A C KRISHNAN Vs. NAMBISANS DAIRY PVT LTD

JUDGEMENT

(1.) Appellants herein are the defendants in O.S. No. 2/88 on the file of the District Court, Kozhikode. The suit was filed by the respondents carrying on business in dairy products for a permanent injunction restraining the appellants from selling or marketing their goods by use of any trade mark containing 'Nambisans'/Nambeesan and / or containing trade mark similar or identical to or deceptively similar to that of the respondents' trade mark. The respondents herein were the plaintiffs in O.S. 2/88. The 1st plaintiff is a company registered under the Indian Companies Act. The 2nd plaintiff is a registered partnership firm registered under the Indian Partnership Act.

(2.) According to the plaintiff averments, over 50 years back, late Sri. M. Krishnan Nambissan started the manufacture, production, marketing and sale of milk products like butter ghee and thick butter milk, under the name and style of 'NAMBISANS D. V. DAIRY FARM'. Within three or four years of the starting the concern, the business became so successful and popular and the sole proprietary concern was converted into a partnership business taking his sons as partners. Thereafter, in 1965, 'Nambisans Dairy Pvt. Ltd.' was formed and the firm 'Nambisa's D. V. Dairy Farm' continued as before. Even after the death of Sri. Krishnan Nambisan, the other directors and partners of the company and firm, continued. Manufacture and production of the milk products like butter, ghee and thick butter milk have been done in the name of the Private limited company and marketing was done by the firm 'Nambisan's D. V. Dairy Farm', the second plaintiff. The plaintiffs and prior to that their founder has been manufacturing, distributing and selling the milk products like butter, ghee and thick butter milk for over half a century continuously and they were selling the products under the name and style of 'Nambisan's Ghee', 'Nambisan butter' and 'Nambisan's thick butter milk' and with the label inscribing the same though their distributors and agents etc. in the State of Kerala, Karnataka and Tamilnadu. They were also exporting with the said label and name and style, ghee and butter to Andamans. In 1965, the 1st plaintiff company had registered under the Trade and Merchandise Marks Act, 1958 (hereinafter referred to as "The Act") with the Registrar of Trade Marks of their products butter, ghee and other dairy products, their distinctive trade mark 'Nambisan's' and with the mark and emblem prepared and developed by the plaintiffs. According to the plaintiffs, their dairy products are popular and well-known in the market for its excellent purity and quality of the stuff. This trademark and trade name of the plaintiffs used by the plaintiffs are so popular and it will indicate that the products are that of the plaintiffs. Quality and standard maintained by the plaintiffs for their products are an asset of immense value to the plaintiffs. It was also contended that in the plaint that the general public on seeing the trade mark 'Nambisan's' would accept and are likely to consider and treat the products only as that of the plaintiffs as their products attained distinctiveness. Annual sales turn-over of the products of the plaintiffs exceeds Rs. 1 Crore for the past many years and every year it is on the increase. The 1st defendant in the suit (1st appellant in this appeal) was Depot in-charge for more than 15 years and mostly working in Calicut City managing the Calicut Depot of the second plaintiff wherein the products of the plaintiffs like 'Nambisan's butter', 'Nambisan's ghee' and 'Nambisan's thick butter milk' were being sold. People are mostly carried away by the word 'Nambisan's' as it was the name used and known in the market for the products of the plaintiffs. The 1st defendant resigned his post from the employment of the second plaintiff. Thereafter, he, alongwith his wife (second defendant in the suit), started the dairy farm under the name and style 'Nambeesan Dairy' and ten days before filing the suit the plaintiffs saw a Board put up in front of his shop in English and in Malayalam and they were selling butter, ghee and thick butter milk as Nambeesan Butter, Nambeesan Ghee and Nambeesan thick butter milk clearly imitating the plaintiffs' name. According to the plaintiffs, defendants were using the labels also deceptively similar to that of the plaintiffs. The said acts caused damage to the plaintiffs' business and income and profit therefrom as well as loss in reputation in trade to the plaintiffs. It was also alleged that defendants were selling inferior and poor quality products in the market as that of the plaintiffs by employing deceptive and illegal methods. It was further alleged that the defendants are continuing to do the same in spite of the notice given to them. Therefore the suit was filed for an injunction restraining the defendants, their agents, dealers, employees, stockists, distributors, sellers and persons directly or indirectly associated and / or connected with the defendants by a perpetual injunction from selling and / or marketing their goods by use of any trade mark containing 'Nambisan's/Nambeesan' and / or containing trade mark similar or identical to and / or deceptively similar to that of the plaintiffs' trade mark and also from using the name board with the inscriptions and writing 'Nambeesan Dairy or Nambisan's Dairy.

