"Hajmola" a well-known trademark under Section 2(zg)
of the Trade Marks Act, 1999 had moved against a deceptively
similar mark "Rasmola" to the Trial Court. Having been
granted an ex-parte injunction, an appeal was filed at the Delhi
High Court challenging the order of the Trial Judge restraining
them from using the mark "Rasmola" and in particular the
suffix "Mola" with respect to digestive tablets, which
was decided vide Pankaj Goel v. Dabur India Ltd. 2008 (38)
The High Court in the course of proceedings suggested that they
would request the Single Judge to expeditiously dispose off the
matter as any decision would take away the right to appeal from
either party. Both the parties requested to decide the appeal on
merits, since the Ld. Single Judge had not disposed neither the
injunction application nor the plea for vacation of injunction,
within thirty days, as a result of which the appeal was stated
Goel contended that he has been using the mark Rasmola for
digestive tablets since 1989 and that the suffix Mola was not an
invented word, but common to the trade having over 25 marks using
the same as a suffix having been registered. He also contended that
three more suits against different marks using Mola as a suffix had
been filed, to which Dabur had obtained no relief and that this
fact had been suppressed. However, the court opined that a private
settlement between the parties did not confer a license upon the
whole world to infringe Hajmola. Further, it was contended that
Dabur being aware of Rasmola in the market, was hit by the law of
acquiescence and delay. Advertisements broadcasted on leading
television channels were cited.
Counsels for Dabur elucidating the etymology of Hajmola, stated
it to be a coined and invented word. The word was said to be
distinctive and they were stated to be users of the same since
1972. They stated that at the time when Rasmola was adopted,
Hajmola already had a turn-over of more than Rs. 8.50 Crores.
Rendering statistics for the previous years, they plead to be a
well-known mark. Further, they stated that the registration of
Rasmola was of no consequence and that registration for the entire
label had been obtained. They also asserted that the adoption of
"Rasmola" was dishonest and no degree of being a user
could cure that. It was further contended that no document showing
the sales of Rasmola in the year 1989 were available. The invoices
prior to 2004 were found to pertain to the predecessor-in-interest.
It was also asserted that the sales figures promoted was the sum
total of sales of eleven products. Speaking of the large volumes of
advertisements aired, they contended that it was not possible for
anyone; including Dabur to monitor all TV channels and that no
knowledge can be attributed to any TV commercial of Goel. They
stated that there was no cogent proof that Dabur knew about the
infringing activities and took positive steps to encourage it. It
was submitted that the plea of acquiescence or delay must fail.
The Court opined that an appeal in an ex-parte injunction lies
only when the Single Judge within thirty days disposes off the
application without assigning any reason. Here it was noted that
Goel himself was not present when the application for vacation of
injunction was taken up and that due to heavy workload and paucity
of time the matter could not be disposed off. Taking into
consideration precedents in such an instance, as also the aspect of
alleged passing off, the Court ruled that Dabur was not barred by
delay or laches or acquiescence. They stated that in view of the
present facts, delay and so-called concurrent use could not be a
ground to refuse an interim application. Stating the appeal to be
devoid of merits, the High Court dismissed the same, ordering the
Single Judge to expeditiously dispose off the matter within a
period of six months.
This article enunciates the recent, much awaited, and landmark judgment delivered on September 16, 2016 by Hon'ble Delhi High Court throwing light on the important provisions of the Copyright Act, 1962.
The Patents Act 1970, along with the Patents Rules 1972, came into force on 20th April 1972, replacing the Indian Patents and Designs Act 1911. The Patents Act was largely based on the recommendations of the Ayyangar Committee Report headed by Justice N. Rajagopala Ayyangar. One of the recommendations was the allowance of only process patents with regard to inventions relating to drugs, medicines, food and chemicals.
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