Piruz Khambatta & Anr. vs Soex India Pvt. Ltd. & Ors. on 23 December, 2011
37. The decisions referred to by the defendants, i.e., Nestle
India Limited v. Mood Hospitality Private Limited (supra) and Cadila
Healthcare Ltd. v. Gujarat Co-operative Milk Marketing Federation
Ltd. and Ors. (supra), do not help the case of the defendants. In the
first case, the learned Division Bench in para 40 of the judgment has
clearly come to the conclusion that there is nothing on record to
establish, even prima facie, that the latter trade mark has been so
continuously or extensively used that it has developed a reputation in
India. In para 41, there is also finding given by the learned Division
Bench that there is a plausible explanation given by the appellant,
therefore, it cannot be said that the mark „Yo‟ was used without due
cause and mere use of the word „Yo‟ would not bring it within the
mischief of clause (c) of section 29(4).