Natures Essence Private Limited vs Protogreen Retail Solutions Private ... on 9 March, 2021
(vii) para 55 of Nature‟s Essence Pvt Ltd v. Protogreen Retail
Solutions Pvt Ltd9,
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1 - 3 of 3 (0.77 seconds)Phonepe Private Limited vs Ezy Services & Anr. on 15 April, 2021
34. Without prejudice, Mr. Sibal submits that, in the case of a
descriptive word mark, the onus is on the plaintiff alleging passing off
Signature Not Verified
Signed By:SUNIL CS (COMM) 115/2023 Page 21 of 140
SINGH NEGI
Signing Date:03.07.2023
15:35:51
to prove acquisition of distinctiveness, by the asserted marks, by dint
of use. That, he submits, is an aspect which is required to be relegated
to trial, and on which the Court cannot conceivably return a finding at
the Order XXXIX stage. He relies, for this purpose, on para 70 of the
decision of this Bench in Phonepe Pvt Ltd v. Ezy Services26 and para-
30 of the decision of a coordinate Single Bench of this Court in Red
Bull AG v. Pepsico India Holdings Pvt Ltd27 , as well as the judgment
of the Supreme Court in J.R. Kapoor v. Mirconix India28.
Britannia Industries Ltd vs Itc Ltd & Ors. on 5 April, 2021
38. Insofar as the alleged similarity in trade dress is being cited as a
basis to contend that the defendants are passing off their product as the
plaintiff's, Mr. Sibal submits that, to sustain such an allegation, the
26
2021 (86) PTC 437
27
290 (2022) DLT 673
28
1994 Supp (3) SCC 215
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Signed By:SUNIL CS (COMM) 115/2023 Page 22 of 140
SINGH NEGI
Signing Date:03.07.2023
15:35:51
plaintiff would have to establish the existence of goodwill and
reputation in the asserted trade dress. He relies, for this purpose, on
paras 10, 14 to 16 and 18 of Britannia Industries Ltd v. ITC Ltd29,
rendered by a Division Bench of this Court. Far from there being any
evidence of reputation or goodwill in the trade dress presently being
used by the plaintiff, Mr. Sibal submits that there is no evidence even
of commercial user of the said trade dress. The plaintiff has placed,
on record, he points out, one solitary invoice. Further, the application
dated 22 February 2023 (10 days prior to the filing of the present suit),
filed by the plaintiff for registration of the GLUCON-D trade dress
being presently used by it claims user of the trade dress since 9
February 2018. No affidavit or supporting documents, evidencing
said user have, however, been filed with the application, despite the
mandate of Rule 2530 of the Trade Marks Rules, 2017. The sole
invoice filed by the plaintiff does not reflect the present trade dress.
There is, moreover, no submission forthcoming, from the plaintiff,
that the present GLUCON-D trade dress has acquired goodwill or
reputation. Mr. Sibal also took me through the documents of user
filed with the present suit, which, too, he submits, do not evidence
user of the present trade dress w.e.f. 2018. He submits that certain
advertisements, in magazines, filed by the plaintiff at S. No. 30 of the
documents filed with the plaint, do not reflect the asserted trade dress.
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