C.M.A. No. 71 of 2017. Case: Jagdamba Phosphate Vs Coromandel International Ltd.. High Court of Andhra Pradesh (India)
| Case Number | C.M.A. No. 71 of 2017 |
| Counsel | For Appellant: M. Govind Reddy, Advocate and For Respondents: S. Ravi, Senior Counsel and Ch. Pushyam Kiran, Advocate |
| Judges | Suresh Kait and U. Durga Prasad Rao, JJ. |
| Issue | Intellectual Property Rights Law |
| Judgement Date | March 28, 2017 |
| Court | High Court of Andhra Pradesh (India) |
Judgment:
Suresh Kait, J.
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Vide the present appeal, the appellant/defendant has challenged the order dated 19th December 2016 passed in I.A. No. 782 of 2016 in O.S. No. 56 of 2016, by the I-Additional Chief Judge,
City Civil Court , Secunderabad. -
The present appeal is filed on the grounds that granting of temporary injunction orders passed in aforesaid I.A. is arbitrary, illegal and against the principles of natural justice. It is wrongly held that the label on the Gunny Bag is similar and deceptive to the general public even before examining any one of the general public. On one hand, the learned Court holds that Gunny Bags look like having deceptively similar marks and on the other hand gives a finding that appellant/defendant adopted similar mark, which shows the total non-application of mind. Accordingly, learned Judge wrongly held that appellant/defendant has copied the logo of horse when horse, by itself, is not registered as trade mark of the appellant, leave alone, even the trade mark authorities themselves cannot register horse as trade mark to any person. It is wrongly held that all the artistic features are similar in nature, even before examining any of the witnesses, including expert witness.
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We have heard learned counsel for the parties in length and perused the material on record.
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Learned counsel Sri M. Govind Reddy, appearing on behalf of the appellant/defendant would submit that the learned trial Judge has wrongly held that arrangement of features and placing of features goes to show that appellant/defendant has merely copied the "Trade Mark" and "Label" of the respondent/plaintiff whose trade mark was "Double Horse" and that of appellant/defendant was "Triple Horse". The learned Judge, while relying on the decision of Hon'ble Supreme Court in Cadila Healthcare Ltd. v. Cadila Pharmaceuticals Ltd. AIR 2001 SC 1952, completely failed to identify or assess in what way or otherwise in what manner the Logo/Mark of the respondent/plaintiff is similar to that of appellant/defendant either visually or phonetically, or otherwise connected, but gave a finding that using of similar trade mark by the appellant/defendant with minor changes is nothing but infringement of respondent/plaintiff's 'Mark'.
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Learned counsel for appellant/defendant would further submit that the learned Judge wrongly held that farmers are illiterate, though the appellant/defendant never admitted that farmers are illiterate. The learned Judge ought not to have held that the Public are incapable of distinguishing the trade marks, without calling even one witness for examination. Moreover, the learned Judge has wrongly held that perusal of Exhibits B1 and B2 causes confusion in the minds of the farmers, without even calling one farmer to identify whether it causes confusion.
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The learned Judge ought to have seen that the judgment in the case of Kirorimal Kashiram Marketing & Agencies Pvt. Ltd. V. Shree Sita Chawal Udyog Mill 2010 (44) PTC 293 relied on by the respondent is based totally on different set of facts and circumstances which is squarely not applicable to the present case, as the said judgment did not consider the grounds raised in this case. The learned Judge ought to have seen that the requirement of S.S.P. in Rajasthan is 14.50 Kgs per Hectare, whereas, it requires 29.21 Kgs per Hectare in Madhya Pradesh. So, it can be presumed that consumers are aware of the strength of their respective soils, and therefore, before purchasing such huge quantities, any reasonable person would at least glance at the 'Mark' and make his efforts to know the details of manufacturer or producer from whom he is purchasing it.
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To strengthen his arguments, learned counsel for appellant has relied upon the case of Wheels India v. S. Nirmal Singh & another 2011 STPL 1332 Delhi, whereby, it is held that the continuance of an ad interim injunction granted in favour of the plaintiff ex parte and without disclosure of full facts is not warranted and the ends of justice will be met if pending disposal of the suit, the interim orders are vacated with a direction to the 2nd defendant (therein) to maintain accounts of profits earned by it and to file the same in the Court on a quarterly basis. Accordingly ordered that the 2nd defendant (therein) shall maintain regular accounts of its sales under the trade mark "PRINCE" and pending disposal of the suit, shall file the same every three months. It is further directed, it shall also publish public notices in 'Hindustan Times', 'The Hindu' and 'The Pioneer' within six weeks, informing prospective buyers of the relevant goods that the goods marketed by it under the trade mark 'PRINCE' have no connection with the goods marketed by the plaintiff under the same trade mark.
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While concluding his arguments, learned counsel for appellant/defendant submits that the learned Judge, while granting the interim relief, failed to examine by comparing each of the mark wholly. Accordingly, the learned Judge totally failed to see whether the component images of the mark are matching while keeping in view that relevant members of public would always keep dominant image of the mark in the minds.
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On the other hand, it is submitted by the learned Senior Advocate Sri S. Ravi, appearing for respondent/plaintiff that the trade mark "Double Horse" was adopted by Liberty...
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