Gillette India Ltd. V. Harbans Lal Malhotra & Sons Private
Limited 2009 (41) PTC 182 (Cal)(DB) deals with intervention with
the right of Gillette India Ltd. Gillette used the suffix
'champion', which is identical and deceptively similar to
the registered trademark of Harbans Lal Malhotra. The mark in
question 'champion' is commonly used as a trade practice
and widely accepted as a mark of wide range of goods and services.
The registration/use of 'champion' as a mark for a long
time does not make it an enforceable right; rights can only be
enforceable when the mark/expression used is distinct and
The present case is an appeal against an order by the Trial
judge allowing an application for temporary injunction. Gillette
India Ltd. filed a suit for declaration that the use of the suffix
mark by Harbans Lal Malhotra is identical to the Gillette India
Ltd. hence, causing infringement off their goods and seeks
permanent injunction against the defendant.
Gillette India Ltd. a renowned manufacturer, seller and exporter
of safety razors, blades and shaving systems; they have been using
the mark 'champion' since 1962 and a registered proprietor
of the same since 1964. The trademarks of Gillette India Ltd. were
said to have acquired global acknowledgment and are still valid and
subsisting. The consumers and members of the public trade identify
the mark with them and this mark has earned considerable goodwill
in the country and abroad.
Harbans Lal Malhotra introduced shaving razor bearing the mark
'champion', which is deceptively similar. The mark
'champion' used by them as a prefix, was alleged to lead
the consumer to believe that the product is originating from
Gillette India Ltd., or the existence of some business connection
between them. Gillette India Ltd. alleged that Harbans Lal Malhotra
is causing harm and irreparable damage to its business along with
infringement of their mark and passing off of their goods.
Gillette India Ltd. in respect of their contention produces
certificate issued by the Trademark registry showing the mark as a
registered trademark. On this, Harbans Lal Malhotra countered the
contention by challenging the validity of the registration of the
trademark and applies before the Intellectual Property Appellate
Board for cancellation of the trademark registration.
Harbans Lal Malhotra stated that the mark 'champion' is
used in the trade to depict a leader, excellence of quality or
laudatory epithet along with their respective trademarks. It is
also used to declare superiority of the quality of products in
comparison to other products. To prove their point they gave a long
list of examples of such common trade practices and thus, contended
that no single member should be allowed to monopolize such a mark
and contended that, it is not using the mark as a trademark but,
using it as a brand image and trade description like other members
of the trade, hence they are not liable for infringement.
The Court held that Gillette India Ltd. would not suffer any
injury during the pendency of the suit and Harbans Lal Malhotra was
permitted to market its product with the expression
'champion' along with its trademark under the condition
that if Gillette India Ltd. succeeds in the suit, they will be
compensated. In the case wherein, Harbans Lal Malhotra is injuncted
from marketing its product, they would remain irremediable. The
court further observed that the grant or refusal of temporary
injunction is a discretionary matter of the court.. Keeping in mind
the interest of both parties, the court ordered Harbans Lal
Malhotra to maintain accounts in respect of produce and sale of its
products bearing the mark 'champion'. However the impugned
order was set aside and the application for temporary injunction
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