NADEEM MAJID OOMERBHOY Vs. GAUTAM TANK

JUDGEMENT

(1.) A strange and unprecedented situation has arisen before this Court in the present case, for which no ready solution appears to be available, either in statute or in precedent. With the valuable aid and assistance of learned amici curiae Ms. Swathi Sukumar and Mr. Kaustubh Shakkarwar, the Court has attempted to work out a via media, which appears, to the Court, to conform to the statutory dictates and also ensure justice to the parties. The Court expresses, at the outset, its gratitude to the learned amici for the assistance rendered by them.

(2.) This is an 18-year-old suit in which, owing to circumstances for which no one can really be said to be responsible, an application dtd. 29/4/2004, filed by the defendants for registration of the impugned word mark SUPER POSTMAN has come to be allowed by the Trade Marks Registry after 19 years, on 13/2/2023. At the time when the suit was filed, the application of the defendants, seeking registration of the impugned mark, was pending with the Trade Marks Registry, and a specific assertion to that effect is to be found in the replication filed by the plaintiff. The application came to be allowed, and the mark registered, on 13/2/2023. Though this fact is not reflected in the plaint, written statement or replication, by way of any suitable amendment, it has come on record in IA 15906/2023, filed by the plaintiff under Sec. 124 of the Trade Marks Act, 1999. It cannot, therefore, be ignored, though Mr. Siddiqui, learned Counsel for the plaintiff, would exhort the Court to do so.

(3.) The plaintiff, in the suit, alleges that, by using the mark SUPER POSTMAN, in respect of edible groundnut oil, the defendants are infringing the registered trademark of the plaintiff, which is POSTMAN, also used for edible groundnut oil. Allegations of using a deceptively similar trade dress have also been levelled.