Full Judgment Text
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
O. O. C. J.
Notice of Motion No.4431 of 2007
In
Suit No.3203 of 2007
Parle Products Private Limited. .. .. Plaintiff
V/s.
Parle Agro Private Limited .. .. Defendant
Dr.Veerendra V. Tulzapurkar, Sr. Advocate with Mr.Salil Shah,
Mr.Ramesh Gajaria, Mr.M.R . Nair, Miss Deepa Hate and Miss
Chitra Parasnis i/by M/s.Gajria & Co. for Plaintiff.
Mr.Janak Dwarkadas, Sr.Advocate, Mr.Navroz Seervai,
Sr.Advocate, Mr.Rahul Chitnis, Mr.Nishad Nadkarni and
Mr.Shailendra Bhandade i/by M/s.DSK Legal for Defendant.
------
CORAM : SMT.ROSHAN DALVI, J.
th
Dated : 18 December 2008
JUDGMENT :
1. The parties to the Suit are Companies incorporated by two
Groups of the family of one Mohanlal Dayal Chauhan who
have been carrying on business in the name of “Parle” as a
part of their corporate name in respect of products for which
each has obtained registered trademarks, inter alia, for the
word “Parle” singly or in conjunction with other words.
Whereas the Plaintiff carries on business of biscuits and
confectioneries in their corporate name, the other group of
family of Mohanlal Dayal Chauhan carrying on business of
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beverages has diversified also into the business of
confectioneries which are manufactured and marketed by
the Defendant. It is the Plaintiff's case that the two groups
of the family of Mohanlal Dayal Chauhan hailing from Vile
Parle were to carry on distinct and separate fields of
activities being biscuits and confectioneries on the one hand
and beverages on the other and, therefore, neither can
trample upon the field of business activity of another so as to
use any trade name or market any product which would be
similar to the registered trade marks of that other.
2. Several facts are admitted between the parties and require
to be noted at the inception.
(a) The initial business was set up by Mohanlal Dayal
Chauhan in 1929 in the name of Parle Products
Manufacturing Company.
(b) This was a partnership business of Mohanlal along
with his 5 sons to carry on business of selling confectioneries.
-(c) In 1939, the said Firm expanded its activity into
manufacture and sale of biscuits.
(d) Thereafter the said Firm further expanded its line of
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business to beverages through another Partnership Firm, Parle
Bottling Company. The 5 sons were the partners of that Firm.
(e) In 1950 the Plaintiff was incorporated. All the
partners were its first Directors.
(f) In 1952 Parle Bottling Company was converted into a
Limited Company owned by all the brothers.
(g) There was division of labour between the brothers :
Kantilal and Pitamber looked after the business of biscuits and
confectioneries; Jayantilal looked after the business of
beverages. Hence the Plaintiff was looked after essentially by 2
of the sons Kantilal and Pitamber and Parle Bottling Company
Limited was looked after essentially by Jayantilal.
(h) Yet all of them earlier continued to hold shares in
both the Companies. Subsequently Jayantilal and his family
“exited” from the Plaintiff and Kantilal and Pitamber and their
families “exited” from Parle Bottling Company Private Limited.
(i)Both the Firms continued to use the word “Parle” as a part of
their corporate name as well as a trade mark on the
products manufactured, marketed and sold by them.
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(j) Both the groups marketed and sold their respective
products under specific product identification marks /brands
e.g. Monaco, Crackjack, etc. by the Plaintiff's group and Fruiti,
Appy and Bailley by the Defendant's group. This was with the
word “Parle” as its prefix or suffix.
(k) The decendents of Jayantilal incorporated the
Defendant- Company. The Defendant also has used the words
“Parle Agro” in its corporate name.
It is accepted by both that each of them can use the word
“Parle” for the specific products which each group was initially
manufacturing or looking after. Hence the Plaintiff has no
quarrel with the use of the word “Parle” by the Defendant in
respect of its beverage products. The Defendant has no
quarrel with the use of the word “Parle” by the Plaintiff in
respect of confectioneries and biscuits. Each has however
been naturally using separate names/ marks / brands for each
of their separate products as illustrated above.
3. It must be appreciated that the initial business was of a
Partnership Firm. The business expanded and diversified.
The partners formed a Limited Company. All the businesses
were carried on by that Limited Company. That was the
Plaintiff-Company. Thereafter they formed another Company.
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Thereafter the partners divided their management as
aforesaid. Yet each of them had shares in both the
Companies. Subsequently the shares of both the brothers
were sold so as to “exit” from one of the Companies.
4. Both the brothers/divisions/companies used the word
“Parle” in their respective field of activities without objection
of the other. Their trademarks have been registered under
Clauses 29, 30 and 32 of the Trade Marks Act, 1999.
5. In July 2007, the Defendant expanded and diversified into
confectionery business. It manufactured toffees under its
product identification mark and brand name “Mintrox” and
“Buttercup”. The Defendant used this product identification
mark along with the words “Parle” or “Parle Confi” on the
labels of the products. It is to this that the Plaintiff has
taken exception in view of its registered trademarks “Parle”
as well as Parle along with other names relating to the
business of biscuits and confectioneries by way of words or
labels.
6. Exhibit- A to the Plaint shows the various products
manufactured by the Plaintiff under the trademark “Parle”,
“Parles” or “Parle” with the relevant brand of the distinct
product. Exhibit- 3 to the Affidavit- in-reply are the
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Defendant's trademarks including “Parle” and Parle as the
prefix to several of its products. The Plaintiff's products are
biscuits and confectioneries and the Defendant's products
are beverages.
7. There is no Agreement between the parties, by which either
of the groups is restrained from carrying on business of the
other group for any period of time or within any place upon
the brothers “exiting” for any of the businesses of the family.
The Plaintiff has not disputed the Defendant's right of
carrying on business in confectioneries or biscuits. The
Plaintiff only contends that the Defendant cannot use the
trademark “Parle” singly or in conjunction with its product
identification marks such as “Buttercup” or “Mintrox”.
8. The Defendant contends that Parle is a “house mark” and it
can be used by members of the family of Parle to denote the
family lineage for any business – confectionery and biscuits
or beverages. The Defendant further contends that it can
carry on business of confectioneries and biscuits by virtue of
Clause- 3 of the object clause in its Memorandum of
Association. It is argued on behalf of the Defendant that
initially all the brothers as partners and later as the
directors of the Limited Company which was formed, being
Parle Bottling Company Private Limited, have knowledge of
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the said object. It can use the house name “Parle” for the
beverages manufactured by it as also for the diversified
businesses viz. confectioneries. The Defendant was
incorporated in 1985 as one of the Companies in the group
of Companies of the Jayantilal group and one division of the
Defendant is called “The Parle Confi Company” which
belongs to the Parle Group of Companies. It is, therefore,
contended that use of the word “Parle” for the products
manufactured by the confectionery division of the Defendant
is honest and bonafide. The Defendant also contends that it
has enormous reputation and goodwill in its product
identification mark under the house mark “Parle”. It denies
confusion or likelihood of confusion upon it marketing
confectionery products.
9. The trademarks of the Plaintiff by words and labels, more
specially on the labels must be first seen and appreciated.
The trademark registration is indeed for biscuits and
confectioneries. The earliest registration of 1940s is in the
name of “Parles” and “Parle”. This continued until about
2001 for various products showing Parle on their labels. In
2005, the Plaintiff registered the trademark “Parle Mint”.
The mark “Parle Logo” is also stated to have been registered
by the Plaintiff. It is an admitted position that the Plaintiff
manufactured various biscuits such as Glucose, Monaco,
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Krackjack, etc. The name of its biscuit products are not
shown to be separate trademarks. They are, therefore, the
identification marks of those products which the Defendant
calls “product identification marks.” As the Plaintiff's
business expanded and as it manufactured a number of
products it could not continue selling the products only in
the name of Parle or Parles. The products being different
were also sold under different names - Glucose, Monaco,
Krackjack, etc. The Defendant manufactured Fruit juices
and mineral waters again under the name “Parle” along with
its distinctive and identifiable marks for each of its items
such as Fruiti, Appy, Bailey, Soda etc. Mintrox and
Buttercup are such product identification marks or brand
names for its products being toffees. The labels show the
distinctive and identifiable marks, “Buttercup” and “Mintrox”
which the Defendant calls product identification marks.
10. A Company or a business house which manufactures an
array of products would require separate brands for each
product to give an identity to the product. Such identity
would enhance the recognition of the product and
distinguish it from the others. In an increasingly brand
conscious and brand recognizing world it is the brand of a
particular business house or a family which would attract
and acquire goodwill. The sale of a product under that
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brand requires a separate mark of the product. The product
would be identified and sold under such mark .
11. The labels, Exhibit- D to the Plaint, show the words “Parle
Confi” in much smaller handwriting on a part of the label
below which is mentioned “The Parle Confi Division” almost
illegibly. The relief that the Plaintiff wants is to restrain the
Defendant from using these words “Parle Confi” on its labels
on a premise that the Defendant has infringed the Plaintiff's
trademark “Parle”.
