Infringement actions in the
sphere of trademarks hover the litigation scenario –
the depletion of goodwill and repute being the cause of primary
concern. Marks face maximum threat when consumers are likely to
draw a connection between the impugned and infringing marks.
Granting injunction against the use of one such mark, is the
recent decision of the Delhi High Court, in Evergreen
Sweet House v. Evergreen and Others [CS (OS)
Evergreen Sweet House,
(hereinafter Sweet House), a popular store in New Delhi, is
engaged in the business of preparing and selling rich
traditional Indian sweets of renowned taste and quality. The
business was unhindered by the death of the original founder
and has been functioning under the trading style/trademark
'EVERGREEN SWEET HOUSE', since its inception.
Besides marketing their products wholesale to their varied
customers in India and abroad, they also run under the name and
style of "EVERGREEN SWEET HOUSE", a multi-cuisine
Restaurant. They also claim that their goods are exported, with
substantial market in the UK and Australia,
apart from selling their products in adjoining townships
outside Delhi. They claim to have acquired valuable goodwill
and reputation in the market because of their quality.
Evergreen Sweet House are also holders of the registered Trade
Evergreen and the other parties,
(hereinafter Evergreen) were using 'EVER GREEN'
as their trade name. They were requested to remove the words
EVER GREEN from their trade name, so as to evade deception and
confusion. Sweet House alleged them of having imitated and
copied all the essential features of their mark, while also
misrepresenting and cheating the ordinary customer, giving a
false impression of some business association between the
Evergreen contended that the
Sweet House could not claim any monopoly in any
manner whatsoever, with regard to the words neither for trade
mark purposes nor for copyright purposes. It was alleged that
Sweet House had no right in
EVERGREEN whether viewed in an isolated manner, or as a
conjunction of words or alphabets. They stated that permitting
them to do lead to depriving the general public from using
common word/words in any manner.
A plethora of decisions were
cited to substantiate their case. The Court observed that there
existed a number of sweetmeat shops in Delhi using the phrase
"Ever Green". Evergreen substantiated its stand by
furnishing details of some such shops.
Discussing the intricacies of
trademark jurisprudence in India, as laid in the statute book
and as dwelled upon in a multitude of judgments, the court
re-iterated the tests to determine infringement. The Court also
deliberated upon the connotation of the term
"EVERGREEN" and ordered Evergreen to resist the use
of the mark or any other mark containing the combination of the
words or marks confusingly or deceptively similar to those of
the plaintiffs, during pendency of the suit.
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