India: Calcutta High Court Finds "NIHAL" Visually And Phonetically Similar To "NIHAR"

Last Updated: 17 June 2011
Article by Sonam Lhamu Bhutia

The Calcutta High Court in the case of Marico Limited (Appellant) v. J.K. & Ors (Respondents) held that Marico's case against J.K for use of the "NIHAL" mark with respect to coconut oil was a clear prima facie one and as such the court granted an injunction restraining J.K. from using the word "NIHAL", or any other mark deceptively similar to Marico's "NIHAR" mark.

The original plaintiffs in this case was Hindusthan Lever Limited. During the pendency of the suit, the rights in respect of the relevant mark "NIHAR" was assigned in favour of the present Plaintiff/Appellant by the original plaintiff. Hindustan Lever had obtained an ex-parte ad-interim order on GA No. 1823 of 2004 which had been reversed in appeal on June 11, 2004 on the ground that the order was not supported by reasons. GA No. 1823 of 2004 was brought for consideration before Calcutta High Court in the present suit.

Marico Limited, manufactured and sold coconut oil both of the edible and the hair oil variety in pouches with the mark "NIHAR" and other features such as the colour of the pouch was green with the mark written in white and a picture of two coconut trees with sun in the backdrop, further, on the top left corner of the pouch there was an inverted triangle announcing it to be economy pack and also indicated a price of Rs.10. In the previous petition the complaint against J.K. was that the essential features of the plaintiff's package had been substantially reproduced by them.

GA No. 2250 of 2010 is the Plaintiff's second application seeking interlocutory orders. Their contention was mainly on the ground that although the use of the pouch had been discontinued by them, they were still entitled to an order of injunction since there was substantial recall value of their product being sold in pouches and in such an event the use of the pouches by the defendant would result in deception and confusion in the consumer's mind. They asserted that the similarity of the get up of J.K's pouches to Marico's pouches and the shape and get-up of the plastic containers of J.K. nearly resembling those in which Marico sold its coconut oil , would warrant an injunction as claimed.

The defendants/respondents on their part countered that their pouch had "NIHAL UTTAM" written on them and the plastic container was sold under the mark "FRESH NIHAL". It was further contended that both pouches had evident distinguishing features. Moreover, the plaintiff has discontinued the sale of the pouches and so there was no question of consumers getting deceived or confused. The defendant further laid down that they sold their product only in Bihar, and there being no injunction order in the last six years, no order should be passed now.

The Court opined that there was no dispute that the two marks are used with respect to coconut oil, although J.K. claimed that their coconut oil was only of edible grade. However, the Court said that the products may not be identical in nature but in both being coconut oil they were similar in nature. On a close examination of the two marks, the Court found that in the case of both "UTTAM NIHAL" and "FRESH NIHAL" the most significant feature was "NIHAL", the other two words were written in a very small manner. While applying the test used in determining confusion, (which is, a) to see whether the offending package is such that it may be associated with the original package or gives an impression that it may be associated with the original package, and b) such assessment to be done form the point of view of the prospective customer who more often than not will not have the opportunity of having the two packages side by side for comparison, and thus will go by pure impression and memory), to the present case, the Court found the mark used by J.K. "NIHAL" to be visually and phonetically similar to Marico's "NIHAR" mark. Therefore, Marico was granted injunction.

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