclaimer and limitation so as to recognize that the mark is generic and
not distinctive of any trader and not common to the trade (See Section 12
of the said Act).
In the application dated 22nd September, 2005 stated above, registration
has not been granted after consideration of the examination report that
"Ganesh" is the name of God, generic and not distinctive. The respondents
have admitted through a letter of their trade mark Attorney dated 19th
November, 2005 and in answer to opposition to applications for
registration of "Ganesh" or variant marks that the name was common and
generic and that no trader could claim exclusive right over it.
It is quite extraordinary how the word mark "Ganesh" of the respondents
was registered on 28th October, 2005 without any restriction or limitation.
More extraordinary is the conduct of the respondents in trying to exercise
their right of exclusive user of the mark "Ganesh" at least in Class 30
goods, when they were aware that it was generic, common to the trade and
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not distinctive and had admitted so in their said correspondence with the
trade mark registry.
When a mark is registered the registering authority may do so without any
condition or limitation. It is equally open to the said authority to specify
that the proprietor will not have exclusive right over a part of the mark.
Absence of a disclaimer does not always vest the proprietor with an
exclusive right over a word mark. In our case registration of the word
mark "Ganesh" was without any disclaimer.
Just because the word mark "Ganesh" was registered without any
limitation or condition, could this registration confer on the respondents
the right to prevent the appellants from using the mark "Ganesh"?
Ganesh is a Hindu deity. He is the son of Ma Durga and Lord Shiva. In the
Hindu pantheon of gods and goddesses, Ganesh is a most powerful and a
very widely worshiped God. So much so that nearly two weeks of
celebration attending his worship takes place every year just before
autumn in Maharashtra. Ganesh festival is also highly popular in the rest
of the country. Its popularity is growing day by day in Bengal also. Hence,
the word or mark "Ganesh" can never be distinctive of any person or trade.
It is too common to be so. Any name of God is generally not distinctive and
very common and is usually not registered as a trademark.
It is doubtful whether the registration of "Ganesh" word mark is valid
under Section 28(1) of the Trademark Act, 1999. The registered proprietor
of the mark has the right of its exclusive use only if the registration is
valid.
It is true that till date the appellants have not taken any steps for
rectification of the register. But after promulgation of the Tribunal Reforms
Ordinance, 2021 it is always open to them to take the point of invalidity at
the trial of the suit. They have done so in the written statement filed in
this suit. In that case the court would be called upon to adjudge the
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validity of the registration. The question is whether the appellants could be
restrained from using the word "Ganesh"?
By amendment of Section 57(1) of the said Act, the power to rectify the
register has been conferred on the Registrar or the High Court.
The said Ordinance, 2021 made amendments to the Trademark Act, 1999.
The effect of this amendment was that if any proceedings for rectification
of the register in relation to the plaintiffs or the defendant's trade mark
were pending before the Registrar or the High Court, the suit would be
stayed till the final disposal of such proceeding. If no such proceeding had
been taken out and the High Court was under the tentative view that a
plea regarding validity of a trademark was tenable, it may adjourn the case
for a period of three months to enable the party to apply for rectification.
The High Court could extend the time.
It is always be open to the appellants to raise the plea of invalidity of the
respondents' trademark at the trial. Even if no proceedings for rectification
of the mark are pending now the court trying the suit has the discretion to
adjourn the suit for three months to enable them to make such an
application [Section 124(1)(ii)]. It even has the power to further extend the
time [under Section 124(2)]. Only if no such application is made within the
extended time can the court declare the issue regarding validity of the
registration to have been abandoned. The decision of the Supreme Court
in Patel Field Marshal Agencies vs. P.M. Diesels Limited and
Ors., reported in (2018) 2 SCC 112 cited by Mr. Bachawat was before
promulgation of the ordinance. It inter alia held on the basis of the Act
then existing that if the parties did not approach the Tribunal the plea
regarding validity of the mark would not survive. With the coming of the
ordinance this consequence is done away with and the suit court retains
its discretion throughout the proceedings to order trial of the invalidity
issue. Hence the issue of invalidity is very much open to the appellants.
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They have, in my opinion, raised a very strong prima facie case regarding
invalidity of the registration.
