Trademark infringement under the Trademark Act 1999 generally
involves the issues of likelihood of confusion; counterfeit marks
and dilution of marks. Likelihood of confusion occurs in situations
where consumers are likely to be confused or mislead about marks
being used by two parties. The plaintiff must show that because of
the similar marks, many consumers are likely to be confused or
mislead about the source of the products that bear these marks.
In Three-N-Products Private Ltd vs Emami
Ltd, 2009 (41) PTC 689, Three-N-Products Private Ltd.
was engaged in the business of manufacturing and sale of cosmetics,
lotions, hair oils, shampoos under the marks named
"Ayu" (on which registration had been obtained)
and "Ayur" (on which registration had not been
obtained). The cause of action arose when, Three-N Ltd., came to
know that Emami Ltd., uses the marks named "Himani
Ayurdhara" and "Himani Ayucare".
Against this Three-N-Products Private Ltd made an appeal on the
ground of infringement with an alternative case of passing off and
claimed for permanent injunction in order to restrain the other
party from using the marks named "Himani
Ayurdhara" and "Himani Ayucare".
Three-N-Products contended that the mark "Ayur"
has been used since 1984 by them and have also submitted the sale
figures, and the amount spend on the advertisement expenses from
1984 to 2003. They further pleaded that it is a settled position of
the law that for granting order of injunction in case of passing
off the essential thing are who is the prior user, whether the two
competing marks are used in the same products and whether there is
any likelihood of confusion in the mind of the customers if both
the marks are allowed to be used simultaneously. The word
'Ayur' may be generic and common word but it is held by the
judicial pronouncement of Delhi High Court (Three-N-Products
Private Ltd v. Yashwant Rao and Ors. 2001 (2) CTMR 514 (Delhi)),
that the mark had acquired secondary significance.
Emami Ltd., in its affidavit mentioned that the real object of
Three-N-Products Private Ltd was to traffic in the trademark or
name "Ayur" as would be evident from various
classes in which Three-N-Products Private has obtained registration
without intending to or carrying on any business relating to the
products covered by most of the classes. Emami Ltd., has denied the
international reputation of Three-N-Products Private Ltd over the
mark "Ayur" and has mentioned that the word AYUR
comes from the Sanskrit word AYUS which means "life and
longevity". The Emami Ltd., has showed its interest in
the mark Ayurcare, Ayucare, Himani Ayurdhara and Himani Ayucare,
which is phonetically, structurally and visually different from
"Ayur" and "Ayu"
Three-N Ltd., lay stress on to sections 28 and 29 of the 1999
Act repeatedly in asserting its exclusivity over the words
"Ayur" and "Ayu", while Emami
Ltd., has stressed on section 17, that the claim of other party is
lost in the trademark name " Himami Ayucare and
"Ayudhara" used by Emami Ltd.,
The Court held that there has sufficient bonafide attempt taken
by Emami Ltd., to avoid confusion by using the mark
"Himami Ayucare" on Three-N Ltd., trademark
"Ayu". On the production of the packets of the products
of both the parties it does not appeared that Emami Ltd., has
deliberately, designed any of its products in the packaging and
style of other party. Hence appeal was disposed off.
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