Home Case Index All Cases Indian Laws Indian Laws + SC Indian Laws - 2018 (7) TMI SC This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2018 (7) TMI 2176 - SC - Indian LawsRegistration of the mark 'NANDHINI' in respect of the goods in which it is dealt with(milk and milk products) - infringement of rights of the Respondent or not? - similar trade mark in respect of different goods and different time periods involved - deception and confusion in the minds of the users that the goods in which the Appellant is trading, in fact, are the goods which belong to the Respondent - entire case of the Respondent revolves around the submissions that the adaptation of this trade mark by the Appellant, which is phonetically similar to that of the Respondent, is not a bona fide adaptation and this clever device is adopted to catch upon the goodwill which has been generated by the Respondent in respect of trade mark 'NANDINI'. HELD THAT:- The reasoning of the High Court that the goods belonging to the Appellant and the Respondent (though the nature of goods is different) belong to same class and, therefore, it would be impermissible for the Appellant to have the registration of the concerned trade mark in its favour, would be meaningless. That apart, there is no such principle of law. We are not persuaded to hold, on the facts of this case, that the Appellant has adopted the trade mark to take unfair advantage of the trade mark of the Respondent. We also hold that use of 'NANDHINI' by Appellant in respect of its different goods would not be detrimental to the purported distinctive character or repute of the trade mark of the Respondent. It is to be kept in mind that the Appellant had adopted the trade mark in respect of items sold in its restaurants way back in the year 1989 which was soon after the Respondent had started using the trade mark 'NANDINI'. There is no document or material produced by the Respondent to show that by the year 1989 the Respondent had acquired distinctiveness in respect of this trade mark, i.e., within four years of the adoption thereof. It, therefore, appears to be a case of concurrent user of trade mark by the Appellant. The orders of the IPAB and High Court are set aside - These appeals are allowed and the order of the Deputy Registrar granting registration in favour of the Appellant is hereby restored, subject to the modification that registration will not be given in respect of those milk and milk products for which the Appellant has abandoned its claim.
|