JUDGMENT

C. Hari Shankar, J. - By this order, I dispose of I.A. 18292/2019, preferred by the plaintiff FDC Ltd under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure, 1908 (CPC), seeking interim injunction against the defendant M/s Faraway Foods Pvt Ltd, from manufacturing, marketing or selling products under the mark "MUMUM" which, it is alleged, is deceptively similar to the trade mark "MUMMUM", used by the plaintiff.

Rival Pleadings

2. The plaintiff claims to have coined and adopted the trade mark "MUMMUM" in 1986, and has been continuously and uninterruptedly using the said trade mark in India since 2008. The trade mark, it is contended, was first used for infant foods. On 28th April, 1986, the plaintiff was granted a manufacturing license, for manufacturing preparations under the trade mark "MUMMUM". The plaintiff also applied for BIS (Bureau of Indian Standards) certification, for its products being manufactured and sold under the trade mark "MUMMUM" in 2007, and was granted certification as sought.

3. It is claimed, by the plaintiff, that the trade mark "MUMMUM" is fanciful and inherently distinctive, and cannot be treated as descriptive of the product of the plaintiff. By long and continuous use, it is contended that the plaintiff has acquired exclusive rights to use and exploit the trade mark "MUMMUM". As is customary, the plaintiff has also provided a tabular statement of the audited sales figures of its products being sold under the trade mark "MUMMUM", during the period 2008-2009 till 2019-2020. By long and continuous use, therefore, it is claimed that the plaintiff has become the owner of the trade mark "MUMMUM".

4. It is further claimed that, in December 2019, the plaintiff devised a new, unique and distinctive trade dress, for its products bearing the trade mark "MUMMUM", and also launched food products for kids over 6 months of age, under the trade mark "MUMMUM 2".

5. Prior adoption and long and continuous user have, therefore, according to the plaintiff, resulted in creation of common law rights in favour of the plaintiff over the trade mark "MUMMUM". The plaintiff has provided the details of its registered trade marks thus:

Trade mark Registration No. Date of application/ registration Class Status MUMMUM 533220 13th July, 1990 05 Registered MUMMUM 533221 13th July, 1990 29 Registered MUMMUM 533219 13th July, 1990 30 Registered

The above registrations, it is averred, have been renewed and are currently valid and subsisting. The defendant has filed applications for rectification, before the Registry of Trade Marks, of the aforesaid Registrations 533219 and 533221, granted to the plaintiff, but no decision has been taken thereon. It is further claimed that the plaintiff's products are sold through various websites and are, therefore, nationally popular.

6. The plaintiff claims to have, in May 2018, come across an application filed by the defendant, before the Registry of Trade Marks, for registration of the following trade mark, in Class 30:

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7. Asserting that the aforesaid trade mark, which the defendant was seeking to have registered, was deceptively similar to the trade mark of the plaintiff, pre-grant oppositions, to the defendant's trade mark, were filed, by the plaintiff, before the Registrar of Tra