Section 35 of the said Act enacts as under:-
"35. Saving for use of name, address or description of goods or
services.--Nothing in this Act shall entitle the proprietor or a registered user
of a registered trade mark to interfere with any bona fide use by a person of
his own name or that of his place of business, or of the name, or of the name
of the place of business, of any of his predecessors in business, or the use
by any person of any bona fide description of the character or quality of his
goods or services."
From the evidence disclosed by the appellants before the trial court they
have been able to show that the father of the appellant No. 2, Ganesh Lal
Daryani carried on some business in the grinding and making of flour. It
may not have been of the type and to the extent now carried on by the
appellants in partnership. The appellants say that Ganesh Lal used this
word mark in business atleast from 1989. He died on 20th July, 1998.
On 20th July, 1998 a partnership was formed by his son and grandsons.
In the deed of partnership it was clearly stated that the business would be
carried on under the name and style of "M/s Shree Ganesh Besan Mill".
The business was to be of manufacture and sale of ata, besan, dal etc.
This partnership deed was annexed to the affidavit in opposition.
Prima facie, it appears that the derivation of "Shree Ganesh" was from
Ganesh Lal Daryani way back in 1989. As Ganesh Lal Daryani was
engaged in the business of flour grinding and manufacturing, he could be
called a predecessor in business of the respondents. If his name was used
to run the partnership business from 1989, the decision of the appellants
to use "Shree Ganesh" as a trademark to manufacture and market their
products when the business expanded cannot be said to be lacking in
bonafide. If that be so, even if the respondent No.1 is the registered
proprietor of the trademark "Ganesh", they cannot prevent the appellants
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under Section 35 of the said Act to use the words "Shree Ganesh Besan
Mill".
In Precious Gems and Anr. Vs. Varun reported in (2015) 1 SCC 160,
cited by Mr. Biala, the court opined:
"4. The plaintiff claiming trade mark of their surname "RAKYAN" filed a suit
praying, inter alia, that the defendants be restrained from doing their
business in the name and style of "NEENA AND RAVI RAKYAN". In the said
suit, an application seeking interim relief was filed whereby it was prayed
that the defendants be restrained from doing the business in the name and
style of "NEENA AND RAVI RAKYAN". By virtue of the impugned order, the
defendants i.e. the present appellants have been restrained from doing their
business in the concerned name and therefore, the appellants have
approached this Court.
9. We have perused the hoardings of the shops where they are doing the
business and upon perusal of the hoardings we do not find any similarity
between them.
10. In our opinion, looking at the provisions of Section 35 of the Act, there is
no prima facie case in favour of the plaintiff and therefore, the defendants
could not have been restrained from doing their busines. We, therefore,
quash and set aside the impugned order granting interim relief in favour of
the plaintiff and the appeal is allowed with no order as to costs."
A very interesting and important concept is that of trade dress. A mark
may be a label or a device mark comprising of a word mark and artistic
design, colour combinations, artistically designed shapes, configurations
etc.
Let us consider two label marks with similar word marks which are non-
distinctive and common to the trade. But a label or device mark with a
particular unregistered trade dress made artistically may differentiate one
mark as a whole from the other with a different unregistered trade dress.
In that case, the word mark of a party containing a registered word mark
would nevertheless become distinctive if viewed as a whole with the trade
dress. This kind of a trade dress was spoken about by Chandrachud, J. in
Kuber Khaini Private Limited Vs Sopariwal Exports & Anr. reported in
18
(2013) SCC Online Bom 1072 also cited by Mr. Bachawat in the following
manner:
"3. The First Respondent is the registered proprietor of the mark `Afzal'
which is described in the certificate of registration dated 12 November 1995
as a device. Registration of the mark in relation to Class-34 of the
Trademarks Act, 1999 (tobacco) is subject to the condition and limitation
that it shall not give a right to the exclusive use of the words `Pandharpuri',
`Best Quality Indian' and to the `descriptive matter appearing on the label'.
The First Respondent has three certificates of registration which were
annexed at Exhibits B-1, B-2 and B-3 to the plaint.
4. The Appellant has obtained registration of the mark `KUBER' and its
certificates of registration are annexed at Exhibits A-1 to A-9 of the plaint.
