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1 - 10 of 20 (1.42 seconds)M/S. South India Beverages Pvt. Ltd. vs General Mills Marketing Inc. & Anr. on 13 October, 2014
In the decision reported
as 2015 (61) PTC 231 South India Beverages Pvt. Ltd. v. General Mills
Marketing Inc. this issue was addressed by a Division Bench of this
25
2016 SCC OnLine Del 5420
CS(COMM) 698/2023 Page 23 of 31
Signature Not Verified
Digitally Signed
By:BABLOO SHAH
Signing Date:08.10.2024
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Court with respect to same products i.e. ice cream. The rival marks
under consideration were 'HAAGEN-DAZS' and 'D'DAAZS'.
Propounding the rule of anti-dissection to contend that the respondent's
mark 'HAAGENDAZS' should be viewed as an indivisible whole and
when viewed in its entirety, it was not deceptively similar to the
impugned trademark 'D'DAAZS', the rival argument was that 'DAZS'
formed a prominent part of the trademark 'HAAGEN-DAZS' and
therefore warranted protection against the impugned trademark. The
Division Bench then referred to various judicial decisions and opined
that the rule of anti-dissection essentially mandates that where the issue
is of deceptive similarity between composite marks, the commercial
impression of the mark as a whole needs to be considered for the reason
the jurisprudence behind the anti-dissection rule was that the
combination of the terms in its entirety and not its dissected
elements constitute the distinctive mark.
Automatic Electric Limited vs R.K. Dgawan & Anr. on 6 January, 1999
26. Reliance is placed upon RN Gosain v. Yashpal Dhir, AIR20 and
Automatic Electric Limited v. R. K. Dhawan21, wherein it has been held
that a person cannot say at one time that a transaction is valid and thereby
obtain some advantage, to which he could only be entitled on the footing
that it is valid, and then turn around and say it is void for the purpose of
securing some other advantage.
Rhizome Distilleries P. Ltd & Ors. vs Pernod Ricard S.A. France & Ors. on 23 October, 2009
46. Lastly, reliance placed by the learned counsel for the defendants
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2024: DHC: 2478
CS(COMM) 698/2023 Page 28 of 31
Signature Not Verified
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By:BABLOO SHAH
Signing Date:08.10.2024
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upon Rhizome Distilleries P. Ltd & Ors. v. Pernod Ricard S.A. France
& Ors. 29 is misplaced since the Court therein was dealing with a common
dictionary word 'Imperial' whereas in the present case, this Court is called
upon to adjudicate upon the two registered trademarks of the plaintiff
'NIMYLE' and 'JOR-POWR' as also the impugned mark of the
defendants 'POWRNYM', which are coined words, not found in the
dictionary coupled with the deceptively similar get-up/ trade dress thereof.
Greaves Cotton Limited vs Mr. Mohammad Rafi & Ors. on 3 June, 2011
32. Reliance is also placed upon Greaves Cotton Limited v. Mr.
Mohammad Rafi & Ors.24, wherein it has been held as under:
R.N. Gosain A vs Yashpal Dhir on 23 October, 1992
26. Reliance is placed upon RN Gosain v. Yashpal Dhir, AIR20 and
Automatic Electric Limited v. R. K. Dhawan21, wherein it has been held
that a person cannot say at one time that a transaction is valid and thereby
obtain some advantage, to which he could only be entitled on the footing
that it is valid, and then turn around and say it is void for the purpose of
securing some other advantage.
M/S. Amar Singh Chawal Wala vs M/S. Shree Vardhman Rice & Genl. Mills on 29 May, 2009
14.9. The impugned mark 'POWRNYM' of the defendants is derivative
of the registered trademarks 'NIMYLE' and 'JOR-POWR' belonging to
the plaintiff since they have lifted 'POWR' from the registered trademark
'JOR-POWR' and 'NIM'/ 'NYM' (mis-spelled but having identical
pronunciation) from the registered trademark 'NIMYLE' of the plaintiff.
