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(iv) As per the appellant's own documents such as annual reports, newspaper advertisements, etc., the trade mark is “SUNFEAST YIPPEE !!” and the three types of masala are product descriptor or flavour descriptor;

(v) The appellant has admitted that the trade mark of the noodles launched and sold by its “SUNFEAST YIPPEE”;

(vi) The respondent is the pioneer and first to introduce instant noodles in India under the trade mark MAGGI in the year 1983. The sale of MAGGI noodles as of 2012 is Rs.2,377 Crores. MAGGI is well known trade mark in India. The trade mark MAGGI is a coined mark used internationally since the year 1884 and in India since 1974 for flavour solutions in the form of cubes. Therefore, the competing trade mark for the purposes of deciding the suit are “SUNFEAST YIPPEE” and “MAGGI”. The packing of the two products are completely different and there is no question of any confusion or deception among the consumers or traders. MAGGI has approximately 80% market share and therefore, the question of MAGGI trading upon the reputation and goodwill of SUNFEAST YIPPEE does not arise and therefore, the suit is misconceived;

(xvi) The affiliates of the respondent have been using “Magic” for their various ranges of MAGGI products internationally prior to 2010 such as MAGGI Magic Sinigang, MAGGI Magic Sarap, MAGGI Magic Chef, MAGGI Magic Meals, MAGGI Magic Sabaw, MAGGI Magic Lezat, MAGGI Magic Asia, MAGGI Magic Curry Mix and MAGGI Magic Chicken; http://www.judis.nic.in (xvii) The contention of the appellant that they have used “Magic” for noodles is misconceived as it is obvious with the word “MAGIC MASALA”, as it shows that the word “Magic” is used for masala, which is used as a flavour agent, taste enhancer/flavour enhancer;

10.The respondent, in their preliminary submissions apart from other things, have stated that the trade mark MAGGI was derived from the surname Julius Maggi, Founder of the business Nestle Group carried on from 1886 up to 1947 in the name of Maggi Alimantana S.A., which merged with Nestle and become Alimantana S.A. The trade mark MAGGI has no meaning whatsoever in common parlance and is not a dictionary word. The trade mark MAGGI enjoys highest degree of inherent distinctiveness, it canotes and denotes source and origin of the goods and business of Nestle exclusively and therefore, they are the proprietor of the trade mark MAGGI having exclusive right to use thereof in relation to variety of goods or business. The respondent has been manufacturing and selling variety of culinary products in India under the trade mark MAGGI since 1974 under an arrangement with Nestle. After referring to the various awards received by the respondent, it is http://www.judis.nic.in submitted that they have expended substantial amount on advertisement, promotion of the trade mark MAGGI in India through various media. After referring to the annual sales from 1974 to 2013 and the promotional expenses incurred by MAGGI from 1978 to 2013, it is submitted that these would establish goodwill and reputation enjoyed by the respondent. It is further submitted that the trade mark MAGGI is registered in India since 1970 and has been used for noodles since the year 1983 in India and the market share owned by MAGGI is approximately 80%. 

                          Exhibits                      Details of Exhibits
                            No.

D28 series The Power of Attorney dated 22.06.2013 and original authorization letter dated 07.04.2017 in favour of Mr.T.S.Venkateswaran D29 series Print media advertisements dated 15.10.1986 D30 Certificate issued by the advertising Agency TLG India Private Limited giving statement as to total cost and spots aired on various channels pertaining to Maggi Magic Cubes for the years 2007-2009 D31 series Photographs of the product Maggi Dal Magic used in the year 2003(5 pages) D32 series Sales Invoices pertaining to Maggi Magic Cubes for the period 2004-2012 (57pages) D33 series Television commercial telecast details along with promotional invoice pertaining to Maggi Magic Cubes for the period 2005 and 2009 (3 pages) D34 series Print Media Advertisements pertaining to Maggi Magic Cubes for the period 2009(29 pages) D35 series Publicity expense estimate in respect of Maggi Dal Magic for the year 2003 (3 pages) D36 series List along with depiction showing various Maggi product using internationally the word Magic Section 65B Affidavit dated 13.04.2017 is encl. as Document No.2 filed on 18.04.2017 before the Court (16 pages) D37 Original certificate without dated issued by TLG India Limited (5 pages) http://www.judis.nic.in D38 series Original annual reports of the Defendant for the years 2009-2011 (9 pages) D39 series Computer print out of the story boards of the Defendant’s produce (Section 76(B) certificate as prescribed under the Evidence Act is already filed) (16 pages) D40 series Computer print out of the point of sale materials pertaining to the defendant’s Masala-Ae-magic (Section 65(B) certificate as prescribed under the Evidence Act is already filed) (16 pages) D41 series Computer print out of the sale and promotional invoices (23 pages) (Section 65B certificate already filed) D42 series AC Nelson Report of 2012 showing various distributors for Maggi Masala-Ae-Magic in various states in India (1 page) D43 series Computer print out of the search report from the official website of the Trademark Registry with the search string containing the word Magic in Class 29 & 30 (109 pages) D44 series Computer print out of the depiction of the products showing use of the words MAGIC MASALA in trade (21 pages) Cross Examination of DW1 (Exhibits P23 to P37) :-