12. The fact that the two groups hail from a single seminal
partnership Firm and would, therefore, be entitled to carry
on both the businesses of the partnership Firm has not been
disputed. It will have to be seen whether the Defendant can
use the word “Parle”, be it a house mark or otherwise along
with a new word “Confi” which has not been a part of the
trademark of any of the parties on their labels containing
another distinct and bold identification mark of the product.
13. In the case of
Anderson & Lembke Limited vs. Anderson
& Lembke Inc., (1989) R.P.C. 124 the right of the parties
having a common origin but trading under dissimilar name
using the word of the original Company was considered. The
Plaintiff and the Defendant carried on advertising agencies.
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They had a common origin in Sweden. Whereas the Plaintiff
carried on business in the U.K., the Defendant carried on
business in the U.S. They formed subsidiaries in other
countries. Certain local Managers, who were appointed,
purchased the shares of both the parties. The Plaintiff's
products came to be sold under a contract containing a
covenant that the vendor would not be involved in any
Company or organization in the United Kingdom, using
either the name Anderson or Lembke or combination thereof.
The Defendant opened a branch office in London under the
name BUSINESS ADVERTISING EUROPE. The Defendant's
stationery showed “Proprietor : Anderson & Lembke Inc.,
U.S.A.” to which the Plaintiff took exception. It was
contended that the U.S. Company was entitled to trade in
U.K. but there was a risk or confusion under those
circumstances. The Plaintiff contended that the Defendant
could not show that it was a part of the U.S. Company in the
U.K. in view of the reputation enjoyed by the Plaintiff in the
U.K. The partition of the initial Company of Mr.Anderson
and Mr.Lembke which had started in Sweden resulted in the
Defendant- Company carrying on business in the U.S. but
having gained reputation also off-shore. The Business
Advertising Europe was constituted as a branch under an
Agreement of the U.S. Company with a Dutch Company
which required the U.S. Company to perform its contract in
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London and not in the U.S. It was observed by Justice
Hoffmann thus:-
“ It is no more than the truth. The casual reader
might wonder what, if any, was the connection
between the U.S. and the U.K. companies, but this
puzzle is caused by the lawful existence of the two
companies with similar names and not by any
representation by the defendants. ..... In this case
the defendant's trading name could not have been
more different. All that this is doing is to include
the additional truthful information that it is a
branch of the United States company .”
The reference to the name of the original business of Anderson
and Lembke carried on by the Plaintiff and the Defendant
earlier was dealt with thus :-
“ .... the defendant says that “Anderson & Lembke”
was intended to be a collective name for itself and
other European companies associated under the
umbrella of Anderson & Lembke International Limited.
But the reference to “Europe” made it clear that the
name did not necessarily refer to the plaintiff, and the
fact that the United States company was carrying on
business in the United Kingdom under an entirely
different name, as I have already said, should have
suggested to any reader that it was unlikely to be
associated with the plaintiff .”
In this case, the Defendant has manufactured toffees which
are confectionery items under the aforesaid identifiable
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product names Buttercup and Mintrox and have in smaller
print referred to, not the Plaintiff, but its own division of its
Company which looks after the confectionery business.
14. The Plaintiff does not have a registered trademark “Parle
Confi”. Hence the use of that mark by the Defendant cannot
per se be forbidden. It will have to be seen whether the use
of the word “Parle Confi” (which includes the word Parle for
confectionery items) would amount to any misrepresentation
by the Defendant. Misrepresentation, if any, would result if
the undiscerning public who would buy the Defendant's
toffees, at best, think that it is of the Parle Group of
Companies who manufacture confectioneries such as toffees,
but under a different product name. The Plaintiff's sale of
the confectioneries, even of toffees, would not be affected
adversely by virtue of the Defendant selling its toffees under
two other names.
15. If a third party were to manufacture toffees and include on
its label the word “Parle” in any font he would, at once, be
restrained by the Court from doing so. The Defendant's
manufacture of the toffees coming from the Parle family as it
does, is quite another matter. The Defendant certainly
cannot use the precise mark of the Plaintiff since it is a
separate legal entity. However only a reference to the word
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Parle, the trademark that which both the parties enjoyed due
to their lineage from the family of Parle, as has been done by
the Defendant, is “stating no more than the truth”. Since
the Defendant's product's name is entirely different, the
words “Parle Confi” would at best include the additional
truthful information that it is a division, which is
confectionery division, of the Defendant which is otherwise a
beverage manufacturing Company. As in the case of
Anderson (supra) the words “Parle Confi” has merely the
reference to the parent Company which the Defendant calls
a house name. But the fact that the corporate name of the
Defendant is Parle Agro Private Limited, it makes it clear that
it does not refer to the Plaintiff or the Plaintiff's businesses.
16. There are, therefore, two concepts i.e. the “product name”
or the “brand name” and the “house name”. The parties'
house name is Parle. Their various products have separate
and distinct identification names and marks for each of their
products. It is justifiably argued by Mr.Dwarkadas on behalf
of the Defendant that a customer who walks into the store
cannot ask for “Parle” to be sold. He will have to ask for
Glucose, Monaco, Buttercup, Mintrox, etc.
17. Dr.Tulzapurkar on behalf of the Plaintiff drew my attention
to the case of Ramdev Food Products Pvt. Ltd. vs.
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Arvindbhai Rambhai Patel & ors., 2006 (33) PTC 281
(SC) . The judgment of Justice S.B. Sinha in that case dealt
with the trademark used by the members of a family
carrying on business in the name of “Ramdev”. In that case
the business commenced in 1965 by one Rambhai in the
name of “Ramdev Masala Store”. He had 3 sons Arvindbhai,
Hasmukhbhai and Pravinbhai. He constituted a partnership
with his sons in 1975. The trademark “Ramdev” was
registered in 1986. Another partnership Firm “Ramdev
Masala” was constituted in 1991 and Ramdev Masala Store
was dissolved. The trademark and the goodwill of the Firm
was assigned to the Plaintiff in 1992. Under an unusual
Agreement, the Plaintiff allowed the Firm to use the
registered trademark for 7 years. Another partnership Firm
of Ramdev Exports was constituted to export the spices
manufactured by the Plaintiff-Company. The business of
manufacturing spices under the trademark “Ramdev” was
run by the 3 brothers in the name of the Plaintiff-Company.
The Firms Ramdev Masala and Ramdev Exports were
distinct and separate. Their areas of operation were also
different as suggested by their names. A Memorandum of
Understanding (MOU) had come to be executed between the
brothers by way of a family settlement to bring to an end
their disputes with regard to their respective businesses. All
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the Directors of the Plaintiff-Company were the brothers.
They held all the shares in the Company along with their
family members. A division of the assets was arrived at with
the eldest brother Arvindbhai separating from other 2
brothers Hasmukhbai and Pravinbhai. Arvindbhai became
the exclusive owner of business of Ramdev Exports and
Ramdev Masala. Hasmukhbhai and Pravinbhai carried on
business in the name of the Plaintiff-Company. The
Company was to manufacture Masala. Several trademarks
were registered and belonged to the Company. Arvindbhai
started manufacturing spices in the name and style of
“Swad”. He got the mark registered as his Firm's trademark.
The action by the Plaintiff was upon its case that that mark
was deceptively similar to the Plaintiff's registered
trademark. The Plaintiff's trademark enabled the Plaintiff's
goods to be identified and thus distinguished from the goods
of the Defendant. In paragraph 58 of the judgment the use
by the Defendants was seen to be leading to confusion based
upon the three- fold tests in the case of
Canon Kabushiki
Kaisha vs. Metro- Goldwyn- Mayer Inc., (1999) RPC 117
thus :
(i)The public would confuse the sign and mark in question.
(Direct confusion).
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(ii)The public would make a connection between the proprietor
of the sign and the mark and confuse them. (Indirect
confusion).
(iii)The public would consider the sign to be similar to the
mark although the two are not confusing. (Association).
18. It was observed that the trade name “Swad” was
printed on the labels and packing materials of the Respondent-
Arvindbhai with “Ramdev Masala” as the name of the
manufacturer in a prominent manner such as would create an
impression in the mind of the ordinary unwary customer that
the product is of the Plaintiff-Company and not Arvindbhai's
partnership Firm. It was observed that packing material as
well as the wrapper of both the parties were phonetically and
visibly similar to the registered mark of the Plaintiff – it
contained the masala similarly shown as also the picture of a
horse. It was, therefore, held that they were deceptively similar
to that of the Plaintiff and would create deception and
confusion in the minds of ordinary customers. In that case
under the MOU there was a restriction upon Arvindbhai to
carry on wholesale business of Masala and his products were
to be sold directly to consumers and marked “Not for resale”.
Hence the ambit of Arvindbhai's business was to sell the
products through the Appellant's 7 outlets. He could only sell
the products of the Appellant but were not restrained from
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manufacturing spices in his own factory. Arvindbhai could also
use the Plaintiffs' retail outlets for promoting his own products.
