In Rich Products Corporation & Anr v Indo-Nippon Foods Limited, a claim of exclusive rights to use the word mark "WHIP TOPPING" by Rich Products Corporation (Appellant) was dismissed by the High Court of Delhi on grounds of the mark being both generic and descriptive.
Rich Corporation claimed that the word mark "WHIP TOPPING" was a part of its registered mark "RICH'S WHIP TOPPING" and the use as such of "WHIP TOPPING" by Indo Nippon Foods as part of its trademark/label "BELLS WHIP TOPPING" was deceptively similar. Additionally, it was claimed that Indo Nippon was seeking to pass off its goods as that of Rich Corporations on account of the trade-dress, packaging and instructions, which were alleged to be identical.
A failed attempt to have an interim injunction granted in their favour lead to an appeal by Rich Corporation. In the appeal, both the parties consented to filing of affidavits of evidence without the need for cross examination and the suit to be decided accordingly. The single judge in this case found against Rich Corporation stating that although they had proprietary rights in the trademark "RICH'S WHIP TOPPING", this, however did not extend to the part of the trademark "WHIP TOPPING". Subsequently, Rich Corporation came before the Delhi High Court in appeal against the order of the learned Single Judge.
The chief contention of Rich Corporation was that "RICH'S WHIP TOPPING" is a non-dairy topping and is one of the various non-dairy products manufactured and sold by them. Also, in India it was registered w.e.f. 13 November, 1991 for non-dairy topping, icing, filling and generally for other goods. It was further stated that this registration is subject to a disclaimer with respect to letter "S" and the word "TOPPING." They contended that "RICH'S WHIP TOPPING" and "WHIP TOPPING" are registered in several countries across the globe and affidavits were filed to support their contention of worldwide reputation of the mark.
Nippon Foods responded by claiming use of "BELLS WHIP TOPPING" in the trade since 1995. They argued that Rich Corporation's mark was generic in nature with no trademark significance. They further stated that Rich Corporation could not segregate a part of the trademark to claim exclusive right in that segregated part, especially as "WHIP TOPPING" is a descriptive expression referring to the character and quality of the product, which has not acquired any secondary meaning, also, 'WHIP TOPPING' is commonly used in the trade world over.
The Court upon a perusal of the case averments, observed that the decision of the Single Judge was correct. It opined that Rich Corporation was entitled to claim right to the part of the trademark "WHIP TOPPING" only if they could establish that the said expression had acquired secondary meaning and in this case the Court did not find that the mere use of the word mark "WHIP TOPPING", brought the product of Rich Corporation to the mind of the consumer. The Court further stated that Nippon Foods used its trademark "BELLS WHIP TOPPING" with prominent use of the word "BELLS", which left no doubt that their product was distinctive from that of Rich Corporation's. There was also no similarity found with regard to the packaging and the instructions of the products of both the parties.
Thus, in light of the abovementioned findings, the Court held that there was not even a slight attempt on the part of Nippon Foods to deceive on all counts of packaging/ or trade dress and instructions. The word "WHIP TOPPING" was held to be both generic and descriptive and was therefore not allowed to be appropriated as a trademark.
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