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High Court Of Delhi
VRAJLAL MANILAL AND COMPANY - Appellant
Versus
ADARSH BIDI COMPANY - Respondent
Interim Application 8016 of 1992
Decided On : 01/20/1995
TRADEMARK - INFRINGEMENT AND PASSING OFF - TRADE MARKS ACT, 1999 - SECTIONS 2(1)(zb), 10(2), 11(1) - SIMILARITY OF NUMERICAL TRADEMARKS - LIKELIHOOD OF CONFUSION - INJUNCTION GRANTED.
Fact of the Case:
Plaintiffs, registered owners of the trademark "22" for bidis, filed a suit against defendants for infringement and passing off of their trademark and copyright infringement of their label. The defendants denied the allegations and claimed prior use of the trademark "122" since 1976.
Finding of the Court:
The court found that the plaintiffs were prior users and registered owners of the trademark "22" and that the defendants had recently entered the market with the trademark "122". The court also found that the numerical trademarks were likely to cause confusion among illiterate or semi-literate consumers, who constitute the majority of bidi consumers.
Issues: 1. Whether the defendants' use of the trademark "122" infringed the plaintiffs' registered trademark "22". 2. Whether the defendants' labels and wrappers infringed the plaintiffs' copyright.
Ratio Decidendi: The court relied on the principles laid down in Amritdhara Pharmacy v. Satya Deo Gupta and Century Traders v. Roshan Lal Dugger and Co. to hold that the numerical trademarks were likely to deceive or cause confusion among consumers. The court also considered the fact that bidis are consumed by illiterate or semi-literate consumers, who are more likely to be misled by similar trademarks.
Final Decision: The court granted an injunction restraining the defendants from using the trademark "122" and any other deceptively similar numerical trademarks.
( 1 ) THE plaintiffs who are registered owners of the trade mark 22 for manufacturing and- marketing bidis have filed this suit complaining of infringement and passing off of their trade mark 22 , also complaining of infringement of their copyright in respect of their label.
( 2 ) ACCORDING to the plaintiffs they have been carrying on manufacturing and marketing of bidis for more than 5 decades. Their trade mark is "22". The trade mark labels comprising of numerals 22 have been duly registered and renewed from time to time. They have been valid on the date of the suit. The label consisting of "22" is an artistic work duly registered under the. Copyrights Act. The plaintiffs are having substantial sales and have incurred huge amounts in publicity of their trade mark and label. The plaintiffs have branch officers in Delhi, Agra and Lucknow and Head Office in Sagar. The plaintiffs are one of the oldest and leading manufacturers of Bidis of superior quality. Shortly before the institution of the suit, the plaintiffs have noticed the defendants manufacturing and selling their bidis under the Trade Mark 122, also having slavishly copied the plaintiffs label.
( 3 ) THE plaintiffs have also sought for an ad-interim injunction. Vide orderdatedl7. 12. 1991. This court has granted an ex-parte ad-interim in- junction restraining the defendants from selling bidis under the trade mark "122. "
( 4 ) THE defendants have denied all the material plaint averments. According to them they have been manufacturing bidis since 1976 using 122 in their trade mark. It is denied that the defendants label is deceptively similar with that of the plaintiffs. It is also submitted that numerals cannot be the monopoly of the plaintiffs as there are several bidis in the market bearing numerals of 122, 212, 21, 120, 822 and similar others.
( 5 ) AT the very outset, it may be stated that while the plaintiffs have set- out in details the figures of their sales and the amounts incurred on publicity over a number of years in respect of their bidis sold under the trade mark "22", the defendants have failed to furnish any details much less any documents to show their having been in the market with the trade mark 122 since 1978. The defendants have utterly failed in substantiating even prima facie that the allegation of the plaintiffs of the defendants having entered in the market under the trade mark 122 only a little before the institution of the suit was false. It has, therefore, to be held that the plaintiffs are prior users and registered owners of the trade mark 22. The defendants have recently entered the market with the trade mark 122.
( 6 ) LEBELS and the bundles containing the bidis which are round and conical in shape have been produced in the court for the perusal. It has been contended by the learned counsel for the plaintiffs that bidi is a commodity of consumption in the lower strata of the Indian society and they are mostly illetrates or semi-literates who consume the bidis. It is further submitted by the learned counsel that the phonetic semi-labels between the figures 22 and 122 is likely to result in deception of the unwary customers and passing off of the defendants goods as of the plaintiffs. There is substance in the submission.
( 7 ) NOT much of case law is available on the use of numericals as a trade mark, yet aothorities are available for the proposition that numericals can be used as trade mark and rights acquired by such use.
( 8 ) IN Amritdhara Pharmacy v. Satya Deo Gupta\ their Lordships have laid down the following principles : "a trade mark is likely to deceive or cause confusion by its resemblance to another already on the Register if it is likely to do so in the course of its legitimate use in a market where the two marks are assumed to be in use by traders in that market. In considering the matter, all the circumstances of the case must be considered. What degree of cause confusion must in the nature of things be incap
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