The main legal point established in the judgment is the requirement of prior use, distinctiveness, and reputation for establishing a claim of passing off and trademark infringement. The concept of secondary meaning and the potential for confusion in the market were also key legal principles discussed.

A. K. SIKRI, J.

( 1 ) AS per the averments made in the plaint, the plaintiff Mrs. Ishi Khosla founded 'm/s. Whole Foods', which is a sole proprietorship firm of the plaintiff. It is engaged in the business of producing and retailing 'healthy and healing food products' in India. It carries on business through various franchise outlets located at Gurgaon and Chandigarh. The plaintiff claims that she is a leading health Counsellor and a former Senior Nutritionist with the Escorts Heart institute and Research Center, New Delhi. She feels pride in bringing forth a unique concept of "one-stop shop' which makes available and sells a wide range of 'healthy and healing foods' to consumers through its 'whole Foods Shop' outlets located in major cities such as New Delhi, Chandigarh and Gurgaon. These foods include all foods that provide good nutrition and promote good health using minimum additives, preservatives and chemicals and are not restricted to just low fat foods. Based on this belief she started retailing health food items like rice, pulses, wheat, oils, roasted namkeens, bakery products like whole wheat bread, cookies and a range of other food items to various authorised select franchise outlets. It is also stated those who are suffering from certain common lifestyle-related diseases like, hypertension, obesity, diabetes, osteoporosis are specially recommended to take these foods. In this manner, she is providing vast range of guaranteed organic, chemical-free, adulteration-free foods. The plaintiff also has its registered website, namely, www. wholefoodsindia. com. She is also a brand ambassador of 'equal', a low-calorie sweetener of Merisant India Pvt. Ltd. . She also has numerous articles, on going columns in leading newspapers and publications on health related issues in various leading magazines, newspapers. She has also authored a book "the Cholesterol Facts'. She extensively delivers lectures and conducts regular workshops for corporates, schools, hotel and airline industry.

( 2 ) IN respect of the trademark "whole Foods" it is stated that she started using this trademark in the year 2001. Since then it has been voluminously, continuously and extensively used by her in the course of trade/business to the extent that the trademark "whole Foods" has always been perceived as indicative of the source of the plaintiff with respect to food items, so much so that those who buy or are keen on buying 'health foods' bearing the trademark "whole Foods" always associate the same with the plaintiff and none else. She, therefore, states that she is the proprietor of the trademark "whole Foods" in India by virtue of priority in adoption, long, continuous and extensive use and the reputation consequently accruing thereto in the course of trade and is acknowledged to be a standard bearer of excellence in quality and business ethics. She has also applied for registration of this trademark on 27. 7. 2004 vide Application No. 01298649 in Class 30.

( 3 ) IT is further the case of the plaintiff that she is also the owner of copyright in 'artistic work' comprised in the style of writing and representation of the trademark "whole Foods", as also in the get-up, layout, arrangement of features, colour scheme and appearance of the packaging within the meaning of Section 2 (c) of the Copyright Act,1957 and is, therefore, entitled to copyright protection under Section 13 of the aforesaid Act. She states that she has made its packaging unique and distinctive in order to distinguish the goods from those of others.

( 4 ) IT is claimed that because of superior quality of food products manufactured and marketed by her under the trademark "whole Foods" the products of the plaintiff are widely sought after by the general public and within the trade circles and therefore, sales have been sharply increasing over the years. In financial year 2001-2002 turnover was Rs. 24. 69 lacs which rose to Rs. 62. 39 lacs in 2003-2004 This shows that the plaintiff und