(May 6, 2002) 2002 (TLS)126914

2002-DLT-98-76 :: 2002-AD (Del)-4-645

JOLEN INC. Vs. Doctor AND Company

J. D. Kapoor

( 1 ). There are three sources for the creation of trade mark rights in any country, namely, registration, prior and continuous user and widespread reputation and goodwill of the mark irrespective of the fact whether or not goods are sold in that particular country as an aggrieved party has a right to protect its reputation and goodwill wherever it is sought to be encashed or traded upon unauthorizedly. Merely because a party has no legal source for sale of its products or even has no business in the foreshares of a particular country does not mean that it has no right to protect the integrity of its reputation or goodwill of its name or trade mark. Such a right is not only inviolable but un-infringeable also.

( 2 ). The plaintiff is a company existing under the laws of the United States of America having its principal place of business at 25, Walls Drive, Fairfield, connecticut, U. S. A. and carries on an established business as manufacturer of a wide range of cosmetics, toiletries and make up articles including inter alia creme bleach to pale hair. Mr. Arunachalam Appaji Mohan is a constituted Attorney of the plaintiff in India and is duly authorised to sign and verify the plaint and institute the instant suit. Plaintiff has through this suit sought protection of its trade mark "jolen including the carton and container from being passed off by virtue of long, prior and extensive use and great reputation and goodwill as the defendant has not only adopted the trade mark jolen but also the colour scheme, get up, layout of the plaintiff s carton and container.

( 3 ). Case of the plaintiff in brief is as under: that the plaintiff has since the year 1955, been manufacturing and selling creme bleach under the trade mark jolen . The plaintiff s creme bleach sold under the trade mark jolen is used to lighten/decolour facial hair, hair on the arms, legs and any other part of the body that a person desires to bleach. The plaintiff s. jolen creme bleach is sold in a bluish green carton with white lettering. The trade-mark jolen is written in an unique and highly distinctive stylized script wherein the initial j appears in small alphabet as j but in the same size as the remaining latters olen which appears in the capital. A white line runs atop the entire length of the letters olen . The trade mark jolen in stylized script in bluish green colour appears within a white oval on tie top of the carton the trade mark jolen in stylized script in white lettering with the words creme bleach and lightens excess dark hair appear on the front and back of the cartons with bluish-green background. The containers inside the carton are white plastic containers of a distinctive shape with the mark jolen in stylized script and the words creme Bleach*.

( 4 ). The trade mark jolen is registered in respect of creme bleach in the United States of America and in several countries all over the world including austria, Australia, Bahrain, Cyprus, Fiji, France, Greece, hong Kong, Iran, Japan, Jordan, Kuwait, Lebanon, Mexico, new Zealand, Netherlands, Panama, Portugal, Qatar, Saudi arabia, Singapore, South Africa, Sultanate of Oman, sweden. Turkey, UAE (United Arab Emirates ). The international sales figures of plaintiffs creme bleach sold under the trade mark jolen during the period 1986-1987 to 1992-1993 have been detailed in para 6 of the plaint and run into millions of dollars. Similarly sales promotion and advertisement figures of the plaintiff s creme bleach sold under the trade mark jolen for the aforesaid period have been detailed in para 7. The plaintiff s creme bleach bearing the trade mark jolen is sold in many Middle East Countries, including inter alia, the United Arab Emirates, Saudi Arabia, Bahrain, Qatar, lebanon, Kuwait and Turkey. The sales figures have been detailed in para 8.

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