It was however held that under those circumstances he could
not use the mark registered by the Plaintiff as his own.
It can be seen that in that case though a mark “Swad” was
registered by Arvindbhai, the name of the manufacturer
Ramdev Masala was prominently on the packing material.
This was phonetically and visibly similar to the mark “Ramdev
Masala” of the Plaintiff. The registration of the trademark
“Swad” came to be diluted. The use of the mark “Ramdev
Masala” in a prominent manner was held amounting to
infringement of trademark. In this case, the use of the
Defendant's marks Buttercup and Mintrox are prominent – in
fact so prominent that that is about the only word which can
be prominently read on the labels, Exhibit- D to the Plaint. The
words “Parle Confi”, a part of which contains the trademark of
the Plaintiff which is not visibly similar and which is the initial
business name of both the parties is put on the packing
material most unprominently and is visibly dissimilar to the
Plaintiff's trademark either “Parle” or Parle with another name
but not Confi.
19. Hence though the parties agreed to divide their businesses
as per the initial division of labour or specialisation amongst
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themselves as partners of the initial partnership Firm and
could carry on their trade using the name “Parle” in respect
of their respective businesses, they could not use the name
“Parle” if it was deceptively similar to the registered
trademark of the other in the business field of that group.
20. It is argued on behalf of the Plaintiff that the object clause
notwithstanding and the Defendant entering the
confectionery business thereunder, the Plaintiff's trademark
could not be used by the Defendant. As per the ambit set
out in the case of this would be correct up
Ramdev (supra)
to the point that if the Defendant entered the business of
confectioneries and biscuits, it would do so without using
the trademark deceptively similar to that of the registered
trademark of the Plaintiff for manufacturing and marketing
its confectionery products and biscuits. Yet it can carry on
such businesses without infringing the Plaintiff's trademark.
It could not manufacture or mark its new products under
the same name. It could not adopt a part of the Plaintiff's
registered trademark as a part of its corporate name as it
could not “traffick in trade”. [Para- 63 in ].
Ramdev (supra)
21. The Defendant has not used the same name i.e. the name
of the Plaintiff in manufacturing its products of confectionery
items or biscuits. Part of the registered trademark used by
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the Defendant is only the business name “Parle” written
unprominently on the labels and as a part of its corporate
name. Would that amount to trafficking in the Plaintiff's
trademark ? The case of Ramdev Food Products Pvt. Ltd.
(supra) showing the parameters of such trafficking in
paragraphs 60 and 61 of the judgment answers this in the
negative. The tests, which are laid down in paragraphs 63
and 64, are also not satisfied.
22. In paragraph 77, it is observed that there are 3 elements of
Arvindbhai's trademark viz. “Ramdev”, “Masala” and “Horse”.
These are the prominent features on the labels and packing
material of the owner of the registered trade mark. It was
held that reproduction of the trademark to such an extent
would cause confusion and deception and amount to
trafficking despite the fact that Arvindbhai was otherwise
entitled to manufacture and sell the same products under
the MOU with the Plaintiff. Consequently the argument that
the label was registered by the Plaintiff and not the name
“Ramdev” was rejected in paragraph 82 of the judgment and
as a trademark would, inter alia, include a name, in
paragraph 83 the trademark which is deceptively similar has
been held to be the mark which not only merely resembles
the other mark, but is likely to deceive or cause confusion.
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In this case, the mark “Parle Confi” is not deceptively similar to
any of the Plaintiff's trademarks. All that it has is the use of
the initial business name which the Defendant calls a house
mark.
23. In paragraph 92 of the judgment, the consequences of
a passing off act of the Defendant have been set out. It
observes that though the Defendant may not be using the
actual trademark of the Plaintiff, the get up of the Defendant's
goods may be so much like the Plaintiff's that the clear case of
passing off could be proved. It is further observed that in an
infringement action an injunction would be issued if the
Defendant improperly used the Plaintiff's mark. If the
Defendant's mark is identical with the Plaintiff, the question of
confusion would not be seen. In paragraph 93 of the judgment,
referring to the case
Parle Products (P) Ltd. vs. J.P. and Co.,
Mysore (1972) 1 SCC 618, an overall similarity of the
impugned mark with the registered mark is held sufficient as
being likely to mislead.
In this case, there is no overall similarity of the words “Parle
Confi” to the Plaintiff's registered trademark. None can,
therefore, “ easily mistake the Defendant's wrapper for the
Plaintiff's if shown to it sometime after it has seen the
Plaintiff's .”
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24. What is material is the observation in paragraph 115
of that judgment. The judgment observes about the use of a
trademark by a party which is an outsider and by a party
within the family thus :-
“ It may be true that there exists a distinction between
a suit in a trade mark action against the whole world
and a suit for implementation of division of assets
amongst the members of the family
.”
However, in that case after the MOU was entered into, the
parties separated and ceased to be members of the joint family.
The covenant in the MOU determined the rights of the parties.
Hence in that case the rights of Arvindbhai came to be
restricted as contained in the MOU for sale of the Plaintiff's
products from the 7 outlets, manufacture of Arvindbhai's own
products as well as its sale from those outlets but not the use
of the trademark.
In this case, there is no restrictive MOU between the parties.
The parties have merely “exited” from each others' businesses
by sale of their shares. They never ceased to be members of the
house of Parles. There was no restriction upon the Defendant
to enter into confectionery business which was in fact
specifically allowed under the object clause of its Memorandum
of Association. The Defendant has not used the entire of any
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of the Plaintiff's trademarks. The Defendant has also not used
even a part of the distinctive trademark which was only of the
Plaintiff. The Defendant has given its own brand name or its
identification mark to its new products just as the Plaintiff has
given to its. All that the Defendant has done is to “state no
more than the truth ”, as observed in the case of
Anderson
(supra) , keeping its trademark different from that of the
Plaintiff's and its product identification mark completely new
and different which is the only prominent part of the
Defendant's labels.
25. In the case of Ramdev Food Products (supra) , Arvindbhai,
inter alia, was restrained from using the trademark of the
Plaintiff, including the trademark Ramdev Masala, but
allowed to carry on the business of manufacturing spices in
any other name. He was directed to mention in minimum
permissible size how his product was manufactured and
marketed by the name of his Firm showing his group with
the addition of the words “ having no relationship whatsoever
with ” the Plaintiff-Company. This was inconsonance with
the standards of Weights and Measures Act and Prevention
of Food Adulteration Act.
26. The judgment in the case of
Ramdev Food Products
(supra) squarely governs the rights and entitlements of the
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parties in respect of their trademarks and their businesses
in other trademarks and hence stricto senso the judgments
referred to and elaborated in that case need not be
separately considered. The five of these judgments have
been specifically relied upon by Dr.Tulzapurkar in this case
though.
27. In the case of Ruston and Hornby Ltd. vs.Zamindara
the Defendant's
Engineering Co., AIR 1970 SC 1649
trademark was identical with the Plaintiff's trademark. The
Defendant used the word “Rustam India”. The Plaintiff, who
is the registered proprietor of “Ruston” was granted an
injunction on account of the deceptive resemblance of the
two words “Ruston” and “Rustam”, the addition of the word
“India” being held to be of no consequence.
28. In the case of Kirloskar Diesel Recon Pvt. Ltd. & anr. vs.
Kirloskar Proprietary Ltd. & ors., AIR 1996 Bombay 149 ,
the employee of the otherwise famous Defendant- Company,
whose surname was Kirloskar started another incorporated
Company bearing that name holding that the word
“Kirloskar” had acquired a secondary meaning and had
almost become a household word. The Defendant was
restrained from using it in his corporate name. The saving
under Section 34 of the Trade and Merchandise Marks Act,
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1958, which applied to the name of the person, was held not
applicable to a corporate name which was specifically given.
29. In the case of ,
Optrex India Ltd. vs. Optrex Ltd. & anr.
1990 (1) PLR 298 , the Plaintiffs' name being used as
essential part of the corporate name of the Defendant for
similar goods was held to be of such a manner as to enable
passing off of the goods of the Plaintiff. The get up of the
cartons of the Defendant containing eye drops was shown to
be similar in the format as well as style upon a visual
examination so as to cause clear confusion to the customers.
Such name was adopted immediately upon the
commencement of the termination of the user agreement by
the Defendant. It was held that the Defendant's products
could be “ given or sold even quite innocently for the other ”. It
was held that such name could not be made bearing the
corporate name since that would result in confusion. The
order that came to be passed in that case was thus:-
“ The Defendants are hereby restrained from in any
manner using the word “Optrex” as part of their
corporate name in such a manner as to pass off or
st
enable others to pass off their goods as those of the 1
Plaintiffs; and to make it clear that use of the corporate
name in the usual manner on the medicines
manufactured by the Appellants- Defendants, that is, in small
lettering on one side of the panel of the package/carton
or at the foot of the labels of such medicines, will not amount
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25
to a breach of the injunction .”
