TMI Blog2011 (10) TMI 719X X X X Extracts X X X X X X X X Extracts X X X X ..... aving same font and prominence and not that the words PARUL‟S and LORD‟ having a font so small that only the word KRISHNA‟ catches (the eye due to its prominence), application filed by the appellant/plaintiff for interim injunction pending disposal of the suit has been disposed of by the learned Single Judge. 2. The appellant asserts that it has been in the business of manufacture and sale of ghee, milk and milk products since the year 1992 and sales have risen from `47.29 crores in the year 1997-1998 to `374.44 crores in the year 2008- 2009. Appellant asserts that it has obtained registration of the label mark KRISHNA‟ having pictorial reflection of Lord Krishna standing on a lotus flower for dairy products ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trial, the learned Single Judge has posed 3 questions, for purposes of taking a prima facie view, being: (a) Whether the trademark of the plaintiff has achieved secondary distinctiveness of a kind which immediately brings to mind the appellant's product? (b) Whether the plaintiff could monopolise a name ascribed to deity 'KRISHNA'? And (c) Whether a registration of a trademark obtained by a person could be a subject matter of consideration in an action for infringement of the trademark pending application filed before the Registrar of Trademarks for cancellation thereof. 6. With regard of issue (c), the learned Single Judge has held in favour of the defendant/respondent and we do not discuss said issue as during arguments in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tiff was determinative of the secondary distinctive meaning acquired by the trademark in question in relation to the goods in question. 12. We are in agreement with the view taken by the learned Single Judge not only for the reasons given by the learned Single Judge but the additional reason, as in the instant case, a deity may be associated with a particular kind of goods. It is common knowledge that Lord Krishna, as a child, was known for his love of milk and butter and thus Lord Krishna is closely linked with milk and butter and this would certainly dilute a proprietary claim projected by any person, in relation to Krishna with dairy products. 13. In a vast country like India where the population exceeds 120 crore citizens, a sales ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3; was being used by the defendant with the words PARUL‟S LORD‟ preceding the word KRISHNA‟. 17. The learned Single Judge has rightly noted that the small font of the words PARUL‟S LORD‟ with prominence to the word KRISHNA‟ would disentitle the defendant to so sell its product and thus has rightly directed the defendant to print the words PARUL‟S LORD‟ with the same prominence as the word KRISHNA‟. It has been correctly opined that dairy product sold under the mark KRISHNA‟ would not be confused qua the source if the same product is sold under the mark PARUL‟S LORD KRISHNA . 18. Since the stage is of forming a prima facie view, we refrain from delving deep into ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re the Court has ignored the settled principles of law regulating grant or refusal of interlocutory injunction. An appeal against exercise of discretion is said to be an appeal on principle. (emphasis supplied) 21. Since we are agreeing with the view taken by the learned Single Judge, we have reflected as above in a brief manner, lest parties are prejudiced at the trial and needless to state observations made by us herein above are tentative and limited to what we need to observe and note at the stage of interim relief. The final decision, post trial, would obviously be with reference to the evidence led. 22. However, one direction needs to be issued. Which we do. 23. The respondent would maintain an account of the sales affected ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
