India: Triple Five (555) In The TM Dispute Pyre

Last Updated: 5 September 2008

Brand recognition is an important facet, especially as far as Fast moving Consumer Goods (FMCGs) are concerned. Customers not only make a choice determined by quality and value-for-money, but alongside develop an affinity with regard to the good's appearance, the get-up and trade dress as well as the trade mark. For a product, such associations with individuals enable build brand identity and repute. Deception and competition, often affect these intangible, unquantifiable gains and encourage adversely affected parties to move to Court, as elucidated in Goramal Hari Ram v. Durgashri Agencies 2008 (37) PTC 257

Goramal Hari Ram Ltd. is a company registered under the Companies Act, 1956 and the proprietor of the registered trademark '555' in respect of soaps and detergents for laundry use. Goramal Ltd. claims to hold the said trademark since 1924 and has continually renewed the same from time to time. They also stated their mark '555' to have unique get-up and layout in its wrapper and packing. They claim the same to be an original artistic work as under S. 2( c) of the Copyright Act, 1957.

Goramal placed reliance on their annual turnover, and propounded their mark to be popular and enjoying enviable goodwill and reputation in the market. They also stated to have incurred considerable expenditure on advertisement and promotion of the said trademark and that the same has acquired distinctiveness and has become identifiable exclusively with their product.

Durgashri Agencies, a dealer of Goramal until 2005, was dealing in the goods manufactured and sold by Goramal under the said trademark. Goramal propounded to have learnt of the same through a letter received from their sole distributor, that Durgashri had started manufacturing and marketing its own soap under the trademark '555'. Durgashri also started using the slogan 'Asli 555 Ab Hare Pack Main' (The real 555 in a new pack) and 'Swadeshi Sabun Naye Pack Main' (Indian Soap in a New Pack). Goramal also alleged Durgashri of approaching the same customers and offering the goods under the same mark. They propounded that Durgashri manufactured and marketed the allegedly infringing goods through another party, who is their sister concern.

Goramal also submitted that the mark used by Durgashri was phonetically, structurally and visually similar to their mark causing great harm to their business interests. They attributed the substantial goodwill and reputation appended to their trademark, to factors such as prior adoption, registration and prior use, distinctive packaging and the unique combination and arrangement of features.

Goramal also alleged that Durgashri was not following strict quality controls for production of washing soaps and detergents cakes and thus the consumers purchasing the said goods with belief that they were purchasing Goramal' goods. They also contended that by selling infringing products under the said mark Durgashri have and are causing immense loss, both monetary as well as to their repute, the latter amongst which is unaccountable for.

Durgashri reverted to this, admitting to be a subsequent user. They vouched the ground of being an honest concurrent user as under Section 12 of the Trade Marks Act, 1999 They also relied on Sections 28 and 30 of the Act to demonstrate that two simultaneous users having registrations in relation to identical or similar trademarks cannot claim exclusive rights. Further, they also raised the ground of Section 31 whereby they claimed to enjoy a prima facie presumption of validity.

The Court analyzing the cited decisions and statutory provisions opined that Durgashri did not dispute two vital facts, i.e. of being the user of the mark, and also of having obtained registration in 1989, and that they were Goramal' dealer until 2005. Durgashri also sought to set up a parallel case that the mark was actively advertised and marketed since 1967. Barring a few sales tax documents for 2001, The Court found no material to back this assertion. The Court in this view found Goramal to have been successful getting the ad-interim injunction confirmed.

© Lex Orbis 2008

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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