30. In the case of
Poddar Tyres Ltd. vs. Bedrock Sales
Corporation Ltd. & anr., 1993- PTC-253 the word
“BEDROCK” used by the Defendants for tyres and tubes for
which that precise name was registered as the trademark of
the Plaintiff for those precise goods and which formed a part
of the Defendants' corporate name was restrained as being
an infringement of the Plaintiff's registered trademark since
it was held to be nearly resembling the Plaintiff's registered
trademark though it may not be its exact imitation.
31. An injunction in the case of
Ellora Industries vs. Banarasi
Dass Goela, AIR 1980 Delhi 254 came to be considered and
it was observed that when the Defendant's goods which were
sold under the distinctive mark “Gargaon” and his business
name was prominently displayed on his goods amounted to
infringement of the registered trademark.
A part of the corporate name of the Defendant being the
trademark of the Plaintiff was, therefore, held to tantamount to
passing off as the public would believe that the Defendant's
business is the Plaintiffs' due to the common or overlapping
field of activity.
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26
In this case, neither is the Plaintiff's trademark prominently
displayed, nor is the word “Parle” as the prefix to the word
“Confi” prominently displayed, nor is the Defendant's corporate
name prominently displayed on the labels, Exhibit- D to the
Plaint. The use being only of the earlier used business name,
which the Defendant calls house name, is, therefore, not seen
to be lacking in bonafides or honesty or adopted dishonesty
“ so as to cash in on the goodwill and reputation ” attached to the
trademark of the Plaintiff as observed in paragraph 37 of the
judgment in the case of upon the
Poddar Tyres Ltd. (supra)
facts of that case specifically set out in paragraph 38 therein.
32. It may be mentioned that each of the aforesaid 4 cases
which are in turn considered in the case of Ramdev Food
are cases of the attempt of infringement
Products (supra)
and/or passing off by outsiders and not family members, a
distinction which is specifically made in paragraph 115 in
the case of as quoted above.
Ramdev Food Products (supra)
33. Mr.Dwarkadas on behalf of the Defendant relied upon a
judgment in the case of Astra Pharmaceuticals (P) Ltd. vs.
Collector of Central Excise, Chandigarh, (1995) 2 SCC 84
in which the concept of a house mark has been considered
from Narayan's book on Trade Marks and Passing Off.
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27
Though the judgment with regard to the product being
covered or not under the Central Excise and Salt Act, 1944,
is irrelevant, the concept of a house mark stated by the
Defendant can be seen from that judgment thus :-
“ 677- A. House mark and product mark (or brand
name). - In the pharmaceutical business a distinction
is made between a house mark and a product mark.
The former is used on all the products of the
manufacturer. It is usually a device in the form of an
emblem, word or both. For each product a separate mark
known as a product mark or a brand name is used which is
invariably a word or a combination of a word and letter
or numeral by which the product is identified and asked for.
In respect of all products both the product mark and house
mark will appear side by side on all the labels, cartons etc.
Goods are ordered only by the product mark or brand
name. The house mark serves as an emblem of the
manufacturer projecting the image of the manufacturer
generally .”
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28
Hence the word “Parle” which is used on all the products of the
Plaintiff as well as the Defendant is their house mark. For
each of their products a separate mark is given and registered.
The product is identified by that separate mark, e.g. Glucose
as much as Buttercup. The product mark as well as house
mark may appear side by side. The case of
Ramdev Food
Products (supra) has decided how they may appear – the
house mark cannot appear prominently on the new goods
manufactured by the Defendant; the product mark instead
should and thus.
34. The mark of the Defendants has been termed as
“housemark” in the case of Biochem Pharmaceutical
.
Industries vs. Bichem Synergy Limited, 1998 PTC (18)
In that case the parties carried on various businesses using
the word “Biochem” in their corporate names. It was
observed in paragraph 20 of the judgment that there were 28
registered trademarks belonging to the Plaintiffs in use with
the letters “Bio” as prefix. The Defendants also used the
word “Biochem” as a house mark. They did not use any
other trademark for their goods. In that case the goods of
both the parties fell in the same class for registration of
trademarks, though their trade channels were different. But
since the goods that they dealt with were drugs, they were
common products though the parties operated in different
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29
fields of activities. The marks used by the parties were,
therefore, referred to as the house mark, they being a part of
the trademark or a part of the trademark for a number of
products in their various businesses.
35. Such was the use of the mark in the case of
Reed
Executive Plc vs. Reed Business Information Ltd., [2004]
R.P.C. 40 to which my attention has been drawn by
Mr.Dwarkadas. It was held that the word “Reed” is the only
“trade marky” bit and is used in general. It is observed that
“Reed” was a common surname and the additional words
used by the Defendant “Reed Business Information” in its
corporate name would not go unnoticed by the average
consumer. It was further observed that the average
consumer would not connect “Reed Business Information”
with an organisation called “Reed”. The judgment
considered the core activities of the Defendant as a service
provider and not the mere use of a part of the Plaintiff's
name as a part of the Defendant's corporate name to grant
an injunction to the Plaintiff.
36. Similar was the case of Parker-Knoll Limited vs. Knoll
which has been
International Limited, 1962 RPC 265
extensively considered in the case of Hindustan Embroidery
Mills Pvt. Ltd. vs. K. Ravindra & Co., PTC (Suppl) (2) 666
(Bom) . In the case of Parker-Knoll (supra) , the Plaintiffs
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30
had registered the trademark “Parker- Knoll”. It sued for its
injunction and passing off the use of the word “Knoll” or
“Knoll International” on the ground that that was the
essential feature of the Plaintiffs' name. An injunction with
regard to the infringement action was directed to be qualified
so as to permit bonafide user by the Defendants of their full
name “Knoll International” or “Knoll International Limited”
and with regard to the passing off action, the use of the
words “Knoll International” was directed to be qualified by
the words “without clearly distinguishing their goods from the
goods of the plaintiffs ”. Only the word “Knoll” was held not
to be permitted to be used by the House of Lords in appeal
from the said directions.
37. Kerly on Law of Trade Marks and Trade Names,
in Chapter 14 paragraph 90
Thirteenth Edition (2001)
states that a partner or employee who has left a well-known
firm and set up a similar business of his own is entitled to
advertise his former connection, but must take care to do it
so as not to suggest that the connection is still existing
between them and him, or that they have ceased to carry on
business and he is their successor. Further in paragraph
201 of that chapter Kerly has warned that an injunction
would be granted if such business was calculated to lead to
the belief that it was an agency or department of the
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31
claimant company. This shows that otherwise than in a case
of intended misdirection, an erstwhile partner or employee
can even advertise his former connection taking care to show
that it is only history and that there is no current agency or
branch of the other business firm.
38. It is seen that the real test of the Plaintiff's action and the
Defendant's use of the word “Parle” in its corporate name as
well as in the mention of “Parle Confi” as a division of the
Defendant would be governed by the detailed analysis of
such user amongst family members made in
Ramdev Food
Products (supra) and as per guidelines reflected in the
Reed's case (supra) and in Parker-Knoll's case (supra) .
39. It may be mentioned that the corporate name of the
Defendant would have been adopted upon following the
procedure under Section 20 of the Companies Act, 1956. No
exception taken by the Plaintiff under Section 21 thereof at
the time of registration of the name of the Defendant is
shown. The Plaintiff can have no objection to the use of the
corporate name per se by the Defendant as the business of
the Defendant in the field confectioneries or biscuits is not
challenged.
40. Reliance upon the other judgments by Mr.Dwarkadas would
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32
also fall in line with the reliance upon the various judgments
of the Plaintiff which do not deal with family members and
are concerned with only outsiders.
41. It is urged on behalf of the Defendant that in view of
the housemark that the Defendant is entitled to, it must be
allowed to use the housemark “Parle” as a prefix to the word
“Confi” on the labels of the Defendant showing its corporate
name. The use of the corporate name of the Defendant and
considering the judgments supra, the use of the words “Parle
Confi” by the Defendant may be permitted upon certain
directions.
42. The Defendant, therefore, cannot be completely
restrained from using the labels, Exhibit- D to the Plaint. The
Defendant's use of the two-product identification marks,
with which the Plaintiff can and do have no complaint, can
remain at that. The use of the word “Parle Confi” as is
shown in the labels need also not to be restrained. However,
in line with the directions passed in Ramdev Food Products
with regard to the statutory obligations of the
(supra)
Defendant under Standard of Weights and Measures Act and
the Prevention of Food Adulteration Act, the Defendant shall
mention the following on the labels for the products
henceforth manufactured by the Defendant :-
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33
“ Manufactured by Parle Agro Pvt. Ltd.”
followed by the following in a little larger font:-
“[Jayantilal Group] – having no relationship whatsoever
with Parle Products Private Limited.”
43. The Notice of Motion is disposed of accordingly. No
order as to costs.
(SMT.ROSHAN DALVI, J.)
44. On application of the learned Advocate for the
Defendant, this order is stayed for six weeks.
(SMT.ROSHAN DALVI, J.)
