M/S. VRAJLAL MANILAL & CO. v. ADARSH BIDI CO.
1995 (15) PTC 88 (DEL)
The Plaintiffs were the registered owners of the trademark ‘22’ for manufacturing and marketing bidis. Shortly before the institution of this suit, they noticed that the Defendant had been manufacturing and selling bidis under the mark ‘122’.
The Plaintiffs filed a suit against the Defendant for permanent injunction claiming that the act of the Defendant towards using the mark ‘122’ amounts to the infringement and passing off of their trademark ‘22’.
• They have been carrying their trade under the mark ‘22’ for more than five decades and have become the oldest and leading manufacturers of Bidis of superior quality.
• They have substantial sales and have incurred huge amounts in the publicity of their trademark and label.
• The Defendant has copied their trademark and the label.
• Bidi is a commodity of consumption in the lower strata of the Indian society. Those who consume the bidis are mostly illiterates or semi-literates. The phonetic semi-label between the figures 22 and 122 is likely to result in the deception of the unwary customers and passing off of the defendant’s goods as those of the Plaintiffs’.
• They have been manufacturing and selling bidis under the mark ‘122’ since 1978, i.e., for more than a decade.
• Label ass used by the Defendant is not deceptively similar to that of the Plaintiffs’.
• Numerals cannot be the monopoly of the Plaintffs as several bidis bearing numerals, such as 122, 212, 21, 210 etc. are in the market.
Judgment and Observations made by the Court:
The Plaintiffs have set out all the details of the sales and publicity expenditure towards sale of the products bearing the mark ‘22’, whereas the Defendant failed to substantiate their argument of sales since 1978. Plaintiffs are prior users and registered owners of the trade mark ‘22’.
Persons who are likely to be deceived are indeed illiterates or semi-literates, as they are the largest consumers of bidi. The marks ‘22’ and ‘122’, as used by the parties on their labels, are numbers in English writing-style. As the labels and the wrapping paper are used on the bundles which are conical and round in shape, the possibility of the unwary consumers being led away in purchasing Defendant’s bidis as that of the Plaintiffs’ cannot be ruled out.
Defendant was restrained from using the trademark ‘122’ or any other trademark consisting of such numerical as may be deceptively similar with that of the Plaintiffs’ mark ‘22’. No injunction was granted against the Defendant in respect of labels/wrappers.
Author: Aadhya, National Law University, Odisha