A deity's name should not be monopolized, and trademark registration does not give exclusive statutory right to a word of common origin.

PRADEEP NANDRAJOG, J.

1. Vide impugned order dated 19.1.2011, while restraining the defendant/respondent from selling “Ghee” using the trademark “KRISHNA” but permitting sale with the label having words PARUL’S and LORD i.e. to read “PARUL’S LORD KRISHNA” ; all 3 words having 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 20082009. 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 falling in Class-29 of the Trade Mark Act. It is the further claim of the appellant that it is the registered proprietor of the word “KRISHNA” written in a unique distinctive style where the serif of the letter “K” extends beneath the letters “KRISHNA” in a curved manner and just after the letter “A” takes a loop in the reverse above the word “KRISHNA” and as the loop crosses the letter “K” it curves down and ends at the letter “K” i.e. the pictorial representation is the word “KRISHNA” being encapsuled within a bean.

3. With reference to its sale figures, it is the case of the appellant that the word “KRISHNA” has acquired a distinct secondary meaning in relation to the milk product sold by it and thus appellant alleges an infrangible proprietary interest in the word “KRISHNA”.

4. The defendant/respondent asserted that the word “KRISHNA” is a common word and is the name of a Hindu God who is associated with butter, milk and ghee and thus assert that the appellant cannot claim any exclusivity in the said word. That the word “KRISHNA” has acquired secondary distinctiveness vis-à-vis the goods manufactured and sold by the plaintiff/appellant has been negated. Alternatively it is the case of the defendant that it is using the word “KRISHNA” with 2 words prefixing the word “KRISHNA” being the words “PARUL’S” and “LORD”.

5. For the purposes of an interim injunction pending 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 the appeal said aspect was not touched upon by learned counsel for the appellant.

7. With regard to issue (a), the learned Single Judge noted that in order to arrive at a conclusion whether or not a mark has achieved secondary distinctiveness of a kind which immediately brings to mind the product of the proprietor of the mark, prima facie evidence has to be brought wherefrom a view could be taken that the mark in question reminds the consumer of the origin of the goods, which would encompass material to prima facie opine of the sufficiency of the distinctive secondary character acquired by the mark.

8. The learned Single Judge, in para 14.4 of the impugned order, has noted that several manufacturers of identical goods have been using the word “KRISHNA” as a part of their

trademark and thus has opined that plaintiff’s claim for distinctiveness and hence monopoly