Justice S. Ravindra Bhat, in the case of Mother Dairy Fruits
& Vegetables Pvt. Ltd. & Anr. v. Maa Baisnavi Enterprises
& Others, confirmed an interim injunction granted on
12.01.2009 against Maa Baisnavi Enterprises(Defendants), till the
final decision of the suit. The common order passed in this case
disposed of three applications, these being
I.A. Nos. 280/2009- filed by Mother Dairy Fruits &
Vegetables (Plaintiffs), seeking an ad interim injunction.
8864/2009 - by Defendant Nos. 3 and 4, hereafter called the
8865/2009 – also by the Federation, under section 151
of the Civil Procedure Code (CPC) for stay of the present
In this case, the Plaintiffs sought a grant of a permanent
injunction to restrain the Defendants from using the trademark
"MOTHER DIARY". It was contended by them that the
impugned mark was adopted by them in 1974 and has been in use ever
since. Further, it was mentioned that Federation had been
previously permitted to use the trademark for the period 1978 to
1996 when the Plaintiffs managed the business mutually with the
Federation. Reliance was placed on an agreement which stipulated
the territorial restriction of the use of the trademark by the
Defendants with regard to liquid pasteurized processed milk only in
the state of West Bengal. It was a contention of the Plaintiffs
that the Defendants had violated the terms of the agreement by
marketing its products in Jharkhand through the first two
The Federation and its distributors contested the suit. It was
stated by them in their written statement that the Federation had
filed a separate proceeding before the Calcutta High Court whereby
decree for declaration that the territorial restriction placed upon
them was so done under misrepresentation and mistake. Further, they
contended that they had been legitimately using the mark
"MOTHER DAIRY", which had a strong a descriptive or
generic content in relation to milk products. Moreover, the fact
that the Plaintiffs were aware of the Federation's use of the
mark in West Bengal from 1974, does not allow them to claim
exclusivity. Also, the Plaintiffs predominant market is Delhi and
its vicinity, having no sales in the rest of the country. The
Defendants urged for the proceedings of the present case to be
stayed till the decision of the Calcutta High Court was
After a perusal of the terms of the agreement between the two
parties, the Court observed the following:
that the mark "MOTHER DAIRY" had been coined by the
Plaintiffs in 1974, was registered at various points of time and
has been in use ever since in relation to milk and allied milk
products, including liquid pasteurized milk.
that the arrangement between the two parties allowed the
Federation to use the impugned mark on is products in West Bengal
for the period of 1978 and 1996. There was no such agreement
the agreement dated 20.09.2004 between the parties, clearly
laid down that although Federation could use the mark in West
Bengal, its subsidiary could not.
On 10.03.2005, Federation had corresponded with the Plaintiffs
that it was formally launched a brand "BENS" with effect
The report of the local commissioner appointed by the disclosed
that the Federation's products were marketed in Jharkhand.
The Delhi High Court, rejected the contention of the Defendants
that the mark "Mother Diary" is a descriptive or generic
word in relation to milk products and there was no trademark
violation in using it. With regard to the Defendants request to
stay the proceedings , the Court said each case needs to be seen
from the subjective facts presented before the Court. The Court
found that considering all the facts, the subsequent suit filed by
the Defendants was an attempt to stall the present case.
Accordingly, the Court opined that the interim injunction
granted on 12.01.2009 should be confirmed.
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