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
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.
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