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34
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
O. O. C. J.
Notice of Motion No.4431 of 2007
In
Suit No.3203 of 2007
Parle Products Private Limited. .. .. Plaintiff
V/s.
Parle Agro Private Limited .. .. Defendant
Dr.Veerendra V. Tulzapurkar, Sr. Advocate with Mr.Salil Shah,
Mr.Ramesh Gajaria, Mr.M.R . Nair, Miss Deepa Hate and Miss
Chitra Parasnis i/by M/s.Gajria & Co. for Plaintiff.
Mr.Janak Dwarkadas, Sr.Advocate, Mr.Navroz Seervai,
Sr.Advocate, Mr.Rahul Chitnis, Mr.Nishad Nadkarni and
Mr.Shailendra Bhandade i/by M/s.DSK Legal for Defendant.
------
CORAM : SMT.ROSHAN DALVI, J.
th
Dated : 18 December 2008
JUDGMENT :
1. The parties to the Suit are Companies incorporated by two
Groups of the family of one Mohanlal Dayal Chauhan who
have been carrying on business in the name of “Parle” as a
part of their corporate name in respect of products for which
each has obtained registered trademarks, inter alia, for the
word “Parle” singly or in conjunction with other words.
Whereas the Plaintiff carries on business of biscuits and
confectioneries in their corporate name, the other group of
family of Mohanlal Dayal Chauhan carrying on business of
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2
beverages has diversified also into the business of
confectioneries which are manufactured and marketed by
the Defendant. It is the Plaintiff's case that the two groups
of the family of Mohanlal Dayal Chauhan hailing from Vile
Parle were to carry on distinct and separate fields of
activities being biscuits and confectioneries on the one hand
and beverages on the other and, therefore, neither can
trample upon the field of business activity of another so as to
use any trade name or market any product which would be
similar to the registered trade marks of that other.
2. Several facts are admitted between the parties and require
to be noted at the inception.
(a) The initial business was set up by Mohanlal Dayal
Chauhan in 1929 in the name of Parle Products
Manufacturing Company.
(b) This was a partnership business of Mohanlal along
with his 5 sons to carry on business of selling confectioneries.
-(c) In 1939, the said Firm expanded its activity into
manufacture and sale of biscuits.
(d) Thereafter the said Firm further expanded its line of
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3
business to beverages through another Partnership Firm, Parle
Bottling Company. The 5 sons were the partners of that Firm.
(e) In 1950 the Plaintiff was incorporated. All the
partners were its first Directors.
(f) In 1952 Parle Bottling Company was converted into a
Limited Company owned by all the brothers.
(g) There was division of labour between the brothers :
Kantilal and Pitamber looked after the business of biscuits and
confectioneries; Jayantilal looked after the business of
beverages. Hence the Plaintiff was looked after essentially by 2
of the sons Kantilal and Pitamber and Parle Bottling Company
Limited was looked after essentially by Jayantilal.
(h) Yet all of them earlier continued to hold shares in
both the Companies. Subsequently Jayantilal and his family
“exited” from the Plaintiff and Kantilal and Pitamber and their
families “exited” from Parle Bottling Company Private Limited.
(i)Both the Firms continued to use the word “Parle” as a part of
their corporate name as well as a trade mark on the
products manufactured, marketed and sold by them.
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4
(j) Both the groups marketed and sold their respective
products under specific product identification marks /brands
e.g. Monaco, Crackjack, etc. by the Plaintiff's group and Fruiti,
Appy and Bailley by the Defendant's group. This was with the
word “Parle” as its prefix or suffix.
(k) The decendents of Jayantilal incorporated the
Defendant- Company. The Defendant also has used the words
“Parle Agro” in its corporate name.
It is accepted by both that each of them can use the word
“Parle” for the specific products which each group was initially
manufacturing or looking after. Hence the Plaintiff has no
quarrel with the use of the word “Parle” by the Defendant in
respect of its beverage products. The Defendant has no
quarrel with the use of the word “Parle” by the Plaintiff in
respect of confectioneries and biscuits. Each has however
been naturally using separate names/ marks / brands for each
of their separate products as illustrated above.
3. It must be appreciated that the initial business was of a
Partnership Firm. The business expanded and diversified.
The partners formed a Limited Company. All the businesses
were carried on by that Limited Company. That was the
Plaintiff-Company. Thereafter they formed another Company.
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5
Thereafter the partners divided their management as
aforesaid. Yet each of them had shares in both the
Companies. Subsequently the shares of both the brothers
were sold so as to “exit” from one of the Companies.
4. Both the brothers/divisions/companies used the word
“Parle” in their respective field of activities without objection
of the other. Their trademarks have been registered under
Clauses 29, 30 and 32 of the Trade Marks Act, 1999.
5. In July 2007, the Defendant expanded and diversified into
confectionery business. It manufactured toffees under its
product identification mark and brand name “Mintrox” and
“Buttercup”. The Defendant used this product identification
mark along with the words “Parle” or “Parle Confi” on the
labels of the products. It is to this that the Plaintiff has
taken exception in view of its registered trademarks “Parle”
as well as Parle along with other names relating to the
business of biscuits and confectioneries by way of words or
labels.
6. Exhibit- A to the Plaint shows the various products
manufactured by the Plaintiff under the trademark “Parle”,
“Parles” or “Parle” with the relevant brand of the distinct
product. Exhibit- 3 to the Affidavit- in-reply are the
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6
Defendant's trademarks including “Parle” and Parle as the
prefix to several of its products. The Plaintiff's products are
biscuits and confectioneries and the Defendant's products
are beverages.
7. There is no Agreement between the parties, by which either
of the groups is restrained from carrying on business of the
other group for any period of time or within any place upon
the brothers “exiting” for any of the businesses of the family.
The Plaintiff has not disputed the Defendant's right of
carrying on business in confectioneries or biscuits. The
Plaintiff only contends that the Defendant cannot use the
trademark “Parle” singly or in conjunction with its product
identification marks such as “Buttercup” or “Mintrox”.
8. The Defendant contends that Parle is a “house mark” and it
can be used by members of the family of Parle to denote the
family lineage for any business – confectionery and biscuits
or beverages. The Defendant further contends that it can
carry on business of confectioneries and biscuits by virtue of
Clause- 3 of the object clause in its Memorandum of
Association. It is argued on behalf of the Defendant that
initially all the brothers as partners and later as the
directors of the Limited Company which was formed, being
Parle Bottling Company Private Limited, have knowledge of
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7
the said object. It can use the house name “Parle” for the
beverages manufactured by it as also for the diversified
businesses viz. confectioneries. The Defendant was
incorporated in 1985 as one of the Companies in the group
of Companies of the Jayantilal group and one division of the
Defendant is called “The Parle Confi Company” which
belongs to the Parle Group of Companies. It is, therefore,
contended that use of the word “Parle” for the products
manufactured by the confectionery division of the Defendant
is honest and bonafide. The Defendant also contends that it
has enormous reputation and goodwill in its product
identification mark under the house mark “Parle”. It denies
confusion or likelihood of confusion upon it marketing
confectionery products.
9. The trademarks of the Plaintiff by words and labels, more
specially on the labels must be first seen and appreciated.
The trademark registration is indeed for biscuits and
confectioneries. The earliest registration of 1940s is in the
name of “Parles” and “Parle”. This continued until about
2001 for various products showing Parle on their labels. In
2005, the Plaintiff registered the trademark “Parle Mint”.
The mark “Parle Logo” is also stated to have been registered
by the Plaintiff. It is an admitted position that the Plaintiff
manufactured various biscuits such as Glucose, Monaco,
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8
Krackjack, etc. The name of its biscuit products are not
shown to be separate trademarks. They are, therefore, the
identification marks of those products which the Defendant
calls “product identification marks.” As the Plaintiff's
business expanded and as it manufactured a number of
products it could not continue selling the products only in
the name of Parle or Parles. The products being different
were also sold under different names - Glucose, Monaco,
Krackjack, etc. The Defendant manufactured Fruit juices
and mineral waters again under the name “Parle” along with
its distinctive and identifiable marks for each of its items
such as Fruiti, Appy, Bailey, Soda etc. Mintrox and
Buttercup are such product identification marks or brand
names for its products being toffees. The labels show the
distinctive and identifiable marks, “Buttercup” and “Mintrox”
which the Defendant calls product identification marks.
10. A Company or a business house which manufactures an
array of products would require separate brands for each
product to give an identity to the product. Such identity
would enhance the recognition of the product and
distinguish it from the others. In an increasingly brand
conscious and brand recognizing world it is the brand of a
particular business house or a family which would attract
and acquire goodwill. The sale of a product under that
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9
brand requires a separate mark of the product. The product
would be identified and sold under such mark .
11. The labels, Exhibit- D to the Plaint, show the words “Parle
Confi” in much smaller handwriting on a part of the label
below which is mentioned “The Parle Confi Division” almost
illegibly. The relief that the Plaintiff wants is to restrain the
Defendant from using these words “Parle Confi” on its labels
on a premise that the Defendant has infringed the Plaintiff's
trademark “Parle”.