Among them is a registration under Clause-34 in relation to Chewing
Tobacco. The First Respondent has no objection to the use of the mark of
`Kuber', per se, by the Appellant. The case of the First Respondent, however,
is that the Appellant has adopted the same trade-dress as is used by it as
part of its labels. The First Respondent accordingly sought an injunction,
basing its claim on the infringement of its registered trademark, for passing
off and for infringement of the copyright in the artistic work.
6. During the course of the hearing, the packages in which the Appellant
sells its product, chewing tobacco, as well as the packages of the First
Respondent have been produced for comparison. Both the counsel have
accepted their authenticity. In view of the settled position in law, what falls
for consideration is whether the essential features of the mark of the
Appellant are deceptively similar to those of the First Respondent.
Undoubtedly the word mark of the First Respondent is `Afzal', whereas that
of the Appellant is `Kuber'. However, what needs to be emphasised is that
the Appellant had admittedly advertised its product `Kuber' initially with a
distinctive trade-dress until it commenced using the disputed label. Exhibit-
19
H to the plaint is the impugned mark of the Appellant. A bare look at the 4 of
7 APP.725.2012 rival labels would indicate that the Appellant has used the
same colour scheme (brown and green in colour); the use of the hookah; and
this is coupled with the order of the descriptive words "Pandharpuri Best
Quality Indian Tobacco" with green shaded lines under the edge of the
words. The Appellant has absolutely no explanation, much less a bona fide
explanation, of the circumstances in which it has adopted a label which is
shown at Exhibit-H which is deceptively similar to the label of the
Respondent. There can be prima facie no manner of doubt that this was
done in an undisguised attempt to trade on the reputation and the goodwill
of the mark of the First Respondent. The essential character of the two
labels would leave no manner of doubt that the entire colour scheme, get up
and trade-dress which constitute essential features of the mark of the First
Respondent, have been adopted by the Appellant. The evaluation, prima
facie, of the merits by the learned Single Judge does not suffer from error.
8. As regards the descriptive words `Pandharpuri Best Quality Indian
Tobacco', it has been pointed out on behalf of the Appellant that the
registration which the First Respondent has obtained at Exhibit B-1 contains
a disclaimer to the effect that the registration of the mark shall not give a
right to the exclusive use of the words and the descriptive matter appearing
on the label. Hence, it has been urged that the First Respondent cannot
prevent the Appellant from using those words and the Appellant is entitled
to use those words too. While dealing with this contention, it must be noted
that a disclaimer which has been imposed in connection with the
registration of a mark under the Trademarks Act, 1999 operates in respect
of the proprietary interest which is claimed in a mark under and in
accordance with the provisions of the Act. Consequently, in an action for
infringement of a registered trademark, a Plaintiff cannot found a cause of
action on the use of descriptive words in respect of which a disclaimer has
been granted. But, equally, this does not preclude a Plaintiff from asserting
20
a cause of action for passing off. A disclaimer which is of relevance to an
action for infringement does not prohibit a Plaintiff from asserting
nonetheless that in an action for passing off, the use of the words by the
Defendant in a particular syntax and context would constitute the use of the
mark of the Plaintiff in a manner which is deceptively similar.
10. Hence, the descriptive words `Pandharpuri', `Best Quality', `Indian' and '
Tobacco' cannot be used or depicted by the Appellant in the manner as
shown in Exhibit-H to the plaint or in the same form or in a deceptively
similar trade-dress so as to render the label of the Appellant similar to that
of the First Respondent. The order of the learned Single Judge thus cannot
be faulted because in an action for passing off, the learned Single Judge
was justified in coming to the conclusion that it was not open to the
Appellant to use even descriptive words in a form, manner or syntax that
would render their use in deceptive similarity to the trade-dress which has
been adopted by the Respondent."
Even if a non-distinctive mark is part of the trader's trade dress taken as a
whole which has a distinctive and original character it would be open for
the proprietor of the trade or the label mark or device or trade dress to
prevent another from using it in a passing off action.
The Supreme Court said these words in Registrar of Trademarks Vs.
Ashok Chandra Rakhit Ltd. reported in AIR 1955 SC 59, cited by Mr.
Bachawat.
