TMI Blog1972 (1) TMI 98X X X X Extracts X X X X X X X X Extracts X X X X ..... f biscuits and confectionery and are owners of certain registered trade marks. One of them is the word "Gluco" used on their half pound biscuit packets. Another registered trade mark of theirs is a wrapper with its color scheme, general set up and entire collocation of words registered under the Trade Marks Act 1940 as No. 9184 of 7th December, 1942. This wrapper is used in connection with the sale of their biscuits known as "Parle's Gluco Biscuits" printed on the wrapper. The wrapper is of buff color and depicts a farm yard with a girl in the centre carrying a pail of water and cows and hens around her on the background of a farmyard house and trees. The plaintiffs claim that they have been selling their biscuits on an extensive scale for many years past under the said trade mark which acquired great reputation and goodwill among. the members of the public. They claimed to have discovered in March 1961 that the defendants were manufacturing, selling and offering for sale biscuits in a wrapper which according to them was deceptively similar to their registered trade mark. The plaintiffs assert that this act of the defendant constitutes an infringement of their trade mark rights. As ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng a packet of Parle biscuits would go and ask for the same as such, in which case there could be no scope for deception; again the plaintiffs could have no cause for grievance if a purchaser was content to buy any biscuits which were offered to him by the shopkeeper. The High Court also took the view that there were several' distinguishing features between the two wrappers and these could be noticed even from a distance. According to the High Court, the similarity in the two wrappers lay in the facts that both were partly yellow and partly white in color and both bore the design of a girl and some birds. "But" the High Court said "there the similarity ends. The lady in the wrapper used by the plaintiff company has a pot on her hand while, the lady in the wrapper used by the defendant has a hay- bundle on her head. In fact, they are not identical in features. In the defendants' wrapper we have got a cow and in the plaintiffs' wrapper we have got two calves. The upper portion of the defendants wrapper is not similar to that of the ,Plaintiffs' wrapper." The High Court went on to comment: "it is true that in a passing off action, one is not to look to minor details but must take in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r mark if it so nearly resembles that other mark as to be likely to deceive or cause confusion;" It is to be noted that although there was no such provision in the definition section of the Act of 1940 s. 21(1) of the said Act was to the same effect. The Indian Trade Marks Act of 1940 was based on the English Trade Marks Act, 1938 and s. 21 of the Act of 1940 was more or less similar to s. 4 of the English Act of 1938. To decide the question as to whether the plaintiffs' right to a trade mark has been infringed in a particular case, the approach must not be that in an action for passing off goods of the defendant as and for those of the plaintiff. According to this, Court in Durga Dutt v. Navaratna Laboratories ([1965] 1 S.C.R. 737. 754): "While an action for passing off is a Common Law remedy being in substance an action for deceit, that is, a passing off by a person of his own goods as those of another, that is not the gist of an action for infringement. The action for infringement is a statutory remedy conferred on the registered proprietor of a registered trade mark for the vindication of the exclusive right to the use of the trade mark, in relation to those goods (vide s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve been made by the owners of the trade mark they are already acquainted with for reasons of their own." It is therefore clear that in order to come to the conclusion whether one mark is deceptively similar to another, the broad and essential features of the two are to be considered. They should not be placed side by side to find out if there are any differences in the design and if so, whether they are of such character as to prevent one design from being mistaken for the other. It would be enough if the impugned mark bears such an overall similarity to the registered mark as would be likely to mislead a person usually dealing with one to accept the other if offered to him. In this case we find that the packets are practically of the same size, the color scheme of the two wrappers is almost the same; the design on both though not identical bears such a close resemblance that one can easily be mistaken for the other. The essential features of both are that there is a girl with one arm raised and carrying something in the other with a cow or cows near her and hens or chickens in the foreground. In the background there is a farm house with a fence. The word "Gluco Biscuits" in one ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