12. The fact that the two groups hail from a single seminal
partnership Firm and would, therefore, be entitled to carry
on both the businesses of the partnership Firm has not been
disputed. It will have to be seen whether the Defendant can
use the word “Parle”, be it a house mark or otherwise along
with a new word “Confi” which has not been a part of the
trademark of any of the parties on their labels containing
another distinct and bold identification mark of the product.
13. In the case of
Anderson & Lembke Limited vs. Anderson
& Lembke Inc., (1989) R.P.C. 124 the right of the parties
having a common origin but trading under dissimilar name
using the word of the original Company was considered. The
Plaintiff and the Defendant carried on advertising agencies.
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10
They had a common origin in Sweden. Whereas the Plaintiff
carried on business in the U.K., the Defendant carried on
business in the U.S. They formed subsidiaries in other
countries. Certain local Managers, who were appointed,
purchased the shares of both the parties. The Plaintiff's
products came to be sold under a contract containing a
covenant that the vendor would not be involved in any
Company or organization in the United Kingdom, using
either the name Anderson or Lembke or combination thereof.
The Defendant opened a branch office in London under the
name BUSINESS ADVERTISING EUROPE. The Defendant's
stationery showed “Proprietor : Anderson & Lembke Inc.,
U.S.A.” to which the Plaintiff took exception. It was
contended that the U.S. Company was entitled to trade in
U.K. but there was a risk or confusion under those
circumstances. The Plaintiff contended that the Defendant
could not show that it was a part of the U.S. Company in the
U.K. in view of the reputation enjoyed by the Plaintiff in the
U.K. The partition of the initial Company of Mr.Anderson
and Mr.Lembke which had started in Sweden resulted in the
Defendant- Company carrying on business in the U.S. but
having gained reputation also off-shore. The Business
Advertising Europe was constituted as a branch under an
Agreement of the U.S. Company with a Dutch Company
which required the U.S. Company to perform its contract in
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11
London and not in the U.S. It was observed by Justice
Hoffmann thus:-
“ It is no more than the truth. The casual reader
might wonder what, if any, was the connection
between the U.S. and the U.K. companies, but this
puzzle is caused by the lawful existence of the two
companies with similar names and not by any
representation by the defendants. ..... In this case
the defendant's trading name could not have been
more different. All that this is doing is to include
the additional truthful information that it is a
branch of the United States company .”
The reference to the name of the original business of Anderson
and Lembke carried on by the Plaintiff and the Defendant
earlier was dealt with thus :-
“ .... the defendant says that “Anderson & Lembke”
was intended to be a collective name for itself and
other European companies associated under the
umbrella of Anderson & Lembke International Limited.
But the reference to “Europe” made it clear that the
name did not necessarily refer to the plaintiff, and the
fact that the United States company was carrying on
business in the United Kingdom under an entirely
different name, as I have already said, should have
suggested to any reader that it was unlikely to be
associated with the plaintiff .”
In this case, the Defendant has manufactured toffees which
are confectionery items under the aforesaid identifiable
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12
product names Buttercup and Mintrox and have in smaller
print referred to, not the Plaintiff, but its own division of its
Company which looks after the confectionery business.
14. The Plaintiff does not have a registered trademark “Parle
Confi”. Hence the use of that mark by the Defendant cannot
per se be forbidden. It will have to be seen whether the use
of the word “Parle Confi” (which includes the word Parle for
confectionery items) would amount to any misrepresentation
by the Defendant. Misrepresentation, if any, would result if
the undiscerning public who would buy the Defendant's
toffees, at best, think that it is of the Parle Group of
Companies who manufacture confectioneries such as toffees,
but under a different product name. The Plaintiff's sale of
the confectioneries, even of toffees, would not be affected
adversely by virtue of the Defendant selling its toffees under
two other names.
15. If a third party were to manufacture toffees and include on
its label the word “Parle” in any font he would, at once, be
restrained by the Court from doing so. The Defendant's
manufacture of the toffees coming from the Parle family as it
does, is quite another matter. The Defendant certainly
cannot use the precise mark of the Plaintiff since it is a
separate legal entity. However only a reference to the word
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13
Parle, the trademark that which both the parties enjoyed due
to their lineage from the family of Parle, as has been done by
the Defendant, is “stating no more than the truth”. Since
the Defendant's product's name is entirely different, the
words “Parle Confi” would at best include the additional
truthful information that it is a division, which is
confectionery division, of the Defendant which is otherwise a
beverage manufacturing Company. As in the case of
Anderson (supra) the words “Parle Confi” has merely the
reference to the parent Company which the Defendant calls
a house name. But the fact that the corporate name of the
Defendant is Parle Agro Private Limited, it makes it clear that
it does not refer to the Plaintiff or the Plaintiff's businesses.
16. There are, therefore, two concepts i.e. the “product name”
or the “brand name” and the “house name”. The parties'
house name is Parle. Their various products have separate
and distinct identification names and marks for each of their
products. It is justifiably argued by Mr.Dwarkadas on behalf
of the Defendant that a customer who walks into the store
cannot ask for “Parle” to be sold. He will have to ask for
Glucose, Monaco, Buttercup, Mintrox, etc.
17. Dr.Tulzapurkar on behalf of the Plaintiff drew my attention
to the case of Ramdev Food Products Pvt. Ltd. vs.
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14
Arvindbhai Rambhai Patel & ors., 2006 (33) PTC 281
(SC) . The judgment of Justice S.B. Sinha in that case dealt
with the trademark used by the members of a family
carrying on business in the name of “Ramdev”. In that case
the business commenced in 1965 by one Rambhai in the
name of “Ramdev Masala Store”. He had 3 sons Arvindbhai,
Hasmukhbhai and Pravinbhai. He constituted a partnership
with his sons in 1975. The trademark “Ramdev” was
registered in 1986. Another partnership Firm “Ramdev
Masala” was constituted in 1991 and Ramdev Masala Store
was dissolved. The trademark and the goodwill of the Firm
was assigned to the Plaintiff in 1992. Under an unusual
Agreement, the Plaintiff allowed the Firm to use the
registered trademark for 7 years. Another partnership Firm
of Ramdev Exports was constituted to export the spices
manufactured by the Plaintiff-Company. The business of
manufacturing spices under the trademark “Ramdev” was
run by the 3 brothers in the name of the Plaintiff-Company.
The Firms Ramdev Masala and Ramdev Exports were
distinct and separate. Their areas of operation were also
different as suggested by their names. A Memorandum of
Understanding (MOU) had come to be executed between the
brothers by way of a family settlement to bring to an end
their disputes with regard to their respective businesses. All
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15
the Directors of the Plaintiff-Company were the brothers.
They held all the shares in the Company along with their
family members. A division of the assets was arrived at with
the eldest brother Arvindbhai separating from other 2
brothers Hasmukhbai and Pravinbhai. Arvindbhai became
the exclusive owner of business of Ramdev Exports and
Ramdev Masala. Hasmukhbhai and Pravinbhai carried on
business in the name of the Plaintiff-Company. The
Company was to manufacture Masala. Several trademarks
were registered and belonged to the Company. Arvindbhai
started manufacturing spices in the name and style of
“Swad”. He got the mark registered as his Firm's trademark.
The action by the Plaintiff was upon its case that that mark
was deceptively similar to the Plaintiff's registered
trademark. The Plaintiff's trademark enabled the Plaintiff's
goods to be identified and thus distinguished from the goods
of the Defendant. In paragraph 58 of the judgment the use
by the Defendants was seen to be leading to confusion based
upon the three- fold tests in the case of
Canon Kabushiki
Kaisha vs. Metro- Goldwyn- Mayer Inc., (1999) RPC 117
thus :
(i)The public would confuse the sign and mark in question.
(Direct confusion).
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16
(ii)The public would make a connection between the proprietor
of the sign and the mark and confuse them. (Indirect
confusion).
(iii)The public would consider the sign to be similar to the
mark although the two are not confusing. (Association).
18. It was observed that the trade name “Swad” was
printed on the labels and packing materials of the Respondent-
Arvindbhai with “Ramdev Masala” as the name of the
manufacturer in a prominent manner such as would create an
impression in the mind of the ordinary unwary customer that
the product is of the Plaintiff-Company and not Arvindbhai's
partnership Firm. It was observed that packing material as
well as the wrapper of both the parties were phonetically and
visibly similar to the registered mark of the Plaintiff – it
contained the masala similarly shown as also the picture of a
horse. It was, therefore, held that they were deceptively similar
to that of the Plaintiff and would create deception and
confusion in the minds of ordinary customers. In that case
under the MOU there was a restriction upon Arvindbhai to
carry on wholesale business of Masala and his products were
to be sold directly to consumers and marked “Not for resale”.
Hence the ambit of Arvindbhai's business was to sell the
products through the Appellant's 7 outlets. He could only sell
the products of the Appellant but were not restrained from
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17
manufacturing spices in his own factory. Arvindbhai could also
use the Plaintiffs' retail outlets for promoting his own products.
