India: "Glucon-D" v. "Goldcon-D"- Comparison Of The Whole

Last Updated: 24 May 2011
Article by Sonam Lhamu Bhutia

It is a well settled principle in Trademark Law, which the Courts have applied time and again in innumerable cases, that the disputing marks have to be judged in their totality and must not be broken in parts for the purpose of comparison. This principle of "entirety" was applied by the Delhi High Court in the case of Smt. Raj Wadhwa.v. Glaxo India Ltd. and Ors. in finding the two marks "GLUCON-D" and "GOLDCON-D" similar on phonetic and visual grounds.

Smt. Wadhwa, the Petitioner, aggrieved by the Order of the Intellectual Property Appellate Board (IPAB) passed on 9th March, 2005, which dismissed her appeal, filed a writ petition before the High Court at Delhi. A brief outline of the facts leading to the Writ Petition is as follows:

  • On 20th November, 1984, the Petitioner filed for registration of the trademark in the form of label consisting of the word "GOLDCON-D" in respect of infant foods including glucose. Following the advertisement of the mark in the Trademark Journal, the respondent No. 1 (Glaxo India Ltd) gave notice of their intention to oppose the registration of the impugned mark on the basis that it was violative of the provisions of the Trademark Act, 1958.
  • The Assistant Registrar of Trademarks rejected the Petitioner's application on grounds of similarity laid down under Section 11(a) of the TM Act, 1958. It was concluded that the use of the mark applied for was likely to deceive and cause confusion in the minds of the consumers in respect of the trade source. The claim of the Petitioner to be the proprietor of the mark was negatived owing to the lack of evidence in support of such claim.
  • Before the IPAB, the Petitioner contended:
    • that "GOLDCON-D" was a part of the Petitioner's trading style.
    • that there were many differences both visually and phonetically between "GOLDCON-D" and "GLUCON-D"
    • that the fact that the suit filed by Glaxo against the Petitioner in the civil court at Dehradun was dismissed for default and Glaxo had not taken any steps for restoration of the suit implied that Glaxo did not have a case.
    • that Glaxo had not produced any evidence in support of its claim of prior use of the mark.

The IPAB after careful deliberation found that the two marks were similar and that "GOLDCON-D" was likely to cause confusion in the minds of the average consumer. It was observed that the goods were of the same nature, composition and functions, and that the trade channel was also the same. It was also observed by the IPAB that there was no plausible explanation for adding the letter "D" along with the mark by the Petitioner.

In the writ petition before the Delhi High Court, the Petitioner brought forward the same contentions mentioned above. Additionally, it was contended that Glaxo's failure to restore the suit dismissed by the Civil Court at Dehradun amounted to acquiescence within the meaning of Section 33, Trade Marks Act , 1999. However, the Court disagreed and stated that the mere dismissal of a suit for infringement in 1996 cannot mean that Glaxo acquiesced to the use of the trademark.

The Petitioner also laid down, that Glaxo's mark "GLUCON-D" had been granted registration with a disclaimer with regard to the letter "D" and as such only the words "GOLDCON" and "GLUCON" should be compared.

The Court found against the Petitioner and observed that the structural similarity between the disputing words i.e. the hyphen followed by the letter "D' was clearly identifiable. The Petitioner's claim that the marks should be compared without the letter "D" was found to be incorrect. The Court referred to the case of "TAKKAR (India) Tea Company v. Soongachi Tea Industries" wherein, it was held that the marks should be compared as a whole and cannot be dissected to leave out the disclaimed part. The Court further stated that even if the two marks were to be compared without the letter "D", it would still be difficult to accept that "GOLDCON" and "GLUCON" are dissimilar.

The Court then went ahead to accept the concurrent decisions of both the Registrar of Trade Marks and the IPAB and found no reason to interfere with their decisions. The writ petition was thus dismissed.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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