Rich Products Corporation & Anr. v Indo Nippon Food Limited
2010 (44) PTC 515 (Del)
Rich Corporation (Appellant) was the registered proprietor of the mark “RICH’S WHIP TOPPING” for ‘non-dairy topping, icing, filling and generally for other goods’ in Class 30 of the Trade Mark Rules.
Appellant claimed that the word mark “WHIP TOPPING” was a part of it’s registered mark “RICH’S WHIP TOPPING” and the use as such of “WHIP TOPPING” by Indo Nippon Foods (Respondent) as part of its trademark/label “BELLS WHIP TOPPING” was deceptively similar and amounted to infringement of it’s trade mark “RICH’S WHIP TOPPING”.
Appellant claimed that Respondent was seeking to pass off its goods as that of Rich Corporations on account of the trade-dress, packaging and instructions, which were alleged to be identical.
Consequently, Appellant filed a suit for infringement of trade mark and passing off against the Respondent before the Hon’ble High Court of Delhi.
The Learned Single Judge dismissed the suit of the Appellant stating that although Appellant had proprietary rights in the trademark “RICH’S WHIP TOPPING” but no rights in the word “WHIP TOPPING’ per se as the same is a descriptive part of the mark for the products in question.
As per the Learned Single Judge, proprietary rights in the trademark “RICH’S WHIP TOPPING” did not extended to the part of the trademark “WHIP TOPPING”.
Aggrieved by the said judgment, Appellant filed the present appeal.
• “RICH’S WHIP TOPPING” is a non-dairy topping and is one of the various non-dairy products manufactured and sold by them.
• In India, it was registered since 1991 for non-dairy topping, icing, filling and generally for other goods.
• “BELLS WHIP TOPPING” is being used by the Respondent in the trade since 1995.
• Expression “WHIP TOPPING” was generic in nature with no trademark significance.
• Appellant cannot segregate a part of the trademark to claim exclusive right in that segregated part, especially as “WHIP TOPPING” is a descriptive expression referring to the character and quality of the product, which has not acquired any secondary meaning.
Appellant was entitled to claim right to the part of the trademark “WHIP TOPPING” only if they could establish that the said expression had acquired secondary meaning.
In this case, it cannot be said that the mere use of the word mark “WHIP TOPPING”, brought the product of Rich Corporation to the mind of the consumer.
Respondent used its trademark “BELLS WHIP TOPPING” with prominent use of the word “BELLS”, which left no doubt that their product was distinctive from that of Rich Corporation’s.
Learned Single Judge has considered the dictionary meaning of the expression “WHIP TOPPING” – the word ‘whip’ in the context of its use in the present case imply ‘a light fluffy dessert made with whipped cream or beaten eggs’, while the word ‘topping’ would mean ‘a top layer or garnish put on food’. The conclusion drawn is that ‘WHIP TOPPING’ would be ‘representative of toppings or garnish for food items, which have a cream- like quality’ and, thus, is both ‘generic’ and ‘descriptive’ of the product. The expression has acquired no secondary distinctive meaning by its exclusive use and/or publicity.
The appeal was dismissed.
Author: Anjali Bisht, Law College, Dehradun