It was however held that under those circumstances he could
not use the mark registered by the Plaintiff as his own.
It can be seen that in that case though a mark “Swad” was
registered by Arvindbhai, the name of the manufacturer
Ramdev Masala was prominently on the packing material.
This was phonetically and visibly similar to the mark “Ramdev
Masala” of the Plaintiff. The registration of the trademark
“Swad” came to be diluted. The use of the mark “Ramdev
Masala” in a prominent manner was held amounting to
infringement of trademark. In this case, the use of the
Defendant's marks Buttercup and Mintrox are prominent – in
fact so prominent that that is about the only word which can
be prominently read on the labels, Exhibit- D to the Plaint. The
words “Parle Confi”, a part of which contains the trademark of
the Plaintiff which is not visibly similar and which is the initial
business name of both the parties is put on the packing
material most unprominently and is visibly dissimilar to the
Plaintiff's trademark either “Parle” or Parle with another name
but not Confi.
19. Hence though the parties agreed to divide their businesses
as per the initial division of labour or specialisation amongst
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themselves as partners of the initial partnership Firm and
could carry on their trade using the name “Parle” in respect
of their respective businesses, they could not use the name
“Parle” if it was deceptively similar to the registered
trademark of the other in the business field of that group.
20. It is argued on behalf of the Plaintiff that the object clause
notwithstanding and the Defendant entering the
confectionery business thereunder, the Plaintiff's trademark
could not be used by the Defendant. As per the ambit set
out in the case of this would be correct up
Ramdev (supra)
to the point that if the Defendant entered the business of
confectioneries and biscuits, it would do so without using
the trademark deceptively similar to that of the registered
trademark of the Plaintiff for manufacturing and marketing
its confectionery products and biscuits. Yet it can carry on
such businesses without infringing the Plaintiff's trademark.
It could not manufacture or mark its new products under
the same name. It could not adopt a part of the Plaintiff's
registered trademark as a part of its corporate name as it
could not “traffick in trade”. [Para- 63 in ].
Ramdev (supra)
21. The Defendant has not used the same name i.e. the name
of the Plaintiff in manufacturing its products of confectionery
items or biscuits. Part of the registered trademark used by
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19
the Defendant is only the business name “Parle” written
unprominently on the labels and as a part of its corporate
name. Would that amount to trafficking in the Plaintiff's
trademark ? The case of Ramdev Food Products Pvt. Ltd.
(supra) showing the parameters of such trafficking in
paragraphs 60 and 61 of the judgment answers this in the
negative. The tests, which are laid down in paragraphs 63
and 64, are also not satisfied.
22. In paragraph 77, it is observed that there are 3 elements of
Arvindbhai's trademark viz. “Ramdev”, “Masala” and “Horse”.
These are the prominent features on the labels and packing
material of the owner of the registered trade mark. It was
held that reproduction of the trademark to such an extent
would cause confusion and deception and amount to
trafficking despite the fact that Arvindbhai was otherwise
entitled to manufacture and sell the same products under
the MOU with the Plaintiff. Consequently the argument that
the label was registered by the Plaintiff and not the name
“Ramdev” was rejected in paragraph 82 of the judgment and
as a trademark would, inter alia, include a name, in
paragraph 83 the trademark which is deceptively similar has
been held to be the mark which not only merely resembles
the other mark, but is likely to deceive or cause confusion.
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In this case, the mark “Parle Confi” is not deceptively similar to
any of the Plaintiff's trademarks. All that it has is the use of
the initial business name which the Defendant calls a house
mark.
23. In paragraph 92 of the judgment, the consequences of
a passing off act of the Defendant have been set out. It
observes that though the Defendant may not be using the
actual trademark of the Plaintiff, the get up of the Defendant's
goods may be so much like the Plaintiff's that the clear case of
passing off could be proved. It is further observed that in an
infringement action an injunction would be issued if the
Defendant improperly used the Plaintiff's mark. If the
Defendant's mark is identical with the Plaintiff, the question of
confusion would not be seen. In paragraph 93 of the judgment,
referring to the case
Parle Products (P) Ltd. vs. J.P. and Co.,
Mysore (1972) 1 SCC 618, an overall similarity of the
impugned mark with the registered mark is held sufficient as
being likely to mislead.
In this case, there is no overall similarity of the words “Parle
Confi” to the Plaintiff's registered trademark. None can,
therefore, “ easily mistake the Defendant's wrapper for the
Plaintiff's if shown to it sometime after it has seen the
Plaintiff's .”
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21
24. What is material is the observation in paragraph 115
of that judgment. The judgment observes about the use of a
trademark by a party which is an outsider and by a party
within the family thus :-
“ It may be true that there exists a distinction between
a suit in a trade mark action against the whole world
and a suit for implementation of division of assets
amongst the members of the family
.”
However, in that case after the MOU was entered into, the
parties separated and ceased to be members of the joint family.
The covenant in the MOU determined the rights of the parties.
Hence in that case the rights of Arvindbhai came to be
restricted as contained in the MOU for sale of the Plaintiff's
products from the 7 outlets, manufacture of Arvindbhai's own
products as well as its sale from those outlets but not the use
of the trademark.
In this case, there is no restrictive MOU between the parties.
The parties have merely “exited” from each others' businesses
by sale of their shares. They never ceased to be members of the
house of Parles. There was no restriction upon the Defendant
to enter into confectionery business which was in fact
specifically allowed under the object clause of its Memorandum
of Association. The Defendant has not used the entire of any
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22
of the Plaintiff's trademarks. The Defendant has also not used
even a part of the distinctive trademark which was only of the
Plaintiff. The Defendant has given its own brand name or its
identification mark to its new products just as the Plaintiff has
given to its. All that the Defendant has done is to “state no
more than the truth ”, as observed in the case of
Anderson
(supra) , keeping its trademark different from that of the
Plaintiff's and its product identification mark completely new
and different which is the only prominent part of the
Defendant's labels.
25. In the case of Ramdev Food Products (supra) , Arvindbhai,
inter alia, was restrained from using the trademark of the
Plaintiff, including the trademark Ramdev Masala, but
allowed to carry on the business of manufacturing spices in
any other name. He was directed to mention in minimum
permissible size how his product was manufactured and
marketed by the name of his Firm showing his group with
the addition of the words “ having no relationship whatsoever
with ” the Plaintiff-Company. This was inconsonance with
the standards of Weights and Measures Act and Prevention
of Food Adulteration Act.
26. The judgment in the case of
Ramdev Food Products
(supra) squarely governs the rights and entitlements of the
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23
parties in respect of their trademarks and their businesses
in other trademarks and hence stricto senso the judgments
referred to and elaborated in that case need not be
separately considered. The five of these judgments have
been specifically relied upon by Dr.Tulzapurkar in this case
though.
27. In the case of Ruston and Hornby Ltd. vs.Zamindara
the Defendant's
Engineering Co., AIR 1970 SC 1649
trademark was identical with the Plaintiff's trademark. The
Defendant used the word “Rustam India”. The Plaintiff, who
is the registered proprietor of “Ruston” was granted an
injunction on account of the deceptive resemblance of the
two words “Ruston” and “Rustam”, the addition of the word
“India” being held to be of no consequence.
28. In the case of Kirloskar Diesel Recon Pvt. Ltd. & anr. vs.
Kirloskar Proprietary Ltd. & ors., AIR 1996 Bombay 149 ,
the employee of the otherwise famous Defendant- Company,
whose surname was Kirloskar started another incorporated
Company bearing that name holding that the word
“Kirloskar” had acquired a secondary meaning and had
almost become a household word. The Defendant was
restrained from using it in his corporate name. The saving
under Section 34 of the Trade and Merchandise Marks Act,
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24
1958, which applied to the name of the person, was held not
applicable to a corporate name which was specifically given.
29. In the case of ,
Optrex India Ltd. vs. Optrex Ltd. & anr.
1990 (1) PLR 298 , the Plaintiffs' name being used as
essential part of the corporate name of the Defendant for
similar goods was held to be of such a manner as to enable
passing off of the goods of the Plaintiff. The get up of the
cartons of the Defendant containing eye drops was shown to
be similar in the format as well as style upon a visual
examination so as to cause clear confusion to the customers.
Such name was adopted immediately upon the
commencement of the termination of the user agreement by
the Defendant. It was held that the Defendant's products
could be “ given or sold even quite innocently for the other ”. It
was held that such name could not be made bearing the
corporate name since that would result in confusion. The
order that came to be passed in that case was thus:-
“ The Defendants are hereby restrained from in any
manner using the word “Optrex” as part of their
corporate name in such a manner as to pass off or
st
enable others to pass off their goods as those of the 1
Plaintiffs; and to make it clear that use of the corporate
name in the usual manner on the medicines
manufactured by the Appellants- Defendants, that is, in small
lettering on one side of the panel of the package/carton
or at the foot of the labels of such medicines, will not amount
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to a breach of the injunction .”
