Bhole Baba Milk Food Industries Ltd. v. Parul food Specialities Pvt. Ltd.
2011 (48) PTC 235 (Del.) (DB)
Appellant was the proprietor of a label mark ‘KRISHNA’ having pictorial reflection of Lord Krishna standing on a lotus flower for dairy products. Appellant was also the registered proprietor of the word ‘KRISHNA’ written in a unique distinctive style.
Appellant filed a suit against the Defendant who was using the mark ‘PARUL’S LORD KRISHNA’ wherein the word ‘KRISHNA’ was depicted more prominently than the words ‘PARUL’S’ and ‘LORD’.
Learned Single Judge allowed the Respondent to use the mark Krishna but with a direction that all the three words ‘PARUL’S’, ‘LORD’ and ‘KRISHNA’ be used in same font in equal prominence.
As the Learned Single Judge had not granted an injunction against the Respondent from using the mark ‘KRISHNA’, the Appellant filed the present appeal.
• Appellant has been in the business of manufacture and sale of ghee, milk and milk products since the year 1992 and sales have risen from 47.29 crores in the year 1997-1998 to 374.44 crores in the year 2008-2009.
• Word ‘KRISHNA’ has acquired a distinct secondary meaning in relation to the milk product sold by it and thus appellant alleges a proprietary interest in the word ‘KRISHNA’.
• Word ‘KRISHNA’ is a common word and is the name of a Hindu God who is associated with butter, milk and ghee and thus assert that the appellant cannot claim any exclusivity in the said word.
• Respondent is using the word ‘KRISHNA’ with 2 words prefixing the word ‘KRISHNA’ being the words ‘PARUL’S’ and ‘LORD’.
A deity may be associated with a particular kind of goods. It is common knowledge that Lord Krishna, as a child, was known for his love of milk and butter and thus Lord Krishna is closely linked with milk and butter and this would certainly dilute a proprietary claim projected by any person, in relation to Krishna with dairy products.
The adoption of the name of a deity who is associated with a particular trait relating to goods, in the instant case Lord Krishna having a trait which has an association with milk and butter, would stand on the same low footing for protection as would be purely descriptive expressions pertaining to the subject product.
In a vast country like India where the population exceeds 120 crore citizens, a sales figure of `300 crores per annum would translate to less than Rs. 3/-per head per annum. Not to be misunderstood that we are laying down an empirical formula to be applied mathematically, with reference to said illustration, we only wish to highlight that the volume of sale has to be considered with reference to the spectrum of consumers. For example, a product used by only a few would require issue of distinctiveness to be considered with reference to the sales keeping in view the market span. It is the span of the market which determines the secondary distinctive character acquired by a mark in the field in question.
The registration obtained by the appellant is not per-se to the word ‘KRISHNA’ but is to the word ‘KRISHNA’ written in a distinctive form which is akin to a label. The distinctiveness to which the appellant can lay a claim is to what it has got registered as a whole and such registration cannot possibly give an exclusive statutory right to the appellant qua a particular word of common origin.
The appeal was dismissed.