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2018 (10) TMI 665 - HC - Indian LawsRestraining defendant from infringing the trademark “GOLD WINNER” - It is the claim of the plaintiff that the trademark “GOLD WINNER” was originally coined and adopted by the plaintiff in the year 1999 in respect of different varieties of Dhall and Flour preparations - It is also the claim of the respondent/plaintiff that in order to safeguard the rights acquired over the said trademark, they applied and obtained registration for the mark “GOLD WINNER (Label)” under Application No.1232740 in Class-30. The prayer of the respondent/plaintiff in O.A.No.224 of 2017 is for an order of ad-interim injunction restraining the appellant/defendant from in any manner infringing the registered trademark and passing off its products as that of the respondent/plaintiff's trademark “GOLD WINNER” Held that:- The documents made available before this Court would prima facie indicate that the respondent/plaintiff is having Certificate of Registration in Class-30 in respect of dhall varieties in Reg.No.1232740 dated 05.09.2003 and whereas the appellant/defendant is having trademark registration Nos.1399085, 1399087 and 1399088 dated 16.11.2005 in Class-30 for the mark “GOLD WINNER SREE GOLD”. This Court is of the considered view that the respondent/plaintiff is not entitled for an order of ad-interim injunction in respect of infringement for the reason that the registration of the appellant/defendant for the mark “GOLD WINNER SREE GOLD” dated 16.11.2005 is also in respect of Class-30. Both the appellant/defendant and the respondent/plaintiff is having registration in respect of dhall varieties etc., in Class-30 and that the registration of the respondent/plaintiffis dated 05.09.2003. A contention was also put forward that the mark of the appellant/defendant is not a “well-known trademark” as per the definition under Section 2(zg) of the Trade Marks Act, 1999 and the learned Judge in paragraph 33 of the impugned order observed that it was open to the appellant/defendant to establish his claim in that regard during in trial. This Court is also of the considered that it also requires appreciation of evidence, which can be let in during the course of trial and hence, not inclined to give any finding as to whether the trademark of the appellant/defendant has attained such reputation and status - the appellant/defendant has stopped using the said wrapper for the reasons best known to him and started packing dhall varieties in the package/wrapper titled as “GOLD WINNER- Range of dals”. The explanation offered is that they are having registration of the artistic work “GOLD WINNER SREE Gold” and those Registration Certificates are in respect of Orid Dhall, Moong Dhall and Toor Dhall bearing Nos.A-78000/2006, 78004/2006 and 78063/2007 dated 29.12.2006 and 09.01.2007 respectively and whereas the respondent/plaintiff's trademark registration certificates are dated 05.09.2003. It is a settled position of law that when the word is only descriptive of the character of the goods, no protection can be claimed for use of such word, but if the word is known for its distinctiveness secondary meaning, such word is entitled to get protection. Appeal allowed in part.
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