Rich Products Corporation & Anr. v. Indo Nippon Food Ltd 2007 (35) PTC 15 (Del.), the Delhi High Court decided on the issue of exclusivity in relation to whole and
parts of a trademark.
application was filed by the Plaintiffs/ Rich Products for the relief of
restraining the Defendants/Indo Nipon Foods Ltd. from using the trade mark
‘WHIP TOPPING’ which according to the Plaintiff was infringing their registered
trademark ‘RICH’S WHIP TOPPING. Along with the injunction application the
plaintiff also sought an ad interim injunction to restrain the defendants from
passing off and infringement of their copyright in packaging, color schemes
instructions etc. The Plaintiff claimed that they were the registered owners of
the trademark RICH’S WHIP TOPPING in class 30 in India and that the trademark
WHIP TOPPING was pending registration. They also claimed the usage of the said
registered mark since 1945 and in India from 1991. It was their case that
during April 2003 they came across the defendant’s product BELLS WHIP TOPPING
and alleged that it was identical to their mark due to the same color schemes
and packaging. It was further alleged that due to these similarities and the
plaintiff’s world wide goodwill, the defendants were not only infringing the
trademark but was also attempting to pass off its product as that of the
It was contented by the
plaintiff’s that the trademark had to be taken as a whole and that in assessing
the deceptive similarity, package of the word trademark along with the color
schemes, lettering style, design instructions orientation and packing etc had
to be considered. But if someone other than the registrant of the trademark
introduces these, it would amount to passing off even if only a few essential
features are common in the word mark.
The Defendants on the other
hand contented that the plaintiff’s mark under class 30 had been registered
along with a disclaimer to the effect that the plaintiff would have no claim
over the letter “S” and “TOPPING”. The Defendants submitted that the Plaintiffs
ought to have submitted that fact in the suit. They further contended that such
an omission of a vital material fact would make the suit liable for dismissal.
They further contented that the WHIP TOPPING was the name of the product itself
and hence generic in nature and thereby no one can claim exclusivity over the
same. In the light of disclaimer, the Court held that the essential feature of
the Plaintiff’s mark was RICH’S where as the defendant’s was BELLS and that the
two were entirely different.
The Court though admitted
the prior use claim of the Plaintiff, but as far as the question of
infringement of plaintiff’s trademark was concerned, held that the expression
WHIP TOPPING had become descriptive of the product. Apart from that, the
disclaimer was also in place, and hence, the plaintiff prima facie was
not entitled to claim exclusivity over the expression WHIP TOPPING. Considering
the above facts, the Court found that the distinctive features in the
Plaintiff’s trademark and Defendant’s trademark were the words RICH’S and BELLS
and that there was no similarity between the marks in that respect. The Court
further found that on visual examination, the packages of the product were
different and thus there was no scope for passing off and thereby dismissed the
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