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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
R.D. DHANUKA, J.
Pidilite Industries Limited - Applicant
Vs.
Poma-Ex Products - Defendant
NOTICE OF MOTION NO.2695 OF 2016 IN SUIT NO.653 OF 2014
Decided On : 02-08-2017
The Court held that the defendant's trademark "KWIKHEAL" was deceptively similar to the plaintiff's trademark "FEVIKWIK" and granted an injunction against the defendant, restraining it from using the impugned mark.
Fact of the Case:
The plaintiff, a world-renowned manufacturer of adhesives and sealants, filed a suit against the defendant for infringement of its registered trademarks "FEVIKWIK" and "FEVIKWIK Distinctive Packaging", as well as for passing off. The plaintiff alleged that the defendant had adopted a deceptively similar mark "KWIKHEAL" and was using it on products that were identical to those of the plaintiff.
Finding of the Court:
The Court found that the defendant's mark "KWIKHEAL" was deceptively similar to the plaintiff's mark "FEVIKWIK" and that the defendant had adopted the mark with the intention of riding on the goodwill and reputation of the plaintiff's mark. The Court also found that the defendant's use of the impugned mark was likely to cause confusion and deception among the public.
Issues: 1. Whether the defendant's trademark "KWIKHEAL" was deceptively similar to the plaintiff's trademark "FEVIKWIK". 2. Whether the defendant had adopted the mark with the intention of riding on the goodwill and reputation of the plaintiff's mark. 3. Whether the defendant's use of the impugned mark was likely to cause confusion and deception among the public.
Ratio Decidendi: The Court held that the defendant's trademark "KWIKHEAL" was deceptively similar to the plaintiff's trademark "FEVIKWIK" based on the following factors: 1. The marks were phonetically similar. 2. The marks had a similar overall appearance. 3. The marks were used on similar products. 4. The defendant had adopted the mark with the intention of riding on the goodwill and reputation of the plaintiff's mark. 5. The defendant's use of the impugned mark was likely to cause confusion and deception among the public.
Final Decision: The Court granted an injunction against the defendant, restraining it from using the impugned mark "KWIKHEAL" and from manufacturing, selling, or distributing products bearing the impugned mark. The Court also directed the defendant to deliver up all infringing products and packaging materials to the plaintiff for destruction.
1. By this notice of motion, the plaintiff seeks an order and injunction against the defendant, its partners, its directors, proprietors, servants, subordinates, representatives, stockists, dealers, agents and all other persons claiming under them from infringing any of the plaintiff's trademark 'FEVIKWIK' bearing registration Nos.465651 and 689062 in class 1 in any manner and from using in relation to any products/ impugned products the trademark 'KWIKHEAL' or any other mark which is identical or similar to the registered trademark 'FEVIKWIK' and from manufacturing, importing, selling, advertising, offering to sell or dealing in impugned products/any products under or bearing the mark 'KWIKHEAL' or any mark which is identical or similar to the plaintiff's registered trademark 'FEVIKWIK' and for other reliefs in an action for trademark and copyright infringement and passing off.
2. Though Suit No.653 of 2014 was filed by the plaintiff against 16 defendant, during the course of submission in this notice of motion, learned counsel for the plaintiff sought leave to delete the names of the defendant nos.2 to 16 from the cause title of the plaint and also of the notice of motion and also made a statement that the plaintiff does not seek to press any relief against the defendant nos.2 to 16 in the suit as well as in the notice of motion. This Court accordingly granted leave to amend to the plaintiff to delete the names of the defendant nos.2 to 16 from the plaint as well as from the notice of motion and the reliefs sought against them. This Court has accordingly considered the grant of reliefs only against the sole defendant i.e. Poma-Ex Products in this notice of motion.
3. Some of the relevant facts for the purpose of deciding this notice of motion are as under :-
It is the case of the plaintiff that the plaintiff is world-renowned in the field of adhesives and sealants, construction and paint chemicals, automotive chemicals, art materials, industrial adhesives, industrial and textile resins and organic pigments and preparations since 1959. The products of the plaintiff are sold under the well known trademarks FEVIKWIK, FEVICOL, FEVISTIK, FEVICRYL, FEVI BOND, FEVIART, FEVIGUM, FEVITITE, M-SEAL and DR.FIXIT.
4. On 6th January 1987, the mark of the plaintiff 'FEVIKWIK' was registered bearing registration no.465651 in class 1 in respect of “cynoacrylate instant adhesive for domestic, technical and industrial purposes.” The said registration is valid and subsisting. The said registration, however, contained a condition “Registration of this trademark shall give no right to the exclusive use of the letters 'KWIK' except as shown in the representation of mark.” It is the case of the plaintiff that the plaintiff also registered mark “FEVIKWIK” written in a stylized manner in class 1 bearing registration No.689062 on 4th December 1995 in respect of “instant adhesive for domestic, technical and industrial purposes.” On 2nd May 1996, the mark “FEVIKWIK” was registered bearing registration No.705500 in class 1 in respect of “adhesive for domestic, technical and industrial purposes included in class 1.” The said registration is also valid and subsisting. It is the case of the plaintiff that in or about November 2007, the plaintiff designed and adopted a new unique and distinctive packaging for its “FEVIKWIK” products.
5. On 21st January 2008, the plaintiff applied for and obtained registration of the FEVIKWIK Distinctive Packaging in class 1 bearing registration no.1643621 in respect of “chemicals used in industry, unprocessed artificial resins, unprocessed plastics, tempering and soldering preparations, chemical substances for preserving foodstuffs, tanning substances, adhesives used in industry, cement for mending broken articles, cement waterproofing preparations, waterproofing chemicals in class 01.” On 21st January 2008, the plaintiff applied for and obtained registration of FEVIKWIK Distinctive Packaging in class 16 bearing re
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