"9. The last feature of the section is its proviso. That proviso preserves intact
any right which the proprietor may otherwise under any other law have in
relation to the mark or any part thereof. The disclaimer is only for the
purposes of the Act. It does not affect the rights of the proprietor except such
as arise out of registration. That is to say, the special advantages which the
Act gives to the proprietor by reason of the registration of his trade mark do
not extend to the parts or matters which he disclaims. In short, the
21
disclaimed parts or matters are not within the protection of the statute. That
circumstance, however, does not mean that the proprietor's rights, if any,
with respect to those parts or matters would not be protected otherwise than
under the Act. If the proprietor has acquired any right by long user of those
parts or matters in connection with goods manufactured or sold by him or
otherwise in relation to his trade, he may, on proof of the necessary facts,
prevent an infringement of his rights by a passing off action or a prosecution
under the Indian Penal Code. Disclaimer does not affect those rights in any
way."
This principle was followed and reiterated by the division bench of the
Bombay High Court in Skol Breweries Ltd. Vs. Som Distilleries &
Breweries Ltd. & Anr reported in 2012 (49) PTC 231 Bom., also referred
to by learned senior counsel.
The trade dress of the respondents is a rhombus coloured green with the
word "Ganesh" prominently written in white and an artistic design on the
green part in light green and yellow. The words "since 1936" is written
below "Ganesh". In the package of the appellants handed up to the court
the word "Ganesh" has been written in the same character, font, layout
and design as that of the respondents. It is by far the most prominent part
of the mark. The word "Shree" is written over it using a small font in light
green. On top of it is a floral design. The overall effect of this trade dress of
the appellants is quite similar to that of the respondents and in my view
bound to cause confusion in the trade with regard to identification of the
goods with the manufacturer.
Even if the case for infringement of the trademark fails on the plea of
invalidity or lack of distinctiveness and the common use of the mark in the
trade, a case in passing off would lie.
On a comparison of the two labels, prima facie the respondents have been
able to make out a case in passing off.
22
Now the question is whether the principle laid down in Midas Hygiene
Industries (P) Ltd. and Anr. Vs. Sudhir Bhatia and Ors. reported in
(2004) 3 SCC 90 also shown to us by Mr. Bachawat can be applied here.
The principle is as follows:
"5. The law on the subject is well settled. In cases of infringement either of
trade mark or of copyright, normally an injunction must follow. Mere delay
in bringing action is not sufficient to defeat grant of injunction in such cases.
The grant of injunction also becomes necessary if it prima facie appears that
the adoption of the mark was itself dishonest."
It is in broad and general terms. It does not take into account the
situation where another user challenges the validity of the registration.
(See Section 124 of the said Actread with Section 28(1)). The effect of the
registration on another user claiming prior, honest and concurrent use
was also not before the court (See Section 34 of the said Act). Nor was any
right of a person seeking to use the name of a predecessor in business.
(See Section 35). Here the first and last factors have become most relevant.
In my opinion the broad and general principle of this case has only limited
application to the facts of this case
IGNORING THE ORDER 41 RULE 27 APPLICATION
Let us ignore all the documents brought on record by the appellants in
their application under Order 41 Rule 27 of the Civil Procedure Code.
Still, two points of great significance were worthy of consideration on the
evidence disclosed before the trial court and have not been adequately
considered by the learned single judge.
The first, relates to the alleged invalidity of registration of the word mark
"Ganesh" in favour of the respondent. Section 28 of the said Act makes it
specific that rights acquired by registration would only flow if the
registration was valid. An invalidly registered mark can be resisted by any
user on that ground. An action for infringement brought by the proprietor
can be successfully defended by pleading lack of validity. In fact, Section
23
9(1)(a) of the said Act specifically states as an absolute ground for refusal
of registration, of trademarks which are devoid of any distinctive
character. The word "Ganesh" apart from being the name of a most
popular Hindu god is most generic, common, non-distinctive and
incapable of conferring any exclusive right of user on a person. If that has
been the case of the appellants, whether the respondents have used the
mark from 1936 or the appellants have used it from 1989 does not matter
at all. It also does not matter whether the respondent has a sale of Rs.500
crores and the appellants much smaller. To my mind, it also does not
matter whether the mark "Ganesh" is the only registered mark in Class
30.
Further, in my opinion, due consideration was not given by the learned
judge to the adopted use by the appellants of the name of the predecessor-
in-interest of the appellants Ganesh Lal Daryani, as discussed above.