As such, the impugned mark 'POWRNYM' is deceptively similar.
Further, the defendants have also dishonestly imitated the trade dress
including the get-up, identical shape of bottle and label as that of the
plaintiff's products under the registered trademark 'NIMYLE'.
14.10. Such an adoption by the defendants cannot be innocuous/ bona fide
rather, is a deliberate act to ride upon the goodwill and reputation of the
plaintiff's registered and well-known trademarks 'NIMYLE', 'JOR-
POWR' and NIM family of marks and create an injurious association in
the minds of consumers that the impugned mark is a latest entrant in the
NIM family of marks. Reliance is placed upon Kaviraj Pandit Durga Dutt
Sharma v. Navaratna Laboratories 8, Cadila Health Care Ltd. v. Cadila
8
AIR 1965 SC 980
CS(COMM) 698/2023 Page 9 of 31
Signature Not Verified
Digitally Signed
By:BABLOO SHAH
Signing Date:08.10.2024
16:17:42
Pharmaceuticals Ltd. 9, Laxmikant Patel v. Chetanbhai Shah 10, Amar
Singh Chawal v. Shri Vardhman Rice & Genl.
T.V. Venugopal vs Ushodaya Enterprises And Anr. on 29 December, 2000
In such
a situation and in view of what has been held in BK Engineering v. UBHI
Enterprises 14, TV Venugopal v. Ushodaya Enterprises 15 and Midas
Hygiene v. Sudhir Bhatia 16, the defendants' use of the impugned trade
dress enhances the risk of injurious association and confusion of the
defendant's 'POWRNYM' floor cleaners with the plaintiff's goods under
'NIMYLE', 'JOR-POWR' and the NIM family of marks.
Midas Hygiene Industries P. Ltd. And ... vs Sudhir Bhatia And Ors. on 22 January, 2004
In such
a situation and in view of what has been held in BK Engineering v. UBHI
Enterprises 14, TV Venugopal v. Ushodaya Enterprises 15 and Midas
Hygiene v. Sudhir Bhatia 16, the defendants' use of the impugned trade
dress enhances the risk of injurious association and confusion of the
defendant's 'POWRNYM' floor cleaners with the plaintiff's goods under
'NIMYLE', 'JOR-POWR' and the NIM family of marks.
Stiefel Laboratories, Inc & Anr vs Ajanta Pharma Ltd. on 1 July, 2014
The Division Bench then
referred to the decision reported as 211 (2014) DLT 296 Stiefel
Laborataries v. Ajanta Pharma Ltd. and therefrom extracted the
rationale for the anti-dissection rule :'The rationale of the anti-
dissection rule is based upon this assumption:'An average purchaser
does not retain all the details of a mark, but rather the mental
impression of the mark creates in its totality. It has been held to be a
violation of the anti-dissection rule to focus upon the 'prominent'
feature of a mark and decide likely confusion solely upon that feature,
ignoring all other elements of the mark. Similarly, it is improper to find
that one portion of a composite mark has no trademark significance,
leading to a direct comparison between only that which remains.' In
view of the aforesaid, the Division Bench opined that the principles of
'anti-dissection' and that of 'identification of 'dominant mark' are not
antithetical to one another but are rather complimentary. It was held
that the constituent elements may be viewed as a preliminary step in
ultimately determining probable customer reaction to the conflicting
composites as a whole. The Division Bench expounded that the rule of
anti-dissection does not absolutely restrict consideration of the
constituent elements of a composite mark and more significantly, where
less than the entire trademark was appropriated amounting to
infringement thereof, there would be no violation of the anti-dissection
rule. Reliance was placed on the decision reported as 380 F.3d 1340 Re
Chatam Int'l, Inc, where the Court held that the commercial impression
created by the dominant part 'GASPAR' of the registered mark
'GASPAR'S ALE' was far more substantial than by its other part
'ALE and therefore the impugned mark 'JOSE GASPAR GOLD' was
found to be deceptively similar to the registered mark. Reference was
then made to decision reported as 405 F. Supp.