India: Maa Baisnavi Enterprises Not Allowed To Use "MOTHER DAIRY" Brand Name.

Last Updated: 7 June 2011
Article by Sonam Lhamu Bhutia

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 "Federation"
  • 8865/2009 – also by the Federation, under section 151 of the Civil Procedure Code (CPC) for stay of the present proceedings.

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 defendants (distributors).

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 delivered.

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 thereafter.
  • 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 from 15.04.2005.

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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