Another substantial point in favour of the appellants is that having
discovered the use of the word "Ganesh" by the appellants from 2015, the
respondent allowed them to use it till 2020 when the instant suit was filed
and in January, 2021 the order of injunction obtained. While using the
mark "Ganesh" in relation to flour products in Class 30 from 2015 to 2021
the mark has been made more generic and common and non-distinctive,
even in the flour manufacturing trade. By the principles of acquiescence
and waiver, the respondents cannot insist on exclusive use of the mark
"Ganesh", to the exclusion of the respondent.
THE IMPUGNED JUDGMENT AND ORDER
The learned judge made a detailed judgment. In the first part of it, the
submissions of learned counsel for the parties have been enumerated.
The respondents' arguments have been summarized as follows:-
The respondents have been manufacturing and selling products under the
mark "Ganesh" since 1936. Their turnover is in excess of Rs.500 crores.
24
The expenses on account of advertisement have been Rs.3 to 4 crores per
year. They became aware of the appellants' use of the mark in 2015. The
appellants have been trying to ride on the respondents' goodwill by using
the word "Ganesh". Hence, an action in passing off would lie. The
appellants have not disclosed any documents to show long or prior user.
The submissions of learned counsel for the appellant defendants were
tabulated as under:-
The appellants are using the mark "Ganesh" deriving it from the father of
one of the partners Shri Ganesh Lal Daryani. The adoption has been
honest and bonafide.
The respondents' application for registration of a similar mark was
rejected by the Registrar on the ground as it was a personal name and
similar to registered trademarks or pending applications.
The respondents were aware of the appellants using the mark "Shree
Ganesh" since 2015 and had taken no action. Hence, there was
acquiescence and waiver of their right.
The appellants have been honest and concurrent user of the mark "Shree
Ganesh".
It is also generic in nature being that of a Hindu God and common to the
trade.
Then, the learned judge came to his findings which were as follows:-
The respondents have a claim on account of infringement of the registered
trademark as well as in passing off against the appellants.
They have in their favour registration of the trademark "Ganesh" dated
28th October, 2005. The respondents also are the registered proprietors of
trademarks "Ganesh Gold", "Ganesh Premium", "Ganesh Healthy" and
"Ganapati".
25
According to the materials produced, the respondent plaintiffs have
registration for the trademark "Ganesh". The respondents' have produced
invoices from 1936 to establish its claim. The appellants can only produce
a trade licence of 1989 in support of their claim of use of the word
"Ganesh". But, they have failed to produce any document that it was
marketing products under the name and style of "Ganesh" from 1989. By
reason of the registration of the trademark "Ganesh" in favour of the
respondents, they have under Section 29 of the said Act became entitled to
protection of the mark.
They are not entitled to protection under Section 35 as "Shree Ganesh"
has never been the name of the predecessor-in-interest of the defendant.
His name was Shri Ganesh Lal Daryani.
The description of "Shree Ganesh" shows that the word "Shree" has been
used in a manner so as to "camouflage itself in the design of the label the
word "Ganesh". Visually, a customer is likely to mistake the product of the
appellants to be that of the respondents. In such a case following the case
of Wander Ltd. & Anr. Vs. Antox India Pvt. Ltd., the court should grant "a
prompt ex-parte injunction followed by appointment of a local commission
if necessary."
The appellants are not entitled to use the word "Shree Ganesh" in carrying
on its business.
Orders in terms of prayers (a), (b) and (c) of the petition were passed.
INJUNCTION AND EXERCISE OF DISCRETION
The circumstances to be considered by the court to assess the prima facie
case of the applicant before it in an intellectual property matter were re-
written by Lord Diplock in the American Cynamid Vs. Ethicon case
reported in (1975) AC 396.
26
There is now departure from the principle of assessment of the prima facie
case of the petitioner atleast in intellectual property cases, from an
arguable case, a good case, a reasonably good case, and so on. If a
substantial question is raised to go to trial, then the court has to consider
granting an interim order to balance the rival rights of the parties which
remain uncertain till all the evidence is produced in the proceedings. The
balance of convenience has to be weighed by the court. If an interim order
of injunction is granted against the respondent and the petitioner fails at
the trial would the award of damages adequately compensate the
respondent for the loss suffered? On the other hand if the order of
injunction is refused at the interim stage and at the final trial the
petitioner wins, would the award of damages adequately compensate him?