(3.) A detailed written statement was filed by the defendants. According to appellants/defendants, late Sri. Krishnan Nambisan started the business in a very small way and the plaintiffs' business was known as 'Nambisan's D. V. Dairy Farm' and denied the allegation that milk products were being sold by the plaintiffs for over a half century under the name and style of 'Nambisan's'. It was also stated that the 2nd defendant belonged to the Nambisan community and second defendant is the daughter of late T. H. Narayanan Nambisan and that community used to do 'Kazhakam' works in the temples by supplying pooja materials like garlands, oil, butter etc. It is for that reason, the word 'Nambeesan' is used by the defendants. Since the second defendant is the wife of the 1st defendant and daughter of late Narayanan Nambissan, the word Nambeesan is used by the defendants. It was also stated that there is no passing off the goods by the defendants and there is no reason for that also. Plaintiffs have also not sustained any monetary loss or reputation. The emblem used by the defendants indicates 'GK'. The first syllable is that of the 2nd defendant (G of Geetha) and the other syllable is that of the 1st defendant (K of Krishnan) Late Sri. Narayanan Nambeesan was also an employee of the plaintiffs for decades. His services were illegally terminated and cases were pending in the High Court of Kerala until his death. Finally, the amounts due to him was paid to his widow and children. The 1st defendant was forced to leave the service of the plaintiffs. The first defendant had experience in the trade of milk products and the defendants started the business by name 'G.K. Nambesan Dairy'. When the defendants were gradually able to build up their business, only out of malice to the defendants the suit was filed. It was also stated that the trade mark 'Nambisan's' was used only from 1980. The original trade mark having been voluntarily given up, changed and altered by the plaintiffs, they cannot claim that as their trade mark. It was further stated that the plaintiffs have not adopted or accepted any particular colour which has acquired a secondary meaning and there is no distinctiveness obtained for the alleged trade mark. The registration of their trade mark was not renewed. The statement that the plaintiffs' products were popular and was also of good quality were also denied. It is also stated that milk products were also purchased by the plaintiffs and sold and there were complaints regarding the quality of the goods. It is also stated that the 1st defendant is not running a Dairy Farm. He is running a business under name and style of 'Nambeesan'. There is an emblem with an inscription 'GK' and the mark 'GK' is shown above the word 'Nambeesan'. They are only purchasing butter, ghee and thick butter milk from other places and selling the same and they are not using the word 'Nambisan's'. The lay out, get up, colour scheme etc. are different. It is also stated that the name on a containers and labels of the plaintiffs is written in English. A sizeable section of the public who purchase the goods are not conversant with English and the defendants are not passing off their products as that of the plaintiffs. No deceptive methods are adopted by the defendants. No purchaser will believe that the products sold by the defendants is a product of the plaintiffs and their products are better than that of the plaintiffs. It is also stated that several persons belonging to the Nambisan community are selling milk products under the name and style of Nambissan's and the plaintiffs' have no cause of action. There is no similarity between the plaintiffs' mark and defendants' mark either visually, phonetically or otherwise. There is no imitation of the plaintiffs mark. The marks are not identical and their marks are not deceptively similar to that of the registered mark of the plaintiffs and the plaintiffs are not entitled to get any injunction for passing off.