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1. The backdrop facts leading to filing of the above captioned appeal are that on April 08, 2009 the appellant filed a suit being CS (OS) No.653/2009 on the original side of this Court inter-alia praying for a decree of permanent injunction restraining the respondent No.1 or any other person acting under its authority from using the trade mark "HERITAGE" as part of its trade name "INDIAN HERITAGE SELECT/INDIAN HERITAGE/HERITAGE SELECT" in relating to its goods (Basmati rice). Along with the suit, the appellant filed an application under Order XXXIX Rule 1 and 2 CPC being I.A. No.4748/2009 praying for an interim injunction till the disposal of the suit.

2. It was pleaded by the appellant that it is the registered proprietor of trade mark "HERITAGE" in India in relation to Basmati rice. The respondent No.1 is engaged in the business of manufacture, sale and export of Basmati rice. The respondent No.1 is using the trade name "INDIA HERITAGE SELECT/INDIAN HERITAGE/HERITAGE SELECT" in respect of Basmati rice. The use of trade mark "HERITAGE" as part of its trade name "INDIA HERITAGE SELECT/INDIAN HERITAGE/HERITAGE SELECT" by the respondent No.1 is illegal and unlawful and constitutes the acts of infringement and passing off; as it attempting to ride on the goodwill and reputation created by the appellant by manufacturing/selling Basmati rice in India. Prior to the filing of suit by the appellant, the respondent No.1 had filed a suit being CS (OS) No.639/2009 on the original side of this Court seeking to restrain the appellant from using the trade mark "HERITAGE" on the ground that it is continuously using the trade mark(s) "INDIAN HERITAGE SELECT/INDIAN HERITAGE/HERITAGE SELECT" since the year 1985 and is also the registered proprietor of said trade mark since the year 2002. The appellant cannot be permitted to use trade mark "HERITAGE" for the reasons the respondent No.1 has the exclusive right to use the trade mark(s) "INDIAN HERITAGE SELECT/INDIAN HERITAGE/HERITAGE SELECT" being the prior user and registered proprietor of the same and word "HERITAGE" (used by the appellant) is an essential feature of trade mark of respondent No.1. In addition thereto, the respondent No.1 had also filed a rectification petition before the Intellectual Property Appellate Board seeking the cancellation of the registration of trade mark "HERITAGE" in favor of appellant.

"No claim is made to the exclusive right to use "HERITAGE"

and "BASMATI RICE" or "SELECT" apart from the mark as shown."

The Plaintiff has further explained its mark as follows:

"The mark consists of green oval with a yellow trim around it. On top it has the word "HERITAGE" in bold white capital letters. On the bottom of the oval it has "BASMATI RICE" also written in white capital letters. There are two gold diamond figures on the left and right side of green oval. In the middle there is a blue oval with a white trim around it. In the middle there are three wheat figures. The first wheat figure is in gold, the second is off-white, and third is in white."

14. Keeping afore-noted legal principles in mind, we proceed to determine whether the impugned order dated October 29, 2013 passed by the learned Single Judge permitting the respondent No.1 to amend its written statement is just and proper.

15. A careful look at the paragraphs 9A to 9E sought to be inserted by the respondent No.1 in its written statement (which have been reproduced by us herein above) brings out that amendment(s) sought by the respondent No.1 were as follows:-

(a) The appellant had made a categorical statement before the United States Trademark and Patents Office, United States of America that it does not claim the exclusive right to use marks "HERITAGE/BASMATI RICE/SELECT and marks "HERITAGE SELECT" (trademark of respondent No.1) and "HERITAGE BASMATI RICE" are two different marks. (Paragraphs 9A to 9C)