This exercise involves the use of discretion.
Now, this exercise of discretion by the trial judge is usually not interfered
with by the appellate court only for the reason that it would have come to
a different conclusion. This principle was explained by the Supreme Court
in Wander Ltd. & Anr. Vs. Antox India Pvt. Ltd. reported in 1990
(supp) SCC 727 in the following words:
9. Usually, the prayer for grant of an interlocutory injunction is at a stage
when the existence of the legal right asserted by the plaintiff and its alleged
violation are both contested and uncertain and remain uncertain till they are
established at the trial on evidence. The court, at this stage, acts on certain
well settled principles of administration of this form of interlocutory remedy
which is both temporary and discretionary. The object of the interlocutory
injunction, it is stated is to protect the plaintiff against injury by violation of
his rights for which he could not adequately be compensated in damages
recoverable in the action if the uncertainty were resolved in his favour at the
trial. The need for such protection must be weighed against the
corresponding need of the defendant to be protected against injury resulting
from his having been prevented from exercising his own legal rights for
27
which he could not be adequately compensated. The court must weigh one
need against another and determine where the "balance of convenience
lies". The interlocutory remedy is intended to preserve in status quo, the
rights of parties which may appear on a prima facie. The court also, in
restraining a defendant from exercising what he considers his legal right but
what the plaintiff would like to be prevented, puts into the scales, as a
relevant consideration whether the defendant has yet to commence his
enterprise or whether he has already been doing so in which latter case
considerations somewhat different from those that apply to a case where
the defendant is yet to commence his enterprise, are attracted.
14. The appeals before the Division Bench were against the exercise of
discretion by the Single Judge. In such appeals, the Appellate Court will not
interfere with the exercise of discretion of the court of first instance and
substitute its own discretion except where the discretion has been shown to
have been exercised arbitrarily, or capriciously or perversely or where the
court had ignored the settled principles of law regulating grant or refusal of
interlocutory injunctions. An appeal against exercise of discretion is said to
be an appeal on principle. Appellate Court will not reassess the material
and seek to reach a conclusion different from the one reached by the court
below if the one reached by the court was reasonably possible on the
material. The appellate court would normally not be justified in interfering
with the exercise of discretion under appeal solely on the ground that if it
had considered the matter at the trial stage it would have come to a
contrary conclusion. If the discretion has been exercised by the Trial Court
reasonably and in a judicial manner the fact that the appellate court would
have taken a different view may not justify interference with the trial court's
exercise of discretion. After referring to these principles Gajendragadkar, J.
in Printers (Mysore) Private Ltd. v. Pothan Joseph : (SCR 721) ....These principles are well established, but as has been observed by Viscount Simon in Charles Osention & Co. v. Johnston the law as to the 28 reversal by a court of appeal of an order made by a judge below in the exercise of his discretion is well established, and any difficulty that arises is due only to the application of well settled principles in an individual case. The appellate judgment does not seem to defer to this principle." In Dalpat Kumar and Anr. vs. Prahlad Singh and Anr. reported in (1992) 1 SCC 719 the Supreme Court said:
"4. ........ It is settled law that the grant of injunction is a discretionary relief. The exercise thereof is subject to the court satisfying that (1) there is a serious disputed question to be tried in the suit and that an act, on the facts before the court, there is probability of his being entitled to the relief asked for by the plaintiff/defendant; (2) the court's interference is necessary to protect the party from the species of injury. In other words, irreparable injury or damage would ensue before the legal right would be established at trial; and (3) that the comparative hardship or mischief or inconvenience which is likely to occur from withholding the injunction will be greater than that would be likely to arise from granting it.
