Cadbury India Limited And Ors. vs Neeraj Food Products on 25 May, 2007
(xi) para-67 of Cadbury India Ltd v. Neeraj Food Products13.
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1 - 4 of 4 (0.83 seconds)M/S.Heinz Italia & Anr vs M/S.Dabur India Ltd on 18 May, 2007
56.8 Heinz Italia v. Dabur India Ltd48
56.8.1 The asserted mark in this case is the same as that with which we
are concerned, i.e., Glucon-D, though asserted by Heinz Italia SRL
(―Heinz‖, hereinafter), the original proprietor of the said trade mark
and the predecessor-in-interest of the present plaintiff. The trade
mark ―Glucon-D‖ was initially registered in the name of Glaxo on 21
May 1975 and subsequently assigned to Heinz vide Assignment Deed
dated 30 September 1994. Heinz claimed to have been using the trade
mark Glucon-D and the distinctive packaging of the said product -
which is the same as the prior packaging in the present case - from
1994 till 2002 uninterruptedly.
Cadila Healthcare Ltd. vs Gujarat Co-Operative Milk Marketing ... on 23 October, 2007
is not a coined word and at best it is a combination of two popular
English words which are descriptive of the nature of the product as
held by the Division Bench in Cadila Healthcare Ltd.53 (supra)
case that such adoption naturally entails the risk that others in the
field would also be entitled to use such phrases. Low Absorb is not
an unusual syntax and the same can almost be said to be a
meaningful part sentence or phrase in itself. The expression "LOW
ABSORB" surely and immediately conveys the meaning of the
expression that something which absorbs less, and when used with
respect to edible oil, it is descriptive in that it refers to less oil
being absorbed or low oil being absorbed. Similar to the
expression "Sugar Free" being not an unusual juxtaposition of two
English words the expression "LOW ABSORB" equally is not an
unusual juxtaposition of words in that the same can take away the
descriptive nature of the expression. The expression "LOW
ABSORB" is used in the functional sense for the character of the
product viz. edible oil. With respect to the unregistered trade mark
"LOW ABSORB" we are of the firm opinion that in essence the
expression "LOW ABSORB" only describes the characteristic of
the product edible oil and ordinarily/normally incapable of being
distinctive. We are also of the view that it is high time that those
persons who are first of the blocks in using a trade mark which is a
purely descriptive expression pertaining to the subject product
ought to be discouraged from appropriating a descriptive
expression or an expression which is more or less a descriptive
expression as found in the English language for claiming the same
to be an exclusive trade mark and which descriptive word mark
bears an indication to the product's kind, quality, use or
characteristic, etc. This in our view is in accordance with the spirit
of various subsections of Section 9 and Section 30 besides also
Section 35 of the Act. The very fact that in terms of Section 9 of the
Act, in cases falling therein, there is an absolute ground for refusal
of registration of the trade mark, the same clearly is an indication
of ordinarily a disentitlement from claiming exclusive ownership of
Signature Not Verified a descriptive expression as a trade mark. We are in this entire
Signed By:SUNIL CS (COMM) 115/2023 Page 95 of 140
SINGH NEGI
Signing Date:03.07.2023
15:35:51
judgment for the sake of convenience only using the expression
„descriptive expression‟ or „descriptive word‟ or „descriptive trade
mark‟ „descriptive‟, etc. but these expressions are intended to
cover cases with respect not only to a descriptive word mark used
as a trade mark but to all word marks used as trade marks which
refer to kind, quality, intended use or other characteristics, etc. of
the goods, and also other ingredients of Sections 9(1)(b) and
Section 30(2)(a).
The English And Foreign Languages University Act, 2006
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