KRBL LTD. Vs. PK OVERSEAS PVT. LTD.

JUDGEMENT

(1.) Impugned order of 27th August, 2011 rejects appellant's application for interim injunction and dismisses respondent-defendant's application under Order 7, Rule 10 of CPC. It is noted in the impugned order that the instant case is not of infringement of trademark of plaintiff, but of passing off appellant's trademark qua the artistic work in favour of its owner and the user of appellant-plaintiff is since the year 2005 whereas the user of respondent-defendant is from the year 1995. Regarding the trade dress/colour combination, it is observed in the impugned order that mere identical brown shadow border does not make out balance of convenience in favour of plaintiff as the descriptive and visual features are different.

(2.) The factual backdrop of this case already stands noticed in the impugned order and needs no reproduction. Suffice to note that appellant-plaintiff is claiming prior user in the colour combination relating to its brand/label 'India Gate Basmati Rice Classic' whereas respondent-defendant is marketing its rice under the label 'India Salam Pure Basmati Rice Classic'.

(3.) Appellant-plaintiff claims to have earned goodwill and reputation in India as well as overseas and that appellant-plaintiff in June, 2010, had learnt about respondent-defendant using the impugned label and the suit was filed by appellant in July, 2010 whereas it is the case of respondent-defendant that appellant-plaintiff has concealed the factum of sending the legal notice of 14th April, 2010 wherein appellant had objected to adoption of appellant's colour combination by the respondent. The stand of respondent is that application for registration of trademark was filed by respondent on 8th December, 2009 wherein user of the trademark was claimed from the year 2006 and appellant's subsequent application for registration of its trademark was filed on 5th July, 2010 claiming user of its trademark since the year 2005.