LAWS(DLH)-2009-5-128

INCORPORATED Vs. T RAGHULAL

Decided On May 29, 2009
Incorporated Appellant
V/S
T Raghulal Respondents

JUDGEMENT

(1.) THE plaintiff, an American company carrying on business, inter alia, as manufacturer of confectionery items including ice creams and chocolates and owning several famous brands of chocolates viz MARS, GALAXY, SNICKERS, CELEBRATIONS, MILKY WAY, TWIX has instituted this suit inter -alia for permanent injunction to restrain the defendant No.2, a private limited Indian Company having its registered office at Ernakulam, Kerala and its Managing Director defendant No.1 also resident of Ernakulam, Kerala and carrying on business, inter alia, of manufacturing, marketing and distribution of cakes, breads and confectionery from using the trademark CELEBRATIONS in connection with chocolates or chocolate coated goods including cakes and confectionery or in any other manner pass off their goods and / or business as those of plaintiff. IAs 10465/2003, 5962/2004, 7597/2005 and 7596/2005, in CS(OS)1906/2003 Page 1 of 18 The applications of the plaintiff for interim relief (IA.No.10465/2003) and for judgment on admissions under Order 12 Rule 6 CPC (IA. No. 5962/2004) and of the defendants for framing of preliminary issue qua territorial jurisdiction (IA.No.7597/2005) and for deletion of portions of the replication in advancement/variation of the case in the plaint (IA.No.7596/2005) are for consideration in this order.

(2.) THE senior counsel for the defendant has contested the claim of the plaintiff for interim relief and otherwise on several counts. The discussion hereunder is divided under the following sub -heads ­ A. On the defendant being the prior user of the word/mark CELEBRATIONS.

(3.) THE plaintiff's claim to have during a trademark search conducted around January/February, 2000 found a trademark application filed by the defendants in class 30 in respect of "bread, biscuits, cakes, pastry, confectionery, food preparations made from cereals, ice, sauces and spices" with respect to the trademark CELEBRATIONS; the plaintiff claims to have got issued a cease and desist letter to the defendants advising them of the prior rights of the plaintiff in the trademark CELEBRATIONS since 1988 and calling upon the defendants to withdraw their application.