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High Court Of Delhi
GIRNAR FOOD AND BEVERAGES PRIVATE LIMITED - Appellant
Versus
GODFREY PHILLIPS INDIA LIMITED - Respondent
First Appeal Order (OS) 185 of 1997
Decided On : 03/19/2001
The court held that the plaintiff's mark 'SUPER CUP' was descriptive and laudatory of the goods and, therefore, not entitled to protection. The court also held that the defendant's mark was sufficiently different from the plaintiff's mark to avoid confusion.
Fact of the Case:
The plaintiff, M/s. Godfrey Phillips India Ltd., sued the defendant, M/s. Girnar Food and Beverages Pvt. Ltd., for infringement of its trademark 'SUPER CUP' for tea. The plaintiff claimed that it had been using the mark since 1988 and had spent substantial amounts on advertising and promotion. The defendant claimed that it had been using the mark 'SUPER CUP' since 1975 and that the plaintiff's mark was descriptive and laudatory of the goods.
Finding of the Court:
The court found that the plaintiff's mark 'SUPER CUP' was descriptive and laudatory of the goods and, therefore, not entitled to protection. The court also found that the defendant's mark was sufficiently different from the plaintiff's mark to avoid confusion.
Issues: Whether the plaintiff's mark 'SUPER CUP' was descriptive and laudatory of the goods and, therefore, not entitled to protection.
Ratio Decidendi: The court held that the plaintiff's mark 'SUPER CUP' was descriptive and laudatory of the goods and, therefore, not entitled to protection. The court also held that the defendant's mark was sufficiently different from the plaintiff's mark to avoid confusion.
Final Decision: The court allowed the defendant's appeal and dismissed the plaintiff's suit.
( 1 ) THIS is an appeal against the order of learned Single judge dated 23/06/1997, passed in I. A. 6973/96, an application under Order 39, rules 1 and 2, Civil Procedure code, filed by the plaintiff- M/s. Godfrey Phillips India Ltd. , and I. A. 7896/96, an application under Order 39, Rules 4, Civil Procedure code, filed by defendant-M/s. Girnar Food and Beverages Pvt. Ltd.
( 2 ) BY the said order impugned in the present appeal learned Single Judge allowed I. A. 6973/96 and dismissed I. A. 7896/96 consequent on finding that a strong prima facie case was made out by the plaintiff. The learned Single Judge ordered that the defendant be injuncted from manufacturing, selling, offering for sale or distributing tea with the trade-mark SUPER CUP or any other trade mark deceptively similar thereto.
( 3 ) THE plaintiff s/respondent-M/s,vs. Godfrey Phillips India Ltd/s (hereinafter referred to as godfrey Phillips ) case set out in the plaint is as under : m/s. Godfrey Phillips carries on business of manufacturing and selling various brands of tea. Since 1988 a new adopted brand SUPER CUP was advertised arid marketed by them and for the said purpose they incurred large expenditure. Their expenditure has progressively increased from Rs. 27 lacs in 1988-89 to Rs. 285 lacs in the year 1995-96. Similarly the sale figures also increased in this period from Rs. 13 lacs to Rs. 1,898 lacs and the total quantity sold from 23 tons to 2184 tons. M/s. Godfrey Phillips came to know in december, 1995 that defendant/appellant-M/s. Girnar Food and Beverages pvt. Ltd. (hereinafter referred to as girnar Food ) was advertising and offering for sale by using packages bearing similar or deceptively looking trade-mark SUPER CUP TEA by wrongfully and dishonestly copying and adopting Godfrey Phillips s trade-mark. M/s. Girnar Food had attempted to derive unfair benefit form M/s. Godfrey Phillips s goodwill and reputation gathered from the superior quality, goodwill and reputation pertaining to the trade-mark SUPER CUP. On 11/01/1996, M/s. Godfrey Phillips issued a cease and desist notice to M/s. Girnar Food but on the defendants declining to comply with the requisition in the said notice, the present suit was filed wherein an. cx-parte act-interim injunction, was granted in favour of M/s. Godfrey Phillips on 2/08/1997.
( 4 ) THE defendant/appellant-M/s. Girnar Food in defence by its written statement pleaded that the plaintiff s application for registration of the trade mark super CUP TEA CITY LABEL with the device of CUP and SAUCER advertised in the Trade Mark Journal No. 1117 of 16. 12. 1995 bore a disclaimer by M/s. Godfrey phillips in respect of the words "super CUP" and the device of CUP and SAUCER. There was material concealment of the disclaimer issued by M/s. Godfrey Phillips in its plaint and this material concealment and misrepresentation of facts disentitled the plaintiff to the grant of the equitable relief of injunction. The said disclaimer advertised to 16. 12. 1995 disentitled the plaintiff to claim monopoly in the use of trade mark SUPER CUP. The trade mark of M/s. Godfrey Phillips was TEA CITY and not SUPER CUP. The predecessor of the defendant, M/s. Shah Shantilal and Co. had used the trade mark GIRNAR with the particular colour scheme and device in respect of tea since 1975 til 11982-83 and GIRNAR TEA was a successor to M/s. Shah shantilal and Co. with effect from 1993-94. The trade mark GIRNAR was registered after due advertisement on 1. 6. 1987. The sale figures of the products were given since the year 1974-75 and in particular in the years 1993-94 to 1995-96 goods worth rs. 1. 04 crores, Rs. 46 crore and Rs. 68 crores respectively were sold by the defendant. That due to the superior quality and the exports of tea by the defendant, merit certificates had been awarded to the defendant by the Government of India in the years 1992-93 and 1994-95. In July, 1995, the defendant started selling their brand of superior quality of tea
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