5. Therefore, the burden is on the plaintiff by evidence aliunde by affidavit or otherwise that there is "a prima facie case" in his favour which needs adjudication at the trial. The existence of the prima facie right and infraction of the enjoyment of his property or the right is a condition for the grant of temporary injunction. Prima facie case is not to be confused with prima facie title which has to be established, on evidence at the trial. Only prima facie case is a substantial question raised, bona fide, which needs investigation and a decision on merits. Satisfaction that there is a prima facie case by itself is not sufficient to grant injunction. The Court further has to satisfy that non-interference by the Court would result in "irreparable injury" to the party seeking relief and that there is no other remedy available to the party except one to grant injunction and he needs protection from the consequences of apprehended injury or dispossession. Irreparable injury, however, does not mean that there must be no physical possibility of repairing the injury, but means only that the injury must be a material one, namely one that cannot be adequately compensated by way of damages. 29 The third condition also is that "the balance of convenience" must be in favour of granting injunction. The Court while granting or refusing to grant injunction should exercise sound judicial discretion to find the amount of substantial mischief or injury which is likely to be caused to the parties, if the injunction is refused and compare it with that it is likely to be caused to the other side if the injunction is granted. If on weighing competing possibilities or probabilities of likelihood of injury and if the Court considers that pending the suit, the subject-matter should be maintained in status quo, an injunction would be issued. Thus the Court has to exercise its sound judicial discretion in granting or refusing the relief of ad interim injunction pending the suit.
6. .........The phrases "prima facie case", "balance of convenience" and "irreparable loss" are not rhetoric phrases for incantation, but words of width and elasticity, to meet myriad situations presented by man's ingenuity in given facts and circumstances, but always is hedged with sound exercise of judicial discretion to meet the ends of justice."
The appeal court can only exercise its discretion if the order of the trial judge is perverse, most unreasonable or has not considered material facts We have already discussed the various vital issues involved in this case for consideration of grant or refusal to grant an interim injunction which were not adequately considered by the learned judge in exercising his discretion in the matter.
Before concluding this judgment, I would like to deal with the point of suppression raised by Mr. Biala. An interim order is vitiated if it is obtained by suppression of material facts. The plaintiff or the petitioner is not obliged to disclose all facts before the court but is only obliged to disclose those which are material on proof of which he is entitled to an order. The respondents had founded their case on the certificate dated 28th October, 2005 issued by the trademark registry in respect of their word mark "Ganesh" without any condition, restriction or limitation. On that basis, they ran the case of infringement seeking a restraint order on 30 the appellants to use that mark in any form. Whether registration of word and label marks containing the word "Ganesh" or any variant thereof was pending or marks with "Ganesh" had been registered subject to a geographical limitation or disclaimer was not material for the respondents' case. Hence, I see no merit in this contention.
In those circumstances and for the reasons advanced, the interim order granted by the learned judge requires modification if not wholly, substantially.
CONCLUSIONS:
As the word mark Ganesh is very common to the flour trade generic, non- distinctive and moreover as it is the name of a most popularly worshipped Hindu god, the registration of this mark in favour of the respondent No. 1 prima facie appears to be invalid. The respondents do not have any exclusive right of ownership of this mark. They cannot restrain the appellants from using the word mark "Ganesh", in an infringement action. However in my opinion the respondents have a proprietary right over the label mark or trade dress under which their goods are sold, containing the word mark "Ganesh" along with artistically coloured designs. Specially important in this trade dress is the character, size, font and style of writing "Ganesh" prominently, accompanied by the above colour combination and design. In my opinion the appellants have imitated the character, size, font and style of writing "Ganesh". The prominence of "Ganesh" in their label mark also containing the word mark "Ganesh" and colourful designs is such, that the label resembles the trade dress of the respondents, causing deception and confusion in the trade. The appellants seem to be trading on the goodwill of the respondents. In those circumstances, an action in passing off action lies. The respondents have been able to make out a prima facie case in passing off.
31 The appellants are entitled to use the mark "Shree Ganesh" under Section 35 of the Trademarks Act, 1999.
Considering all the circumstances the impugned interim order granting a blanket injunction restraining use by the appellants of the respondents' trademark is modified to the extent that they will be entitled to use the label mark with the following modifications:
The word "Ganesh" in isolation cannot be used. The words: "Shree Ganesh Besan Mill" has to be written on the label in the same character font and style and in a non-prominent way, differently from the style in which it is written on the label of the respondents' products. The place of manufacture Raipur, Chhattisgarh should also be mentioned so as not to cause any confusion or deception in the trade.
The appeal is disposed of. The application (CAN 2 of 2021) is allowed. Certified photocopy of this order, if applied for, be supplied to the parties upon compliance with all requisite formalities.
I agree,
(ANIRUDDHA ROY, J.) (I. P. MUKERJI, J.)
32