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
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
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
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.
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.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
This article enunciates the recent, much awaited, and landmark judgment delivered on September 16, 2016 by Hon'ble Delhi High Court throwing light on the important provisions of the Copyright Act, 1962.
Department of Industrial Policy and Promotion recently issued an office memorandum pursuant to receiving representations from various stakeholders for guidance with respect to the applicability of the provisions of Section 31D of the Copyright Act, 1957.
An Invention Disclosure Form is the documentation of the invention. This is a means to document particulars of your invention and submitting it to the patent attorney who is filing your patent application.
The Patents Act 1970, along with the Patents Rules 1972, came into force on 20th April 1972, replacing the Indian Patents and Designs Act 1911. The Patents Act was largely based on the recommendations of the Ayyangar Committee Report headed by Justice N. Rajagopala Ayyangar. One of the recommendations was the allowance of only process patents with regard to inventions relating to drugs, medicines, food and chemicals.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).