Godfrey Phillips India Ltd. vs Girnar Food & Beverages Pvt. Ltd. on 5 December, 1997
11. The appellant has relied upon the case of Godfrey Philips
55
India Ltd. v. Girnar Food & Beverages (P) Ltd. wherein it was held
that a descriptive trade mark may be entitled to protection if it has
assumed a secondary meaning which identifies it with a particular
product or has been from a particular source. It is also relevant to
mention here the judgment of Home Solutions56 was also relied
upon by the respondents, wherein it was held that the expression
‗HOMESOLUTIONS' is inherently incapable of becoming
distinctive of any single person with respect of any single product
54
(2002) RPC 17
55
2005 (30) PTC 1 (SC)
56
2007 (35) PTC 697
Signature Not Verified
Signed By:SUNIL CS (COMM) 115/2023 Page 93 of 140
SINGH NEGI
Signing Date:03.07.2023
15:35:51
or service. It is generic and publici juris. It describes the nature of
services offered. Thus, in our view, the mark „Sugar Free‟ is
inherently incapable of becoming distinctive of the product of the
appellant and hence the ratio of Godfrey Philips would thus not be
applicable. Even if it is assumed that the mark of the appellant has
become distinctive qua the artificial sweetener, however, the
protection to the mark qua the product artificial sweetener cannot
be extended to all the food products of any competitor in the
market. We also affirm and reiterate the view taken by the learned
Single Judge that the appellant's product is a sweetener/sugar
substitute, and sweeteners are generally understood in their
functional sense, that is, in terms of utility when added to foods and
beverages. To an average consumer, a sweetener is known to exist
only when added to food and beverages, and its own identity gets
merged in the food and beverages to which it is added. Thus, the
expression „Sugar Free‟ when used in relation to a sweetener may
really describe a sweetener in the sense of its generic meaning, and
what it connotes is the specific nature and characteristics of the
product.