30. In the case of
Poddar Tyres Ltd. vs. Bedrock Sales
Corporation Ltd. & anr., 1993- PTC-253 the word
“BEDROCK” used by the Defendants for tyres and tubes for
which that precise name was registered as the trademark of
the Plaintiff for those precise goods and which formed a part
of the Defendants' corporate name was restrained as being
an infringement of the Plaintiff's registered trademark since
it was held to be nearly resembling the Plaintiff's registered
trademark though it may not be its exact imitation.
31. An injunction in the case of
Ellora Industries vs. Banarasi
Dass Goela, AIR 1980 Delhi 254 came to be considered and
it was observed that when the Defendant's goods which were
sold under the distinctive mark “Gargaon” and his business
name was prominently displayed on his goods amounted to
infringement of the registered trademark.
A part of the corporate name of the Defendant being the
trademark of the Plaintiff was, therefore, held to tantamount to
passing off as the public would believe that the Defendant's
business is the Plaintiffs' due to the common or overlapping
field of activity.
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In this case, neither is the Plaintiff's trademark prominently
displayed, nor is the word “Parle” as the prefix to the word
“Confi” prominently displayed, nor is the Defendant's corporate
name prominently displayed on the labels, Exhibit- D to the
Plaint. The use being only of the earlier used business name,
which the Defendant calls house name, is, therefore, not seen
to be lacking in bonafides or honesty or adopted dishonesty
“ so as to cash in on the goodwill and reputation ” attached to the
trademark of the Plaintiff as observed in paragraph 37 of the
judgment in the case of upon the
Poddar Tyres Ltd. (supra)
facts of that case specifically set out in paragraph 38 therein.
32. It may be mentioned that each of the aforesaid 4 cases
which are in turn considered in the case of Ramdev Food
are cases of the attempt of infringement
Products (supra)
and/or passing off by outsiders and not family members, a
distinction which is specifically made in paragraph 115 in
the case of as quoted above.
Ramdev Food Products (supra)
33. Mr.Dwarkadas on behalf of the Defendant relied upon a
judgment in the case of Astra Pharmaceuticals (P) Ltd. vs.
Collector of Central Excise, Chandigarh, (1995) 2 SCC 84
in which the concept of a house mark has been considered
from Narayan's book on Trade Marks and Passing Off.
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Though the judgment with regard to the product being
covered or not under the Central Excise and Salt Act, 1944,
is irrelevant, the concept of a house mark stated by the
Defendant can be seen from that judgment thus :-
“ 677- A. House mark and product mark (or brand
name). - In the pharmaceutical business a distinction
is made between a house mark and a product mark.
The former is used on all the products of the
manufacturer. It is usually a device in the form of an
emblem, word or both. For each product a separate mark
known as a product mark or a brand name is used which is
invariably a word or a combination of a word and letter
or numeral by which the product is identified and asked for.
In respect of all products both the product mark and house
mark will appear side by side on all the labels, cartons etc.
Goods are ordered only by the product mark or brand
name. The house mark serves as an emblem of the
manufacturer projecting the image of the manufacturer
generally .”
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Hence the word “Parle” which is used on all the products of the
Plaintiff as well as the Defendant is their house mark. For
each of their products a separate mark is given and registered.
The product is identified by that separate mark, e.g. Glucose
as much as Buttercup. The product mark as well as house
mark may appear side by side. The case of
Ramdev Food
Products (supra) has decided how they may appear – the
house mark cannot appear prominently on the new goods
manufactured by the Defendant; the product mark instead
should and thus.
34. The mark of the Defendants has been termed as
“housemark” in the case of Biochem Pharmaceutical
.
Industries vs. Bichem Synergy Limited, 1998 PTC (18)
In that case the parties carried on various businesses using
the word “Biochem” in their corporate names. It was
observed in paragraph 20 of the judgment that there were 28
registered trademarks belonging to the Plaintiffs in use with
the letters “Bio” as prefix. The Defendants also used the
word “Biochem” as a house mark. They did not use any
other trademark for their goods. In that case the goods of
both the parties fell in the same class for registration of
trademarks, though their trade channels were different. But
since the goods that they dealt with were drugs, they were
common products though the parties operated in different
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fields of activities. The marks used by the parties were,
therefore, referred to as the house mark, they being a part of
the trademark or a part of the trademark for a number of
products in their various businesses.
35. Such was the use of the mark in the case of
Reed
Executive Plc vs. Reed Business Information Ltd., [2004]
R.P.C. 40 to which my attention has been drawn by
Mr.Dwarkadas. It was held that the word “Reed” is the only
“trade marky” bit and is used in general. It is observed that
“Reed” was a common surname and the additional words
used by the Defendant “Reed Business Information” in its
corporate name would not go unnoticed by the average
consumer. It was further observed that the average
consumer would not connect “Reed Business Information”
with an organisation called “Reed”. The judgment
considered the core activities of the Defendant as a service
provider and not the mere use of a part of the Plaintiff's
name as a part of the Defendant's corporate name to grant
an injunction to the Plaintiff.
36. Similar was the case of Parker-Knoll Limited vs. Knoll
which has been
International Limited, 1962 RPC 265
extensively considered in the case of Hindustan Embroidery
Mills Pvt. Ltd. vs. K. Ravindra & Co., PTC (Suppl) (2) 666
(Bom) . In the case of Parker-Knoll (supra) , the Plaintiffs
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30
had registered the trademark “Parker- Knoll”. It sued for its
injunction and passing off the use of the word “Knoll” or
“Knoll International” on the ground that that was the
essential feature of the Plaintiffs' name. An injunction with
regard to the infringement action was directed to be qualified
so as to permit bonafide user by the Defendants of their full
name “Knoll International” or “Knoll International Limited”
and with regard to the passing off action, the use of the
words “Knoll International” was directed to be qualified by
the words “without clearly distinguishing their goods from the
goods of the plaintiffs ”. Only the word “Knoll” was held not
to be permitted to be used by the House of Lords in appeal
from the said directions.
37. Kerly on Law of Trade Marks and Trade Names,
in Chapter 14 paragraph 90
Thirteenth Edition (2001)
states that a partner or employee who has left a well-known
firm and set up a similar business of his own is entitled to
advertise his former connection, but must take care to do it
so as not to suggest that the connection is still existing
between them and him, or that they have ceased to carry on
business and he is their successor. Further in paragraph
201 of that chapter Kerly has warned that an injunction
would be granted if such business was calculated to lead to
the belief that it was an agency or department of the
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claimant company. This shows that otherwise than in a case
of intended misdirection, an erstwhile partner or employee
can even advertise his former connection taking care to show
that it is only history and that there is no current agency or
branch of the other business firm.
38. It is seen that the real test of the Plaintiff's action and the
Defendant's use of the word “Parle” in its corporate name as
well as in the mention of “Parle Confi” as a division of the
Defendant would be governed by the detailed analysis of
such user amongst family members made in
Ramdev Food
Products (supra) and as per guidelines reflected in the
Reed's case (supra) and in Parker-Knoll's case (supra) .
39. It may be mentioned that the corporate name of the
Defendant would have been adopted upon following the
procedure under Section 20 of the Companies Act, 1956. No
exception taken by the Plaintiff under Section 21 thereof at
the time of registration of the name of the Defendant is
shown. The Plaintiff can have no objection to the use of the
corporate name per se by the Defendant as the business of
the Defendant in the field confectioneries or biscuits is not
challenged.
40. Reliance upon the other judgments by Mr.Dwarkadas would
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32
also fall in line with the reliance upon the various judgments
of the Plaintiff which do not deal with family members and
are concerned with only outsiders.
41. It is urged on behalf of the Defendant that in view of
the housemark that the Defendant is entitled to, it must be
allowed to use the housemark “Parle” as a prefix to the word
“Confi” on the labels of the Defendant showing its corporate
name. The use of the corporate name of the Defendant and
considering the judgments supra, the use of the words “Parle
Confi” by the Defendant may be permitted upon certain
directions.
42. The Defendant, therefore, cannot be completely
restrained from using the labels, Exhibit- D to the Plaint. The
Defendant's use of the two-product identification marks,
with which the Plaintiff can and do have no complaint, can
remain at that. The use of the word “Parle Confi” as is
shown in the labels need also not to be restrained. However,
in line with the directions passed in Ramdev Food Products
with regard to the statutory obligations of the
(supra)
Defendant under Standard of Weights and Measures Act and
the Prevention of Food Adulteration Act, the Defendant shall
mention the following on the labels for the products
henceforth manufactured by the Defendant :-
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“ Manufactured by Parle Agro Pvt. Ltd.”
followed by the following in a little larger font:-
“[Jayantilal Group] – having no relationship whatsoever
with Parle Products Private Limited.”
43. The Notice of Motion is disposed of accordingly. No
order as to costs.
(SMT.ROSHAN DALVI, J.)
44. On application of the learned Advocate for the
Defendant, this order is stayed for six weeks.
(SMT.ROSHAN DALVI, J.)
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