India: The Tea Board, India Loses Its Appeal Against The ITC - High Court Of Calcutta

Last Updated: 9 September 2011
Article by Sonam Lhamu Bhutia

In Tea Board, India (Plaintiff) v I.T.C (Defendant) an appeal for interlocutory injunction was sought by Tea Board, India against the order of the Learned Single Judge which had found that the Tea Board, India had failed to prove a strong prima facie case as to merit an order of injunction.

Aggrieved by the aforementioned order, the Tea Board, India, contented against the findings of the Single Judge in the following manner:

  • That the Learned Single Judge had failed to appreciate the scope of the right conferred upon the Plaintiff by virtue of the registration either under the Act or under the G.I Act.
  • That the Learned Single Judge had also failed to appreciate the scope of the doctrine of passing off which was applicable in the facts of the present case.
  • That the Plaintiff having alleged both the infringement of the Registered trademark and passing off, the learned Single Judge should have restrained the Defendant from using the word "DARJEELING" as any part of the name of the lounge adopted by it.

The I.T.C in turn argued as here under:

  • That the registration given in favour of the plaintiff was in respect of Certification Trade Marks and thus, there was no scope of alleging infringements under Sections 28-29 of the Act and consequently, no right accrued in favour of the plaintiff also in alleging violation of passing off as the Plaintiff was neither trading with the goods nor carrying on any business in the name of Darjeeling.
  • That the Single Judge had rightly decided and the Court should not interfere with the discretion exercised by the Single Judge.

The main issue that arose for determination in this appeal was whether the Learned Single Judge in the facts of the case of the present case was justified in refusing the prayer of interim relief in favour of the Plaintiff during the pendency of the suit.

The Court observed thus:

  • With regard to the registered word mark "DARJEELING" used for the goods and description "tea" made under Chapter IX relating to Certification Trade Marks under the act, it was observed that in considering Sections 75 and 78 against Section 28 and 29 it was different from one another and therefore the basis on infringement of the right conferred under Section 18 of the Act cannot have any application here.
  • The Plaintiff citing foreign judgments where the word "DARJEELING" was prevented from being used was not relevant because those foreign courts had no occasion to deal with the provisions contained in the Trademarks Act or the G.I Act of this country, and where the court here was concerned with the existence of prima facie case of the plaintiff, those foreign decisions could not be used here.
  • With respect to the allegation of passing off. The court observed that, here, the Plaintiff was neither a trader of tea nor was it in the service of rendering hospitality to the public. It was a creature of a statute that had obtained registration of its Certification Trademarks for protecting its authority to certify that a particular type of tea was connected with the Darjeeling region to protect its interest. It was not the case of the Plaintiff that the Defendant was trying to pose before the public that it also had authority of the certification or that it had proclaimed by naming one of its lounges as that of "DARJEELING LOUNGE" that it was the authority to give such certificate or that it was an agent or authorized representative of the Plaintiff. The Court thus observed that the averments made in the plaint did not make any prima facie case of passing off.
  • As regards the right conferred upon the plaintiff by the G.I Act, the Court observed that the learned Single Judge was right in prima facie holding that the right conferred on registration under the G.I Act in respect of the goods "tea", did not confer any right over the word "Darjeeling", a geographical name, so as to prevent the Defendant from rendering its services of hospitality to the public by naming one of the lounges of its hotel as "DARJEELING LOUNGE" as the object of the G.I Act is to give a better protection of the geographical indication relating to goods. It was not the case of the Plaintiff that the Defendant was using the word "DARJEELING" for the purpose of falsely asserting that it had the right to certify that the tea served in the lounge was grown in the region of the district Darjeeling nor had the defendant used the logo of the Plaintiff. It was therefore found that the Plaintiff had prima facie failed to prove that there was any violation of the registered Certificate Trademark.

In the light of the abovementioned considerations the Court thus opined that the Learned Single Judge had rightly refused the prayer for interim order and that there was no other reason to arrive at a different conclusion. The appeal was consequently, refused.

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.

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